[Title 34 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2021 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          

          Title 34

Education


________________________

Parts 300 to 399

                         Revised as of July 1, 2018

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2018
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

[[Page ii]]

          U.S. GOVERNMENT OFFICIAL EDITION NOTICE

          Legal Status and Use of Seals and Logos
          
          
          The seal of the National Archives and Records Administration 
              (NARA) authenticates the Code of Federal Regulations (CFR) as 
              the official codification of Federal regulations established 
              under the Federal Register Act. Under the provisions of 44 
              U.S.C. 1507, the contents of the CFR, a special edition of the 
              Federal Register, shall be judicially noticed. The CFR is 
              prima facie evidence of the original documents published in 
              the Federal Register (44 U.S.C. 1510).

          It is prohibited to use NARA's official seal and the stylized Code 
              of Federal Regulations logo on any republication of this 
              material without the express, written permission of the 
              Archivist of the United States or the Archivist's designee. 
              Any person using NARA's official seals and logos in a manner 
              inconsistent with the provisions of 36 CFR part 1200 is 
              subject to the penalties specified in 18 U.S.C. 506, 701, and 
              1017.

          Use of ISBN Prefix

          This is the Official U.S. Government edition of this publication 
              and is herein identified to certify its authenticity. Use of 
              the 0-16 ISBN prefix is for U.S. Government Publishing Office 
              Official Editions only. The Superintendent of Documents of the 
              U.S. Government Publishing Office requests that any reprinted 
              edition clearly be labeled as a copy of the authentic work 
              with a new ISBN.

              
              
          U . S . G O V E R N M E N T P U B L I S H I N G O F F I C E

          ------------------------------------------------------------------

          U.S. Superintendent of Documents  Washington, DC 
              20402-0001

          http://bookstore.gpo.gov

          Phone: toll-free (866) 512-1800; DC area (202) 512-1800

[[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........................     507
      Alphabetical List of Agencies Appearing in the CFR......     527
      List of CFR Sections Affected...........................     537

[[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 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
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 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 2018), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
the revision date stated on the cover of each volume are not carried. 
Code users may find the text of provisions in effect on any given date 
in the past by using the appropriate List of CFR Sections Affected 
(LSA). For the convenience of the reader, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume. For changes to 
the Code prior to the LSA listings at the end of the volume, consult 
previous annual editions of the LSA. For changes to the Code prior to 
2001, consult the List of CFR Sections Affected compilations, published 
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not accidentally dropped due to a printing or computer error.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed as 
an approved incorporation by reference, please contact the agency that 
issued the regulation containing that incorporation. If, after 
contacting the agency, you find the material is not available, please 
notify the Director of the Federal Register, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, 
or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Authorities 
and Rules. A list of CFR titles, chapters, subchapters, and parts and an 
alphabetical list of agencies publishing in the CFR are also included in 
this volume.

[[Page vii]]

    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, 8601 Adelphi Road, College Park, MD 
20740-6001 or e-mail [email protected].

SALES

    The Government Publishing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call toll-free, 
866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or 
fax your order to 202-512-2104, 24 hours a day. For payment by check, 
write to: US Government Publishing Office - New Orders, P.O. Box 979050, 
St. Louis, MO 63197-9000.

ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers of the Presidents of the United 
States, Compilation of Presidential Documents and the Privacy Act 
Compilation are available in electronic format via www.govinfo.gov. For 
more information, contact the GPO Customer Contact Center, U.S. 
Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-
free). E-mail, [email protected].
    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.archives.gov/federal-
register.
    The e-CFR is a regularly updated, unofficial editorial compilation 
of CFR material and Federal Register amendments, produced by the Office 
of the Federal Register and the Government Publishing Office. It is 
available at www.ecfr.gov.

    Oliver A. Potts,
    Director,
    Office of the Federal Register
    July 1, 2018







[[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, 2018.

    For this volume, Gabrielle E. Burns 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)

  --------------------------------------------------------------------

 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




  --------------------------------------------------------------------
Part                                                                Page
300             Assistance to States for the education of 
                    children with disabilities..............           7
303             Early intervention program for infants and 
                    toddlers with disabilities..............         174
304             Service obligations under special 
                    education--personnel development to 
                    improve services and results for 
                    children with disabilities..............         278
350

[Reserved]

356

[Reserved]

359

[Reserved]

361             State Vocational Rehabilitation Services 
                    Program.................................         282
363             The State Supported Employment Services 
                    Program.................................         393
364-366

[Reserved]

367             Independent living services for older 
                    individuals who are blind...............         402
369

[Reserved]

370             Client Assistance Program...................         414
371             American Indian Vocational Rehabilitation 
                    Services................................         426
373             Rehabilitation National Activities Program..         445
376-377

[Reserved]

379-380

[Reserved]

381             Protection and advocacy of individual rights         451
385             Rehabilitation training.....................         458
386             Rehabilitation training: Rehabilitation 
                    long-term training......................         465
387             Innovative rehabilitation training..........         473
388-389

[Reserved]

390             Rehabilitation short-term training..........         475
395             Vending facility program for the blind on 
                    Federal and other property..............         477

[[Page 6]]

396             Training of interpreters for individuals who 
                    are deaf or hard of hearing and 
                    individuals who are deaf-blind..........         492
397             Limitations on use of subminimum wage.......         496
398-399

[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 [Reserved]
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 [Reserved]
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 [Reserved]
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.

[[Page 8]]

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 Sec. Sec.  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.
300.647 Determining significant 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, and 3474; Pub. L. 
111-256, 124 Stat. 2643; 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 4310(2) 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(2))

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]



Sec.  300.8  Child with a disability.

    (a) General--(1) Child with a disability means a child evaluated in 
accordance with Sec. Sec.  300.304 through 300.311 as having an 
intellectual disability, 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 Sec. Sec.  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.

[[Page 13]]

    (B) An inability to build or maintain satisfactory interpersonal 
relationships with peers and teachers.
    (C) Inappropriate types of behavior or feelings under normal 
circumstances.
    (D) A general pervasive mood of unhappiness or depression.
    (E) A tendency to develop physical symptoms or fears associated with 
personal or school problems.
    (ii) 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) Intellectual disability 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. The term 
``intellectual disability'' was formerly termed ``mental retardation.''
    (7) Multiple disabilities means concomitant impairments (such as 
intellectual disability-blindness or intellectual disability-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 intellectual disability, 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.

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007; 
82 FR 31912, July 11, 2017]



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  [Reserved]



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
    (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))

[[Page 15]]



Sec.  300.15  Evaluation.

    Evaluation means procedures used in accordance with Sec. Sec.  
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 Part A 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))

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]



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 Sec. Sec.  300.320 through 
300.324.

(Authority: 20 U.S.C. 1401(9))



Sec.  300.18  [Reserved]



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 Sec. Sec.  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

[[Page 16]]

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--
    (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 'English 
learner' in section 8101 of the ESEA.

(Authority: 20 U.S.C. 1401(18))

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]



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

[[Page 17]]

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 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

[[Page 18]]

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.
    (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--

[[Page 19]]

    (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 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;

[[Page 20]]

    (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))



Sec.  300.35  [Reserved]



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 Sec. Sec.  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

[[Page 21]]

    (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))



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 Sec. Sec.  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

[[Page 22]]

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 Sec. Sec.  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))

                            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 (iii) of this section, 
the term regular high school diploma means the standard high school 
diploma awarded to the preponderance of students in the State that is 
fully aligned with State standards, or a higher diploma, except that a 
regular high school diploma shall not be aligned to the alternate 
academic achievement standards described in section 1111(b)(1)(E) of the

[[Page 23]]

ESEA. A regular high school diploma does not include a recognized 
equivalent of a diploma, such as a general equivalency diploma, 
certificate of completion, certificate of attendance, or similar lesser 
credential.
    (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 
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) and 7801(43))

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]

                         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 
Sec. Sec.  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.  300.39;
    (2) Related services under Sec.  300.34; or
    (3) Supplementary aids and services under Sec. Sec.  300.42 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))

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]



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 
Sec. Sec.  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--

[[Page 24]]

    (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))



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

[[Page 25]]

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 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 Sec. Sec.  
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))

[[Page 26]]

                   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 Sec. Sec.  
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 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.  300.39 (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))

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]



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 Sec. Sec.  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

[[Page 27]]

    (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 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 
Sec. Sec.  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 
Sec. Sec.  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

[[Page 28]]

Sec. Sec.  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 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))



Sec. Sec.  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 Sec. Sec.  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 Sec. Sec.  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 Sec. Sec.  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

[[Page 29]]

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 Sec. Sec.  300.190 
through 300.198.
    (b) Services plan for parentally-placed private school children with 
disabilities. In accordance with paragraph (a) of this section and 
Sec. Sec.  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 Sec. Sec.  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

[[Page 30]]

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-
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))

[[Page 31]]



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 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 Sec. Sec.  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 Sec. Sec.  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 
special education teacher qualification requirements in Sec.  
300.156(c).
    (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-

[[Page 32]]

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 Sec. Sec.  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 Sec. Sec.  
300.321 through 300.324.
    (c) Provision of equitable services. (1) The provision of services 
pursuant to this section and Sec. Sec.  300.139 through 300.143 must be 
provided:
    (i) By employees of a public agency; or
    (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))

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]



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 Sec. Sec.  
300.504 through 300.519 do not apply to complaints that an LEA has 
failed to meet the requirements of Sec. Sec.  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 Sec. Sec.  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 
Sec. Sec.  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 Sec. Sec.  300.132 through 300.135 
and 300.137 through 300.144 must be filed in accordance with the 
procedures described in Sec. Sec.  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))

[[Page 33]]



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 Sec. Sec.  
300.130 through 300.144 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 Sec. Sec.  
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 Sec. Sec.  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 Sec. Sec.  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

[[Page 34]]

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 
Sec. Sec.  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.  300.156(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))

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]



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 Sec. Sec.  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 Sec. Sec.  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

[[Page 35]]

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
    (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 
Sec. Sec.  300.600 through 300.602 and Sec. Sec.  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)

[[Page 36]]



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 Sec. Sec.  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, 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

[[Page 37]]

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 Sec. Sec.  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 Sec. Sec.  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 under the procedures described in Sec. Sec.  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:

[[Page 38]]

    (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.  300.42 relating to supplementary aids and services, and 
Sec.  300.43 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 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

[[Page 39]]

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--
    (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

[[Page 40]]

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 Sec. Sec.  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; 82 FR 29759, June 30, 2017]

                   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 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. (1) 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--
    (i) Has obtained full State certification as a special education 
teacher (including certification obtained through an alternate route to 
certification as a special educator, if such alternate route meets 
minimum requirements described in 34 CFR 200.56(a)(2)(ii) as such 
section was in effect on November 28, 2008), 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, the teacher 
must meet the certification or licensing requirements, if any, set forth 
in the State's public charter school law;
    (ii) Has not had special education certification or licensure 
requirements

[[Page 41]]

waived on an emergency, temporary, or provisional basis; and
    (iii) Holds at least a bachelor's degree.
    (2) A teacher will be considered to meet the standard in paragraph 
(c)(1)(i) of this section if that teacher is participating in an 
alternate 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 (c)(2)(i) of this section are 
met.
    (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 personnel who meet 
the applicable requirements described in paragraph (c) of this section 
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 meet the applicable requirements 
described in paragraph (c) of this section, 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))

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]



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 long-term goals and measurements of 
interim progress for children with disabilities under section 
1111(c)(4)(A)(i) of the ESEA.
    (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 measurements of interim progress for 
children with disabilities under section 1111(c)(4)(A)(i)(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))

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29760, June 30, 2017]



Sec. Sec.  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-

[[Page 42]]

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 aligned with alternate academic 
achievement standards for students with the most significant cognitive 
disabilities. (1) If a State has adopted alternate academic achievement 
standards for children with disabilities who are students with the most 
significant cognitive disabilities as permitted in section 1111(b)(1)(E) 
of the ESEA, the State (or, in the case of a district-wide assessment, 
an LEA) must develop and implement alternate assessments and guidelines 
for the participation in alternate assessments of those children with 
disabilities 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 children with 
disabilities who are students with the most significant cognitive 
disabilities under title I of the ESEA, the alternate assessments and 
guidelines in paragraph (c)(1) of this section must--
    (i) Be aligned with the challenging State academic content standards 
under section 1111(b)(1) of the ESEA and alternate academic achievement 
standards under section 1111(b)(1)(E) of the ESEA; and
    (ii) Measure the achievement of children with disabilities who are 
students with the most significant cognitive disabilities against those 
standards.
    (3) Consistent with section 1111(b)(1)(E)(ii) of the ESEA and 34 CFR 
200.6(c)(6), a State may not adopt modified academic achievement 
standards or any other alternate academic achievement standards that do 
not meet the requirements in section 1111(b)(1)(E) of the ESEA for any 
children with disabilities under section 602(3) of the IDEA.
    (d) Explanation to IEP Teams. A State (or in the case of a district-
wide assessment, an LEA) must--
    (1) Provide to IEP teams a clear explanation of the differences 
between assessments based on grade-level academic achievement standards 
and those based on alternate academic achievement standards, including 
any effects of State and local policies on a student's education 
resulting from taking an alternate assessment aligned with alternate 
academic achievement standards, such as how participation in such 
assessments may delay or otherwise affect the student from completing 
the requirements for a regular high school diploma; and
    (2) Not preclude a student with the most significant cognitive 
disabilities who takes an alternate assessment aligned with alternate 
academic achievement standards from attempting to complete the 
requirements 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 using an alternate assessment aligned with alternate academic 
achievement standards under the State's guidelines in paragraph (c)(1) 
of this section are informed, consistent with 34 CFR 200.2(e), that 
their child's achievement will be measured based on alternate academic 
achievement standards, and of how participation in such assessments may 
delay or otherwise affect the student from completing the requirements 
for a regular high school diploma.
    (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:

[[Page 43]]

    (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 in school years prior to 2017-2018.
    (3) The number of children with disabilities, if any, participating 
in alternate assessments aligned with modified academic achievement 
standards in school years prior to 2016-2017.
    (4) The number of children with disabilities who are students with 
the most significant cognitive disabilities participating in alternate 
assessments aligned with alternate academic achievement standards.
    (5) Compared with the achievement of all children, including 
children with disabilities, the performance results of children with 
disabilities on regular assessments, alternate assessments based on 
grade-level academic achievement standards (prior to 2017-2018), 
alternate assessments based on modified academic achievement standards 
(prior to 2016-2017), and alternate assessments aligned with 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, as amended at 80 FR 50785, Aug. 21, 2015; 82 
FR 29760, June 30, 2017]



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.

[[Page 44]]

    (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 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 Sec. Sec.  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 Sec. Sec.  300.151 
through 300.153; and
    (D) The State's hearing procedures under Sec. Sec.  300.511 through 
300.516 and Sec. Sec.  300.530 through 300.536;
    (3) A summary of all State and Federal monitoring reports, and State 
complaint decisions (see Sec. Sec.  300.151 through 300.153) and hearing 
decisions (see Sec. Sec.  300.511 through 300.516 and Sec. Sec.  300.530 
through 300.536), issued within three years prior to the date of the

[[Page 45]]

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.
    (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 Sec. Sec.  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

[[Page 46]]

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;
    (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

[[Page 47]]

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
    (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;

[[Page 48]]

    (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 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 Sec. Sec.  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 Sec. Sec.  
300.201 and 300.202 and Sec. Sec.  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--

[[Page 49]]

    (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 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 Sec. Sec.  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.

[[Page 50]]

    (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.
    (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.

[[Page 51]]

    (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.
    (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.

[[Page 52]]

    (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 Sec. Sec.  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 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 Sec. Sec.  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--

[[Page 53]]

    (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 
Sec. Sec.  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
    (2) The number of private school children with disabilities (as 
defined in Sec. Sec.  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;

[[Page 54]]

    (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
    (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))

[[Page 55]]

                          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 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 Sec. Sec.  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 Sec. Sec.  300.101 through 300.163, and 
Sec. Sec.  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))

[[Page 56]]



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 
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 Sec. Sec.  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 Sec. Sec.  
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 Sec. Sec.  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

[[Page 57]]

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 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

[[Page 58]]

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 Sec. Sec.  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
    (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 2102(b) of the ESEA.

(Approved by the Office of Management and Budget under control number 
1820-0600)

(Authority: 20 U.S.C. 1413(a)(3))

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29761, June 30, 2017]



Sec.  300.208  Permissive use of funds.

    (a) Uses. Notwithstanding Sec. Sec.  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]

[[Page 59]]



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
    (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 Sec. Sec.  300.157 and 300.160, information relating to the 
performance of children with

[[Page 60]]

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 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))



Sec. Sec.  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 Sec. Sec.  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

[[Page 61]]

Sec. Sec.  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.
    (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 Sec. Sec.  300.101 through 
300.163, and Sec. Sec.  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 
Sec. Sec.  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

[[Page 62]]

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 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.

[[Page 63]]

    (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 Sec. Sec.  300.162 through 
300.163 (related to State-level nonsupplanting 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 Sec. Sec.  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

[[Page 64]]

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 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 Sec. Sec.  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 Sec. Sec.  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 Sec. Sec.  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 Sec. Sec.  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 Sec. Sec.  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 Sec. Sec.  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

[[Page 65]]

Sec. Sec.  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 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 Sec. Sec.  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 Sec. Sec.  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

[[Page 66]]

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 Sec. Sec.  
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
    (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,

[[Page 67]]

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 Sec. Sec.  
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.
    (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.

[[Page 68]]

    (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 Sec. Sec.  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]



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 as such section was in effect on the day before the 
date of enactment of the Every Student Succeeds Act (December 9, 2015));
    (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 Sec. Sec.  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; 
82 FR 29761, June 30, 2017]

 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

[[Page 69]]

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))



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 Sec. Sec.  
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) An intellectual disability;
    (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 Sec. Sec.  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 
Sec. Sec.  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

[[Page 70]]

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.

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 31912, July 11, 2017]



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 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, motor disability, or an intellectual disability; 
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.

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 31913, July 11, 2017]

                    Individualized Education Programs



Sec.  300.320  Definition of individualized education program.

    (a) General. As used in this part, the term individualized education 
program

[[Page 71]]

or IEP means a written statement for each child with a disability that 
is developed, reviewed, and revised in a meeting in accordance with 
Sec. Sec.  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--
    (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

[[Page 72]]

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 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

[[Page 73]]

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--
    (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

[[Page 74]]

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 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 Sec. Sec.  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 Sec. Sec.  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 Sec. Sec.  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))

[[Page 75]]

                           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), 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

[[Page 76]]

    (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 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 Sec. Sec.  300.320 (relating to IEPs), and 
300.114 (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))

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29761, June 30, 2017]



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 Sec. Sec.  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))

[[Page 77]]



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 
Sec. Sec.  300.500 through 300.536.

(Authority: 20 U.S.C. 1415(a))



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 
Sec. Sec.  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))

[[Page 78]]



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
    (ii) Ensure that an independent educational evaluation is provided 
at public expense, unless the agency demonstrates in a hearing pursuant 
to Sec. Sec.  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))

[[Page 79]]



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.
    (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 Sec. Sec.  
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, Sec. Sec.  300.151 through 300.153, Sec.  300.300, Sec. Sec.  
300.502 through 300.503, Sec. Sec.  300.505 through 300.518, Sec. Sec.  
300.530 through 300.536 and Sec. Sec.  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

[[Page 80]]

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 Sec. Sec.  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 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.

[[Page 81]]

    (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 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.

[[Page 82]]

    (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;
    (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 Sec. Sec.  
300.507(a) and 300.508(a) through (c) and to assist parents and other 
parties in filing a State complaint under Sec. Sec.  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--

[[Page 83]]

    (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 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 Sec. Sec.  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;

[[Page 84]]

    (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 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 Sec. Sec.  
300.507 through 300.513 or Sec. Sec.  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

[[Page 85]]

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 Sec. Sec.  300.500 through 300.536.
    (b) Construction clause. Nothing in Sec. Sec.  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 
Sec. Sec.  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--
    (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 Sec. Sec.  300.507 through 300.513 or Sec. Sec.  
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))

[[Page 86]]



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 Sec. Sec.  300.507 through 300.513 or Sec. Sec.  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 Sec. Sec.  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 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 Sec. Sec.  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

[[Page 87]]

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 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.

[[Page 88]]

    (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--
    (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))

[[Page 89]]



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))



Sec. Sec.  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 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.

[[Page 90]]

    (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 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

[[Page 91]]

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 Sec. Sec.  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 Sec. Sec.  300.507 and 300.508(a) and 
(b).
    (b) Authority of hearing officer. (1) A hearing officer under Sec.  
300.511 hears, 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 Sec. Sec.  300.507 
and 300.508(a) through (c) and Sec. Sec.  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.

[[Page 92]]

    (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 Sec. Sec.  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 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 Sec. Sec.  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 
Sec. Sec.  300.300 through 300.311; or
    (ii) Has refused services under this part; or
    (2) The child has been evaluated in accordance with Sec. Sec.  
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 Sec. Sec.  300.530 through 300.536 
and section 612(a)(1)(A) of the Act.

(Authority: 20 U.S.C. 1415(k)(5))

[[Page 93]]



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 Sec. Sec.  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.
    (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 Sec. Sec.  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))



Sec. Sec.  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).

[[Page 94]]

    (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]



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.

[[Page 95]]

    (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]



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

[[Page 96]]

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.
    (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 Sec. Sec.  300.180 through 300.183.

[[Page 97]]

    (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]



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

[[Page 98]]

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 Sec. Sec.  300.611 through 300.627.

(Authority: 20 U.S.C. 1417(c))



Sec.  300.611  Definitions.

    As used in Sec. Sec.  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 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 
Sec. Sec.  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

[[Page 99]]

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 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))

[[Page 100]]



Sec.  300.621  Hearing procedures.

    A hearing held under Sec.  300.619 must be conducted according to 
the procedures in 34 CFR 99.22.

(Authority: 20 U.S.C. 1412(a)(8); 1417(c))



Sec.  300.622  Consent.

    (a) Parental consent must be obtained before personally identifiable 
information is disclosed to parties, other than officials of 
participating agencies in accordance with paragraph (b)(1) of this 
section, unless the information is contained in education records, and 
the disclosure is authorized without parental consent under 34 CFR part 
99.
    (b)(1) Except as provided in paragraphs (b)(2) and (b)(3) of this 
section, parental consent is not required before personally identifiable 
information is released to officials of participating agencies for 
purposes of meeting a requirement of this part.
    (2) Parental consent, or the consent of an eligible child who has 
reached the age of majority under State law, must be obtained before 
personally identifiable information is released to officials of 
participating agencies providing or paying for transition services in 
accordance with Sec.  300.321(b)(3).
    (3) If a child is enrolled, or is going to enroll in a private 
school that is not located in the LEA of the parent's residence, 
parental consent must be obtained before any personally identifiable 
information about the child is released between officials in the LEA 
where the private school is located and officials in the LEA of the 
parent's residence.

(Authority: 20 U.S.C. 1412(a)(8); 1417(c))



Sec.  300.623  Safeguards.

    (a) Each participating agency must protect the confidentiality of 
personally identifiable information at collection, storage, disclosure, 
and destruction stages.
    (b) One official at each participating agency must assume 
responsibility for ensuring the confidentiality of any personally 
identifiable information.
    (c) All persons collecting or using personally identifiable 
information must receive training or instruction regarding the State's 
policies and procedures under Sec.  300.123 and 34 CFR part 99.
    (d) Each participating agency must maintain, for public inspection, 
a current listing of the names and positions of those employees within 
the agency who may have access to personally identifiable information.

(Authority: 20 U.S.C. 1412(a)(8); 1417(c))



Sec.  300.624  Destruction of information.

    (a) The public agency must inform parents when personally 
identifiable information collected, maintained, or used under this part 
is no longer needed to provide educational services to the child.
    (b) The information must be destroyed at the request of the parents. 
However, a permanent record of a student's name, address, and phone 
number, his or her grades, attendance record, classes attended, grade 
level completed, and year completed may be maintained without time 
limitation.

(Authority: 20 U.S.C. 1412(a)(8); 1417(c))



Sec.  300.625  Children's rights.

    (a) The SEA must have in effect policies and procedures regarding 
the extent to which children are afforded rights of privacy similar to 
those afforded to parents, taking into consideration the age of the 
child and type or severity of disability.
    (b) Under the regulations for FERPA in 34 CFR 99.5(a), the rights of 
parents regarding education records are transferred to the student at 
age 18.
    (c) If the rights accorded to parents under Part B of the Act are 
transferred to a student who reaches the age of majority, consistent 
with Sec.  300.520, the rights regarding educational records in 
Sec. Sec.  300.613 through 300.624 must also be transferred to the 
student. However, the public agency must provide any notice required 
under section 615 of the Act to the student and the parents.

(Authority: 20 U.S.C. 1412(a)(8); 1417(c))



Sec.  300.626  Enforcement.

    The SEA must have in effect the policies and procedures, including 
sanctions that the State uses, to ensure that its policies and 
procedures consistent with Sec. Sec.  300.611 through 300.625 are 
followed and that the requirements

[[Page 101]]

of the Act and the regulations in this part are met.

(Authority: 20 U.S.C. 1412(a)(8); 1417(c))



Sec.  300.627  Department use of personally identifiable information.

    If the Department or its authorized representatives collect any 
personally identifiable information regarding children with disabilities 
that is not subject to the Privacy Act of 1974, 5 U.S.C. 552a, the 
Secretary applies the requirements of 5 U.S.C. 552a(b)(1) and (b)(2), 
552a(b)(4) through (b)(11); 552a(c) through 552a(e)(3)(B); 
552a(e)(3)(D); 552a(e)(5) through (e)(10); 552a(h); 552a(m); and 
552a(n); and the regulations implementing those provisions in 34 CFR 
part 5b.

(Authority: 20 U.S.C. 1412(a)(8); 1417(c))

                      Reports--Program Information



Sec.  300.640  Annual report of children served--report requirement.

    (a) The SEA must annually report to the Secretary on the information 
required by section 618 of the Act at the times specified by the 
Secretary.
    (b) The SEA must submit the report on forms provided by the 
Secretary.

(Approved by the Office of Management and Budget under control numbers 
1820-0030, 1820-0043, 1820-0659, 1820-0621, 1820-0518, 1820-0521, 1820-
0517, and 1820-0677)

(Authority: 20 U.S.C. 1418(a))



Sec.  300.641  Annual report of children served--information 
required in the report.

    (a) For purposes of the annual report required by section 618 of the 
Act and Sec.  300.640, the State and the Secretary of the Interior must 
count and report the number of children with disabilities receiving 
special education and related services on any date between October 1 and 
December 1 of each year.
    (b) For the purpose of this reporting provision, a child's age is 
the child's actual age on the date of the child count.
    (c) The SEA may not report a child under more than one disability 
category.
    (d) If a child with a disability has more than one disability, the 
SEA must report that child in accordance with the following procedure:
    (1) If a child has only two disabilities and those disabilities are 
deafness and blindness, and the child is not reported as having a 
developmental delay, that child must be reported under the category 
``deaf-blindness.''
    (2) A child who has more than one disability and is not reported as 
having deaf-blindness or as having a developmental delay must be 
reported under the category ``multiple disabilities.''

(Approved by the Office of Management and Budget under control numbers 
1820-0030, 1820-0043, 1820-0621, 1820-0521, and 1820-0517)

(Authority: 20 U.S.C. 1418(a), (b))



Sec.  300.642  Data reporting.

    (a) Protection of personally identifiable data. The data described 
in section 618(a) of the Act and in Sec.  300.641 must be publicly 
reported by each State in a manner that does not result in disclosure of 
data identifiable to individual children.
    (b) Sampling. The Secretary may permit States and the Secretary of 
the Interior to obtain data in section 618(a) of the Act through 
sampling.

(Approved by the Office of Management and Budget under control numbers 
1820-0030, 1820-0043, 1820-0518, 1820-0521, and 1820-0517)

(Authority: 20 U.S.C. 1418(b))



Sec.  300.643  Annual report of children served--certification.

    The SEA must include in its report a certification signed by an 
authorized official of the agency that the information provided under 
Sec.  300.640 is an accurate and unduplicated count of children with 
disabilities receiving special education and related services on the 
dates in question.

(Approved by the Office of Management and Budget under control numbers 
1820-0030 and 1820-0043)

(Authority: 20 U.S.C. 1418(a)(3))



Sec.  300.644  Annual report of children served--criteria for
counting children.

    The SEA may include in its report children with disabilities who are 
enrolled in a school or program that is operated or supported by a 
public agency, and that--

[[Page 102]]

    (a) Provides them with both special education and related services 
that meet State standards;
    (b) Provides them only with special education, if a related service 
is not required, that meets State standards; or
    (c) In the case of children with disabilities enrolled by their 
parents in private schools, counts those children who are eligible under 
the Act and receive special education or related services or both that 
meet State standards under Sec. Sec.  300.132 through 300.144.

(Approved by the Office of Management and Budget under control numbers 
1820-0030, 1820-0043, 1820-0659, 1820-0621, 1820-0521, and 1820-0517)

(Authority: 20 U.S.C. 1418(a))



Sec.  300.645  Annual report of children served--other 
responsibilities of the SEA.

    In addition to meeting the other requirements of Sec. Sec.  300.640 
through 300.644, the SEA must--
    (a) Establish procedures to be used by LEAs and other educational 
institutions in counting the number of children with disabilities 
receiving special education and related services;
    (b) Set dates by which those agencies and institutions must report 
to the SEA to ensure that the State complies with Sec.  300.640(a);
    (c) Obtain certification from each agency and institution that an 
unduplicated and accurate count has been made;
    (d) Aggregate the data from the count obtained from each agency and 
institution, and prepare the reports required under Sec. Sec.  300.640 
through 300.644; and
    (e) Ensure that documentation is maintained that enables the State 
and the Secretary to audit the accuracy of the count.

(Approved by the Office of Management and Budget under control numbers 
1820-0030, 1820-0043, 1820-0659, 1820-0621, 1820-0518, 1820-0521, and 
1820-0517)

(Authority: 20 U.S.C. 1418(a))



Sec.  300.646  Disproportionality.

    (a) General. Each State that receives assistance under Part B of the 
Act, and the Secretary of the Interior, must provide for the collection 
and examination of data to determine if significant disproportionality 
based on race and ethnicity is occurring in the State and the LEAs of 
the State with respect to--
    (1) The identification of children as children with disabilities, 
including the identification of children as children with disabilities 
in accordance with a particular impairment described in section 602(3) 
of the Act;
    (2) The placement in particular educational settings of these 
children; and
    (3) The incidence, duration, and type of disciplinary removals from 
placement, including suspensions and expulsions.
    (b) Methodology. The State must apply the methods in Sec.  300.647 
to determine if significant disproportionality based on race and 
ethnicity is occurring in the State and the LEAs of the State under 
paragraph (a) of this section.
    (c) Review and revision of policies, practices, and procedures. In 
the case of a determination of significant disproportionality with 
respect to the identification of children as children with disabilities 
or the placement in particular educational settings, including 
disciplinary removals of such children, in accordance with paragraphs 
(a) and (b) of this section, the State or the Secretary of the Interior 
must--
    (1) Provide for the annual review and, if appropriate, revision of 
the policies, practices, and procedures used in identification or 
placement in particular education settings, including disciplinary 
removals, to ensure that the policies, practices, and procedures comply 
with the requirements of the Act.
    (2) Require the LEA to publicly report on the revision of policies, 
practices, and procedures described under paragraph (c)(1) of this 
section consistent with the requirements of the Family Educational 
Rights and Privacy Act, its implementing regulations in 34 CFR part 99, 
and Section 618(b)(1) of the Act.
    (d) Comprehensive coordinated early intervening services. Except as 
provided in paragraph (e) of this section, the State or the Secretary of 
the Interior shall require any LEA identified under paragraphs (a) and 
(b) of this section to reserve the maximum amount of funds

[[Page 103]]

under section 613(f) of the Act to provide comprehensive coordinated 
early intervening services to address factors contributing to the 
significant disproportionality.
    (1) In implementing comprehensive coordinated early intervening 
services an LEA--
    (i) May carry out activities that include professional development 
and educational and behavioral evaluations, services, and supports.
    (ii) Must identify and address the factors contributing to the 
significant disproportionality, which may include, among other 
identified factors, a lack of access to scientifically based 
instruction; economic, cultural, or linguistic barriers to appropriate 
identification or placement in particular educational settings; 
inappropriate use of disciplinary removals; lack of access to 
appropriate diagnostic screenings; differences in academic achievement 
levels; and policies, practices, or procedures that contribute to the 
significant disproportionality.
    (iii) Must address a policy, practice, or procedure it identifies as 
contributing to the significant disproportionality, including a policy, 
practice or procedure that results in a failure to identify, or the 
inappropriate identification of, a racial or ethnic group (or groups).
    (2) An LEA may use funds reserved for comprehensive coordinated 
early intervening services to serve children from age 3 through grade 
12, particularly, but not exclusively, children in those groups that 
were significantly overidentified under paragraph (a) or (b) of this 
section, including--
    (i) Children 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; and
    (ii) Children with disabilities.
    (3) An LEA may not limit the provision of comprehensive coordinated 
early intervening services under this paragraph to children with 
disabilities.
    (e) Exception to comprehensive coordinated early intervening 
services. The State or the Secretary of the Interior shall not require 
any LEA that serves only children with disabilities identified under 
paragraphs (a) and (b) of this section to reserve funds to provide 
comprehensive coordinated early intervening services.
    (f) Rule of construction. Nothing in this section authorizes a State 
or an LEA to develop or implement policies, practices, or procedures 
that result in actions that violate the requirements of this part, 
including requirements related to child find and ensuring that a free 
appropriate public education is available to all eligible children with 
disabilities.

(Authority: 20 U.S.C. 1413(f); 20 U.S.C. 1418(d))

[81 FR 92463, Dec. 19, 2016]



Sec.  300.647  Determining significant disproportionality.

    (a) Definitions. (1) Alternate risk ratio is a calculation performed 
by dividing the risk of a particular outcome for children in one racial 
or ethnic group within an LEA by the risk of that outcome for children 
in all other racial or ethnic groups in the State.
    (2) Comparison group consists of the children in all other racial or 
ethnic groups within an LEA or within the State, when reviewing a 
particular racial or ethnic group within an LEA for significant 
disproportionality.
    (3) Minimum cell size is the minimum number of children experiencing 
a particular outcome, to be used as the numerator when calculating 
either the risk for a particular racial or ethnic group or the risk for 
children in all other racial or ethnic groups.
    (4) Minimum n-size is the minimum number of children enrolled in an 
LEA with respect to identification, and the minimum number of children 
with disabilities enrolled in an LEA with respect to placement and 
discipline, to be used as the denominator when calculating either the 
risk for a particular racial or ethnic group or the risk for children in 
all other racial or ethnic groups.
    (5) Risk is the likelihood of a particular outcome (identification, 
placement, or disciplinary removal) for a specified racial or ethnic 
group (or groups), calculated by dividing the

[[Page 104]]

number of children from a specified racial or ethnic group (or groups) 
experiencing that outcome by the total number of children from that 
racial or ethnic group or groups enrolled in the LEA.
    (6) Risk ratio is a calculation performed by dividing the risk of a 
particular outcome for children in one racial or ethnic group within an 
LEA by the risk for children in all other racial and ethnic groups 
within the LEA.
    (7) Risk ratio threshold is a threshold, determined by the State, 
over which disproportionality based on race or ethnicity is significant 
under Sec.  300.646(a) and (b).
    (b) Significant disproportionality determinations. In determining 
whether significant disproportionality exists in a State or LEA under 
Sec.  300.646(a) and (b)--
    (1)(i) The State must set a:
    (A) Reasonable risk ratio threshold;
    (B) Reasonable minimum cell size;
    (C) Reasonable minimum n-size; and
    (D) Standard for measuring reasonable progress if a State uses the 
flexibility described in paragraph (d)(2) of this section.
    (ii) The State may, but is not required to, set the standards set 
forth in paragraph (b)(1)(i) of this section at different levels for 
each of the categories described in paragraphs (b)(3) and (4) of this 
section.
    (iii) The standards set forth in paragraph (b)(1)(i) of this 
section:
    (A) Must be based on advice from stakeholders, including State 
Advisory Panels, as provided under section 612(a)(21)(D)(iii) of the 
Act; and
    (B) Are subject to monitoring and enforcement for reasonableness by 
the Secretary consistent with section 616 of the Act.
    (iv) When monitoring for reasonableness under paragraph 
(b)(1)(iii)(B) of this section, the Department finds that the following 
are presumptively reasonable:
    (A) A minimum cell size under paragraph (b)(1)(i)(B) of this section 
no greater than 10; and
    (B) A minimum n-size under paragraph (b)(1)(i)(C) of this section no 
greater than 30.
    (2) The State must apply the risk ratio threshold or thresholds 
determined in paragraph (b)(1) of this section to risk ratios or 
alternate risk ratios, as appropriate, in each category described in 
paragraphs (b)(3) and (4) of this section and the following racial and 
ethnic groups:
    (i) Hispanic/Latino of any race; and, for individuals who are non-
Hispanic/Latino only;
    (ii) American Indian or Alaska Native;
    (iii) Asian;
    (iv) Black or African American;
    (v) Native Hawaiian or Other Pacific Islander;
    (vi) White; and
    (vii) Two or more races.
    (3) Except as provided in paragraphs (b)(5) and (c) of this section, 
the State must calculate the risk ratio for each LEA, for each racial 
and ethnic group in paragraph (b)(2) of this section with respect to:
    (i) The identification of children ages 3 through 21 as children 
with disabilities; and
    (ii) The identification of children ages 3 through 21 as children 
with the following impairments:
    (A) Intellectual disabilities;
    (B) Specific learning disabilities;
    (C) Emotional disturbance;
    (D) Speech or language impairments;
    (E) Other health impairments; and
    (F) Autism.
    (4) Except as provided in paragraphs (b)(5) and (c) of this section, 
the State must calculate the risk ratio for each LEA, for each racial 
and ethnic group in paragraph (b)(2) of this section with respect to the 
following placements into particular educational settings, including 
disciplinary removals:
    (i) For children with disabilities ages 6 through 21, inside a 
regular class less than 40 percent of the day;
    (ii) For children with disabilities ages 6 through 21, inside 
separate schools and residential facilities, not including homebound or 
hospital settings, correctional facilities, or private schools;
    (iii) For children with disabilities ages 3 through 21, out-of-
school suspensions and expulsions of 10 days or fewer;

[[Page 105]]

    (iv) For children with disabilities ages 3 through 21, out-of-school 
suspensions and expulsions of more than 10 days;
    (v) For children with disabilities ages 3 through 21, in-school 
suspensions of 10 days or fewer;
    (vi) For children with disabilities ages 3 through 21, in-school 
suspensions of more than 10 days; and
    (vii) For children with disabilities ages 3 through 21, disciplinary 
removals in total, including in-school and out-of-school suspensions, 
expulsions, removals by school personnel to an interim alternative 
education setting, and removals by a hearing officer.
    (5) The State must calculate an alternate risk ratio with respect to 
the categories described in paragraphs (b)(3) and (4) of this section if 
the comparison group in the LEA does not meet the minimum cell size or 
the minimum n-size.
    (6) Except as provided in paragraph (d) of this section, the State 
must identify as having significant disproportionality based on race or 
ethnicity under Sec.  300.646(a) and (b) any LEA that has a risk ratio 
or alternate risk ratio for any racial or ethnic group in any of the 
categories described in paragraphs (b)(3) and (4) of this section that 
exceeds the risk ratio threshold set by the State for that category.
    (7) The State must report all risk ratio thresholds, minimum cell 
sizes, minimum n-sizes, and standards for measuring reasonable progress 
selected under paragraphs (b)(1)(i)(A) through (D) of this section, and 
the rationales for each, to the Department at a time and in a manner 
determined by the Secretary. Rationales for minimum cell sizes and 
minimum n-sizes not presumptively reasonable under paragraph (b)(1)(iv) 
of this section must include a detailed explanation of why the numbers 
chosen are reasonable and how they ensure that the State is 
appropriately analyzing and identifying LEAs with significant 
disparities, based on race and ethnicity, in the identification, 
placement, or discipline of children with disabilities.
    (c) Exception. A State is not required to calculate a risk ratio or 
alternate risk ratio, as outlined in paragraphs (b)(3), (4), and (5) of 
this section, to determine significant disproportionality if:
    (1) The particular racial or ethnic group being analyzed does not 
meet the minimum cell size or minimum n-size; or
    (2) In calculating the alternate risk ratio under paragraph (b)(5) 
of this section, the comparison group in the State does not meet the 
minimum cell size or minimum n-size.
    (d) Flexibility. A State is not required to identify an LEA as 
having significant disproportionality based on race or ethnicity under 
Sec.  300.646(a) and (b) until--
    (1) The LEA has exceeded a risk ratio threshold set by the State for 
a racial or ethnic group in a category described in paragraph (b)(3) or 
(4) of this section for up to three prior consecutive years preceding 
the identification; and
    (2) The LEA has exceeded the risk ratio threshold and has failed to 
demonstrate reasonable progress, as determined by the State, in lowering 
the risk ratio or alternate risk ratio for the group and category in 
each of the two prior consecutive years.

(Authority: 20 U.S.C. 1418(d).)

[81 FR 92463, Dec. 19, 2016]



 Subpart G_Authorization, Allotment, Use of Funds, and Authorization of 
                             Appropriations

                  Allotments, Grants, and Use of Funds



Sec.  300.700  Grants to States.

    (a) Purpose of grants. The Secretary makes grants to States, 
outlying areas, and freely associated States (as defined in Sec.  
300.717), and provides funds to the Secretary of the Interior, to assist 
them to provide special education and related services to children with 
disabilities in accordance with Part B of the Act.
    (b) Maximum amount. The maximum amount of the grant a State may 
receive under section 611 of the Act is--
    (1) For fiscal years 2005 and 2006--
    (i) The number of children with disabilities in the State who are 
receiving special education and related services--

[[Page 106]]

    (A) Aged three through five, if the State is eligible for a grant 
under section 619 of the Act; and
    (B) Aged 6 through 21; multiplied by--
    (ii) Forty (40) percent of the average per-pupil expenditure in 
public elementary schools and secondary schools in the United States (as 
defined in Sec.  300.717); and
    (2) For fiscal year 2007 and subsequent fiscal years--
    (i) The number of children with disabilities in the 2004-2005 school 
year in the State who received special education and related services--
    (A) Aged three through five if the State is eligible for a grant 
under section 619 of the Act; and
    (B) Aged 6 through 21; multiplied by
    (ii) Forty (40) percent of the average per-pupil expenditure in 
public elementary schools and secondary schools in the United States (as 
defined in Sec.  300.717);
    (iii) Adjusted by the rate of annual change in the sum of--
    (A) Eighty-five (85) percent of the State's population of children 
aged 3 through 21 who are of the same age as children with disabilities 
for whom the State ensures the availability of FAPE under Part B of the 
Act; and
    (B) Fifteen (15) percent of the State's population of children 
described in paragraph (b)(2)(iii)(A) of this section who are living in 
poverty.

(Authority: 20 U.S.C. 1411(a) and (d))



Sec.  300.701  Outlying areas, freely associated States, and the
Secretary of the Interior.

    (a) Outlying areas and freely associated States--(1) Funds reserved. 
From the amount appropriated for any fiscal year under section 611(i) of 
the Act, the Secretary reserves not more than one percent, which must be 
used--
    (i) To provide assistance to the outlying areas in accordance with 
their respective populations of individuals aged 3 through 21; and
    (ii) To provide each freely associated State a grant in the amount 
that the freely associated State received for fiscal year 2003 under 
Part B of the Act, but only if the freely associated State--
    (A) Meets the applicable requirements of Part B of the Act that 
apply to States.
    (B) Meets the requirements in paragraph (a)(2) of this section.
    (2) Application. Any freely associated State that wishes to receive 
funds under Part B of the Act must include, in its application for 
assistance--
    (i) Information demonstrating that it will meet all conditions that 
apply to States under Part B of the Act.
    (ii) An assurance that, notwithstanding any other provision of Part 
B of the Act, it will use those funds only for the direct provision of 
special education and related services to children with disabilities and 
to enhance its capacity to make FAPE available to all children with 
disabilities;
    (iii) The identity of the source and amount of funds, in addition to 
funds under Part B of the Act, that it will make available to ensure 
that FAPE is available to all children with disabilities within its 
jurisdiction; and
    (iv) Such other information and assurances as the Secretary may 
require.
    (3) Special rule. The provisions of Public Law 95-134, permitting 
the consolidation of grants by the outlying areas, do not apply to funds 
provided to the outlying areas or to the freely associated States under 
Part B of the Act.
    (b) Secretary of the Interior. From the amount appropriated for any 
fiscal year under section 611(i) of the Act, the Secretary reserves 
1.226 percent to provide assistance to the Secretary of the Interior in 
accordance with Sec. Sec.  300.707 through 300.716.

(Authority: 20 U.S.C. 1411(b))



Sec.  300.702  Technical assistance.

    (a) In general. The Secretary may reserve not more than one-half of 
one percent of the amounts appropriated under Part B of the Act for each 
fiscal year to support technical assistance activities authorized under 
section 616(i) of the Act.
    (b) Maximum amount. The maximum amount the Secretary may reserve 
under paragraph (a) of this section for any fiscal year is $25,000,000, 
cumulatively adjusted by the rate of inflation as measured by the 
percentage increase, if any, from the preceding fiscal year in the 
Consumer Price Index For

[[Page 107]]

All Urban Consumers, published by the Bureau of Labor Statistics of the 
Department of Labor.

(Authority: 20 U.S.C. 1411(c))



Sec.  300.703  Allocations to States.

    (a) General. After reserving funds for technical assistance under 
Sec.  300.702, and for payments to the outlying areas, the freely 
associated States, and the Secretary of the Interior under Sec.  300.701 
(a) and (b) for a fiscal year, the Secretary allocates the remaining 
amount among the States in accordance with paragraphs (b), (c), and (d) 
of this section.
    (b) Special rule for use of fiscal year 1999 amount. If a State 
received any funds under section 611 of the Act for fiscal year 1999 on 
the basis of children aged three through five, but does not make FAPE 
available to all children with disabilities aged three through five in 
the State in any subsequent fiscal year, the Secretary computes the 
State's amount for fiscal year 1999, solely for the purpose of 
calculating the State's allocation in that subsequent year under 
paragraph (c) or (d) of this section, by subtracting the amount 
allocated to the State for fiscal year 1999 on the basis of those 
children.
    (c) Increase in funds. If the amount available for allocations to 
States under paragraph (a) of this section for a fiscal year is equal to 
or greater than the amount allocated to the States under section 611 of 
the Act for the preceding fiscal year, those allocations are calculated 
as follows:
    (1) Allocation of increase--(i) General. Except as provided in 
paragraph (c)(2) of this section, the Secretary allocates for the fiscal 
year--
    (A) To each State the amount the State received under this section 
for fiscal year 1999;
    (B) Eighty-five (85) percent of any remaining funds to States on the 
basis of the States' relative populations of children aged 3 through 21 
who are of the same age as children with disabilities for whom the State 
ensures the availability of FAPE under Part B of the Act; and
    (C) Fifteen (15) percent of those remaining funds to States on the 
basis of the States' relative populations of children described in 
paragraph (c)(1)(i)(B) of this section who are living in poverty.
    (ii) Data. For the purpose of making grants under this section, the 
Secretary uses the most recent population data, including data on 
children living in poverty, that are available and satisfactory to the 
Secretary.
    (2) Limitations. Notwithstanding paragraph (c)(1) of this section, 
allocations under this section are subject to the following:
    (i) Preceding year allocation. No State's allocation may be less 
than its allocation under section 611 of the Act for the preceding 
fiscal year.
    (ii) Minimum. No State's allocation may be less than the greatest 
of--
    (A) The sum of--
    (1) The amount the State received under section 611 of the Act for 
fiscal year 1999; and
    (2) One third of one percent of the amount by which the amount 
appropriated under section 611(i) of the Act for the fiscal year exceeds 
the amount appropriated for section 611 of the Act for fiscal year 1999;
    (B) The sum of--
    (1) The amount the State received under section 611 of the Act for 
the preceding fiscal year; and
    (2) That amount multiplied by the percentage by which the increase 
in the funds appropriated for section 611 of the Act from the preceding 
fiscal year exceeds 1.5 percent; or
    (C) The sum of--
    (1) The amount the State received under section 611 of the Act for 
the preceding fiscal year; and
    (2) That amount multiplied by 90 percent of the percentage increase 
in the amount appropriated for section 611 of the Act from the preceding 
fiscal year.
    (iii) Maximum. Notwithstanding paragraph (c)(2)(ii) of this section, 
no State's allocation under paragraph (a) of this section may exceed the 
sum of--
    (A) The amount the State received under section 611 of the Act for 
the preceding fiscal year; and
    (B) That amount multiplied by the sum of 1.5 percent and the 
percentage increase in the amount appropriated under section 611 of the 
Act from the preceding fiscal year.
    (3) Ratable reduction. If the amount available for allocations to 
States

[[Page 108]]

under paragraph (c) of this section is insufficient to pay those 
allocations in full, those allocations are ratably reduced, subject to 
paragraph (c)(2)(i) of this section.
    (d) Decrease in funds. If the amount available for allocations to 
States under paragraph (a) of this section for a fiscal year is less 
than the amount allocated to the States under section 611 of the Act for 
the preceding fiscal year, those allocations are calculated as follows:
    (1) Amounts greater than fiscal year 1999 allocations. If the amount 
available for allocations under paragraph (a) of this section is greater 
than the amount allocated to the States for fiscal year 1999, each State 
is allocated the sum of--
    (i) 1999 amount. The amount the State received under section 611 of 
the Act for fiscal year 1999; and
    (ii) Remaining funds. An amount that bears the same relation to any 
remaining funds as the increase the State received under section 611 of 
the Act for the preceding fiscal year over fiscal year 1999 bears to the 
total of all such increases for all States.
    (2) Amounts equal to or less than fiscal year 1999 allocations--(i) 
General. If the amount available for allocations under paragraph (a) of 
this section is equal to or less than the amount allocated to the States 
for fiscal year 1999, each State is allocated the amount it received for 
fiscal year 1999.
    (ii) Ratable reduction. If the amount available for allocations 
under paragraph (d) of this section is insufficient to make the 
allocations described in paragraph (d)(2)(i) of this section, those 
allocations are ratably reduced.

(Authority: 20 U.S.C. 1411(d))



Sec.  300.704  State-level activities.

    (a) State administration. (1) For the purpose of administering Part 
B of the Act, including paragraph (c) of this section, section 619 of 
the Act, and the coordination of activities under Part B of the Act 
with, and providing technical assistance to, other programs that provide 
services to children with disabilities--
    (i) Each State may reserve for each fiscal year not more than the 
maximum amount the State was eligible to reserve for State 
administration under section 611 of the Act for fiscal year 2004 or 
$800,000 (adjusted in accordance with paragraph (a)(2) of this section), 
whichever is greater; and
    (ii) Each outlying area may reserve for each fiscal year not more 
than five percent of the amount the outlying area receives under Sec.  
300.701(a) for the fiscal year or $35,000, whichever is greater.
    (2) For each fiscal year, beginning with fiscal year 2005, the 
Secretary cumulatively adjusts--
    (i) The maximum amount the State was eligible to reserve for State 
administration under section 611 of the Act for fiscal year 2004; and
    (ii) $800,000, by the rate of inflation as measured by the 
percentage increase, if any, from the preceding fiscal year in the 
Consumer Price Index for All Urban Consumers, published by the Bureau of 
Labor Statistics of the Department of Labor.
    (3) Prior to expenditure of funds under paragraph (a) of this 
section, the State must certify to the Secretary that the arrangements 
to establish responsibility for services pursuant to section 
612(a)(12)(A) of the Act are current.
    (4) Funds reserved under paragraph (a)(1) of this section may be 
used for the administration of Part C of the Act, if the SEA is the lead 
agency for the State under that Part.
    (b) Other State-level activities. (1) States may reserve a portion 
of their allocations for other State-level activities. The maximum 
amount that a State may reserve for other State-level activities is as 
follows:
    (i) If the amount that the State sets aside for State administration 
under paragraph (a) of this section is greater than $850,000 and the 
State opts to finance a high cost fund under paragraph (c) of this 
section:
    (A) For fiscal years 2005 and 2006, 10 percent of the State's 
allocation under Sec.  300.703.
    (B) For fiscal year 2007 and subsequent fiscal years, an amount 
equal to 10 percent of the State's allocation for fiscal year 2006 under 
Sec.  300.703 adjusted cumulatively for inflation.
    (ii) If the amount that the State sets aside for State 
administration under

[[Page 109]]

paragraph (a) of this section is greater than $850,000 and the State 
opts not to finance a high cost fund under paragraph (c) of this 
section--
    (A) For fiscal years 2005 and 2006, nine percent of the State's 
allocation under Sec.  300.703.
    (B) For fiscal year 2007 and subsequent fiscal years, an amount 
equal to nine percent of the State's allocation for fiscal year 2006 
adjusted cumulatively for inflation.
    (iii) If the amount that the State sets aside for State 
administration under paragraph (a) of this section is less than or equal 
to $850,000 and the State opts to finance a high cost fund under 
paragraph (c) of this section:
    (A) For fiscal years 2005 and 2006, 10.5 percent of the State's 
allocation under Sec.  300.703.
    (B) For fiscal year 2007 and subsequent fiscal years, an amount 
equal to 10.5 percent of the State's allocation for fiscal year 2006 
under Sec.  300.703 adjusted cumulatively for inflation.
    (iv) If the amount that the State sets aside for State 
administration under paragraph (a) of this section is equal to or less 
than $850,000 and the State opts not to finance a high cost fund under 
paragraph (c) of this section:
    (A) For fiscal years 2005 and 2006, nine and one-half percent of the 
State's allocation under Sec.  300.703.
    (B) For fiscal year 2007 and subsequent fiscal years, an amount 
equal to nine and one-half percent of the State's allocation for fiscal 
year 2006 under Sec.  300.703 adjusted cumulatively for inflation.
    (2) The adjustment for inflation is the rate of inflation as 
measured by the percentage of increase, if any, from the preceding 
fiscal year in the Consumer Price Index for All Urban Consumers, 
published by the Bureau of Labor Statistics of the Department of Labor.
    (3) Some portion of the funds reserved under paragraph (b)(1) of 
this section must be used to carry out the following activities:
    (i) For monitoring, enforcement, and complaint investigation; and
    (ii) To establish and implement the mediation process required by 
section 615(e) of the Act, including providing for the costs of 
mediators and support personnel;
    (4) Funds reserved under paragraph (b)(1) of this section also may 
be used to carry out the following activities:
    (i) For support and direct services, including technical assistance, 
personnel preparation, and professional development and training;
    (ii) To support paperwork reduction activities, including expanding 
the use of technology in the IEP process;
    (iii) To assist LEAs in providing positive behavioral interventions 
and supports and mental health services for children with disabilities;
    (iv) To improve the use of technology in the classroom by children 
with disabilities to enhance learning;
    (v) To support the use of technology, including technology with 
universal design principles and assistive technology devices, to 
maximize accessibility to the general education curriculum for children 
with disabilities;
    (vi) Development and implementation of transition programs, 
including coordination of services with agencies involved in supporting 
the transition of students with disabilities to postsecondary 
activities;
    (vii) To assist LEAs in meeting personnel shortages;
    (viii) To support capacity building activities and improve the 
delivery of services by LEAs to improve results for children with 
disabilities;
    (ix) Alternative programming for children with disabilities who have 
been expelled from school, and services for children with disabilities 
in correctional facilities, children enrolled in State-operated or 
State-supported schools, and children with disabilities in charter 
schools;
    (x) To support the development and provision of appropriate 
accommodations for children with disabilities, or the development and 
provision of alternate assessments that are valid and reliable for 
assessing the performance of children with disabilities, in accordance 
with sections 1111(b) and 1201 of the ESEA; and
    (xi) To provide technical assistance to schools and LEAs, and direct 
services, including direct student services described in section 
1003A(c)(3) of the ESEA, to children with disabilities, in

[[Page 110]]

schools or LEAs implementing comprehensive support and improvement 
activities or targeted support and improvement activities under section 
1111(d) of the ESEA on the basis of consistent underperformance of the 
disaggregated subgroup of children with disabilities, including 
providing professional development to special and regular education 
teachers who teach children with disabilities, based on scientifically 
based research to improve educational instruction, in order to improve 
academic achievement based on the challenging academic standards 
described in section 1111(b)(1) of the ESEA.
    (c) Local educational agency high cost fund. (1) In general--
    (i) For the purpose of assisting LEAs (including a charter school 
that is an LEA or a consortium of LEAs) in addressing the needs of high 
need children with disabilities, each State has the option to reserve 
for each fiscal year 10 percent of the amount of funds the State 
reserves for other State-level activities under paragraph (b)(1) of this 
section--
    (A) To finance and make disbursements from the high cost fund to 
LEAs in accordance with paragraph (c) of this section during the first 
and succeeding fiscal years of the high cost fund; and
    (B) To support innovative and effective ways of cost sharing by the 
State, by an LEA, or among a consortium of LEAs, as determined by the 
State in coordination with representatives from LEAs, subject to 
paragraph (c)(2)(ii) of this section.
    (ii) For purposes of paragraph (c) of this section, local 
educational agency includes a charter school that is an LEA, or a 
consortium of LEAs.
    (2)(i) A State must not use any of the funds the State reserves 
pursuant to paragraph (c)(1)(i) of this section, which are solely for 
disbursement to LEAs, for costs associated with establishing, 
supporting, and otherwise administering the fund. The State may use 
funds the State reserves under paragraph (a) of this section for those 
administrative costs.
    (ii) A State must not use more than 5 percent of the funds the State 
reserves pursuant to paragraph (c)(1)(i) of this section for each fiscal 
year to support innovative and effective ways of cost sharing among 
consortia of LEAs.
    (3)(i) The SEA must develop, not later than 90 days after the State 
reserves funds under paragraph (c)(1)(i) of this section, annually 
review, and amend as necessary, a State plan for the high cost fund. 
Such State plan must--
    (A) Establish, in consultation and coordination with representatives 
from LEAs, a definition of a high need child with a disability that, at 
a minimum--
    (1) Addresses the financial impact a high need child with a 
disability has on the budget of the child's LEA; and
    (2) Ensures that the cost of the high need child with a disability 
is greater than 3 times the average per pupil expenditure (as defined in 
section 8101 of the ESEA) in that State;
    (B) Establish eligibility criteria for the participation of an LEA 
that, at a minimum, take into account the number and percentage of high 
need children with disabilities served by an LEA;
    (C) Establish criteria to ensure that placements supported by the 
fund are consistent with the requirements of Sec. Sec.  300.114 through 
300.118;
    (D) Develop a funding mechanism that provides distributions each 
fiscal year to LEAs that meet the criteria developed by the State under 
paragraph (c)(3)(i)(B) of this section;
    (E) Establish an annual schedule by which the SEA must make its 
distributions from the high cost fund each fiscal year; and
    (F) If the State elects to reserve funds for supporting innovative 
and effective ways of cost sharing under paragraph (c)(1)(i)(B) of this 
section, describe how these funds will be used.
    (ii) The State must make its final State plan available to the 
public not less than 30 days before the beginning of the school year, 
including dissemination of such information on the State Web site.
    (4)(i) Each SEA must make all annual disbursements from the high 
cost fund established under paragraph (c)(1)(i) of this section in 
accordance with the State plan published pursuant to paragraph (c)(3) of 
this section.

[[Page 111]]

    (ii) The costs associated with educating a high need child with a 
disability, as defined under paragraph (c)(3)(i)(A) of this section, are 
only those costs associated with providing direct special education and 
related services to the child that are identified in that child's IEP, 
including the cost of room and board for a residential placement 
determined necessary, consistent with Sec.  300.114, to implement a 
child's IEP.
    (iii) The funds in the high cost fund remain under the control of 
the State until disbursed to an LEA to support a specific child who 
qualifies under the State plan for the high cost funds or distributed to 
LEAs, consistent with paragraph (c)(9) of this section.
    (5) The disbursements under paragraph (c)(4) of this section must 
not be used to support legal fees, court costs, or other costs 
associated with a cause of action brought on behalf of a child with a 
disability to ensure FAPE for such child.
    (6) Nothing in paragraph (c) of this section--
    (i) Limits or conditions the right of a child with a disability who 
is assisted under Part B of the Act to receive FAPE pursuant to section 
612(a)(1) of the Act in the least restrictive environment pursuant to 
section 612(a)(5) of the Act; or
    (ii) Authorizes an SEA or LEA to establish a limit on what may be 
spent on the education of a child with a disability.
    (7) Notwithstanding the provisions of paragraphs (c)(1) through (6) 
of this section, a State may use funds reserved pursuant to paragraph 
(c)(1)(i) of this section for implementing a placement neutral cost 
sharing and reimbursement program of high need, low incidence, 
catastrophic, or extraordinary aid to LEAs that provides services to 
high need children based on eligibility criteria for such programs that 
were created not later than January 1, 2004, and are currently in 
operation, if such program serves children that meet the requirement of 
the definition of a high need child with a disability as described in 
paragraph (c)(3)(i)(A) of this section.
    (8) Disbursements provided under paragraph (c) of this section must 
not be used to pay costs that otherwise would be reimbursed as medical 
assistance for a child with a disability under the State Medicaid 
program under Title XIX of the Social Security Act.
    (9) Funds reserved under paragraph (c)(1)(i) of this section from 
the appropriation for any fiscal year, but not expended pursuant to 
paragraph (c)(4) of this section before the beginning of their last year 
of availability for obligation, must be allocated to LEAs in the same 
manner as other funds from the appropriation for that fiscal year are 
allocated to LEAs under Sec.  300.705 during their final year of 
availability.
    (d) Inapplicability of certain prohibitions. A State may use funds 
the State reserves under paragraphs (a) and (b) of this section without 
regard to--
    (1) The prohibition on commingling of funds in Sec.  300.162(b).
    (2) The prohibition on supplanting other funds in Sec.  300.162(c).
    (e) Special rule for increasing funds. A State may use funds the 
State reserves under paragraph (a)(1) of this section as a result of 
inflationary increases under paragraph (a)(2) of this section to carry 
out activities authorized under paragraph (b)(4)(i), (iii), (vii), or 
(viii) of this section.
    (f) Flexibility in using funds for Part C. Any State eligible to 
receive a grant under section 619 of the Act may use funds made 
available under paragraph (a)(1) of this section, Sec.  300.705(c), or 
Sec.  300.814(e) to develop and implement a State policy jointly with 
the lead agency under Part C of the Act and the SEA to provide early 
intervention services (which must include an educational component that 
promotes school readiness and incorporates preliteracy, language, and 
numeracy skills) in accordance with Part C of the Act to children with 
disabilities who are eligible for services under section 619 of the Act 
and who previously received services under Part C of the Act until the 
children enter, or are eligible under State

[[Page 112]]

law to enter, kindergarten, or elementary school as appropriate.

(Approved by the Office of Management and Budget under control number 
1820-0600)

(Authority: 20 U.S.C. 1411(e))

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007; 
82 FR 29761, June 30, 2017]



Sec.  300.705  Subgrants to LEAs.

    (a) Subgrants required. Each State that receives a grant under 
section 611 of the Act for any fiscal year must distribute any funds the 
State does not reserve under Sec.  300.704 to LEAs (including public 
charter schools that operate as LEAs) in the State that have established 
their eligibility under section 613 of the Act for use in accordance 
with Part B of the Act. Effective with funds that become available on 
the July 1, 2009, each State must distribute funds to eligible LEAs, 
including public charter schools that operate as LEAs, even if the LEA 
is not serving any children with disabilities.
    (b) Allocations to LEAs. For each fiscal year for which funds are 
allocated to States under Sec.  300.703, each State shall allocate funds 
as follows:
    (1) Base payments. The State first must award each LEA described in 
paragraph (a) of this section the amount the LEA would have received 
under section 611 of the Act for fiscal year 1999, if the State had 
distributed 75 percent of its grant for that year under section 611(d) 
of the Act, as that section was then in effect.
    (2) Base payment adjustments. For any fiscal year after 1999--
    (i) If a new LEA is created, the State must divide the base 
allocation determined under paragraph (b)(1) of this section for the 
LEAs that would have been responsible for serving children with 
disabilities now being served by the new LEA, among the new LEA and 
affected LEAs based on the relative numbers of children with 
disabilities ages 3 through 21, or ages 6 through 21 if a State has had 
its payment reduced under Sec.  300.703(b), currently provided special 
education by each of the LEAs;
    (ii) If one or more LEAs are combined into a single new LEA, the 
State must combine the base allocations of the merged LEAs;
    (iii) If, for two or more LEAs, geographic boundaries or 
administrative responsibility for providing services to children with 
disabilities ages 3 through 21 change, the base allocations of affected 
LEAs must be redistributed among affected LEAs based on the relative 
numbers of children with disabilities ages 3 through 21, or ages 6 
through 21 if a State has had its payment reduced under Sec.  
300.703(b), currently provided special education by each affected LEA; 
and
    (iv) If an LEA received a base payment of zero in its first year of 
operation, the SEA must adjust the base payment for the first fiscal 
year after the first annual child count in which the LEA reports that it 
is serving any children with disabilities. The State must divide the 
base allocation determined under paragraph (b)(1) of this section for 
the LEAs that would have been responsible for serving children with 
disabilities now being served by the LEA, among the LEA and affected 
LEAs based on the relative numbers of children with disabilities ages 3 
through 21, or ages 6 through 21 currently provided special education by 
each of the LEAs. This requirement takes effect with funds that become 
available on July 1, 2009.
    (3) Allocation of remaining funds. After making allocations under 
paragraph (b)(1) of this section, as adjusted by paragraph (b)(2) of 
this section, the State must--
    (i) Allocate 85 percent of any remaining funds to those LEAs on the 
basis of the relative numbers of children enrolled in public and private 
elementary schools and secondary schools within the LEA's jurisdiction; 
and
    (ii) Allocate 15 percent of those remaining funds to those LEAs in 
accordance with their relative numbers of children living in poverty, as 
determined by the SEA.
    (c) Reallocation of LEA funds. (1) If an SEA determines that an LEA 
is adequately providing FAPE to all children with disabilities residing 
in the area served by that agency with State and local funds, the SEA 
may reallocate any portion of the funds under this part that are not 
needed by that LEA to provide FAPE, to other LEAs in the

[[Page 113]]

State that are not adequately providing special education and related 
services to all children with disabilities residing in the areas served 
by those other LEAs. The SEA may also retain those funds for use at the 
State level to the extent the State has not reserved the maximum amount 
of funds it is permitted to reserve for State-level activities pursuant 
to Sec.  300.704.
    (2) After an SEA distributes funds under this part to an eligible 
LEA that is not serving any children with disabilities, as provided in 
paragraph (a) of this section, the SEA must determine, within a 
reasonable period of time prior to the end of the carryover period in 34 
CFR 76.709, whether the LEA has obligated the funds. The SEA may 
reallocate any of those funds not obligated by the LEA to other LEAs in 
the State that are not adequately providing special education and 
related services to all children with disabilities residing in the areas 
served by those other LEAs. The SEA may also retain those funds for use 
at the State level to the extent the State has not reserved the maximum 
amount of funds it is permitted to reserve for State-level activities 
pursuant to Sec.  300.704.

(Approved by the Office of Management and Budget under control number 
1820-0030)

(Authority: 20 U.S.C. 1411(f))

[71 FR 46753, Aug. 14, 2006, as amended at 73 FR 73028, Dec. 1, 2008]



Sec.  300.706  [Reserved]

                        Secretary of the Interior



Sec.  300.707  Use of amounts by Secretary of the Interior.

    (a) Definitions. For purposes of Sec. Sec.  300.707 through 300.716, 
the following definitions apply:
    (1) Reservation means Indian Country as defined in 18 U.S.C. 1151.
    (2) Tribal governing body has the definition given that term in 25 
U.S.C. 2021(19).
    (b) Provision of amounts for assistance. The Secretary provides 
amounts to the Secretary of the Interior to meet the need for assistance 
for the education of children with disabilities on reservations aged 5 
to 21, inclusive, enrolled in elementary schools and secondary schools 
for Indian children operated or funded by the Secretary of the Interior. 
The amount of the payment for any fiscal year is equal to 80 percent of 
the amount allotted under section 611(b)(2) of the Act for that fiscal 
year. Of the amount described in the preceding sentence, after the 
Secretary of the Interior reserves funds for administration under Sec.  
300.710, 80 percent must be allocated to such schools by July 1 of that 
fiscal year and 20 percent must be allocated to such schools by 
September 30 of that fiscal year.
    (c) Additional requirement. With respect to all other children aged 
3 to 21, inclusive, on reservations, the SEA of the State in which the 
reservation is located must ensure that all of the requirements of Part 
B of the Act are implemented.

(Authority: 20 U.S.C. 1411(h)(1))



Sec.  300.708  Submission of information.

    The Secretary may provide the Secretary of the Interior amounts 
under Sec.  300.707 for a fiscal year only if the Secretary of the 
Interior submits to the Secretary information that--
    (a) Meets the requirements of section 612(a)(1), (3) through (9), 
(10)(B) through (C), (11) through (12), (14) through (16), (19), and 
(21) through (25) of the Act (including monitoring and evaluation 
activities);
    (b) Meets the requirements of section 612(b) and (e) of the Act;
    (c) Meets the requirements of section 613(a)(1), (2)(A)(i), (7) 
through (9) and section 613(i) of the Act (references to LEAs in these 
sections must be read as references to elementary schools and secondary 
schools for Indian children operated or funded by the Secretary of the 
Interior);
    (d) Meets the requirements of section 616 of the Act that apply to 
States (references to LEAs in section 616 of the Act must be read as 
references to elementary schools and secondary schools for Indian 
children operated or funded by the Secretary of the Interior).
    (e) Meets the requirements of this part that implement the sections 
of the Act listed in paragraphs (a) through (d) of this section;

[[Page 114]]

    (f) Includes a description of how the Secretary of the Interior will 
coordinate the provision of services under Part B of the Act with LEAs, 
tribes and tribal organizations, and other private and Federal service 
providers;
    (g) Includes an assurance that there are public hearings, adequate 
notice of the hearings, and an opportunity for comment afforded to 
members of tribes, tribal governing bodies, and affected local school 
boards before the adoption of the policies, programs, and procedures 
related to the requirements described in paragraphs (a) through (d) of 
this section;
    (h) Includes an assurance that the Secretary of the Interior 
provides the information that the Secretary may require to comply with 
section 618 of the Act;
    (i)(1) Includes an assurance that the Secretary of the Interior and 
the Secretary of Health and Human Services have entered into a 
memorandum of agreement, to be provided to the Secretary, for the 
coordination of services, resources, and personnel between their 
respective Federal, State, and local offices and with the SEAs and LEAs 
and other entities to facilitate the provision of services to Indian 
children with disabilities residing on or near reservations.
    (2) The agreement must provide for the apportionment of 
responsibilities and costs, including child find, evaluation, diagnosis, 
remediation or therapeutic measures, and (where appropriate) equipment 
and medical or personal supplies, as needed for a child with a 
disability to remain in a school or program; and
    (j) Includes an assurance that the Department of the Interior will 
cooperate with the Department in its exercise of monitoring and 
oversight of the requirements in this section and Sec. Sec.  300.709 
through 300.711 and Sec. Sec.  300.713 through 300.716, and any 
agreements entered into between the Secretary of the Interior and other 
entities under Part B of the Act, and will fulfill its duties under Part 
B of the Act. The Secretary withholds payments under Sec.  300.707 with 
respect to the requirements described in this section in the same manner 
as the Secretary withholds payments under section 616(e)(6) of the Act.

(Authority: 20 U.S.C. 1411(h)(2) and (3))



Sec.  300.709  Public participation.

    In fulfilling the requirements of Sec.  300.708 the Secretary of the 
Interior must provide for public participation consistent with Sec.  
300.165.

(Authority: 20 U.S.C. 1411(h))



Sec.  300.710  Use of funds under Part B of the Act.

    (a) The Secretary of the Interior may reserve five percent of its 
payment under Sec.  300.707(b) in any fiscal year, or $500,000, 
whichever is greater, for administrative costs in carrying out the 
provisions of Sec. Sec.  300.707 through 300.709, 300.711, and 300.713 
through 300.716.
    (b) Payments to the Secretary of the Interior under Sec.  300.712 
must be used in accordance with that section.

(Authority: 20 U.S.C. 1411(h)(1)(A))



Sec.  300.711  Early intervening services.

    (a) The Secretary of the Interior may allow each elementary school 
and secondary school for Indian children operated or funded by the 
Secretary of the Interior to use not more than 15 percent of the amount 
the school receives under Sec.  300.707(b) for any fiscal year, 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 children in kindergarten through grade 12 (with a 
particular emphasis on children in kindergarten through grade three) who 
have not been identified as needing special education or related 
services but who need additional academic and behavioral support to 
succeed in a general education environment, in accordance with section 
613(f) of the Act.
    (b) Each elementary school and secondary school for Indian children 
operated or funded by the Secretary of the Interior that develops and 
maintains coordinated early intervening services in accordance with 
section 613(f) of the Act and Sec.  300.226 must annually report

[[Page 115]]

to the Secretary of the Interior in accordance with section 613(f) of 
the Act.

(Authority: 20 U.S.C. 1411(h) and 1413(f))



Sec.  300.712  Payments for education and services for Indian
children with disabilities aged three through five.

    (a) General. With funds appropriated under section 611(i) of the 
Act, the Secretary makes payments to the Secretary of the Interior to be 
distributed to tribes or tribal organizations (as defined under section 
4 of the Indian Self-Determination and Education Assistance Act) or 
consortia of tribes or tribal organizations to provide for the 
coordination of assistance for special education and related services 
for children with disabilities aged three through five on reservations 
served by elementary schools and secondary schools for Indian children 
operated or funded by the Department of the Interior. The amount of the 
payments under paragraph (b) of this section for any fiscal year is 
equal to 20 percent of the amount allotted under Sec.  300.701(b).
    (b) Distribution of funds. The Secretary of the Interior must 
distribute the total amount of the payment under paragraph (a) of this 
section by allocating to each tribe, tribal organization, or consortium 
an amount based on the number of children with disabilities aged three 
through five residing on reservations as reported annually, divided by 
the total of those children served by all tribes or tribal 
organizations.
    (c) Submission of information. To receive a payment under this 
section, the tribe or tribal organization must submit the figures to the 
Secretary of the Interior as required to determine the amounts to be 
allocated under paragraph (b) of this section. This information must be 
compiled and submitted to the Secretary.
    (d) Use of funds. (1) The funds received by a tribe or tribal 
organization must be used to assist in child find, screening, and other 
procedures for the early identification of children aged three through 
five, parent training, and the provision of direct services. These 
activities may be carried out directly or through contracts or 
cooperative agreements with the BIA, LEAs, and other public or private 
nonprofit organizations. The tribe or tribal organization is encouraged 
to involve Indian parents in the development and implementation of these 
activities.
    (2) The tribe or tribal organization, as appropriate, must make 
referrals to local, State, or Federal entities for the provision of 
services or further diagnosis.
    (e) Biennial report. To be eligible to receive a grant pursuant to 
paragraph (a) of this section, the tribe or tribal organization must 
provide to the Secretary of the Interior a biennial report of activities 
undertaken under this section, including the number of contracts and 
cooperative agreements entered into, the number of children contacted 
and receiving services for each year, and the estimated number of 
children needing services during the two years following the year in 
which the report is made. The Secretary of the Interior must include a 
summary of this information on a biennial basis in the report to the 
Secretary required under section 611(h) of the Act. The Secretary may 
require any additional information from the Secretary of the Interior.
    (f) Prohibitions. None of the funds allocated under this section may 
be used by the Secretary of the Interior for administrative purposes, 
including child count and the provision of technical assistance.

(Authority: 20 U.S.C. 1411(h)(4))



Sec.  300.713  Plan for coordination of services.

    (a) The Secretary of the Interior must develop and implement a plan 
for the coordination of services for all Indian children with 
disabilities residing on reservations served by elementary schools and 
secondary schools for Indian children operated or funded by the 
Secretary of the Interior.
    (b) The plan must provide for the coordination of services 
benefiting those children from whatever source, including tribes, the 
Indian Health Service, other BIA divisions, other Federal agencies, 
State educational agencies, and State, local, and tribal juvenile and 
adult correctional facilities.
    (c) In developing the plan, the Secretary of the Interior must 
consult with all interested and involved parties.

[[Page 116]]

    (d) The plan must be based on the needs of the children and the 
system best suited for meeting those needs, and may involve the 
establishment of cooperative agreements between the BIA, other Federal 
agencies, and other entities.
    (e) The plan also must be distributed upon request to States; to 
SEAs, LEAs, and other agencies providing services to infants, toddlers, 
and children with disabilities; to tribes; and to other interested 
parties.

(Authority: 20 U.S.C. 1411(h)(5))



Sec.  300.714  Establishment of advisory board.

    (a) To meet the requirements of section 612(a)(21) of the Act, the 
Secretary of the Interior must establish, under the BIA, an advisory 
board composed of individuals involved in or concerned with the 
education and provision of services to Indian infants, toddlers, 
children, and youth with disabilities, including Indians with 
disabilities, Indian parents or guardians of such children, teachers, 
service providers, State and local educational officials, 
representatives of tribes or tribal organizations, representatives from 
State Interagency Coordinating Councils under section 641 of the Act in 
States having reservations, and other members representing the various 
divisions and entities of the BIA. The chairperson must be selected by 
the Secretary of the Interior.
    (b) The advisory board must--
    (1) Assist in the coordination of services within the BIA and with 
other local, State, and Federal agencies in the provision of education 
for infants, toddlers, and children with disabilities;
    (2) Advise and assist the Secretary of the Interior in the 
performance of the Secretary of the Interior's responsibilities 
described in section 611(h) of the Act;
    (3) Develop and recommend policies concerning effective inter- and 
intra-agency collaboration, including modifications to regulations, and 
the elimination of barriers to inter- and intra-agency programs and 
activities;
    (4) Provide assistance and disseminate information on best 
practices, effective program coordination strategies, and 
recommendations for improved early intervention services or educational 
programming for Indian infants, toddlers, and children with 
disabilities; and
    (5) Provide assistance in the preparation of information required 
under Sec.  300.708(h).

(Authority: 20 U.S.C. 1411(h)(6))



Sec.  300.715  Annual reports.

    (a) In general. The advisory board established under Sec.  300.714 
must prepare and submit to the Secretary of the Interior and to Congress 
an annual report containing a description of the activities of the 
advisory board for the preceding year.
    (b) Availability. The Secretary of the Interior must make available 
to the Secretary the report described in paragraph (a) of this section.

(Authority: 20 U.S.C. 1411(h)(7))



Sec.  300.716  Applicable regulations.

    The Secretary of the Interior must comply with the requirements of 
Sec. Sec.  300.103 through 300.108, 300.110 through 300.124, 300.145 
through 300.154, 300.156 through 300.160, 300.165, 300.170 through 
300.186, 300.226, 300.300 through 300.606, 300.610 through 300.646, and 
300.707 through 300.716.

(Authority: 20 U.S.C. 1411(h)(2)(A))

                 Definitions that Apply to this Subpart



Sec.  300.717  Definitions applicable to allotments, grants, and
use of funds.

    As used in this subpart--
    (a) Freely associated States means the Republic of the Marshall 
Islands, the Federated States of Micronesia, and the Republic of Palau;
    (b) Outlying areas means the United States Virgin Islands, Guam, 
American Samoa, and the Commonwealth of the Northern Mariana Islands;
    (c) State means each of the 50 States, the District of Columbia, and 
the Commonwealth of Puerto Rico; and
    (d) Average per-pupil expenditure in public elementary schools and 
secondary schools in the United States means--
    (1) Without regard to the source of funds--
    (i) The aggregate current expenditures, during the second fiscal 
year

[[Page 117]]

preceding the fiscal year for which the determination is made (or, if 
satisfactory data for that year are not available, during the most 
recent preceding fiscal year for which satisfactory data are available) 
of all LEAs in the 50 States and the District of Columbia; plus
    (ii) Any direct expenditures by the State for the operation of those 
agencies; divided by (2) The aggregate number of children in average 
daily attendance to whom those agencies provided free public education 
during that preceding year.

(Authority: 20 U.S.C. 1401(22), 1411(b)(1) (C) and (g))

  Acquisition of Equipment and Construction or Alteration of Facilities



Sec.  300.718  Acquisition of equipment and construction or 
alteration of facilities.

    (a) General. If the Secretary determines that a program authorized 
under Part B of the Act will be improved by permitting program funds to 
be used to acquire appropriate equipment, or to construct new facilities 
or alter existing facilities, the Secretary may allow the use of those 
funds for those purposes.
    (b) Compliance with certain regulations. Any construction of new 
facilities or alteration of existing facilities under paragraph (a) of 
this section must comply with the requirements of--
    (1) Appendix A of part 36 of title 28, Code of Federal Regulations 
(commonly known as the ``Americans with Disabilities Accessibility 
Standards for Buildings and Facilities''); or
    (2) Appendix A of subpart 101-19.6 of title 41, Code of Federal 
Regulations (commonly known as the ``Uniform Federal Accessibility 
Standards'').

(Authority: 20 U.S.C. 1404)



        Subpart H_Preschool Grants for Children with Disabilities



Sec.  300.800  In general.

    The Secretary provides grants under section 619 of the Act to assist 
States to provide special education and related services in accordance 
with Part B of the Act--
    (a) To children with disabilities aged three through five years; and
    (b) At a State's discretion, to two-year-old children with 
disabilities who will turn three during the school year.

(Authority: 20 U.S.C. 1419(a))



Sec. Sec.  300.801-300.802  [Reserved]



Sec.  300.803  Definition of State.

    As used in this subpart, State means each of the 50 States, the 
District of Columbia, and the Commonwealth of Puerto Rico.

(Authority: 20 U.S.C. 1419(i))



Sec.  300.804  Eligibility.

    A State is eligible for a grant under section 619 of the Act if the 
State--
    (a) Is eligible under section 612 of the Act to receive a grant 
under Part B of the Act; and
    (b) Makes FAPE available to all children with disabilities, aged 
three through five, residing in the State.

(Approved by the Office of Management and Budget under control number 
1820-0030)

(Authority: 20 U.S.C. 1419(b))



Sec.  300.805  [Reserved]



Sec.  300.806  Eligibility for financial assistance.

    No State or LEA, or other public institution or agency, may receive 
a grant or enter into a contract or cooperative agreement under subpart 
2 or 3 of Part D of the Act that relates exclusively to programs, 
projects, and activities pertaining to children aged three through five 
years, unless the State is eligible to receive a grant under section 
619(b) of the Act.

(Authority: 20 U.S.C. 1481(e))



Sec.  300.807  Allocations to States.

    The Secretary allocates the amount made available to carry out 
section 619 of the Act for a fiscal year among the States in accordance 
with Sec. Sec.  300.808 through 300.810.

(Authority: 20 U.S.C. 1419(c)(1))

[[Page 118]]



Sec.  300.808  Increase in funds.

    If the amount available for allocation to States under Sec.  300.807 
for a fiscal year is equal to or greater than the amount allocated to 
the States under section 619 of the Act for the preceding fiscal year, 
those allocations are calculated as follows:
    (a) Except as provided in Sec.  300.809, the Secretary--
    (1) Allocates to each State the amount the State received under 
section 619 of the Act for fiscal year 1997;
    (2) Allocates 85 percent of any remaining funds to States on the 
basis of the States' relative populations of children aged three through 
five; and
    (3) Allocates 15 percent of those remaining funds to States on the 
basis of the States' relative populations of all children aged three 
through five who are living in poverty.
    (b) For the purpose of making grants under this section, the 
Secretary uses the most recent population data, including data on 
children living in poverty, that are available and satisfactory to the 
Secretary.

(Authority: 20 U.S.C. 1419(c)(2)(A))



Sec.  300.809  Limitations.

    (a) Notwithstanding Sec.  300.808, allocations under that section 
are subject to the following:
    (1) No State's allocation may be less than its allocation under 
section 619 of the Act for the preceding fiscal year.
    (2) No State's allocation may be less than the greatest of--
    (i) The sum of--
    (A) The amount the State received under section 619 of the Act for 
fiscal year 1997; and
    (B) One-third of one percent of the amount by which the amount 
appropriated under section 619(j) of the Act for the fiscal year exceeds 
the amount appropriated for section 619 of the Act for fiscal year 1997;
    (ii) The sum of--
    (A) The amount the State received under section 619 of the Act for 
the preceding fiscal year; and
    (B) That amount multiplied by the percentage by which the increase 
in the funds appropriated under section 619 of the Act from the 
preceding fiscal year exceeds 1.5 percent; or
    (iii) The sum of--
    (A) The amount the State received under section 619 of the Act for 
the preceding fiscal year; and
    (B) That amount multiplied by 90 percent of the percentage increase 
in the amount appropriated under section 619 of the Act from the 
preceding fiscal year.
    (b) Notwithstanding paragraph (a)(2) of this section, no State's 
allocation under Sec.  300.808 may exceed the sum of--
    (1) The amount the State received under section 619 of the Act for 
the preceding fiscal year; and
    (2) That amount multiplied by the sum of 1.5 percent and the 
percentage increase in the amount appropriated under section 619 of the 
Act from the preceding fiscal year.
    (c) If the amount available for allocation to States under Sec.  
300.808 and paragraphs (a) and (b) of this section is insufficient to 
pay those allocations in full, those allocations are ratably reduced, 
subject to paragraph (a)(1) of this section.

(Authority: 20 U.S.C. 1419(c)(2)(B) and (c)(2)(C))



Sec.  300.810  Decrease in funds.

    If the amount available for allocations to States under Sec.  
300.807 for a fiscal year is less than the amount allocated to the 
States under section 619 of the Act for the preceding fiscal year, those 
allocations are calculated as follows:
    (a) If the amount available for allocations is greater than the 
amount allocated to the States for fiscal year 1997, each State is 
allocated the sum of--
    (1) The amount the State received under section 619 of the Act for 
fiscal year 1997; and
    (2) An amount that bears the same relation to any remaining funds as 
the increase the State received under section 619 of the Act for the 
preceding fiscal year over fiscal year 1997 bears to the total of all 
such increases for all States.
    (b) If the amount available for allocations is equal to or less than 
the amount allocated to the States for fiscal year 1997, each State is 
allocated

[[Page 119]]

the amount the State received for fiscal year 1997, ratably reduced, if 
necessary.

(Authority: 20 U.S.C. 1419(c)(3))



Sec.  300.811  [Reserved]



Sec.  300.812  Reservation for State activities.

    (a) Each State may reserve not more than the amount described in 
paragraph (b) of this section for administration and other State-level 
activities in accordance with Sec. Sec.  300.813 and 300.814.
    (b) For each fiscal year, the Secretary determines and reports to 
the SEA an amount that is 25 percent of the amount the State received 
under section 619 of the Act for fiscal year 1997, cumulatively adjusted 
by the Secretary for each succeeding fiscal year by the lesser of--
    (1) The percentage increase, if any, from the preceding fiscal year 
in the State's allocation under section 619 of the Act; or
    (2) The rate of inflation, as measured by the percentage increase, 
if any, from the preceding fiscal year in the Consumer Price Index for 
All Urban Consumers, published by the Bureau of Labor Statistics of the 
Department of Labor.

(Authority: 20 U.S.C. 1419(d))

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]



Sec.  300.813  State administration.

    (a) For the purpose of administering section 619 of the Act 
(including the coordination of activities under Part B of the Act with, 
and providing technical assistance to, other programs that provide 
services to children with disabilities), a State may use not more than 
20 percent of the maximum amount the State may reserve under Sec.  
300.812 for any fiscal year.
    (b) Funds described in paragraph (a) of this section may also be 
used for the administration of Part C of the Act.

(Authority: 20 U.S.C. 1419(e))



Sec.  300.814  Other State-level activities.

    Each State must use any funds the State reserves under Sec.  300.812 
and does not use for administration under Sec.  300.813--
    (a) For support services (including establishing and implementing 
the mediation process required by section 615(e) of the Act), which may 
benefit children with disabilities younger than three or older than five 
as long as those services also benefit children with disabilities aged 
three through five;
    (b) For direct services for children eligible for services under 
section 619 of the Act;
    (c) For activities at the State and local levels to meet the 
performance goals established by the State under section 612(a)(15) of 
the Act;
    (d) To supplement other funds used to develop and implement a 
statewide coordinated services system designed to improve results for 
children and families, including children with disabilities and their 
families, but not more than one percent of the amount received by the 
State under section 619 of the Act for a fiscal year;
    (e) To provide early intervention services (which must include an 
educational component that promotes school readiness and incorporates 
preliteracy, language, and numeracy skills) in accordance with Part C of 
the Act to children with disabilities who are eligible for services 
under section 619 of the Act 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
    (f) At the State's discretion, to continue service coordination or 
case management for families who receive services under Part C of the 
Act, consistent with Sec.  300.814(e).

(Authority: 20 U.S.C. 1419(f))



Sec.  300.815  Subgrants to LEAs.

    Each State that receives a grant under section 619 of the Act for 
any fiscal year must distribute all of the grant funds the State does 
not reserve under Sec.  300.812 to LEAs (including public charter 
schools that operate as LEAs) in the State that have established their 
eligibility under section 613 of the Act. Effective with funds that 
become available on July 1, 2009, each State must distribute funds to 
eligible LEAs that are responsible for providing education to children 
aged three through five years, including public

[[Page 120]]

charter schools that operate as LEAs, even if the LEA is not serving any 
preschool children with disabilities.

(Authority: 20 U.S.C. 1419(g)(1))

[73 FR 73028, Dec. 1, 2008]



Sec.  300.816  Allocations to LEAs.

    (a) Base payments. The State must first award each LEA described in 
Sec.  300.815 the amount that agency would have received under section 
619 of the Act for fiscal year 1997 if the State had distributed 75 
percent of its grant for that year under section 619(c)(3), as such 
section was then in effect.
    (b) Base payment adjustments. For fiscal year 1998 and beyond--
    (1) If a new LEA is created, the State must divide the base 
allocation determined under paragraph (a) of this section for the LEAs 
that would have been responsible for serving children with disabilities 
now being served by the new LEA, among the new LEA and affected LEAs 
based on the relative numbers of children with disabilities ages three 
through five currently provided special education by each of the LEAs;
    (2) If one or more LEAs are combined into a single new LEA, the 
State must combine the base allocations of the merged LEAs;
    (3) If for two or more LEAs, geographic boundaries or administrative 
responsibility for providing services to children with disabilities ages 
three through five changes, the base allocations of affected LEAs must 
be redistributed among affected LEAs based on the relative numbers of 
children with disabilities ages three through five currently provided 
special education by each affected LEA; and
    (4) If an LEA received a base payment of zero in its first year of 
operation, the SEA must adjust the base payment for the first fiscal 
year after the first annual child count in which the LEA reports that it 
is serving any children with disabilities aged three through five years. 
The State must divide the base allocation determined under paragraph (a) 
of this section for the LEAs that would have been responsible for 
serving children with disabilities aged three through five years now 
being served by the LEA, among the LEA and affected LEAs based on the 
relative numbers of children with disabilities aged three through five 
years currently provided special education by each of the LEAs. This 
requirement takes effect with funds that become available on July 1, 
2009.
    (c) Allocation of remaining funds. After making allocations under 
paragraph (a) of this section, the State must--
    (1) Allocate 85 percent of any remaining funds to those LEAs on the 
basis of the relative numbers of children enrolled in public and private 
elementary schools and secondary schools within the LEA's jurisdiction; 
and
    (2) Allocate 15 percent of those remaining funds to those LEAs in 
accordance with their relative numbers of children living in poverty, as 
determined by the SEA.
    (d) Use of best data. For the purpose of making grants under this 
section, States must apply on a uniform basis across all LEAs the best 
data that are available to them on the numbers of children enrolled in 
public and private elementary and secondary schools and the numbers of 
children living in poverty.

(Authority: 20 U.S.C. 1419(g)(1))

[71 FR 46753, Aug. 14, 2006, as amended at 73 FR 73028, Dec. 1, 2008]



Sec.  300.817  Reallocation of LEA funds.

    (a) If an SEA determines that an LEA is adequately providing FAPE to 
all children with disabilities aged three through five years residing in 
the area served by the LEA with State and local funds, the SEA may 
reallocate any portion of the funds under section 619 of the Act that 
are not needed by that LEA to provide FAPE, to other LEAs in the State 
that are not adequately providing special education and related services 
to all children with disabilities aged three through five years residing 
in the areas served by those other LEAs. The SEA may also retain those 
funds for use at the State level to the extent the State has not 
reserved the maximum amount of funds it is permitted to reserve for 
State-level activities pursuant to Sec.  300.812.
    (b) After an SEA distributes section 619 funds to an eligible LEA 
that is not serving any children with disabilities

[[Page 121]]

aged three through five years, as provided in Sec.  300.815, the SEA 
must determine, within a reasonable period of time prior to the end of 
the carryover period in 34 CFR 76.709, whether the LEA has obligated the 
funds. The SEA may reallocate any of those funds not obligated by the 
LEA to other LEAs in the State that are not adequately providing special 
education and related services to all children with disabilities aged 
three through five years residing in the areas served by those other 
LEAs. The SEA may also retain those funds for use at the State level to 
the extent the State has not reserved the maximum amount of funds it is 
permitted to reserve for State-level activities pursuant to Sec.  
300.812.

(Authority: 20 U.S.C. 1419(g)(2))

[73 FR 73028, Dec. 1, 2008]



Sec.  300.818  Part C of the Act inapplicable.

    Part C of the Act does not apply to any child with a disability 
receiving FAPE, in accordance with Part B of the Act, with funds 
received under section 619 of the Act.

(Authority: 20 U.S.C. 1419(h))



          Sec. Appendix A to Part 300--Excess Costs Calculation

    Except as otherwise provided, amounts provided to an LEA under Part 
B of the Act may be used only to pay the excess costs of providing 
special education and related services to children with disabilities. 
Excess costs are those costs for the education of an elementary school 
or secondary school student with a disability 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. An LEA must spend at least the average annual per 
student expenditure on the education of an elementary school or 
secondary school child with a disability before funds under Part B of 
the Act are used to pay the excess costs of providing special education 
and related services.
    Section 602(8) of the Act and Sec.  300.16 require the LEA to 
compute the minimum average amount separately for children with 
disabilities in its elementary schools and for children with 
disabilities in its secondary schools. LEAs may not compute the minimum 
average amount it must spend on the education of children with 
disabilities based on a combination of the enrollments in its elementary 
schools and secondary schools.
    The following example shows how to compute the minimum average 
amount an LEA must spend for the education of each of its elementary 
school children with disabilities under section 602(3) of the Act before 
it may use funds under Part B of the Act.
    a. First the LEA must determine the total amount of its expenditures 
for elementary school students from all sources--local, State, and 
Federal (including Part B)--in the preceding school year. Only capital 
outlay and debt services are excluded.

    Example: The following is an example of a computation for children 
with disabilities enrolled in an LEA's elementary schools. In this 
example, the LEA had an average elementary school enrollment for the 
preceding school year of 800 (including 100 children with disabilities). 
The LEA spent the following amounts last year for elementary school 
students (including its elementary school children with disabilities):

(1)....................  From State and local tax funds.      $6,500,000
(2)....................  From Federal funds.............         600,000
                                                         ---------------
                          Total expenditures............       7,100,000
 

    Of this total, $60,000 was for capital outlay and debt service 
relating to the education of elementary school students. This must be 
subtracted from total expenditures.

(1)....................  Total Expenditures.............      $7,100,000
(2)....................  Less capital outlay and debt...         -60,000
                                                         ===============
                          Total expenditures for              $7,040,000
                          elementary school students
                          less capital outlay and debt.
 

    b. Next, the LEA must subtract from the total expenditures amounts 
spent for:
    (1) IDEA, Part B allocation,
    (2) ESEA, Title I, Part A allocation,
    (3) ESEA, Title III, Parts A and B allocation,
    (4) State and local funds for children with disabilities, and
    (5) State or local funds for programs under ESEA, Title I, Part A, 
and Title III, Parts A and B.
    These are funds that the LEA actually spent, not funds received last 
year but carried over for the current school year.

    Example: The LEA spent the following amounts for elementary school 
students last year:

(1)....................  From funds under IDEA, Part B         $ 200,000
                          allocation.
(2)....................  From funds under ESEA, Title I,         250,000
                          Part A allocation.

[[Page 122]]

 
(3)....................  From funds under ESEA, Title             50,000
                          III, Parts A and B allocation.
(4)....................  From State funds and local              500,000
                          funds for children with
                          disabilities.
(5)....................  From State and local funds for          150,000
                          programs under ESEA, Title I,
                          Part A, and Title III, Parts A
                          and B.
                                                         ---------------
                          Total.........................       1,150,000
                                                         ---------------
(1)....................   Total expenditures less              7,040,000
                          capital outlay and debt.
(2)....................  Other deductions...............      -1,150,000
                                                         ===============
                          Total.........................      $5,890,000
 

    c. Except as otherwise provided, the LEA next must determine the 
average annual per student expenditure for its elementary schools 
dividing the average number of students enrolled in the elementary 
schools of the agency during the preceding year (including its children 
with disabilities) into the amount computed under the above paragraph. 
The amount obtained through this computation is the minimum amount the 
LEA must spend (on the average) for the education of each of its 
elementary school children with disabilities. Funds under Part B of the 
Act may be used only for costs over and above this minimum.

(1)....................  Amount from Step b.............      $5,890,000
(2)....................  Average number of students                  800
                          enrolled.
(3)....................  $5,890,000/800 Average annual           $ 7,362
                          per student expenditure.
 

    d. Except as otherwise provided, to determine the total minimum 
amount of funds the LEA must spend for the education of its elementary 
school children with disabilities in the LEA (not including capital 
outlay and debt service), the LEA must multiply the number of elementary 
school children with disabilities in the LEA times the average annual 
per student expenditure obtained in paragraph c above. Funds under Part 
B of the Act can only be used for excess costs over and above this 
minimum.

(1)....................  Number of children with                     100
                          disabilities in the LEA's
                          elementary schools.
(2)....................  Average annual per student              $ 7,362
                          expenditure.
(3)....................  $7,362 x 100...................
                          Total minimum amount of funds        $ 736,200
                          the LEA must spend for the
                          education of children with
                          disabilities enrolled in the
                          LEA's elementary schools
                          before using Part B funds.
 



      Sec. Appendix B to Part 300--Proportionate Share Calculation

    Each LEA must expend, during the grant period, on the provision of 
special education and related services for the parentally-placed private 
school children with disabilities enrolled in private elementary schools 
and secondary schools located in the LEA an amount that is equal to--
    (1) A proportionate share of the LEA's subgrant under section 611(f) 
of the Act for children with disabilities aged 3 through 21. This is an 
amount that is the same proportion of the LEA's total subgrant under 
section 611(f) of the Act as the number of parentally-placed private 
school children with disabilities aged 3 through 21 enrolled in private 
elementary schools and secondary schools located in the LEA is to the 
total number of children with disabilities enrolled in public and 
private elementary schools and secondary schools located in the LEA aged 
3 through 21; and
    (2) A proportionate share of the LEA's subgrant under section 619(g) 
of the Act for children with disabilities aged 3 through 5. This is an 
amount that is the same proportion of the LEA's total subgrant under 
section 619(g) of the Act as the total number of parentally-placed 
private school children with disabilities aged 3 through 5 enrolled in 
private elementary schools located in the LEA is to the total number of 
children with disabilities enrolled in public and private elementary 
schools located in the LEA aged 3 through 5.
    Consistent with section 612(a)(10)(A)(i) of the Act and Sec.  
300.133 of these regulations, annual expenditures for parentally-placed 
private school children with disabilities are calculated based on the 
total number of children with disabilities enrolled in public and 
private elementary schools and secondary schools located in the LEA 
eligible to receive special education and related services under Part B, 
as compared with the total number of eligible parentally-placed private 
school children with disabilities enrolled in private elementary schools 
located in the LEA. This ratio is used to determine the proportion of 
the LEA's total Part B subgrants under section 611(f) of the Act for 
children aged 3 through 21, and under section 619(g) of the Act for 
children aged 3 through 5, that is to be expended on services for 
parentally-

[[Page 123]]

placed private school children with disabilities enrolled in private 
elementary schools and secondary schools located in the LEA.
    The following is an example of how the proportionate share is 
calculated:
    There are 300 eligible children with disabilities enrolled in the 
Flintstone School District and 20 eligible parentally-placed private 
school children with disabilities enrolled in private elementary schools 
and secondary schools located in the LEA for a total of 320 eligible 
public and private school children with disabilities (note: 
proportionate share for parentally-placed private school children is 
based on total children eligible, not children served). The number of 
eligible parentally-placed private school children with disabilities 
(20) divided by the total number of eligible public and private school 
children with disabilities (320) indicates that 6.25 percent of the 
LEA's subgrant must be spent for the group of eligible parentally-placed 
children with disabilities enrolled in private elementary schools and 
secondary schools located in the LEA. Flintstone School District 
receives $152,500 in Federal flow through funds. Therefore, the LEA must 
spend $9,531.25 on special education or related services to the group of 
parentally-placed private school children with disabilities enrolled in 
private elementary schools and secondary schools located in the LEA. 
(Note: The LEA must calculate the proportionate share of IDEA funds 
before earmarking funds for any early intervening activities in Sec.  
300.226).
    The following outlines the calculations for the example of how the 
proportionate share is calculated.

Proportionate Share Calculation for Parentally-Placed Private
 School Children with Disabilities For Flintstone School
 District:
Number of eligible children with disabilities in public              300
 schools in the LEA..........................................
Number of parentally-placed eligible children with                    20
 disabilities in private elementary schools and secondary
 schools located in the LEA..................................
                                                              ----------
    Total number of eligible children........................        320
 
   Federal Flow-Through Funds to Flintstone School District
 
    Total allocation to Flintstone...........................   $152,500
Calculating Proportionate Share:
Total allocation to Flinstone................................    152,500
Divided by total number of eligible children.................        320
Average allocation per eligible child........................   476.5625
Multiplied by the number of parentally-placed children with           20
 disabilities................................................
Amount to be expended for parentally-placed children with       9,531.25
 disabilities................................................
 



     Sec. Appendix C to Part 300--National Instructional Materials 
                     Accessibility Standard (NIMAS)

    Under sections 612(a)(23)(A) and 674(e)(4) of the Individuals with 
Disabilities Education Act, as amended by the Individuals with 
Disabilities Education Improvement Act of 2004, the Secretary of 
Education establishes the NIMAS. Under section 674(e)(4) of the Act, the 
NIMAS applies to print instructional materials published after July 19, 
2006. The purpose of the NIMAS is to help increase the availability and 
timely delivery of print instructional materials in accessible formats 
to blind or other persons with print disabilities in elementary and 
secondary schools.

           Technical Specifications--The Baseline Element Set

    The Baseline Element Set details the minimum requirement that must 
be delivered to fulfill the NIMAS. It is the responsibility of 
publishers to provide this NIMAS-conformant XML content file, a package 
file (OPF), a PDF-format copy of the title page (or whichever page(s) 
contain(s) ISBN and copyright information), and a full set of the 
content's images. All of the images included within a work must be 
provided in a folder and placeholders entered in the relevant XML 
document indicating their location (all images must be included). The 
preferred image type is SVG, next is either PNG or JPG format. Images 
should be rendered in the same size/proportion as their originals at 300 
dpi. Images should be named with relative path filenames in XML files 
(example: img id=``staricon4'' src=``./images/U10C02/staricon4.jpg'' 
alt=``star icon'').
    NIMAS-conformant content must be valid to the NIMAS 1.1 [see ANSI/
NISO Z39.86 2005 or subsequent revisions]. In addition, files are 
required to use the tags from the Baseline Element Set when such tags 
are appropriate. Publishers are encouraged to augment the required 
Baseline Element Set with tags from the Optional Element Set (elements 
not included in the Standard) as applicable. For the purposes of NIMAS, 
appropriate usage of elements, both baseline

[[Page 124]]

and optional, is defined by the DAISY Structure Guidelines. Files that 
do not follow these guidelines in the selection and application of tags 
are not conformant to this Standard. Both optional elements and 
appropriate structure guidelines may be located within Z39.86-2002 and 
Z39.86-2005 available from http://www.daisy.org/z3986/. Use of the most 
current standard is recommended.

                        The Baseline Element Set
------------------------------------------------------------------------
              Element                            Description
------------------------------------------------------------------------
                         a. Document-level tags
------------------------------------------------------------------------
dtbook............................  The root element in the Digital
                                     Talking Book DTD. contains metadata in and the contents itself in
                                     .
head..............................  Contains metainformation about the
                                     book but no actual content of the
                                     book itself, which is placed in
                                     .
book..............................  Surrounds the actual content of the
                                     document, which is divided into
                                     ,
                                     , and
                                     . , which contains metadata,
                                     precedes .
meta..............................  Indicates metadata about the book.
                                     It is an empty element that may
                                     appear repeatedly only in .
                                    For the most current usage
                                     guidelines, please refer to http://
                                     www.daisy.org/z3986/
------------------------------------------------------------------------
                       b. Structure and Hierarchy
------------------------------------------------------------------------
frontmatter.......................  Usually contains and , as
                                     well as preliminary material that
                                     is often enclosed in appropriate
                                     or etc. Content may include a
                                     copyright notice, a foreword, an
                                     acknowledgements section, a table
                                     of contents, etc. serves as a guide to the
                                     content and nature of a .
bodymatter........................  Consists of the text proper of a
                                     book, as contrasted with
                                     preliminary material
                                     or
                                     supplementary information in
                                     .
rearmatter........................  Contains supplementary material such
                                     as appendices, glossaries,
                                     bibliographies, and indices. It
                                     follows the of the book.
level1............................  The highest-level container of major
                                     divisions of a book. Used in
                                     ,
                                     , and
                                     to mark the
                                     largest divisions of the book
                                     (usually parts or chapters), inside
                                     which subdivisions (often sections)
                                     may nest. The class attribute
                                     identifies the actual name (e.g.,
                                     part, chapter) of the structure it
                                     marks. Contrast with .
level2............................  Contains subdivisions that nest
                                     within divisions.
                                     The class attribute identifies the
                                     actual name (e.g., subpart,
                                     chapter, subsection) of the
                                     structure it marks.
level3............................  Contains sub-subdivisions that nest
                                     within subdivisions (e.g., sub-
                                     subsections within subsections).
                                     The class attribute identifies the
                                     actual name (e.g., section,
                                     subpart, subsubsection) of the
                                     subordinate structure it marks.
level4............................  Contains further subdivisions that
                                     nest within subdivisions. The class
                                     attribute identifies the actual
                                     name of the subordinate structure
                                     it marks.
level5............................  Contains further subdivisions that
                                     nest within subdivisions. The class
                                     attribute identifies the actual
                                     name of the subordinate structure
                                     it marks.
level6............................  Contains further subdivisions that
                                     nest within subdivisions. The class
                                     attribute identifies the actual
                                     name of the subordinate structure
                                     it marks.
h1................................  Contains the text of the heading for
                                     a structure.
h2................................  Contains the text of the heading for
                                     a structure.
h3................................  Contains the text of the heading for
                                     a structure.
h4................................  Contains the text of the heading for
                                     a structure.
h5................................  Contains the text of the heading for
                                     a structure.
h6................................  Contains the text of the heading for
                                     a structure.
                                    For the most current usage
                                     guidelines, please refer to http://
                                     www.daisy.org/z3986/
------------------------------------------------------------------------
                            c. Block elements
------------------------------------------------------------------------
author............................  Identifies the writer of a work
                                     other than this one. Contrast with
                                     , which
                                     identifies the author of this work.
                                     typically occurs
                                     within and
                                     .
blockquote........................  Indicates a block of quoted content
                                     that is set off from the
                                     surrounding text by paragraph
                                     breaks. Compare with ,
                                     which marks short, inline
                                     quotations.
list..............................  Contains some form of list, ordered
                                     or unordered. The list may have an
                                     intermixed heading (generally only one, possibly
                                     with ), and an
                                     intermixture of list items and . If
                                     bullets and outline enumerations
                                     are part of the print content, they
                                     are expected to prefix those list
                                     items in content, rather than be
                                     implicitly generated.
li................................  Marks each list item in a . content may
                                     be either inline or block and may
                                     include other nested lists.
                                     Alternatively it may contain a
                                     sequence of list item components,
                                     , that identify
                                     regularly occurring content, such
                                     as the heading and page number of
                                     each entry in a table of contents.
hd................................  Marks the text of a heading in a
                                     or .
note..............................  Marks a footnote, endnote, etc. Any
                                     local reference to is by .
                                     [Attribute id]
p.................................  Contains a paragraph, which may
                                     contain subsidiary or .
sidebar...........................  Contains information supplementary
                                     to the main text and/or narrative
                                     flow and is often boxed and printed
                                     apart from the main text block on a
                                     page. It may have a heading .
cite..............................  Marks a reference (or citation) to
                                     another document.

[[Page 125]]

 
dd................................  Marks a definition of the preceding
                                     term within a
                                     definition list . A
                                     definition without a preceding
                                     has no semantic
                                     interpretation, but is visually
                                     presented aligned with other .
dl................................  Contains a definition list, usually
                                     consisting of pairs of terms and definitions . Any definition can contain
                                     another definition list.
dt................................  Marks a term in a definition list
                                     for which a
                                     definition follows.
                                    For the most current usage
                                     guidelines, please refer to http://
                                     www.daisy.org/z3986/
------------------------------------------------------------------------
                           d. Inline Elements
------------------------------------------------------------------------
em................................  Indicates emphasis. Usually is rendered in italics.
                                     Compare with .
q.................................  Contains a short, inline quotation.
                                     Compare with , which marks a longer quotation
                                     set off from the surrounding text.
strong............................  Marks stronger emphasis than . Visually is usually rendered bold.
sub...............................  Indicates a subscript character
                                     (printed below a character's normal
                                     baseline). Can be used recursively
                                     and/or intermixed with .
sup...............................  Marks a superscript character
                                     (printed above a character's normal
                                     baseline). Can be used recursively
                                     and/or intermixed with .
br................................  Marks a forced line break.
line..............................  Marks a single logical line of text.
                                     Often used in conjunction with
                                     in documents
                                     with numbered lines. [Use only when
                                     line breaks must be preserved to
                                     capture meaning (e.g., poems, legal
                                     texts).]
linenum...........................  Contains a line number, for example
                                     in legal text. [Use only when
                                     is used, and only
                                     for lines numbered in print book.]
pagenum...........................  Contains one page number as it
                                     appears from the print document,
                                     usually inserted at the point
                                     within the file immediately
                                     preceding the first item of content
                                     on a new page. [NB: Only valid when
                                     it includes an id attribute].
noteref...........................  Marks one or more characters that
                                     reference a footnote or endnote
                                     . Contrast with
                                     . and are
                                     independently skippable.
                                    For the most current usage
                                     guidelines, please refer to http://
                                     www.daisy.org/z3986/
------------------------------------------------------------------------
                                e. Tables
------------------------------------------------------------------------
table.............................  Contains cells of tabular data
                                     arranged in rows and columns. A
                                     may have a
                                     . It may have
                                     descriptions of the columns in
                                     s or groupings of
                                     several in
                                     . A simple
                                     may be made up of
                                     just rows . A long
                                     table crossing several pages of the
                                     print book should have separate
                                     values for each
                                     of the pages containing that
                                     indicated on the
                                     page where it starts. Note the
                                     logical order of optional , optional , then one or more of either
                                     or just rows
                                     . This order
                                     accommodates simple or large,
                                     complex tables. The and information
                                     usually helps identify content of
                                     the rows. For a
                                     multiple-page print the and
                                     are repeated on
                                     each page, but not redundantly
                                     tagged.
td................................  Indicates a table cell containing
                                     data.
tr................................  Marks one row of a containing or
                                     cells.
                                    For the most current usage
                                     guidelines, please refer to http://
                                     www.daisy.org/z3986/
------------------------------------------------------------------------
                                f. Images
------------------------------------------------------------------------
imggroup..........................  Provides a container for one or more
                                     and associated
                                     (s) and
                                     (s). A
                                     may contain a
                                     description of the image. The
                                     content model allows: 1) multiple
                                     if they share a
                                     caption, with the ids of each
                                     in the ,
                                     2) multiple if
                                     several captions refer to a single
                                     where
                                     each caption has the same , 3)
                                     multiple if
                                     different versions are needed for
                                     different media (e.g., large print,
                                     braille, or print). If several
                                     refer to a
                                     single ,
                                     each prodnote has the same
                                     .
img...............................  Points to the image to be rendered.
                                     An may stand alone
                                     or be grouped using . Note that providing
                                     extracted images is not a
                                     requirement of the NIMAS. If they
                                     are included, it is best to refer
                                     to them using within
                                     the container.
caption...........................  Describes a or
                                     . If used with
                                     it must follow
                                     immediately after the start tag. If used with
                                     it is not so
                                     constrained.
                                    For the most current usage
                                     guidelines, please refer to http://
                                     www.daisy.org/z3986/
------------------------------------------------------------------------

             1. The Optional Elements and Guidelines for Use

    Publishers are encouraged to apply markup beyond the baseline 
(required) elements. The complete DTBook Element Set reflects the tags 
necessary to create the six types of Digital Talking Books and Braille 
output. Because of the present necessity to subdivide the creation of 
alternate format materials into distinct phases, the Panel determined 
that baseline elements would be provided by publishers, and optional 
elements would be added to the NIMAS-conformant files by

[[Page 126]]

third party conversion entities. In both circumstances the protocols for 
tagging digital files should conform to the most current ANSI/NISO 
Z39.86 specification. Content converters are directed to the most 
current DAISY Structure Guidelines (http://www.daisy.org/z3986/) for 
guidance on their use.
    Since the publication of the original National File Format report 
from which the NIMAS technical specifications were derived, ANSI/NISO 
Z39.86-2002 was updated and is now ANSI/NISO Z39.86-2005. It may be best 
to avoid using the following optional elements which are no longer 
included in ANSI/NISO Z39.86-2005: style, notice, hr, and levelhd.
    Also, the following new elements were introduced by ANSI/NISO 
Z39.86-2005 and should be considered optional elements for the NIMAS: 
bridgehead, byline, covertitle, dateline, epigraph, linegroup, and poem. 
Please refer to ANSI/NISO Z39.86-2005 for additional information 
regarding these elements. To access the ANSI/NISO Z39.86-2005 
specification, go to http://www.daisy.org/z3986/.

                             2. Package File

    A package file describes a publication. It identifies all other 
files in the publication and provides descriptive and access information 
about them. A publication must include a package file conforming to the 
NIMAS. The package file is based on the Open eBook Publication Structure 
1.2 package file specification (For most recent detail please see http:/
/www.openebook.org/oebps/oebps1.2/download/oeb12-xhtml.htmsec2). A 
NIMAS package file must be an XML-valid OeB PS 1.2 package file instance 
and must meet the following additional standards:
    The NIMAS Package File must include the following Dublin Core 
(dc:)metadata:
dc:Title.
dc:Creator (if applicable).
dc:Publisher.
dc:Date (Date of NIMAS-compliant file creation--yyyy-mm-dd).
dc:Format (=``NIMAS 1.0'').
dc:Identifier (a unique identifier for the NIMAS-compliant digital 
publication, e.g., print ISBN + ``-NIMAS''--exact format to be 
determined).
dc:Language (one instance, or multiple in the case of a foreign language 
textbook, etc.).
dc:Rights (details to be determined).
dc:Source (ISBN of print version of textbook).

    And the following x-metadata items:
nimas-SourceEdition (the edition of the print textbook).
nimas-SourceDate (date of publication of the print textbook).

    The following metadata were proposed also as a means of facilitating 
recordkeeping, storage and file retrieval:
dc:Subject (Lang Arts, Soc Studies, etc.).
nimas-grade (specific grade level of the print textbook, e.g.; Grade 6).
nimas gradeRange (specific grade range of the print textbook, e.g.; 
Grades 4-5).

    An additional suggestion references the use of:

dc:audience:educationLevel (for the grade and gradeRange identifiers, 
noting that Dublin Core recommends using educationLevel with an 
appropriate controlled vocabulary for context, and recommends the U.S. 
Department of Education's Level of Education vocabulary online at http:/
/www.ed.gov/admin/reference/index.jsp. Using educationLevel obviates the 
need for a separate field for gradeRange since dc elements can repeat 
more than once. A book used in more than one grade would therefore have 
two elements, one with value ``Grade 4'' and another with value ``Grade 
5.''

    A final determination as to which of these specific metadata 
elements to use needs to be clarified in practice. The package manifest 
must list all provided files (text, images, etc.).
(Note: For purposes of continuity and to minimize errors in 
transformation and processing, the NIMAS-compliant digital text should 
be provided as a single document.)

                          3. Modular Extensions

    The most current DAISY/NISO standard, formally the ANSI/NISO Z39.86, 
Specifications for the Digital Talking Book defines a comprehensive 
system for creating Digital Talking Books. A part of this standard is 
DTBook, an XML vocabulary that provides a core set of elements needed to 
produce most types of books. However, DTBook is not intended to be an 
exhaustive vocabulary for all types of books.
    Guidelines for the correct approach to extend the DAISY/NISO 
standard have been established. Mathematics, video support, testing, 
workbooks, music, dictionaries, chemistry, and searching are some of the 
extensions that have been discussed. Visit http://www.daisy.org/z3986/ 
to learn more about modular extensions.

                                   End



Sec. Appendix D to Part 300--Maintenance of Effort and Early Intervening 
                                Services

    LEAs that seek to reduce their local maintenance of effort in 
accordance with Sec.  300.205(d) and use some of their Part B funds for 
early intervening services under Sec.  300.226 must do so with caution 
because the local

[[Page 127]]

maintenance of effort reduction provision and the authority to use Part 
B funds for early intervening services are interconnected. The decisions 
that an LEA makes about the amount of funds that it uses for one purpose 
affect the amount that it may use for the other. Below are examples that 
illustrate how Sec. Sec.  300.205(d) and 300.226(a) affect one another.
    Example 1: In this example, the amount that is 15 percent of the 
LEA's total grant (see Sec.  300.226(a)), which is the maximum amount 
that the LEA may use for early intervening services (EIS), is greater 
than the amount that may be used for local maintenance of effort (MOE) 
reduction (50 percent of the increase in the LEA's grant from the prior 
year's grant) (see Sec.  300.205(a)).

Prior Year's Allocation.................................       $900,000.
Current Year's Allocation...............................      1,000,000.
Increase................................................        100,000.
Maximum Available for MOE Reduction.....................         50,000.
Maximum Available for EIS...............................        150,000.
 

    If the LEA chooses to set aside $150,000 for EIS, it may not reduce 
its MOE (MOE maximum $50,000 less $150,000 for EIS means $0 can be used 
for MOE).
    If the LEA chooses to set aside $100,000 for EIS, it may not reduce 
its MOE (MOE maximum $50,000 less $100,000 for EIS means $0 can be used 
for MOE).
    If the LEA chooses to set aside $50,000 for EIS, it may not reduce 
its MOE (MOE maximum $50,000 less $50,000 for EIS means $0 can be used 
for MOE).
    If the LEA chooses to set aside $30,000 for EIS, it may reduce its 
MOE by $20,000 (MOE maximum $50,000 less $30,000 for EIS means $20,000 
can be used for MOE).
    If the LEA chooses to set aside $0 for EIS, it may reduce its MOE by 
$50,000 (MOE maximum $50,000 less $0 for EIS means $50,000 can be used 
for MOE).
    Example 2: In this example, the amount that is 15 percent of the 
LEA's total grant (see Sec.  300.226(a)), which is the maximum amount 
that the LEA may use for EIS, is less than the amount that may be used 
for MOE reduction (50 percent of the increase in the LEA's grant from 
the prior year's grant) (see Sec.  300.205(a)).

Prior Year's Allocation.................................     $1,000,000.
Current Year's Allocation...............................      2,000,000.
Increase................................................      1,000,000.
Maximum Available for MOE Reduction.....................        500,000.
Maximum Available for EIS...............................        300,000.
 

    If the LEA chooses to use no funds for MOE, it may set aside 
$300,000 for EIS (EIS maximum $300,000 less $0 means $300,000 for EIS).
    If the LEA chooses to use $100,000 for MOE, it may set aside 
$200,000 for EIS (EIS maximum $300,000 less $100,000 means $200,000 for 
EIS).
    If the LEA chooses to use $150,000 for MOE, it may set aside 
$150,000 for EIS (EIS maximum $300,000 less $150,000 means $150,000 for 
EIS).
    If the LEA chooses to use $300,000 for MOE, it may not set aside 
anything for EIS (EIS maximum $300,000 less $300,000 means $0 for EIS).
    If the LEA chooses to use $500,000 for MOE, it may not set aside 
anything for EIS (EIS maximum $300,000 less $500,000 means $0 for EIS).



  Sec. Appendix E To Part 300--Local Educational Agency Maintenance of 
                       Effort Calculation Examples

    The following tables provide examples of calculating LEA MOE. 
Figures are in $10,000s. All references to a ``fiscal year'' in these 
tables refer to the fiscal year covering that school year, unless 
otherwise noted.
    Tables 1 through 4 provide examples of how an LEA complies with the 
Subsequent Years rule. In Table 1, for example, an LEA spent $1 million 
in Fiscal Year (FY) 2012-2013 on the education of children with 
disabilities. In the following year, the LEA was required to spend at 
least $1 million but spent only $900,000. In FY 2014-2015, therefore, 
the LEA was required to spend $1 million, the amount it was required to 
spend in FY 2013-2014, not the $900,000 it actually spent.

 Table 1--Example of Level of Effort Required To Meet MOE Compliance Standard in Year Following a Year in Which
                                   LEA Failed To Meet MOE Compliance Standard
----------------------------------------------------------------------------------------------------------------
                                              Actual level   Required level
                Fiscal year                     of effort       of effort                   Notes
----------------------------------------------------------------------------------------------------------------
2012-2013..................................            $100            $100  LEA met MOE.
2013-2014..................................              90             100  LEA did not meet MOE.
2014-2015..................................  ..............             100  Required level of effort is $100
                                                                              despite LEA's failure in 2013-
                                                                              2014.
----------------------------------------------------------------------------------------------------------------

    Table 2 shows how to calculate the required amount of effort when 
there are consecutive fiscal years in which an LEA does not meet MOE.

[[Page 128]]



Table 2--Example of Level of Effort Required To Meet MOE Compliance Standard in Year Following Consecutive Years
                               in Which LEA Failed To Meet MOE Compliance Standard
----------------------------------------------------------------------------------------------------------------
                                              Actual level   Required level
                Fiscal year                     of effort       of effort                   Notes
----------------------------------------------------------------------------------------------------------------
2012-2013..................................            $100            $100  LEA met MOE.
2013-2014..................................              90             100  LEA did not meet MOE.
2014-2015..................................              90             100  LEA did not meet MOE. Required
                                                                              level of effort is $100 despite
                                                                              LEA's failure in 2013-2014.
2015-2016..................................  ..............             100  Required level of effort is $100
                                                                              despite LEA's failure in 2013-2014
                                                                              and 2014-2015.
----------------------------------------------------------------------------------------------------------------

    Table 3 shows how to calculate the required level of effort in a 
fiscal year after the year in which an LEA spent more than the required 
amount on the education of children with disabilities. This LEA spent 
$1.1 million in FY 2015-2016 though only $1 million was required. The 
required level of effort in FY 2016-2017, therefore, is $1.1 million.

Table 3--Example of Level of Effort Required To Meet MOE Compliance Standard in Year Following Year in Which LEA
                                           Met MOE Compliance Standard
----------------------------------------------------------------------------------------------------------------
                                              Actual level   Required level
                Fiscal year                     of effort       of effort                   Notes
----------------------------------------------------------------------------------------------------------------
2012-2013..................................            $100            $100  LEA met MOE.
2013-2014..................................              90             100  LEA did not meet MOE.
2014-2015..................................              90             100  LEA did not meet MOE. Required
                                                                              level of effort is $100 despite
                                                                              LEA's failure in 2013-2014.
2015-2016..................................             110             100  LEA met MOE.
2016-2017..................................  ..............             110  Required level of effort is $110
                                                                              because LEA expended $110, and met
                                                                              MOE, in 2015-2016.
----------------------------------------------------------------------------------------------------------------

    Table 4 shows the same calculation when, in an intervening fiscal 
year, 2016-2017, the LEA did not maintain effort.

Table 4--Example of Level of Effort Required To Meet MOE Compliance Standard in Year Following Year in Which LEA
                                      Did Not Meet MOE Compliance Standard
----------------------------------------------------------------------------------------------------------------
                                              Actual level   Required level
                Fiscal year                     of effort       of effort                   Notes
----------------------------------------------------------------------------------------------------------------
2012-2013..................................            $100            $100  LEA met MOE.
2013-2014..................................              90             100  LEA did not meet MOE.
2014-2015..................................              90             100  LEA did not meet MOE. Required
                                                                              level of effort is $100 despite
                                                                              LEA's failure in 2013-2014.
2015-2016..................................             110             100  LEA met MOE.
2016-2017..................................             100             110  LEA did not meet MOE. Required
                                                                              level of effort is $110 because
                                                                              LEA expended $110, and met MOE, in
                                                                              2015-2016.
2017-2018..................................  ..............             110  Required level of effort is $110,
                                                                              despite LEA's failure in 2016-
                                                                              2017.
----------------------------------------------------------------------------------------------------------------

    Table 5 provides an example of how an LEA may meet the compliance 
standard using alternate methods from year to year without using the 
exceptions or adjustment in Sec. Sec.  300.204 and 300.205, and provides 
information on the following scenario. In FY 2015-2016, the LEA meets 
the compliance standard using all four methods. As a result, in order to 
demonstrate that it met the compliance standard using any one of the 
four methods in FY 2016-2017, the LEA must expend at least as much as it 
did in FY 2015-2016 using that same method. Because the LEA spent the 
same amount in FY 2016-2017 as it did in FY 2015-2016, calculated using 
a combination of State and local funds and a combination of State and 
local funds on a per capita basis, the LEA met the compliance standard 
using both of those methods in FY 2016-2017. However, the LEA did not 
meet the compliance standard in FY 2016-2017 using the other two 
methods--local funds only or local funds only on a per capita basis--
because it did not spend at least the same amount in FY 2016-

[[Page 129]]

2017 as it did in FY 2015-2016 using the same methods.

    Table 5--Example of How an LEA May Meet the Compliance Standard Using Alternate Methods From Year to Year
----------------------------------------------------------------------------------------------------------------
                                                                                     Combination of
                                     Local funds   Combination of    Local funds    State and local
            Fiscal year                  only     State and local   only on a per    funds on a per  Child count
                                                       funds         capita basis     capita basis
----------------------------------------------------------------------------------------------------------------
2015-2016..........................       * $500           * $950            * $50            * $95           10
2016-2017..........................          400            * 950               40             * 95           10
2017-2018..........................        * 500              900             * 50               90           10
----------------------------------------------------------------------------------------------------------------
* LEA met compliance standard using this method.

    Table 6 provides an example of how an LEA may meet the compliance 
standard using alternate methods from year to year in years in which the 
LEA used the exceptions or adjustment in Sec. Sec.  300.204 and 300.205, 
including using the per capita methods.

  Table 6--Example of How an LEA May Meet the Compliance Standard Using Alternate Methods From Year to Year and
                      Using Exceptions or Adjustment Under Sec.  Sec.   300.204 and 300.205
----------------------------------------------------------------------------------------------------------------
                                                                                          Combination of
                                                     Combination of    Local funds only   State and local  Child
          Fiscal year            Local funds only   State and local    on a per capita    funds on a per   count
                                                         funds              basis          capita basis
----------------------------------------------------------------------------------------------------------------
2015- 2016....................  $500 *...........  $950 *...........  $50 *............  $95 *...........     10
2016- 2017....................  400..............  950 *............  40...............  95 *............     10
2017-2018.....................  450 *............  1,000 *..........  45 *.............  100 *...........     10
                                In 2017-2018, the  .................  In 2017-2018, the
                                 LEA was required                      LEA was required
                                 to spend at                           to spend at
                                 least the same                        least the same
                                 amount in local                       amount in local
                                 funds only that                       funds only on a
                                 it spent in the                       per capita basis
                                 preceding fiscal                      that it spent in
                                 year, subject to                      the preceding
                                 the Subsequent                        fiscal year,
                                 Years rule.                           subject to the
                                 Therefore, prior                      Subsequent Years
                                 to taking any                         rule. Therefore,
                                 exceptions or                         prior to taking
                                 adjustment in                         any exceptions
                                 Sec.  Sec.                            or adjustment in
                                 300.204 and                           Sec.  Sec.
                                 300.205, the LEA                      300.204 and
                                 was required to                       300.205, the LEA
                                 spend at least                        was required to
                                 $500 in local                         spend at least
                                 funds only.                           $50 in local
                                In 2017-2018, the                      funds only on a
                                 LEA properly                          per capita basis.
                                 reduced its                          In 2017-2018, the
                                 expenditures,                         LEA properly
                                 per an exception                      reduced its
                                 in Sec.                               aggregate
                                 300.204, by $50,                      expenditures,
                                 and therefore,                        per an exception
                                 was required to                       in Sec.
                                 spend at least                        300.204, by $50.
                                 $450 in local                        $50/10 children
                                 funds only                            with
                                 ($500) from 2015-                     disabilities in
                                 2016 per                              the comparison
                                 Subsequent Years                      year (2015-2016)
                                 rule - $50                            = $5 per capita
                                 allowable                             allowable
                                 reduction per an                      reduction per an
                                 exception under                       exception under
                                 Sec.   300.204).                      Sec.   300.204.
                                                                      $50 local funds
                                                                       only on a per
                                                                       capita basis
                                                                       (from 2015-2016
                                                                       per Subsequent
                                                                       Years rule) - $5
                                                                       allowable
                                                                       reduction per an
                                                                       exception under
                                                                       Sec.   300.204 =
                                                                       $45 local funds
                                                                       only on a per
                                                                       capita basis to
                                                                       meet MOE.
2018-2019.....................  405..............  1,000 *..........  45 *.............  111.11 *........      9

[[Page 130]]

 
                                In 2018-2019, the  Because the LEA    In 2018-2019, the  Because the LEA
                                 LEA was required   did not reduce     LEA was required   did not reduce
                                 to spend at        its expenditures   to spend at        its
                                 least the same     from the           least the same     expenditures
                                 amount in local    comparison year    amount in local    from the
                                 funds only that    (2017-2018)        funds only on a    comparison year
                                 it spent in the    using a            per capita basis   (2017-2018)
                                 preceding fiscal   combination of     that it spent in   using a
                                 year, subject to   State and local    the preceding      combination of
                                 the Subsequent     funds, the LEA     fiscal year,       State and local
                                 Years rule.        met MOE.           subject to the     funds on a per
                                 Therefore, prior                      Subsequent Years   capita basis
                                 to taking any                         rule. Therefore,   ($1,000/9 =
                                 exceptions or                         prior to taking    $111.11 and
                                 adjustment in                         any exceptions     $111.11  $100), the
                                 300.204 and                           Sec.  Sec.         LEA met MOE.
                                 300.205, the LEA                      300.204 and
                                 was required to                       300.205, the LEA
                                 spend at least                        was required to
                                 $450 in local                         spend at least
                                 funds only.                           $45 in local
                                In 2018-2019, the                      funds only on a
                                 LEA properly                          per capita basis.
                                 reduced its                          In 2018-2019, the
                                 expenditures,                         LEA properly
                                 per an exception                      reduced its
                                 in Sec.                               aggregate
                                 300.204 by $10                        expenditures,
                                 and the                               per an exception
                                 adjustment in                         in Sec.
                                 Sec.   300.205                        300.204 by $10
                                 by $10.                               and the
                                Therefore, the                         adjustment in
                                 LEA was required                      Sec.   300.205
                                 to spend at                           by $10.
                                 least $430 in                        $20/10 children
                                 local funds                           with
                                 only. ($450 from                      disabilities in
                                 2017-2018 - $20                       the comparison
                                 allowable                             year (2017-2018)
                                 reduction per an                      = $2 per capita
                                 exception and                         allowable
                                 the adjustment                        reduction per an
                                 under Sec.  Sec.                      exception and
                                   300.204 and                         the adjustment
                                 300.205).                             under Sec.  Sec.
                                                                         300.204 and
                                                                       300.205.
                                                                      $45 local funds
                                                                       only on a per
                                                                       capita basis
                                                                       (from 2017-2018)
                                                                       - $2 allowable
                                                                       reduction per an
                                                                       exception and
                                                                       the adjustment
                                                                       under Sec.  Sec.
                                                                         300.204 and
                                                                       300.205 = $43
                                                                       local funds only
                                                                       on a per capita
                                                                       basis required
                                                                       to meet MOE.
                                                                       Actual level of
                                                                       effort is $405/9
                                                                       (the current
                                                                       year child
                                                                       count).
----------------------------------------------------------------------------------------------------------------
* LEA met MOE using this method.
Note: When calculating any exception(s) and/or adjustment on a per capita basis for the purpose of determining
  the required level of effort, the LEA must use the child count from the comparison year, and not the child
  count of the year in which the LEA took the exception(s) and/or adjustment. When determining the actual level
  of effort on a per capita basis, the LEA must use the child count for the current year. For example, in 2018-
  2019, the LEA uses a child count of 9, not the child count of 10 in the comparison year, to determine the
  actual level of effort.

    Tables 7 and 8 demonstrate how an LEA could meet the eligibility 
standard over a period of years using different methods from year to 
year. These tables assume that the LEA did not take any of the 
exceptions or adjustment in Sec. Sec.  300.204 and 300.205. Numbers are 
in $10,000s budgeted and spent for the education of children with 
disabilities.

[[Page 131]]



      Table 7--Example of How an LEA May Meet the Eligibility Standard in 2016-2017 Using Different Methods
----------------------------------------------------------------------------------------------------------------
                                                                      Combination
                                            Combination  Local funds    of State
                               Local funds    of State    only on a    and local
         Fiscal year               only      and local    per capita   funds on a  Child count        Notes
                                               funds        basis      per capita
                                                                         basis
----------------------------------------------------------------------------------------------------------------
2014-2015....................       * $500     * $1,000        * $50       * $100           10  The LEA met the
                                                                                                 compliance
                                                                                                 standard using
                                                                                                 all 4 methods.*
2015-2016....................  ...........  ...........  ...........  ...........  ...........  Final
                                                                                                 information not
                                                                                                 available at
                                                                                                 time of
                                                                                                 budgeting for
                                                                                                 2016-2017.
How much must the LEA budget           500        1,000           50          100  ...........  When the LEA
 for 2016-2017 to meet the                                                                       submits a
 eligibility standard in 2016-                                                                   budget for 2016-
 2017?                                                                                           2017, the most
                                                                                                 recent fiscal
                                                                                                 year for which
                                                                                                 the LEA has
                                                                                                 information is
                                                                                                 2014-2015. It
                                                                                                 is not
                                                                                                 necessary for
                                                                                                 the LEA to
                                                                                                 consider
                                                                                                 information on
                                                                                                 expenditures
                                                                                                 for a fiscal
                                                                                                 year prior to
                                                                                                 2014-2015
                                                                                                 because the LEA
                                                                                                 maintained
                                                                                                 effort in 2014-
                                                                                                 2015.
                                                                                                 Therefore, the
                                                                                                 Subsequent
                                                                                                 Years rule in
                                                                                                 Sec.
                                                                                                 300.203(c) is
                                                                                                 not applicable.
----------------------------------------------------------------------------------------------------------------
* The LEA met the compliance standard using all 4 methods.


  Table 8--Example of How an LEA May Meet the Eligibility Standard in 2017-2018 Using Different Methods and the
                                    Application of the Subsequent Years Rule
----------------------------------------------------------------------------------------------------------------
                                                                      Combination
                                            Combination  Local funds    of State
                               Local funds    of State    only on a    and local
         Fiscal year               only      and local    per capita   funds on a  Child count        Notes
                                               funds        basis      per capita
                                                                         basis
----------------------------------------------------------------------------------------------------------------
2014-2015....................       * $500     * $1,000        * $50       * $100           10
2015-2016....................          450      * 1,000           45        * 100           10
2016-2017....................  ...........  ...........  ...........  ...........  ...........  Final
                                                                                                 information not
                                                                                                 available at
                                                                                                 time of
                                                                                                 budgeting for
                                                                                                 2017-2018.
How much must the LEA budget           500        1,000           50          100  ...........  If the LEA seeks
 for 2017-2018 to meet the                                                                       to use a
 eligibility standard in 2017-                                                                   combination of
 2018?                                                                                           State and local
                                                                                                 funds, or a
                                                                                                 combination of
                                                                                                 State and local
                                                                                                 funds on a per
                                                                                                 capita basis,
                                                                                                 to meet the
                                                                                                 eligibility
                                                                                                 standard, the
                                                                                                 LEA does not
                                                                                                 consider
                                                                                                 information on
                                                                                                 expenditures
                                                                                                 for a fiscal
                                                                                                 year prior to
                                                                                                 2015-2016
                                                                                                 because the LEA
                                                                                                 maintained
                                                                                                 effort in 2015-
                                                                                                 2016 using
                                                                                                 those methods.
                                                                                                However, if the
                                                                                                 LEA seeks to
                                                                                                 use local funds
                                                                                                 only, or local
                                                                                                 funds only on a
                                                                                                 per capita
                                                                                                 basis, to meet
                                                                                                 the eligibility
                                                                                                 standard, the
                                                                                                 LEA must use
                                                                                                 information on
                                                                                                 expenditures
                                                                                                 for a fiscal
                                                                                                 year prior to
                                                                                                 2015-2016
                                                                                                 because the LEA
                                                                                                 did not
                                                                                                 maintain effort
                                                                                                 in 2015-2016
                                                                                                 using either of
                                                                                                 those methods,
                                                                                                 per the
                                                                                                 Subsequent
                                                                                                 Years rule.
                                                                                                 That is, the
                                                                                                 LEA must
                                                                                                 determine what
                                                                                                 it should have
                                                                                                 spent in 2015-
                                                                                                 2016 using
                                                                                                 either of those
                                                                                                 methods, and
                                                                                                 that is the
                                                                                                 amount that the
                                                                                                 LEA must budget
                                                                                                 in 2017-2018.
----------------------------------------------------------------------------------------------------------------
* LEA met MOE using this method.


[[Page 132]]

    Table 9 provides an example of how an LEA may consider the 
exceptions and adjustment in Sec. Sec.  300.204 and 300.205 when 
budgeting for the expenditures for the education of children with 
disabilities.

 Table 9--Example of How an LEA May Meet the Eligibility Standard Using Exceptions and Adjustment in Sec.  Sec.
                                         300.204 and 300.205, 2016-2017
----------------------------------------------------------------------------------------------------------------
                                                                      Combination
                                            Combination  Local funds    of State
                               Local funds    of State    only on a    and local
         Fiscal year               only      and local    per capita   funds on a  Child count        Notes
                                               funds        basis      per capita
                                                                         basis
----------------------------------------------------------------------------------------------------------------
Actual 2014-2015 expenditures       * $500     * $1,000        * $50       * $100           10  The LEA met the
                                                                                                 compliance
                                                                                                 standard using
                                                                                                 all 4 methods.*
Exceptions and adjustment              -50          -50           -5           -5  ...........  LEA uses the
 taken in 2015-2016.                                                                             child count
                                                                                                 number from the
                                                                                                 comparison year
                                                                                                 (2014-2015).
Exceptions and adjustment the          -25          -25        -2.50        -2.50  ...........  LEA uses the
 LEA reasonably expects to                                                                       child count
 take in 2016-2017.                                                                              number from the
                                                                                                 comparison year
                                                                                                 (2014-2015).
How much must the LEA budget           425          925        42.50        92.50  ...........  When the LEA
 to meet the eligibility                                                                         submits a
 standard in 2016-2017?.                                                                         budget for 2016-
                                                                                                 2017, the most
                                                                                                 recent fiscal
                                                                                                 year for which
                                                                                                 the LEA has
                                                                                                 information is
                                                                                                 2014-2015.
                                                                                                 However, if the
                                                                                                 LEA has
                                                                                                 information on
                                                                                                 exceptions and
                                                                                                 adjustment
                                                                                                 taken in 2015-
                                                                                                 2016, the LEA
                                                                                                 may use that
                                                                                                 information
                                                                                                 when budgeting
                                                                                                 for 2016-2017.
                                                                                                 The LEA may
                                                                                                 also use
                                                                                                 information
                                                                                                 that it has on
                                                                                                 any exceptions
                                                                                                 and adjustment
                                                                                                 it reasonably
                                                                                                 expects to take
                                                                                                 in 2016-2017
                                                                                                 when budgeting
                                                                                                 for that year.
----------------------------------------------------------------------------------------------------------------

    Table 10 provides examples both of how to calculate the amount by 
which an LEA failed to maintain its level of expenditures and of the 
amount of non-Federal funds that an SEA must return to the Department on 
account of that failure.

Table 10--Example of How To Calculate the Amount of an LEA's Failure to Meet the Compliance Standard in 2016-2017 and the Amount That an SEA Must Return
                                                                    to the Department
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        Combination
                                           Local funds    of State     Local funds only on a per     Combination of State and                 Amount of
               Fiscal year                     only      and local           capita basis          local funds on a per capita  Child count  IDEA Part B
                                                           funds                                              basis                            subgrant
--------------------------------------------------------------------------------------------------------------------------------------------------------
2015-2016................................       * $500       * $950  $50 *.......................  $95 *......................  ...........          Not
                                                                                                                                               relevant.
2016-2017................................          400          750  40..........................  75.........................           10          $50
Amount by which an LEA failed to maintain          100          200  100 (the amount of the        200 (the amount of the       ...........
 its level of expenditures in 2016-2017.                              failure equals the amount     failure equals the amount
                                                                      of the per capita shortfall   of the per capita
                                                                      ($10) times the number of     shortfall ($20) times the
                                                                      children with disabilities    number of children with
                                                                      in 2016-2017 (10)).           disabilities in 2016-2017
                                                                                                    (10)).
--------------------------------------------------------------------------------------------------------------------------------------------------------
The SEA determines that the amount of the LEA's failure is $100 using the calculation method that results in the lowest amount of a failure. The SEA's
  liability is the lesser of the four calculated shortfalls and the amount of the LEA's Part B subgrant in the fiscal year in which the LEA failed to
  meet the compliance standard. In this case, the SEA must return $50 to the Department because the LEA's IDEA Part B subgrant was $50, and that is the
  lower amount.
* LEA met MOE using this method.


[[Page 133]]


[80 FR 23667, Apr. 28, 2015]

Appendix F to Part 300--Index for IDEA--Part B Regulations (34 CFR Part 
                                  300)

ACCESS TO
 Access rights (Parents).................  300.613.
 Assistive technology devices in child's   300.105(b).
 home.
 Disciplinary records....................  300.229.
 Education records (Procedural safeguards  300.504(c)(4).
 notice).
 General curriculum (Ensure access to)...  300.39(b)(3)(ii).
 Instructional materials (see Sec.  Sec.
  300.172, 300.210).
 List of employees who may have access to  300.623(d).
 records.
 Parent's private insurance proceeds.....  300.154(e).
 Record of access (Confidentiality)......  300.614.
 
ACCESSIBILITY STANDARDS (Regarding construction)
 Americans with Disabilities               300.718(b)(1).
 Accessibility Standards for Buildings and Facilities.
 Uniform Federal Accessibility Standards.  300.718(b)(2).
 
ACCOMMODATIONS
 In assessments..........................  300.320(a)(6)(i).
 State level activities in support of....  300.704(b)(4)(x).
 
ACT (Definition)...........................................  300.4.
 
ADD AND ADHD (See ``Attention deficit disorder'' and
 ``Attention deficit hyperactivity disorder'')
 
ADDITIONAL DISCLOSURE OF INFORMATION REQUIREMENT...........  300.512(b).
 
ADULT CORRECTIONAL FACILITIES (See ``Correctional
 facilities'')
 
ADULT PRISONS (Children with disabilities in)
 Divided State agency responsibility.....  300.607.
 FAPE requirements:
    [Omicron] Exception to FAPE............................  300.102(a)(2).
    [Omicron] Modifications of IEP or placement............  300.324(d)(2).
    [Omicron] Requirements that do not apply...............  300.324(d)(1).
 Governor................................  300.149(d).
 Other public agency responsibility......  300.149(d).
 
ADVERSELY AFFECTS EDUCATIONAL PERFORMANCE (See ``Child with
 a disability,'' Sec.   300.8(c)(1)(i), (c)(3), (c)(4)(i),
 (c)(5), (c)(6), (c)(8), (c)(9)(ii), (c)(11), (c)(12))
 
ADVISORY BOARD
(Secretary of the Interior)................................  300.714.
 
ADVISORY PANEL (See ``State advisory panel'')
AGE-APPROPRIATE CLASSROOM..................................  300.116(e).
 
ALLOCATION(S)
 By-pass for private school children (see
 Sec.   300.191(d)).
 To LEAs (see Sec.  Sec.   300.705(b),
 300.816)
 To Outlying areas.......................  300.701(a).
 To Secretary of the Interior............  300.707.
 To States (see Sec.  Sec.   300.703,
 300.807 through 300.810).
 
ALLOWABLE COSTS
(By SEA for State administration)..........................  300.704(a).
 
ALTERATION OF FACILITIES...................................  300.718(b).
 
ALTERNATE ASSESSMENTS

[[Page 134]]

 
 Aligned with alternate academic           300.320(a)(2)(ii).
 achievement standards.
 Development and provision of in           300.704(b)(4)(x).
 accordance with ESEA.
 Participation determined by IEP Team....  300.320(a)(6)(ii).
 
ALTERNATIVE PLACEMENTS (Continuum).........................  300.115.
 
ALTERNATIVE STRATEGIES to meet transition objectives.......  300.324(c)(1).
 
AMENDMENTS
 To LEA policies and procedures..........  300.220(b).
 To State policies and procedures:
    [Omicron] Made by State................................  300.176(b).
    [Omicron] Required by the Secretary....................  300.176(c).
 
ANNUAL GOALS (IEPs)
 FAPE for children suspended or expelled
 (see Sec.  Sec.   300.101(a), 300.530(d))
 IEP content:
    [Omicron] How progress will be measured................  300.320(a)(3).
    [Omicron] Special education and related services.......  300.320(a)(4).
    [Omicron] Statement of measurable annual goals.........  300.320(a)(2)(i).
 Review and revision of IEP..............  300.324(b)(1).
 Review of existing evaluation data......  300.305(a).
 
ANNUAL REPORT
Of children served (see Sec.  Sec.   300.640 through
 300.646)
On education of Indian children............................  300.715.
 
APPENDICES TO PART 300 (A through E)
Excess Costs Calculation (see appendix A)
Proportionate Share Calculation (see appendix B)
National Instructional Materials Accessibility Standard
 (NIMAS) (see appendix C)
Maintenance of Effort and Early Intervening Services (see
 appendix D)
Index for IDEA--Part B Regulations (This appendix E)
APPLICABILITY OF THIS PART to State, local, and private      300.2.
 agencies.
 
APPLICATION
 Initial admission to public school......  300.518(b).
 Initial services........................  300.518(c).
 
ASSESSMENT(S)
 For specific learning disability (see
 Sec.   300.309(a)(2)(ii), (b)(2))
 Functional behavioral assessment (see
 Sec.   300.530(d)(1)(ii), (f)(1)(i))
 In evaluation (see Sec.  Sec.
 300.304(b), (c), 300.305(a)(1)(ii), (c), (d))
 Of leisure function (in ``Recreation'').  300.34(c)(11)(i).
 
ASSESSMENTS--STATE and DISTRICT-WIDE
Alternate assessments (see Sec.   300.320 (a)(2)(ii),
 (a)(6)(ii))
Performance indicators.....................................  300.157.
 
ASSISTANCE UNDER OTHER FEDERAL PROGRAMS....................  300.186.
 
ASSISTIVE TECHNOLOGY (AT)
 AT devices..............................  300.5.
 AT services.............................  300.6.
 Consideration of special factors........  300.324(a)(2)(v).
 Hearing aids............................  300.113.
 Requirement:
    [Omicron] Ensure availability of.......................  300.105(a).

[[Page 135]]

 
    [Omicron] Use of AT in child's home....................  300.105(b).
 Surgically implanted medical devices
 (see Sec.  Sec.   300.5, 300.34(b), 300.113(b))
 
ASTHMA.....................................................  300.8(c)(9).
 
ATTENTION DEFICIT DISORDER (ADD)...........................  300.8(c)(9).
 
ATTENTION DEFICIT HYPERACTIVITY DISORDER (ADHD)............  300.8(c)(9).
 
ATTORNEYS' FEES............................................  300.517.
 Award of fees...........................  300.517(c).
 Prohibition on use of funds for.........  300.517(b).
 When court reduces fee awards...........  300.517(c)(4).
 
AUDIOLOGY..................................................  300.34(c)(1).
 
AUTHORITY (A-O)
 Of guardian.............................  300.30(a)(3).
 Of hearing officer (Discipline).........  300.532(b).
 Of school personnel (Discipline)........  300.530.
 Of Secretary to monitor and enforce.....  300.609.
 
AUTHORITY (P-Z)
 Parental authority to inspect and review  300.613.
 records.
 State complaint procedures..............  300.151(b).
 Waiver request (Signed by person with     300.164(c)(1).
 authority).
 
AUTISM.....................................................  300.8(c)(1).
 
AVERAGE PER-PUPIL EXPENDITURE
(Definition)...............................................  300.717(d).
 
BASE PAYMENTS (to LEAs) (See Sec.   300.705(b)(1), (b)(2))
 
BASIS OF KNOWLEDGE: Protection for children not yet          300.534(b).
 eligible.
 
BEHAVIORAL ASSESSMENT (See ``Functional behavioral
 assessment'')
 
BEHAVIORAL INTERVENTION(S).................................  300.530(f).
 Assist in developing....................  300.34(c)(10)(vi).
 Behavioral intervention plan............  300.530(f).
 Consideration of by IEP Team............  300.324(a)(2)(i).
 Not a manifestation of disability.......  300.530(d).
 Regular education teacher (Determination  300.324(a)(3).
 of).
 Suspension and expulsion rates..........  300.170(b).
 
BENCHMARKS OR SHORT TERM OBJECTIVES........................  300.320(a)(2)(ii).
 
BENEFITS TO NONDISABLED (Permissive use of funds)..........  300.208(a)(1).
 
BIA (See ``Bureau of Indian Affairs'')
 
BLIND(NESS): Under ``Visual impairment''
 Access to instructional materials (see
 Sec.  Sec.   300.172, 300.210(b)(3))
 Consideration of special factors by IEP   300.324(a)(2).
 Team.
 Definition..............................  300.8(c)(13).
 
BRAILLE (see Sec.  Sec.   300.29(b), 300.324(a)(2)(iii))
 
BUREAU OF INDIAN AFFAIRS (BIA)
 BIA funded schools......................  300.28(c).
 In definition of ``LEA''................  300.28(c).
 See also Sec.  Sec.   300.21(c),
 300.713(b), (d), 300.714
 Use of funds............................  300.712(d).
 
BUSINESS DAY
 Definition..............................  300.11(b).
 See ``Timelines,'' ``Timelines--
 Discipline''
 

[[Page 136]]

 
BY-PASS: Private school children with disabilities (see
 Sec.  Sec.   300.190 through 300.198)
 
CALENDAR DAY
 Definition..............................  300.11(a).
 See ``Timelines,'' ``Timelines--
 Discipline''
 
CERTIFICATION
 Annual report of children served........  300.643.
 
CHANGE OF PLACEMENT BECAUSE OF DISCIPLINARY REMOVALS.......  300.536.
 
CHARTER SCHOOLS
 Applicability of this part to...........  300.2(b)(1)(ii).
 Definition..............................  300.7.
 Exception: joint establishment of         300.223(b).
 eligibility.
 In definition of ``Elementary school''..  300.13.
 In definition of ``LEA''................  300.28(b)(2).
 In definition of ``Public agency''......  300.33.
 In definition of ``Secondary school''...  300.36.
 State-level activities regarding charter  300.704(b)(4)(ix).
 schools.
 Treatment of charter schools and their    300.209.
 students.
 
CHIEF EXECUTIVE OFFICER (CEO)
 Adult prisons (Assigned by Governor)....  300.149(d).
 Methods of ensuring services (see Sec.
 300.154(a), (c))
 
CHILD COUNT
 Annual report of children served (see
 Sec.  Sec.   300.640 through 300.646)
 Certification...........................  300.643.
 Criteria for............................  300.644.
 Dates for count.........................  300.641(a).
 Indian children.........................  300.712(b).
 LEA records of private school children..  300.132(c).
 Procedures for counting children served.  300.645(a).
 
CHILD FIND
 Basic requirement.......................  300.111(a).
 Children advancing from grade to grade..  300.111(c)(1).
 Developmental delay.....................  300.111(b).
 Highly mobile children..................  300.111(c)(2).
 Homeless children.......................  300.111(a)(1)(i).
 Indian children aged 3 through 5........  300.712(d)(1).
 Migrant children........................  300.111(c)(2).
 Private school children.................  300.131(b).
 Protections for children not determined   300.534.
 eligible.
 Secretaries of the Interior and Health    300.708(i)(2).
 and Human Services (Memo of agreement).
 
CHILD WITH A DISABILITY (CWD)
 Adversely affects educational
 performance (see Sec.   300.8(c)(1)(i), (c)(3), (c)(4)(i),
 (c)(5), (c)(6), (c)(8), (c)(9)(ii), (c)(11), (c)(12),
 (c)(13))
 Children experiencing developmental       300.8(b)(1).
 delay(s).
 Children who need only a related service  300.8(a)(2).
 Definition..............................  300.8(a)(1).
 Individual disability terms (Defined)...  300.8(c).
 Requirement.............................  300.111(b).
 See ``Developmental delay(s)''
 
CHILD'S STATUS DURING PROCEEDINGS
 Discipline (see Sec.  Sec.
 300.530(f)(2), 300.533)
 Pendency (Stay put).....................  300.518.
 
CHILDREN ADVANCING FROM GRADE TO GRADE

[[Page 137]]

 
 Child find..............................  300.111(c)(1).
 FAPE....................................  300.101(c).
 
CHILDREN EXPERIENCING DEVELOPMENTAL DELAY(S) (See
 ``Developmental delay(s)'')
 
CHILDREN'S RIGHTS (Confidentiality)........................  300.625.
 
CIVIL ACTION--PROCEEDINGS..................................  300.516.
 Finality of review decision.............  300.514(d).
 Mediation...............................  300.506(b)(6)(i).
 Procedural safeguards notice............  300.504(c)(12).
 See ``Court(s)''
 
COCHLEAR IMPLANT (See ``Surgically implanted medical         300.34(b).
 device'').
 
CODE OF CONDUCT
 Case-by-case determination..............  300.530(a).
 Manifestation determination review......  300.530(e).
 Protections for children not determined   300.534(a).
 eligible.
 
COMMINGLING--PROHIBITION AGAINST...........................  300.162(b).
 
COMMUNITY-BASED WAIVERS (Public benefits or insurance).....  300.154(d)(2)(iii).
 
 COMPLAINT(S): DUE PROCESS
 Attorneys' fees.........................  300.517(a)(1).
 Civil action............................  300.516(a).
 Pendency................................  300.518(a).
 Private school children (Complaints)....  300.140(c).
 See ``Due process hearing(s) and
 reviews''
 
COMPLAINT(S): STATE COMPLAINT PROCEDURES (A-P)
 Adoption of State complaint procedures..  300.151(a).
 Complaint investigations (SEA             300.704(b)(3)(i).
 allocations for).
 Filing a complaint......................  300.153(a).
 Minimum State complaint procedures......  300.152.
 Private schools (State complaints)......  300.140.
 Procedural safeguards notice............  300.504(c).
 Provisions for services under by-pass...  300.191(d).
 Public agency failure to implement        300.152(c)(3).
 hearing decision.
 
COMPLAINT(S): STATE COMPLAINT PROCEDURES (Q-Z)
 See also Sec.  Sec.   300.151 through
 300.153
 Time limit..............................  300.152(a).
 Waiver of nonsupplanting requirement....  300.163(c)(2).
 
COMPLIANCE--COMPLY (A-M)
 Child find requirements.................  300.111(a).
 Department procedures (If failure to      300.604(c).
 comply).
 FAPE requirement........................  300.101(a).
 LEA and State agency compliance.........  300.222(a).
 LRE (State funding mechanism)...........  300.114(b).
 Modifications of policies:..............
    [Omicron] Made by LEA or State agency..................  300.176(b).
    [Omicron] Required by SEA..............................  300.220(c).
    [Omicron] Required by Secretary........................  300.176(c).
 Monitoring (See ``Monitor; Monitoring
 activities'');
 
COMPLIANCE--COMPLY (N-Z)
 Physical education......................  300.108.
 Private school placement by parents.....  300.148(e).
 Private school placements by public
 agencies:
    [Omicron] IEP requirement..............................  300.325(c).
    [Omicron] SEA (Monitor compliance).....................  300.147(a)

[[Page 138]]

 
 Public participation requirements.......  300.165.
 SEA responsibility if LEA does not        300.227(a).
 comply.
 State funding mechanism (LRE)...........  300.114(b).
 
 COMPREHENSIVE EVALUATION................  300.304(c)(6).
 
CONDITION OF ASSISTANCE
 LEA eligibility.........................  300.200.
 State eligibility.......................  300.100.
 
CONFIDENTIALITY (A-C)
 Access rights...........................  300.613.
 Children's rights.......................  300.625.
 Consent.................................  300.622.
 
CONFIDENTIALITY (D-E)
Definitions:
    [Omicron] Destruction of information...................  300.611(a).
    [Omicron] Education records............................  300.611(b).
    [Omicron] Participating agency.........................  300.611(c).
 Department use of personally              300.627.
 identifiable information.
 Disciplinary information................  300.229.
 Enforcement by SEA......................  300.626.
 
CONFIDENTIALITY (F-Z)
 Family Educational Rights and Privacy
 Act:
    [Omicron] Children's rights............................  300.625.
    [Omicron] Disciplinary records.........................  300.535(b)(2).
    [Omicron] In definition of ``Education records''.......  300.611(b).
    [Omicron] Notice to parents............................  300.612(a)(3).
 Fees....................................  300.617.
 Hearing procedures......................  300.621.
 List of types and location of             300.616.
 information.
 Notice to parents.......................  300.612(a).
 Opportunity for a hearing...............  300.619.
 Parental authority to inspect and review  300.613(b).
 records.
 Record of access........................  300.614.
 Records on more than one child..........  300.615.
 Result of hearing.......................  300.620.
 Safeguards..............................  300.623.
 State eligibility requirement...........  300.123.
 
CONSENT (A-I)
 Confidentiality (Records to non-agency    300.622(a).
 officials).
 Definition..............................  300.9.
 IEP vs. IFSP............................  300.323(b)(2)(ii).
 Initial evaluations.....................  300.300(a).
 Initial provision of services...........  300.300(b).
 
CONSENT (J-Z)
 Not required:
    [Omicron] Before administering a test or other           300.300(d)(1)(ii).
     evaluation to all children.
    [Omicron] Before reviewing existing data...............  300.300(d)(1)(i).
    [Omicron] When screening for instructional purposes....  300.302.
 Private insurance (Accessing)...........  300.154(e)(1).
 Reasonable efforts to obtain consent:
    [Omicron] For initial evaluation.......................  300.300(a)(1)(iii).
    [Omicron] For initial evaluations for wards of the       300.300(a)(2).
     State.
    [Omicron] For initial provision of services............  300.300(b)(2).
    [Omicron] Reasonable efforts requirements..............  300.300(d)(5).
 Reevaluations...........................  300.300(c)(2).
 Release of information from education     300.622.
 records.
 
CONSIDERATION OF SPECIAL FACTORS (by IEP Team).............  300.324(a)(2).
 

[[Page 139]]

 
CONSISTENCY WITH STATE POLICIES: LEA.......................  300.201.
 
CONSTRUCTION
 Accessibility standards.................  300.718(b).
 Exception to maintenance of effort        300.204(d).
 (Termination of costly expenditures for construction).
 Private schools (No funds may be used     300.144(e).
 for).
 
CONSTRUCTION CLAUSES (A-I)
 Child find (Nothing requires classifying  300.111(d).
 children by disability).
 Civil action (Exhaust administrative      300.516(e).
 remedies under Part B before filing a civil action).
 Early intervening services..............  300.226(c).
 Funding mandated by State law...........  300.166.
 Hearing: right of parent to appeal        300.513(b).
 decision.
 Highly qualified SEA or LEA staff.......  300.156(e).
 Highly qualified teacher................  300.18(f).
 IEP (Inclusion of additional information  300.320(d)(1).
 beyond explicit requirements).
 IEP (Information in more than one         300.320(d)(2).
 component not required).
 
CONSTRUCTION CLAUSES (J-Z)
 Prohibition on mandatory medication.....  300.174(b).
 Referral to and action by law             300.535(a).
 enforcement and judicial authorities.
 Secretary's authority to monitor          300.609.
 enforcement under GEPA.
 State Medicaid agency (Nothing alters     300.154(h).
 requirements imposed under Titles XIX or XXI or other
 public benefits or insurance program).
 Transition service......................  300.324(c)(2).
 
CONSUMER PRICE INDEX For All Urban Consumers (regarding
 rate of inflation) (See Sec.  Sec.   300.702(b),
 300.704(a)(2)(ii), (b)(2), 300.812(b)(2))
 
CONTENT OF IEP.............................................  300.320(a).
 
CONTINUUM OF ALTERNATIVE PLACEMENTS (See ``Least             300.115.
 restrictive environment'').
 
CONTROLLED SUBSTANCE (Definition)..........................  300.530(i)(1).
 
COORDINATION OF SERVICES
 Methods of ensuring services............  300.154(a).
 Secretary of the Interior...............  300.708(i)(1).
    [Omicron] Advisory board (Service coordination within    300.714(b)(1).
     BIA).
    [Omicron] Payments for children aged 3 through 5.......  300.712(a).
    [Omicron] Plan for coordination of services............  300.713.
 See ``Interagency agreements,''
 ``Interagency coordination''
 State advisory panel (Advise SEA on)....  300.169(e).
 Use of LEA funds for early intervening    300.208(a)(2).
 services.
 Use of SEA allocations for transition...  300.704(b)(4)(vi).
CO-PAY OR DEDUCTIBLE (Public benefits or insurance)........  300.154(d)(2)(ii).
 
CORE ACADEMIC SUBJECTS
 Definition..............................  300.10.
 See ``Highly qualified special education  300.18.
 teachers''.
 
CORRECTIONAL FACILITIES
 Applicability of this part to...........  300.2(b)(1)(iv).
 Divided State agency responsibility.....  300.607.

[[Page 140]]

 
 Exception to FAPE (Children in adult      300.102(a)(2).
 facilities).
 See also ``Adult prisons''
 State advisory panel (Representatives     300.168(a)(11).
 on).
 State juvenile-adult correctional         300.2(b)(1)(iv).
 facilities.
 Transfer of rights to children in.......  300.520(a)(2).
 
CORRECTIVE ACTION (PLAN)
 Corrective actions to achieve compliance
 (see Sec.  Sec.   300.152(b)(2)(iii), 300.607)
 Monitoring activities...................  300.120(b)(2).
 Needs intervention by Secretary.........  300.604(b)(2)(i).
 State advisory panel (Advise SEA on)....  300.169(d).
 
COUNSELING SERVICES (Definition)...........................  300.34(c)(2).
 
COUNT (See ``Child count'')
 
COURT(S)
 Attorneys' fees.........................  300.517.
 Civil action............................  300.516.
 Court order:
    [Omicron] Exception to FAPE for certain ages...........  300.102(a)(1).
 Judicial review:
    [Omicron] By-pass......................................  300.197.
    [Omicron] Department procedures........................  300.184.
 New interpretation of Act by courts       300.176(c)(2).
 requiring modification.
 Reimbursement for private school
 placement (see Sec.   300.148(b) through (e))
 
CRIME (See ``Reporting a crime'')..........................  300.535.
 
CRITERIA (A-I)
 Child count.............................  300.644.
 Child eligibility (Determinant factor)..  300.306(b)(1).
 IEP Team (Public agency representative).  300.321(a)(4).
 Independent educational evaluation......  300.502.
 
CRITERIA (J-Z)
 Specific learning disability (see Sec.
 Sec.   300.307, 300.309)
 Surrogate parents.......................  300.519(d).
 
CURRENT PLACEMENT (Discipline)
 Authority of hearing officer............  300.532(b).
 Placement during appeals................  300.533.
 
DATA (A-L)
 Allocation of remaining funds to LEAs...  300.816(d).
 Average per-pupil expenditure             300.717(d).
 (Definition).
 By-pass (Provision of services under)...  300.191(c)(2).
 Determination of needed evaluation data.  300.305(c).
 Disaggregated data......................  300.704(b)(4)(xi).
 Evaluation data:
    [Omicron] Procedures for determining eligibility and     300.306(c).
     placement.
    [Omicron] Review of existing data......................  300.305(a)(1).
 Grants to States most recent data.......  300.703(c)(1)(ii).
 LRE (Placements--meaning of evaluation    300.116(a)(1).
 data.
 
DATA (M-Z)
 Parental consent (Not required for        300.300(d)(1)(i).
 reviewing existing evaluation data).
 State advisory council (Advise SEA on)..  300.169(c).
 Suspension and expulsion rates..........  300.170(a).
 
DAY
 Business day (Definition)...............  300.11(b).
 Day (Calendar)..........................  300.11(a).

[[Page 141]]

 
 Discipline (See ``Timelines--
 Discipline'')
 School day (Definition).................  300.11(c).
 See ``Timelines''.......................
 
DECREASE IN ENROLLMENT (Exception to LEA maintenance of      300.204(b).
 effort).
 
DECREASE IN FUNDS (To States)..............................  300.703(d).
 
DEDUCTIBLE OR CO-PAY (Public benefits or insurance)........  300.154(d)(2)(ii).
 
DEFINITIONS (A-D)
 Act.....................................  300.4.
 Assistive technology device.............  300.5.
 Assistive technology service............  300.6.
 At no cost..............................  300.39(b)(1).
 Audiology...............................  300.34(c)(1).
 Autism..................................  300.8(c)(1).
 Average per-pupil expenditure in public   300.717(d).
 elementary and secondary schools in the United States.
 Business day............................  300.11(b).
 Charter school..........................  300.7.
 Child with a disability.................  300.8(a)(1).
 Consent.................................  300.9.
 Controlled substance....................  300.530(i)(1).
 Core academic subjects..................  300.10.
 Counseling services.....................  300.34(c)(2).
 Day; business day; school day...........  300.11.
 Deaf-blindness..........................  300.8(c)(2).
 Deafness................................  300.8(c)(3).
 Destruction (Of information)............  300.611(a).
 Developmental delays(s).................  300.8(b).
 
DEFINITIONS (E-H)
 Early identification and assessment.....  300.34(c)(3).
 Education records.......................  300.611(b).
 Educational service agency..............  300.12.
 Elementary school.......................  300.13.
 Emotional disturbance...................  300.8(c)(4).
 Equipment...............................  300.14.
 Evaluation..............................  300.15.
 Excess costs............................  300.16.
 Extended school year services...........  300.106(b).
 Free appropriate public education.......  300.17.
 Freely associated States................  300.717(a).
 Hearing impairment......................  300.8(c)(5).
 Highly qualified special education        300.18(b).
 teacher.
 Homeless children.......................  300.19.
 
DEFINITIONS (I)
 IEP Team................................  300.23.
 Illegal drug............................  300.530(i)(2).
 Include.................................  300.20.
 Independent educational evaluation......  300.502(a)(3)(i).
 Indian..................................  300.21(a).
 Indian tribe............................  300.21(b).
 Individualized education program (IEP)..  300.22.
 Individualized family service plan......  300.24.
 Infant or toddler with a disability.....  300.25.
 Institution of higher education.........  300.26.
 Intellectual Disability.................  300.8(c)(6).
 Interpreting services...................  300.34(c)(4).
 
DEFINITIONS (J-O)

[[Page 142]]

 
 Limited English proficient (LEP)........  300.27.
 Local educational agency (LEA)..........  300.28.
 Medical services........................  300.34(c)(5).
 Multiple disabilities...................  300.8(c)(7).
 Native language.........................  300.29(a).
 Occupational therapy....................  300.34(c)(6).
 Orientation and mobility services.......  300.34(c)(7).
 Orthopedic impairment...................  300.8(c)(8).
 Other health impairment.................  300.8(c)(9).
 Outlying areas..........................  300.717(b).
 
DEFINITIONS (P-R)
 Parent..................................  300.30(a).
 Parent counseling and training..........  300.34(c)(8).
 Parent training and information center..  300.31.
 Parentally-placed private school          300.130.
 children with disabilities.
 Participating agency (as used in          300.611(c).
 ``Confidentiality'').
 Party or parties (Regarding procedures).  300.181(a).
 Personally identifiable.................  300.32.
 Physical education......................  300.39(b)(2).
 Physical therapy........................  300.34(c)(9).
 Psychological services..................  300.34(c)(10).
 Public agency...........................  300.33.
 Public expense..........................  300.502(a)(3)(ii).
 Recreation..............................  300.34(c)(11).
 Rehabilitation counseling services......  300.34(c)(12).
 Related services........................  300.34(a).
 
DEFINITIONS (S)
 School day..............................  300.11(c).
 School health services..................  300.34(c)(13).
 School nurse services...................  300.34(c)(13).
 Scientifically based research...........  300.35.
 Secondary school........................  300.36.
 Secretary...............................  300.38.
 Serious bodily injury...................  300.530(i)(3).
 Services plan...........................  300.37.
 Social work services in schools.........  300.34(c)(14).
 Special education.......................  300.39(a).
 Specially designed instruction..........  300.39(b)(3).
 Specific learning disability............  300.8(c)(10).
 Speech-language pathology services......  300.34(c)(15).
 Speech or language impairment...........  300.8(c)(11).
 State...................................  300.40.
 State (Special definition)..............  300.717(c).
 State educational agency (SEA)..........  300.41.
 Supplementary aids and services.........  300.42.
 
DEFINITIONS (T-Z)
 Transition services.....................  300.43.
 Transportation..........................  300.34(c)(16).
 Traumatic brain injury..................  300.8(c)(12).
 Travel training.........................  300.38(b)(4).
 Universal design........................  300.44.
 Visual impairment including blindness...  300.8(c)(13).
 Vocational education....................  300.39(b)(5).
 Ward of the State.......................  300.45.
 Weapon..................................  300.530(i)(4).
 
DEPARTMENT OF LABOR, Bureau of Labor Statistics (Regarding
 rate of inflation) (see Sec.  Sec.   300.702(b),
 300.704(a)(2)(ii), (b)(2), 300.812(b)(2))
 

[[Page 143]]

 
DEPARTMENT (U.S. Department of Education)
 Enforcement: hearing procedures (see
 Sec.  Sec.   300.178 through 300.184)
 Monitoring (Regarding Secretary of the    300.708(a).
 Interior).
 Personally identifiable information (Use  300.627.
 of).
 
DESTRUCTION OF INFORMATION.................................  300.624(b).
 Definition..............................  300.611(a).
 
DETERMINANT FACTOR for eligibility determination
 Lack of instruction in reading or math
 (see Sec.   300.306(b)(1)(i), (b)(1)(ii))
 Limited English proficiency.............  300.306(b)(1)(iii).
 
DEVELOPMENT, REVIEW, AND REVISION OF IEP...................  300.324.
 
DEVELOPMENTAL DELAY(S)
 In definition of ``Child with a           300.8(b).
 disability''.
 Requirements for using ``Developmental    300.111(b).
 delay''.
 State definition........................  300.111(b).
 Using specified disability categories...  300.111(d).
 
DIABETES...................................................  300.8(c)(9)(i).
 
DIRECT SERVICES
 For children in private schools (see
 Sec.  Sec.   300.132(a); 300.133(a); 300.134(d)(1))
 Nature and location of services.........  300.227(b).
 Payment by Secretary of the Interior....  300.712(d).
 SEA (Additional information)............  300.175(a).
 State-level activities..................  300.704(b)(4)(i).
 Use of LEA allocations for..............  300.227(a).
 
DISABILITY: ADVERSELY AFFECTS EDUCATIONAL PERFORMANCE (See
 ``Adversely affects educational performance'')
 
DISAGGREGATED DATA
 Assessment results for subgroup of        300.704(b)(4)(xi).
 children with disabilities.
 For suspension and expulsion by race and  300.170(a).
 ethnicity.
 
DISCIPLINE (A-B)
 Alternative educational setting (see
 Sec.  Sec.   300.530(d)(1), (d)(2), (d)(4), (g), 300.531,
 300.533)
 Appeal..................................  300.532(a).
 Behavioral interventions--intervention    300.530(f).
 plan.
 
DISCIPLINE (C-H)
 Change of placements for disciplinary     300.536.
 removals.
 Child's status during due process         300.518.
 hearings.
 Determination of setting................  300.531.
 Expedited due process hearings..........  300.532(c).
 Functional behavioral assessment (see
 Sec.   300.530(d)(1)(ii), (f)(1)(i)).
 Hearing officer (authority of) (see Sec.
  Sec.   300.532(b), 300.533).
 
DISCIPLINE (I-Z)
 IEP Team (relevant members) (see Sec.
 Sec.   300.530(e)(1), (f), 300.531).
 Interim alternative educational setting
 (see Sec.  Sec.   300.530(b), (d)(2), (g), 300.531,
 300.532(b)(2)(ii), 300.533).
 Manifestation determination.............  300.530(e).
 Placement during appeals................  300.533.
 Protections for children not determined   300.534.
 eligible.
 Referral to and action by law             300.535.
 enforcement and judicial authorities.
 School personnel (Authority of).........  300.530(b).

[[Page 144]]

 
 See ``Timelines--Discipline''...........
 
DISCLOSURE
 Additional disclosure of information      300.512(b).
 requirement.
 Consent required before disclosing:
    [Omicron] Education records to public benefits or        300.154(d)(2)(iv).
     insurance agencies.
    [Omicron] Personal information to non-agency officials.  300.622(a).
 Notice on disclosure of evaluation        300.504(c)(10).
 results.
 Policies on disclosing information to     300.612(a)(3).
 3rd parties.
 Prohibit evidence not disclosed.........  300.512(a)(3).
 
DISPROPORTIONALITY.........................................  300.646.
 
DISPUTES
 Interagency disputes (Methods of
 ensuring services):
    [Omicron] Ensure services during pendency of dispute...  300.154(a).
    [Omicron] Procedures for resolving.....................  300.154(a)(3).
 Mediation (see also Sec.                  300.506.
 300.532(c)(3)).
    [Omicron] Attorneys' fees for..........................  300.517(c)(2)(ii).
    [Omicron] During discipline appeal process.............  300.532(c)(3).
    [Omicron] During resolution process (see Sec.
     300.510(b)(3), (c)(3))
    [Omicron] Enforcement of agreement (see Sec.  Sec.
     300.506(b)(7), 300.510(d)(2), 300.537)
 
DIVIDED STATE AGENCY RESPONSIBILITY (Adult prisons)........  300.607.
 
DIVORCE--SEPARATION (Authority to review records)..........  300.613(c).
 
DROPOUT RATES (Performance indicators).....................  300.157(a)(3).
 
DUE PROCESS HEARING(S) AND REVIEWS (A-E)
 Agency responsible for conducting         300.511(b).
 hearing.
 Appeal of decisions; impartial review...  300.514(b).
 Attorneys' fees.........................  300.517(a).
 Basic requirements (see Sec.  Sec.
 300.507 through 300.514)
 Child's status during proceedings         300.518.
 (Pendency).
    [Omicron] Parent request for hearing (Discipline)......  300.532(a).
 Civil action............................  300.516(a).
 Evaluations disclosed at least 5          300.512(a)(3).
 business days before hearing.
 Expedited due process hearings            300.532(c).
 (Discipline).
 
DUE PROCESS HEARING(S) AND REVIEWS (F-I)
 Failure to implement a due process        300.152(c)(3).
 hearing decision.
 Finality of decision; appeal; impartial   300.514.
 review.
 Findings of fact and decisions (see Sec.
   300.512(a)(5), (c)(3)):
    [Omicron] To State advisory panel (see Sec.  Sec.
     300.513(d), 300.514(c))
 Hearing rights..........................  300.512(a).
 Impartial hearing officer...............  300.511(c).
    [Omicron] See ``Hearing officer(s)''
 
DUE PROCESS HEARING(S) AND REVIEWS (J-Z)
 Parental rights at hearings.............  300.512(c).
 Party notice to other party.............  300.508(c).
    [Omicron] Model form to assist parents.................  300.509.
 Party request for hearing (Discipline)..  300.532(a).
 Pendency (Stay put).....................  300.518.
 Prohibit evidence not introduced 5        300.512(a)(3).
 business days before hearing.
 Record of hearing.......................  300.512(c)(3).
 See ``Civil action--proceedings,''
 ``Court(s)'' ``Procedural safeguards,'' ``Timelines''

[[Page 145]]

 
 Timelines and convenience of hearings--
 reviews (see Sec.  Sec.   300.506(b)(5), 300.511(e),
 300.516(b))
 
EARLY IDENTIFICATION AND ASSESSMENT (Definition)...........  300.34(c)(3).
 
EARLY INTERVENING SERVICES.................................  300.226.
 Adjustment to local fiscal efforts......  300.205(d).
 Do not limit/create right to FAPE.......  300.226(c).
 For children not currently identified as  300.226(a).
 needing special education or related services.
 Permissive use of funds.................  300.208(a)(2).
 Scientifically based literacy             300.226(b).
 instruction.
 Use of funds:
    [Omicron] By LEA.......................................  300.226(a).
    [Omicron] By Secretary of the Interior.................  300.711.
 
EDUCATION RECORDS (Definition).............................  300.611(b).
 
EDUCATIONAL PLACEMENTS (LRE)...............................  300.114.
 
EDUCATIONAL SERVICE AGENCY (ESA)
 Definition..............................  300.12.
 In definition of ``LEA''................  300.28(b)(1).
 Joint establishment of eligibility        300.224(b).
 (Regarding ESAs).
    [Omicron] Additional requirements (Regarding LRE)......  300.224(c).
 
ELEMENTARY AND SECONDARY EDUCATION ACT OF 1965 (ESEA)
 Coordination of early intervening         300.226(e).
 services.
 Excess cost requirement.................  300.202(b).
 Schoolwide programs.....................  300.206(a).
 
ELIGIBILITY (CHILD--STUDENT) (A-G)
 Additional eligibility requirements (see
 Sec.  Sec.   300.121 through 300.124, 300.307 through
 300.311)
 Children with disabilities in adult       300.324(d).
 prisons.
 Children with specific learning           300.311(a).
 disabilities (Documentation of eligibility determination).
 Determinant factor for..................  300.306(b)(1).
 Determination of eligibility............  300.306.
 Developmental delay (Non-use of term by   300.111(b)(iv).
 LEA if not adopted by State).
 Documentation of eligibility (To parent)  300.306(a)(2).
 Graduation with regular diploma:
 termination (see Sec.  Sec.   300.102(a)(3),
 300.305(e)(2)).
 
ELIGIBILITY (CHILD--STUDENT) (H-Z)
 Lack of instruction in reading or math..  300.306(b).
 Limited English proficiency.............  300.306(b).
 Public benefits or insurance (Risk loss   Sec.   300.154(d)(2) (iii).
 of eligibility).
 Termination of eligibility (see Sec.
 Sec.   300.204(c), 300.305(e)(2))
 Transfer of rights (Special rule).......  300.520(b).
 
ELIGIBILITY (PUBLIC AGENCIES)
 Hearings related to (See ``Hearings--
 Hearing procedures'')
 Joint establishment of (see Sec.  Sec.
 300.202(b)(3), 300.223(a), 300.224(a))
 LEA (See ``LEA eligibility'') Secretary   300.712(e).
 of the Interior.
 State (See ``State eligibility'')
 State agency eligibility................  300.228.
    [Omicron] See ``State agencies''
 
EMOTIONAL DISTURBANCE (Definition).........................  300.8(c)(4).
 
ENFORCEMENT

[[Page 146]]

 
 Department procedures (see Sec.  Sec.
 300.600, 300.604, 300.605)
 Referral to law enforcement authorities.  300.535.
 State policies and procedures:
    [Omicron] Enforcement mechanisms.......................  300.537.
    [Omicron] LEA not meeting requirements.................  300.608.
    [Omicron] Regarding confidentiality....................  300.626.
 
EPILEPSY...................................................  300.8(c)(9)(i).
 
EQUIPMENT
 Acquisition of..........................  300.718(a).
 Definition..............................  300.14.
 Exception to maintenance of effort......  300.204(d).
 Placement in private school.............  300.144.
 
EVALUATION (A-G)
 Assessments in (see Sec.  Sec.
 300.304(b), (c) 300.305(c)).
 Basic requirements (see Sec.  Sec.
 300.301, 300.303, 300.324)
 Comprehensive (Identify all special       300.304(c)(6).
 education needs).
 Definition of...........................  300.15.
 Evaluation procedures...................  300.304.
 Evaluation report to parents............  300.306(a)(2).
 Existing evaluation data (Review of)....  300.305(a)(1).
 Graduation (Evaluation not required for)  300.305(e)(2).
 
EVALUATION (H-Z)
 Independent educational evaluation (IEE)  300.502.
 Initial evaluation (see Sec.  Sec.
 300.301, 300.305)
 Observation in determining SLD..........  300.310.
 Parent consent..........................  300.300.
 Parent right to evaluation at public      300.502(b).
 expense.
 Reevaluation............................  300.303.
 
EXCEPTION
 Charter schools exception (Joint          300.223(b).
 eligibility).
 For prior local policies and procedures.  300.220.
 For prior State policies and procedures.  300.176(a).
 To FAPE:
    [Omicron] For certain ages.............................  300.102.
    [Omicron] For graduating with a regular diploma........  300.102 (a)(3)(i).
    [Omicron] For children in adult prisons (see Sec.  Sec.
       300.102(a)(2), 300.324(d)).
  To maintenance of effort...............  300.204.
 To reimbursement for parental placement.  300.148(e).
 
EXCESS COSTS
 Calculation of (see appendix A--Excess
 Costs Calculation)
 Definition..............................  300.16.
 Excess cost requirement.................  300.202(b)
 Joint establishment of eligibility......  300.202(b)(3)
 LEA requirement.........................  300.202(b)
 Limitation on use of Part B funds.......  300.202(b)
 Meeting the excess cost requirement.....  300.202(b)(2)
 See also Sec.  Sec.   300.163(a),
 300.175(b), 300.202(a), 300.227(a)(2)(ii)
 
EXISTING EVALUATION DATA (Review of).......................  300.305(a)(1).
 
EXPEDITED DUE PROCESS HEARINGS.............................  300.532(c).
 Authority of hearing officer............  300.532(b).
 Party appeal (Hearing requested by        300.532(a).
 parents).
 
EXPULSION (See ``Suspension and expulsion'')
 
EXTENDED SCHOOL YEAR SERVICES..............................  300.106.
 
EXTRACURRICULAR

[[Page 147]]

 
 IEP content.............................  300.320(a)(4)(ii).
 In supplementary aids and services......  300.42.
 Nonacademic services....................  300.107.
 Nonacademic settings....................  300.117.
 
FACILITIES
 Alteration of...........................  300.718.
 Children in private schools or
 facilities (see Sec.  Sec.   300.130, 300.142(a),
 300.144(b), (c), 300.147(c))
 Construction of.........................  300.718.
 Physical education (In separate           300.108(d).
 facilities).
 Private schools and facilities..........  300.2(c).
 See also ``Correctional facilities''
 Termination of expenses for construction  300.204(d).
 of.
 
FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT (FERPA) (See
 ``Confidentiality'')
 
FAPE (A-G)
 Definition..............................  300.17.
 Documentation of exceptions.............  300.102(b).
 Exception to FAPE:
    [Omicron] For certain ages.............................  300.102(a).
    [Omicron] For children receiving early intervention      300.102(a)(4).
     services.
    [Omicron] For children graduating with a regular         300.102(a)(3).
     diploma.
    [Omicron] For children in adult correctional facilities  300.102(a)(2).
 For children:
    [Omicron] Advancing from grade to grade................  300.101(c).
    [Omicron] Beginning at age 3...........................  300.101(b).
    [Omicron] On Indian reservations.......................  300.707(c).
    [Omicron] Suspended or expelled from school............  300.101(a).
 General requirement.....................  300.101(a).
 
FAPE (H-Z)
 Methods and payments....................  300.103.
 Private school children with
 disabilities:
    [Omicron] Placed by parents when FAPE is at issue......  300.148.
    [Omicron] Placed in or referred by public agencies (see
     Sec.  Sec.   300.145 through 300.147)
 Reallocation of LEA funds (FAPE           300.705(c).
 adequately provided).
 Services (and placement) for FAPE:
    [Omicron] Based on child's needs (Not disability         300.304(c)(6).
     category).
 State eligibility condition.............  300.100.
FAS (Freely associated States).............................  300.717(a).
 
FAX (FACSIMILE TRANSMISSION)
 Department procedures (see Sec.  Sec.
 300.183, 300.196(a) through (e))
 
FERPA (Family Educational Rights and Privacy Act) (See
 ``Confidentiality'')
 
FILING A CLAIM (Private insurance).........................  300.154(e).
 
FILING A COMPLAINT (State complaint procedures)............  300.153.
 
FILING REQUIREMENTS
 By-pass (Regarding private school         300.196.
 children).
 Department procedures...................  300.183.
 See Sec.  Sec.   300.178 through
 300.186.
 
FINALITY OF DECISION.......................................  300.514.
 
FORMULA

[[Page 148]]

 
 Allocations to LEAs.....................  300.705(b).
 Allocations to States...................  300.703.
 Allocation to States when by-pass is      300.191.
 implemented.
 Allocation to States regarding section
 619 (see Sec.  Sec.   300.807, 300.810).
 Parentally-placed private school          300.133.
 children.
 SEA set aside funds.....................  300.704(b).
 See also Sec.   300.171(a).
 
FOSTER PARENT..............................................  300.30(a)(2).
 See also Sec.   300.45(b).
 
FREELY ASSOCIATED STATES AND OUTLYING AREAS
 Funding for.............................  300.701(a).
 Purpose of grants.......................  300.700(a).
 
FULL EDUCATIONAL OPPORTUNITY GOAL..........................  300.109.
 
FUNCTIONAL BEHAVIORAL ASSESSMENT (see Sec.
 300.530(d)(1)(ii), (f)(1)(i))
 
FUNDING MECHANISM: LRE.....................................  300.114(b).
 
FUNDS (See ``Use of funds'')
 
GENERAL CURRICULUM
 Discipline (Continue participating in)..  300.530(d)(1)(i).
 Evaluation procedures:
    [Omicron] Be involved and progress in..................  300.304(b)(1)(ii).
    [Omicron] Review of existing evaluation data...........  300.305(a)(1).
 IEPs:
    [Omicron] Measurable annual goals......................  300.320(a)(2)(i).
    [Omicron] Present levels of educational performance....  300.320(a)(1).
    [Omicron] Review and revision of IEPs..................  300.324(b)(1)(ii).
    [Omicron] Special education and related services.......  300.320(a)(4)(ii).
 IEP Team................................  300.321(a)(4)(ii).
 Specially designed instruction            300.39(b)(3).
 (Definition).
 
GOALS
Annual goals (See ``IEP'' and ``Annual goals'').
 Performance goals and indicators........  300.157.
    [Omicron] State and local activities to meet...........  300.814(c).
    [Omicron] Use of State-level funds to meet.............  300.704(b)(4)(x).
 
GOVERNOR (Adult prisons)...................................  300.149(d).
 See also ``Chief executive officer''.
 
GRADUATION
 Evaluation not required for.............  300.305(e)(2).
 Exception to FAPE.......................  300.102(a)(3)(i).
 Graduation rates as performance           300.157(a)(3).
 indicators.
 Written prior notice required...........  300.102(a)(3)(iii).
 
GRANDPARENT OR STEPPARENT (In definition of ``Parent'')....  300.30(a)(4).
 
GRANTS
 Grants to States:.......................  300.700.
    [Omicron] Maximum amount...............................  300.700(b).
    [Omicron] Purpose of...................................  300.700(a).
 See ``Subgrants''.
 
GUARDIAN (In definition of ``Parent'').....................  300.30(a)(3).
 
GUARDIANSHIP, SEPARATION, AND DIVORCE (Regarding parent's    300.613(c).
 authority to review records).
 
HEALTH AND HUMAN SERVICES (Secretary of)...................  300.708(i)(1).
 
HEARING AIDS: Proper functioning of........................  300.113(a).
 
HEARING IMPAIRMENT

[[Page 149]]

 
 Definition..............................  300.8(c)(5).
 Related services, audiology.............  300.34(c)(1).
HEARING OFFICER(S) (A-B)
 Additional disclosure of information      300.512(b).
 requirement.
 Attorneys' fees.........................  300.517(c)(2)(i).
 Authority of (Discipline)...............  300.532(b).
    [Omicron] Basis of decisions...........................  300.513(a).
 
HEARING OFFICER(S) (C-Z)
 Change of placement:
    [Omicron] Hearing officer decision agrees with parents.  300.518(d).
    [Omicron] Hearing officer may order....................  300.532(b)(2)(ii).
 Expedited due process hearing             300.532(c).
 (Discipline).
 Impartial hearing officer...............  300.511(c).
 Parent appeal (Discipline)..............  300.532(a).
 Placement during appeals................  300.533.
 Private school placement when FAPE is at  300.148(b).
 issue.
 Reimbursement for private school          300.148(c).
 placement by parents.
 Requests for evaluations by.............  300.502(d).
 
HEARING RIGHTS.............................................  300.512.
 
HEARINGS--HEARING PROCEDURES
 Due process (See ``Due process
 hearings'').
 Public hearings on policies and           300.165(a).
 procedures.
 State and local eligibility:
    [Omicron] LEA eligibility..............................  300.155.
    [Omicron] Notification in case of LEA or State           300.221.
     ineligibility.
    [Omicron] State eligibility (Notice and hearing) (see
     Sec.  Sec.   300.178, 300.179, 300.181).
 
HEART CONDITION............................................  300.8(c)(9)(i).
 
HEIGHTENED ALERTNESS TO ENVIRONMENTAL STIMULI (In ``Other    300.8(c)(9).
 health impairment'').
HIGH COST FUND (LEA).......................................  300.704(c).
 
HIGHLY MOBILE CHILDREN (e.g., homeless and migrant           300.111(c)(2).
 children).
 
HIGHLY QUALIFIED TEACHER (A-Q)
 Alternative route to certification......  300.18(b)(2).
 Definition of...........................  300.18.
 Private school teachers.................  300.18(h).
 
HIGHLY QUALIFIED TEACHER (R-Z)
 Requirements for in general.............  300.18(b).
 Requirements for teaching to alternate    300.18(c).
 academic achievement standards.
 Requirements for teaching multiple        300.18(d).
 subjects.
 Personnel qualifications................  300.156(c).
 
HIGH NEED CHILD............................................  300.704(c)(3)(i).
 
HOMELESS CHILDREN
 Child find..............................  300.111(a)(1)(i).
 Definition of...........................  300.19.
 McKinney-Vento Homeless Assistance Act
 (see Sec.  Sec.   300.19, 300.149(a)(3),
 300.153(b)(4)(iii), 300.168(a)(5), 300.508(b)(4)).
 Surrogate parents for...................  300.519(a)(4).
 
HYPERACTIVITY (Attention deficit hyperactivity disorder)...  300.8(c)(9)(i).
 
INAPPLICABILITY (Of requirements that prohibit commingling   300.704(d).
 and supplanting of funds).
 

[[Page 150]]

 
IEE (See ``Independent educational evaluation'')
 
IEP (A-I)
 Agency responsibilities for transition    300.324(c)(1).
 services.
 Basic requirements (see Sec.  Sec.
 300.320 through 300.324).
 Child participation when considering      300.321(b)(1).
 transition.
 Consideration of special factors........  300.324(a)(2).
 Consolidation of IEP Team meetings......  300.324(a)(5).
 Content of IEPs.........................  300.320(a).
 Definition (see Sec.  Sec.   300.22,
 300.320).
 Development, review, and revision of....  300.324.
 IEP or IFSP for children aged 3 through   300.323(b).
 5.
 IEP Team................................  300.321.
 
IEP (J-Z)
 Modifications of IEP or placement (FAPE   300.324(d)(2)(i).
 for children in adult prisons).
 Modify/Amend without convening meeting
 (see Sec.   300.324(a)(4), (a)(6)).
 Parent participation....................  300.322.
 Alternative means.......................  300.328.
 Part C coordinator involvement..........  300.321(f).
 Private school placements by public       300.325(a)(1).
 agencies.
 Regular education teacher (See ``IEP
 Team'').
 Review and revision of IEPs.............  300.324(b).
 SEA responsibility regarding private      300.325(c).
 school.
 State eligibility requirement...........  300.112.
 Transition services.....................  300.320(b).
 When IEPs must be in effect.............  300.323.
 
IEP TEAM...................................................  300.321.
 Alternative educational setting           300.531.
 (Determined by).
 Consideration of special factors........  300.324(a)(2).
    [Omicron] Assistive technology.........................  300.324(a)(2)(v).
    [Omicron] Behavioral interventions.....................  300.324(a)(2)(i).
    [Omicron] Braille needs................................  300.324(a)(2)(iii).
    [Omicron] Communication needs (Deafness and other        300.324(a)(2)(iv).
     needs).
    [Omicron] Limited English proficiency..................  300.324(a)(2)(ii).
 Determination of knowledge or special     300.321(c).
 expertise.
 Discipline procedures (see Sec.  Sec.
 300.530(e), 300.531).
 Manifestation determination.............  300.530(e).
 Other individuals who have knowledge or   300.321(a)(6).
 special expertise (At parent or agency discretion).
 Participation by private school (public   300.325(a).
 agency placement).
 Regular education teacher (see Sec.
 Sec.   300.321(a)(2), 300.324(a)(3)).
 
IFSP (INDIVIDUALIZED FAMILY SERVICE PLAN)
 Definition..............................  300.24.
 Transition from Part C..................  300.124.
 IFSP vs. IEP............................  300.323(b).
 
ILLEGAL DRUG (Definition--discipline)......................  300.530(i)(2).
 
IMPARTIAL DUE PROCESS HEARING..............................  300.511.
 See ``Due process hearings and
 reviews''.
 
IMPARTIAL HEARING OFFICER..................................  300.511(c).
 
 IMPARTIALITY OF MEDIATOR..................................  300.506(b)(1).
 
INCIDENTAL BENEFITS (Permissive use of funds)..............  300.208.
 
INCIDENTAL FEES (In definition of ``at no cost'' under       300.39(b)(1).
 ``Special education'').
 

[[Page 151]]

 
INCLUDE (Definition).......................................  300.20.
 
INDEPENDENT EDUCATIONAL EVALUATION (IEE)...................  300.502.
 Agency criteria (see Sec.
 300.502(a)(2), (b)(2)(ii), (c)(1), (e)).
 Definition..............................  300.502(a)(3)(i).
 Parent-initiated evaluations............  300.502(c).
 Parent right to.........................  300.502(a)(1).
 Procedural safeguards notice............  300.504(c)(1).
 Public expense (Definition under IEE)...  300.502(a)(3)(ii).
 Request by hearing officers.............  300.502(d).
 Use as evidence at hearing..............  300.502(c)(2).
 
INDIAN; INDIAN CHILDREN
 Child find for Indian children aged 3     300.712(d).
 through 5.
 Definition of ``Indian''................  300.21(a).
 Definition of ``Indian tribe''..........  300.21(b).
 Early intervening services..............  300.711.
 Payments and use of amounts for:
    [Omicron] Education and services for children aged 3     300.712(a).
     through 5.
    [Omicron] Education of Indian children.................  300.707.
 Plan for coordination of services.......  300.713.
 Submission of information by Secretary    300.708.
 of Interior.
 
INDICATORS.................................................  300.157(b).
 See ``Performance goals and
 indicators''.
 
INDIVIDUALIZED EDUCATION PROGRAM (See ``IEP'')
 
INDIVIDUALIZED FAMILY SERVICE PLAN (See ``IFSP'')
 
INFORMED CONSENT (See ``Consent'')
 
INITIAL EVALUATION.........................................  300.301.
 Consent before conducting...............  300.300(a)(1)(i).
    [Omicron] For ward of State............................  300.300(a)(2).
    [Omicron] Not construed as consent for initial           300.300(a)(1)(ii).
     placement.
    [Omicron] When not required............................  300.300(a)(2).
 Review of existing evaluation data......  300.305(a).
 
INSTITUTION OF HIGHER EDUCATION
 Definition..............................  300.26.
 
INSTRUCTIONAL MATERIALS
 Access to...............................  300.172.
 Audio-visual materials..................  300.14(b).
 LEA purchase of.........................  300.210.
 NIMAC:
    [Omicron] SEA coordination with........................  300.172(c).
    [Omicron] SEA rights and responsibilities if not         300.172(b).
     coordinating.
 
INSURANCE
 Community-based waivers (see Sec.
 300.154(d)(2)(iii)(D)).
 Financial costs.........................  300.154(f)(2).
 Financial responsibility of LEA/SEA.....  300.154(a)(1).
 Out-of-pocket expense...................  300.154(d)(2)(ii).
 Private insurance.......................  300.154(e).
 Public benefits or insurance............  300.154(d).
 Risk of loss of eligibility (see Sec.
 300.154(d)(2)(iii)(D)).
 
INTELLECTUAL DISABILITY (Definition).......................  300.8(c)(6).
INTERAGENCY AGREEMENTS
 FAPE methods and payments (Joint          300.103(a).
 agreements).
 LRE (Children in public/private           300.114(a)(2)(i).
 institutions).

[[Page 152]]

 
 Methods of ensuring services............  300.154(a).
 SEA responsibility for general            300.149.
 supervision.
 Secretary of Interior--with Health and    300.708(i)(1).
 Human Services Secretary.
    [Omicron] Cooperative agreements (BIA and other          300.712(d).
     agencies).
 
INTERAGENCY COORDINATION (See ``Coordination of services,''
 ``Interagency agreements'')
 
INTERAGENCY DISPUTES.......................................  300.154(a)(3).
 
INTERAGENCY RESPONSIBILITIES (Transition services).........  300.320(b).
 
INTERIM ALTERNATIVE EDUCATIONAL SETTING (See Sec.  Sec.
 300.530(b), 300.531, 300.532(b)(2)(ii), 300.533)
 
INTERPRETING SERVICES
 As a related service....................  300.34(a).
 Definition..............................  300.34(c)(4).
 
JOINT ESTABLISHMENT OF ELIGIBILITY (LEAs)..................  300.223.
 See also Sec.  Sec.   300.202(b)(3),
 300.224.
 
JUDICIAL
 Authorities (Referral to)...............  300.535.
 Finding of unreasonableness.............  300.148(d)(3).
 Proceeding (During pendency)............  300.518(a).
 Review..................................  300.197.
 See also:
    [Omicron] Civil action (see Sec.  Sec.
     300.504(c)(12), 300.514(d), 300.516).
    [Omicron] Court(s) (see Sec.  Sec.   300.102(a)(1),
     300.184, 300.148(c), (d)(3), 300.197, 300.516(a), (c),
     (d), 300.517(a), (c)).
 
JUVENILE-ADULT CORRECTIONS FACILITIES (See ``Correctional
 facilities'')
 
LAW ENFORCEMENT AND JUDICIAL AUTHORITIES
 Referral to.............................  300.535.
 
LEA (LOCAL EDUCATIONAL AGENCY) (A-C)
 Allocations to LEAs.....................  300.705(b).
    [Omicron] Reallocation of funds (If LEA is adequately    300.705(c).
     providing FAPE).
 Charter schools and LEAs (See ``Charter
 schools'').
 Child count--LEAs:
    [Omicron] Parentally-placed private school children      300.133(c).
     with disabilities.
    [Omicron] Procedures for counting all children served    300.645.
     (Annual report).
    [Omicron] See also ``Child count''.
 Child find--LEAs:
    [Omicron] Parentally-placed private school children      300.131.
     with disabilities.
    [Omicron] See also ``Child find''......................
 Compliance (LEA and State agency).......  300.222.
 Consistency of LEA policies with State    300.201.
 policies.
 
LEA (D-G)
 Definition of LEA.......................  300.28.
 Developmental delay: Use of term by LEAs
 (see Sec.   300.111(b)(2) through (b)(4)).
 Direct services by SEA (If LEA is unable  300.227.
 or unwilling to serve CWDs, etc.).
 Discipline and LEAs (See
 ``Discipline'').
 Eligibility of LEA:

[[Page 153]]

 
    [Omicron] Condition of assistance (see Sec.  Sec.
     300.200 through 300.213).
    [Omicron] Exception for prior local plans..............  300.220.
    [Omicron] Ineligibility of LEA (Notice by SEA).........  300.221.
    [Omicron] SEA hearings on LEA eligibility..............  300.155.
 Excess cost requirement--LEA:...........  300.202(b).
    [Omicron] Use of amounts for excess costs..............  300.202(a)(2).
    [Omicron] See also ``Excess costs''.
 
LEA (H-L)
 Hearings relating to LEA eligibility....  300.155.
 Information for SEA.....................  300.211.
 Instructional materials (Purchase of)...  300.210.
 Joint establishment of eligibility (By    300.202(b)(3).
 two or more LEAs).
    [Omicron] See also Sec.  Sec.   300.223, 300.224.......
 LEA and State agency compliance.........  300.222.
 LEA policies (Modification of)..........  300.220(b).
    [Omicron] See ``LEA eligibility,'' ``Eligibility of
     LEA''.
 
LEA (M-P)
 Maintenance of effort regarding LEAs
 (See ``Maintenance of effort'').
 Methods of ensuring services--LEAs (see
 Sec.   300.154(a)(1) through (a)(4), (b)).
 Migratory children with disabilities      300.213.
 (Linkage with records under ESEA).
 Modification of policies by LEA.........  300.220(b).
 Noncompliance of LEA (SEA determination)  300.222(a).
 Notice requirement (On LEA).............  300.222(b).
 Purchase of instructional materials.....  300.210.
 Personnel shortages (Use of funds to      300.704(b)(4)(vii).
 assist LEAs in meeting).
 Public information (By LEA).............  300.212.
 
LEA (R-T)
 Reallocation of LEA funds (If LEA is      300.705(c).
 adequately providing FAPE).
 Reimbursement of LEAs by other agencies
 (See ``Methods of ensuring services,'' Sec.
 300.154(a)(2) through (a)(3), (b)(2)).
 Review and revision of policies.........  300.170(b).
 SEA reduction in payments to LEA........  300.222(a).
 SEA use of LEA allocations for direct     300.227.
 services.
 Show cause hearing (By-pass requirement)  300.194.
 State-level nonsupplanting..............  300.162(c).
 Subgrants to LEAs.......................  300.705(a).
 Suspension and expulsion rates--LEAs....  300.170(a)(1).
 Transition planning conferences (Part C   300.124(c).
 to B).
 
LEA (U-Z)
 Use of amounts (by LEA).................  300.202.
    [Omicron] (See ``Permissive use of funds'').
 Use of SEA allocations (Regarding LEAs).  300.704.
    [Omicron] For capacity-building, etc. (see Sec.
     300.704(b)(4)(viii)).
    [Omicron] To assist in meeting personnel shortages (see
     Sec.   300.704(b)(4)(vii)).
 
LEA ELIGIBILITY (A-I)
 Adjustment to local fiscal efforts in     300.205.
 certain fiscal years.
 Charter schools--public:

[[Page 154]]

 
    [Omicron] Rights of children with disabilities who       300.209(a).
     attend public charter schools.
    [Omicron] That are public schools of the LEA...........  300.209(b).
    [Omicron] That are LEAs................................  300.209(c).
    [Omicron] That are not an LEA or a school that is part   300.209(d).
     of an LEA.
    [Omicron] Treatment of charter schools and their         300.209.
     students.
    [Omicron] See also ``Charter schools''.
 Condition of assistance.................  300.200.
    [Omicron] See Sec.  Sec.   300.201 through 300.213.
 Consistency with State policies.........  300.201.
 Information for SEA.....................  300.211.
 
LEA ELIGIBILITY (M-Z)
 Maintenance of effort...................  300.203.
    [Omicron] Exception to.................................  300.204.
 Migratory children with disabilities--    300.213.
 records regarding.
 Permissive use of funds.................  300.208.
    [Omicron] Administrative case management...............  300.208(b).
    [Omicron] Early intervening services...................  300.208(a)(2).
    [Omicron] High cost special education and related        300.208(a)(3).
     services.
    [Omicron] Services and aids that also benefit            300.208(a)(1).
     nondisabled children.
 Personnel development...................  300.207.
 Records regarding migratory children      300.213.
 with disabilities.
 State prohibition (If LEA is unable to    300.205(c).
 establish/maintain programs of FAPE).
 Treatment of charter schools and their    300.209.
 students.
 
LEAD POISONING (Other health impairment)...................  300.8(c)(9)(i).
 
LEAST RESTRICTIVE ENVIRONMENT (LRE)
 Children in public or private             300.118.
 institutions.
 Continuum of alternative placements.....  300.115.
 Educational service agency (Additional    300.224(c).
 requirement regarding LRE).
 Monitoring activities...................  300.120.
 Nonacademic settings....................  300.117.
 Placements..............................  300.116.
 State eligibility requirements..........  300.114.
 Additional requirement: State funding     300.114(b).
 mechanism.
 Technical assistance and training.......  300.119.
 
LEISURE EDUCATION (Recreation).............................  300.34(c)(11)(iv).
 
LEP (See ``Limited English proficient'')
 
LEUKEMIA (Other health impairment).........................  300.8(c)(9)(i).
 
LIMITED ENGLISH PROFICIENT (LEP)
 Definition of...........................  300.27.
 Determinant factor in eligibility         300.306(b)(1)(iii).
 determination.
 In development, review, and revision of   300.324(a)(2)(ii).
 IEP.
 In ``native language'' (Definition).....  300.29(a).
 Special rule--LEP not determinant factor  300.306(b)(1)(iii).
 
LOCAL EDUCATIONAL AGENCY (See ``LEA'')
 
LRE (See ``Least restrictive environment'')
 
MAINTENANCE OF EFFORT (MOE-LEA) (A-R)
 Amounts in excess (Reduce level)........  300.205(a).
 Exception to............................  300.204.

[[Page 155]]

 
 Maintenance of effort and early
 intervening services (see appendix D).
 Maintenance of effort--LEA..............  300.203.
 Non-reduction of (State enforcement)....  300.608.
 Public benefits or insurance proceeds     300.154(g)(2).
 are not MOE.
    [Omicron] See ``Methods of ensuring services''.
 
MAINTENANCE OF EFFORT (MOE-LEA) (S-Z)
 SEA flexibility.........................  300.230(a).
 State enforcement (SEA must prohibit LEA  300.608.
 from reducing MOE).
 
MAINTENANCE OF STATE FINANCIAL SUPPORT.....................  300.163.
 Reduction of funds for failure to         300.163(b).
 maintain support.
 Subsequent years (Regarding a waiver)...  300.163(d).
 Waivers: Exceptional or uncontrollable    300.163(c).
 circumstances.
 
MANIFESTATION DETERMINATION (See ``Discipline'')...........  300.530(e).
 
McKINNEY-VENTO HOMELESS ASSISTANCE ACT
 In definition of ``Homeless children''..  300.19.
 In filing a State complaint.............  300.153(b)(4)(iii).
 SEA responsibility for general            300.149(a)(3).
 supervision (Regarding homeless children).
 State advisory panel (Membership).......  300.168(a)(5).
 Surrogate parents (Homeless child's       300.519(a)(4).
 rights protected.
 
MEDIATION (A-O)
 Benefits of (Meeting to explain)........  300.506(b)(2)(ii).
 Confidential discussions................  300.506(b)(6)(i).
 Cost of (Borne by State)................  300.506(b)(4).
 Disinterested party (To meet with         300.506(b)(2).
 parents and schools.
 Disputes (Resolve through mediation)....  300.506(a).
 Legally binding agreement...............  300.506(b)(6).
 Mediation procedures (By public agency    300.506(a).
 to allow parties to resolve disputes).
 Mediators:..............................
    [Omicron] Impartiality of..............................  300.506(c).
    [Omicron] List of......................................  300.506(b)(3)(i).
    [Omicron] Qualified and impartial (see Sec.
     300.506(b)(1)(iii)).
 Meeting to explain benefits of..........  300.506(b)(2)(ii).
 Not used as evidence in hearing.........  300.506(b)(8).
 Not used to deny/delay right to hearing.  300.506(b)(1)(ii),
 Opportunity to meet.....................  30.506(b)(2).
 
MEDIATION (P-Z)
 Parent training and information center..  300.506(b)(2)(i).
 Procedural safeguards notice............  300.504(c)(6).
 Random selection of mediators...........  300.506(b)(3)(ii).
 Use of SEA allocations to establish.....  300.704(b)(3)(ii).
 Voluntary...............................  300.506(b)(1)(i).
 Written mediation agreement.............  300.506(b)(7).
 
MEDICAID
 Children covered by public benefits or    300.154(d)(1).
 insurance.
 Construction (Nothing alters              300.154(h).
 requirements imposed under Titles XIX or XXI).
 Financial responsibility of each non-     300.154(a)(1).
 educational public agency (e.g., State Medicaid).
 LEA high cost fund (Disbursements not     300.704(c)(8).
 medical assistance under State Medicaid).
 Medicaid reimbursement not disqualified   300.154(b)(1)(ii).
 because service in school context.

[[Page 156]]

 
 Methods of ensuring services (see Sec.
 300.154(a)(1), (b)(1)(ii), (d), (g)(2), (h)).
 Proceeds from public or private           300.154(g)(1).
 insurance.
 Public agency may use Medicaid..........  300.154(a)(1).
 State Medicaid, etc., must precede        300.154(a)(1).
 financial responsibility of LEA.
 
MEDICAL (A-L)
 Assistance under other Federal programs.  300.186.
 Assistive technology device (Does not     300.5.
 include a surgically implanted medical device).
 LEA high cost fund (Disbursements not     300.704(c)(8).
 medical assistance under State Medicaid).
 
MEDICAL (M-Q)
 Medical services in (``Related
 services''):
    [Omicron] Audiology (Referral for).....................  300.34(c)(1)(ii).
    [Omicron] Definition of................................  300.34(c)(5).
    [Omicron] For diagnostic purposes......................  300.34(a).
    [Omicron] Speech-language pathology (Referral for).....  300.34(c)(15)(iii).
 Medical supplies, etc. (Memo of           300.708(i)(2).
 agreement between HHS and Interior).
 Non-medical (Residential placement).....  300.104.
 
MEDICAL (R-Z)
 Referral for medical services:
    [Omicron] Audiology....................................  300.34(c)(1)(ii).
    [Omicron] Speech-language pathology services...........  300.34(c)(15)(iii).
 Related services: Exception; surgically   300.34(b).
 implanted devices (``Cochlear implants'').
 Routine checking of hearing aids and      300.113.
 other devices.
 SLD: Educationally relevant medical       300.311(a)(4).
 findings, if any.
 
MEDICATION
 Prohibition on mandatory medication.....  300.174.
 
MEETING(S)
 Alternative means of meeting              300.328.
 participation.
 Consolidation of IEP Team meetings......  300.324(a)(5).
 Equitable services determined             300.137.
 (Parentally-placed private school CWDs).
 IEP Team meetings (See ``IEP'').
 Mediation (Opportunity to meet).........  300.506(b)(2).
 Opportunity to examine records;           300.501.
 participation in IEP Team meetings.
 Parent participation in meetings (see
 Sec.   300.506(b)(2), (b)(4)).
 Private school placements by public       300.325.
 agencies.
 Reviewing and revising IEPs (Private      300.325(b).
 school placements).
 Services plan for private school          300.137(c)(1).
 children (Meetings).
 
METHODS OF ENSURING SERVICES...............................  300.154.
 
MIGRANT CHILDREN
 Child find..............................  300.111(c)(2).
 Records regarding migratory children      300.213.
 (Linkage with ESEA).
 
MINIMUM STATE COMPLAINT PROCEDURES.........................  300.152.
 See ``Complaints,'' ``State complaint
 procedures''.
 
MONITOR; MONITORING ACTIVITIES (A-N)
 Allowable costs for monitoring..........  300.704(b)(3)(i).
 Children placed in private schools by     300.147(a).
 public agencies.
 Implementation by SEA...................  300.147(a).

[[Page 157]]

 
 LRE (SEA monitoring activities).........  300.120.
 Monitoring activities (LRE).............  300.120.
 Monitoring--Enforcement (Subpart F).....  300.600.
    [Omicron] Rule of construction (Use any authority under  300.609.
     GEPA to monitor).
    [Omicron] Secretary's review and determination           300.603(b)(1).
     regarding State performance.
    [Omicron] State exercise of general supervision........  300.600(d)(2).
    [Omicron] State use of targets and reporting...........  300.602(a), (b)(1).
 
MONITOR; MONITORING ACTIVITIES (O-Z)
 Outlying areas, etc. (see Sec.
 300.701(a)(1)(ii)).
 Private school children: SEA monitoring.  300.147(a).
 SEA responsibility for general            300.149(b).
 supervision.
 Secretary of the Interior...............  300.708.
 State advisory panel functions (Advise    300.169(d).
 SEA on corrective action plans).
 Use of SEA allocations for monitoring...  300.704(b)(3)(i).
 Waiver (State's procedures for            300.164(c)(2)(ii)(B).
 monitoring).
    [Omicron] Summary of monitoring reports................  300.164(c)(3).
 
MULTIPLE DISABILITIES (Definition).........................  300.8(c)(7).
 
NATIONAL INSTRUCTIONAL MATERIALS ACCESS CENTER (NIMAC).....  300.172(e)(1)(ii).
 
NATIONAL INSTRUCTIONAL MATERIALS ACCESSIBILITY STANDARDS     300.172(e)(1)(iii).
 (NIMAS).
 See also appendix C.
 
NATIVE LANGUAGE
 Confidentiality (Notice to parents).....  300.612(a)(1).
 Definition..............................  300.29.
 Definition of ``Consent''...............  300.9.
 Evaluation procedures (Tests in native    300.304(c)(1)(ii).
 language).
 Notice to parents: Confidentiality (In    300.612(a)(1).
 native language).
 Prior notice:
    [Omicron] Notice in native language....................  300.503(c)(1)(ii).
    [Omicron] Notice translated orally.....................  300.503(c)(2)(i).
    [Omicron] Steps if not a written language..............  300.503(c)(2).
 
NATURE/LOCATION OF SERVICES (Direct services by SEA).......  300.227.
 
NEPHRITIS (In ``Other health impairment'').................  300.8(c)(9)(i).
 
NIMAC (See ``National Instructional Materials Access
 Center'')
 
NIMAS (See ``National Instructional Materials Accessibility
 Standard'')
 
NONACADEMIC
 Activities: Participate in (IEP content)  300.320(a)(4)(ii).
 Services and extracurricular activities   300.107(a).
 (Equal opportunity to participate in).
 Settings................................  300.117.
 
NONCOMMINGLING.............................................  300.162(b).
 
NONDISABLED (Children; students) (A-P)
 At no cost (In definition of ``special    300.39(b)(1).
 education'').
 Disciplinary information................  300.229(a).
 Excess cost requirement.................  300.202(b).
 IEP (definition) (see Sec.
 300.320(a)(1)(i), (a)(4)(iii), (a)(5)).
 LRE (General requirement)...............  300.114.
 Nonacademic settings....................  300.117.
 Placement...............................  300.116.

[[Page 158]]

 
 Program options.........................  300.110.
 
NONDISABLED (Children; students) (R-Z)
 Regular physical education..............  300.108(b).
 Services and aids that also benefit       300.208(a)(1).
 nondisabled children.
 Special education (Definition: In         300.39(b)(1).
 definition of ``at no cost'').
 Supplementary aids and services.........  300.42.
 Suspension and expulsion rates..........  300.170(a)(2).
 
NONEDUCATIONAL (Public agency)
 Medicaid service (May not be              300.154(b)(1)(ii).
 disqualified because in school context).
 Methods of ensuring services (see Sec.
 300.154(a), (b))
 Obligation of...........................  300.154(b).
 Reimbursement for services by...........  300.154(b)(2).
 
NON-MEDICAL CARE (Residential placement)...................  300.104.
 
NONSUPPLANTING
 Excess cost requirement (Regarding        300.202(b)(1)(ii).
 children aged 3 through 5 and 18 through 21).
 LEA nonsupplanting......................  300.202(b)(1)(ii).
 SEA flexibility.........................  300.230(a).
 State-level activities (Inapplicability   300.704(d).
 of certain provisions).
 State-level nonsupplanting..............  300.162(c).
 Waiver of requirement...................  300.164.
 
NOTICES: By parents or parties
 Attorneys' fees: When court reduces fee   300.517(c)(4)(iv).
 award regarding due process request notice.
 Children enrolled by parents in private   300.148(d)(1)(i).
 schools when FAPE is at issue.
 Due process complaint (Notice before a    300.508(c).
 hearing on a complaint).
 Private school placement by parents       300.148(d)(1)(i).
 (When FAPE is at issue).
 
NOTICES: Public agency (A-M)
 By-pass (Judicial review)...............  300.197.
 Children's rights (Transfer of rights)..  300.625(c).
 Confidentiality (Notice to parents).....  300.612.
 Department procedures (Notice to States)  300.179.
    [Omicron] See ``Judicial review''......................  300.184.
 Discipline (Notification)...............  300.530(h).
 Exception to FAPE (Graduation)..........  300.102(a)(3).
 Hearings relating to LEA eligibility....  300.155.
 IEP meetings (Parent participation).....  300.322(b).
 Judicial review: If State dissatisfied    300.184.
 with eligibility determination.
 LEA and State agency compliance.........  300.222.
    [Omicron] Notification in case of ineligibility........  300.221(b).
 
NOTICES: Public agency (N-P)
 Notice before a hearing on a due process  300.508(c).
 complaint.
 Notice and hearing before State           300.179.
 ineligible.
 Notice in understandable language.......  300.503(c).
 Notification of LEA in case of            300.221(b).
 ineligibility.
 Parent participation in meetings........  300.501(b)(2).
 Prior notice by public agency...........  300.503.
 Private school placement by parents when  300.148(d)(2).
 FAPE is at issue (Public agency notice).
 Procedural safeguards notice............  300.504.

[[Page 159]]

 
 Public attention........................  300.606.
 Public participation (Notice of           300.165(a).
 hearings).
 
NOTICES: Public agency (Q-Z)
 Secretary of the Interior (Submission of  300.708(g).
 information).
 Secretary's review and determination of   300.603(b)(2).
 State performance.
 Transfer of parental rights.............  300.520(a)(1)(i).
 Use of electronic mail..................  300.505.
 Withholding funds.......................  300.605.
 
OCCUPATIONAL THERAPY.......................................  300.34(c)(6).
 
OPPORTUNITY TO EXAMINE RECORDS.............................  300.501.
 
ORIENTATION AND MOBILITY SERVICES..........................  300.34(c)(7).
 
ORTHOPEDIC IMPAIRMENT......................................  300.8(c)(8).
 
OTHER HEALTH IMPAIRMENT....................................  300.8(c)(9).
 
OTHER INDIVIDUALS ON IEP TEAM..............................  300.321(a)(6).
 
OUTLYING AREAS--FREELY ASSOCIATED STATES
 Allocations to States (General).........  300.703(a).
 Annual description of use of funds......  300.171(c).
 Definitions applicable to allotments,
 grants and use of funds:
    [Omicron] Freely associated States.....................  300.717(a).
    [Omicron] Outlying areas...............................  300.717(b).
 Definition of ``State'' (Includes         300.40.
 ``Outlying areas'').
 Outlying areas and freely associated      300.701.
 States.
 Purpose of grants.......................  300.700(a).
 
OUT-OF-POCKET EXPENSE (Public benefits or insurance).......  300.154(d)(2)(ii).
 
PARAPROFESSIONALS
In ``Personnel qualifications''............................  300.156(b).
PARENT (Definition)........................................  300.30.
PARENT: RIGHTS AND PROTECTIONS (A-G)
 Appeal (Manifestation determination)....  300.532.
 Confidentiality (Authority to inspect     300.613(c).
 and review records).
 Consent (See ``Consent'')
 Counseling and training (Definition)....  300.34(c)(8).
 Definition of ``Parent''................  300.30.
    [Omicron] Foster parent................................  300.30(a)(2).
    [Omicron] Grandparent or stepparent....................  300.30(a)(4).
    [Omicron] Guardian.....................................  300.30(a)(3).
 
PARENT: RIGHTS AND PROTECTIONS (H-N)
 Independent educational evaluation......  300.502.
    [Omicron] Parent-initiated evaluations.................  300.502(c).
    [Omicron] Parent right to evaluation at public expense.  300.502(b).
 IEP and parent involvement:
    [Omicron] Copy of child's IEP..........................  300.322(f).
    [Omicron] Informed of child's progress.................  300.320(a)(3)(ii).
    [Omicron] Option to invite other individuals...........  300.321(a)(6).
    [Omicron] Participation in meetings....................  300.322.
    [Omicron] Team member..................................  300.321(a)(1).
 Informed consent (Accessing private       300.154(e)(1).
 insurance).
 Involvement in placement decisions......  300.501(c).
 Meetings (Participation in).............  300.501(b).
 Notice to public agency:
    [Omicron] Before a hearing on a due process complaint..  300.508(c).
    [Omicron] Before removing child from public school.....  300.148(d)(1)(ii).
    [Omicron] Timeline for requesting a hearing............  300.511(e).

[[Page 160]]

 
         Exceptions to timeline..........  300.511(f).
    [Omicron] Opportunity to examine records...............  300.501(a).
 
PARENT: RIGHTS AND PROTECTIONS (O-Z)
 Parent counseling and training..........  300.34(c)(8).
 Placement decisions (Involvement in)....  300.501(c).
 Request for hearing (Discipline)........  300.532(a).
 Right to an independent educational       300.502(b).
 evaluation.
 
PARENTAL CONSENT (See ``Consent'')
 
PARENTALLY-PLACED PRIVATE SCHOOL CHILDREN WITH DISABILITIES
 (A-E)
 Annual count of the number of...........  300.133(c).
 Bypass (see Sec.  Sec.   300.190 through
 300.198)
 Child find for..........................  300.131.
 Calculating proportionate amount........  300.133(b).
 Compliance..............................  300.136.
 Consultation with private schools.......  300.134.
 Written affirmation.....................  300.135.
 Definition of...........................  300.130.
 Due process complaints and State          300.140.
 complaints.
 Equitable services determined...........  300.137.
    [Omicron] Equitable services provided..................  300.138.
 Expenditures............................  300.133.
    [Omicron] Formula......................................  300.133(a).
 
PARENTALLY-PLACED PRIVATE SCHOOL CHILDREN WITH DISABILITIES
 (F-R)
 No individual right to special education  300.137(a).
 and related services.
 Property, equipment, and supplies.......  300.144.
 Proportionate share of funds............  300.134(b).
    [Omicron] See ``Appendix B--Proportionate Share
     Calculation''
 Provision of equitable services.........  300.138(c).
 Religious schools (see Sec.  Sec.
 300.131(a), 300.137(c), 300.139(a))
 Requirement that funds not benefit a      300.141.
 private school.
 
PARENTALLY-PLACED PRIVATE SCHOOL CHILDREN WITH DISABILITIES
 (S-T)
 Separate classes prohibited.............  300.143.
 Services on private school premises.....  300.139(a).
 Services plan (Definition)..............  300.37.
    [Omicron] For each child served under Sec.  Sec.         300.137(c).
     300.130 through 300.144.
    [Omicron] See also Sec.  Sec.   300.132(b), 300.138(b),
     300.140(a)
 State eligibility requirement...........  300.129.
 Transportation (Cost of)................  300.139(b)(2).
 
PARENTALLY-PLACED PRIVATE SCHOOL CHILDREN WITH DISABILITIES
 (U-Z)
 Use of personnel:
    [Omicron] Private school personnel.....................  300.142(b).
    [Omicron] Public school personnel......................  300.142(a).
 Written affirmation.....................  300.135.
 Written explanation by LEA regarding      300.134(e).
 services.
 
PARTICIPATING AGENCY
 Confidentiality provisions:
    [Omicron] Definition of participating agency...........  300.611(c).
    [Omicron] See also Sec.  Sec.   300.613(c), 300.614,
     300.616, 300.618, 300.623
 IEP requirements (Transition services)..  300.324(c).
 
PENDENCY (Stay put)

[[Page 161]]

 
 Child's status during due process         300.518.
 proceedings.
 Placement during appeals (Discipline)...  300.533.
 Procedural safeguards notice............  300.504(c)(7).
 
PERFORMANCE GOALS AND INDICATORS
 Assess progress toward achieving goals..  300.157(c).
 Establishment of goals..................  300.157.
 Other State level activities............  300.814(c).
 Performance goals and indicators........  300.157.
 State monitoring and enforcement........  300.600(c).
 State performance plans and data          300.601.
 collection.
 
PERFORMANCE; PERFORMANCE PLANS (STATE)
 Enforcement.............................  300.604.
 Public reporting and privacy............  300.602(b).
 Secretary's review and determination      300.603.
 regarding State performance.
 State performance plans and data          300.601.
 collection.
 State performance report................  300.602(b)(2).
 State use of targets and reporting......  300.602.
    [Omicron] Public reporting.............................  300.602(b)(1).
    [Omicron] State performance report.....................  300.602(b)(2).
 
PERMISSIVE USE OF FUNDS (LEAs)
 Administrative case management..........  300.208(b).
 Early intervening services..............  300.208(a)(2).
 High cost education and related services  300.208(a)(3).
 Permissive use of funds.................  300.208.
 Services and aids that also benefit       300.208(a)(1).
 nondisabled children.
PERSONALLY IDENTIFIABLE (PI) INFORMATION (A-H)
 Confidentiality of (State eligibility     300.123.
 requirement).
 Consent (confidentiality)...............  300.622(a).
 Data collection (State performance        300.601(b)(3).
 plans).
 Definition of ``personally                300.32.
 identifiable''.
 Department use of information...........  300.627.
 Destruction:
    [Omicron] Definition of................................  300.611(a).
    [Omicron] Destruction of information...................  300.624.
 Hearing decisions to advisory panel and   300.513(d).
 the public.
 
PERSONALLY IDENTIFIABLE (PI) INFORMATION (I-Z)
 Notice to parents (Confidentiality):
    [Omicron] Children on whom PI information is maintained  300.612(a)(2).
    [Omicron] Policies and procedures regarding disclosure   300.612(a)(3).
     to third parties, etc.
 Participating agency (Definition).......  300.611(c).
 Protection of PI information............  300.642(a).
 See also Sec.   300.610.................
 Safeguards (Protect PI information).....  300.623.
 
PERSONNEL QUALIFICATIONS...................................  300.156.
 
PERSONNEL SHORTAGES
 Use of SEA allocations to meet..........  300.704(b)(4)(vii).
 
PHYSICAL EDUCATION.........................................
 Definition..............................  300.39(b)(2).
 State eligibility requirement...........  300.108.
 
PHYSICAL THERAPY (Definition)..............................  300.34(c)(9).
 
PLACEMENT(S) (A-Co)

[[Page 162]]

 
 Adult prisons (CWDs in):
    [Omicron] Last educational placement before              300.102(a)(2)(i).
     incarceration.
    [Omicron] Modifications to IEPs and placements.........  300.324(d)(2).
 Alternative means of meeting              300.328.
 participation (Regarding ``Placement meetings'').
 Change in placement: Graduation.........  300.102(a)(3)(iii).
 Child's placement during pendency of any  300.504(c)(7).
 complaint.
    [Omicron] See also ``Pendency'' (Child's status during   300.518.
     proceedings).
 Children with disabilities in adult
 prisons: Placements regarding (see Sec.  Sec.
 300.102(a)(2)(i), 300.324(d)(2)).
 Continuum of alternative placements       300.115.
 (Continuum--LRE).
 
PLACEMENT(S) (Cu-L)
 Current placement (see Sec.
 300.530(b)((2), (d))
 Current ``Educational placement:''
    [Omicron] Change of placements because of disciplinary   300.536.
     removals.
    [Omicron] Child's status during proceedings............  300.518(a).
 Disciplinary changes in placement.......  300.530(c).
 Discipline procedures and placements
 (see Sec.  Sec.   300.530 through 300.536).
 Educational placements (Parents in any    300.327.
 group that makes placement decisions).
 Graduation: A change in placement         300.102(a)(3)(iii).
 (Exception to FAPE).
 Last educational placement (Before        300.102(a)(2)(i).
 incarceration).
 Least restrictive environment (LRE) (see
 Sec.  Sec.   300.114 through 300.120)
 Notification: LEA must notify parents of  300.530(h).
 decision to change placement.
 
PLACEMENT(S) (O-Z)
 Pendency (Child's status during           300.518.
 proceedings).
Placement of children by parents if FAPE is at issue.......  300.148.
 Placements (LRE)........................  300.116.
 Requirements for unilateral placement by  300.504(c)(9).
 parents of CWDs in private schools (In ``Procedural
 safeguards notice'').
 State funding mechanism (Must not result  300.114(b)(1).
 in placements that violate LRE).
 
POLICY: POLICIES AND PROCEDURES
 Condition of assistance (LEA              300.200.
 eligibility).
    [Omicron] Consistency with State policies..............  300.201.
    [Omicron] See also Sec.  Sec.   300.200 through 300.213
 Eligibility for assistance (State)......  300.100.
 Exception for prior policies on file:
    [Omicron] With the SEA.................................  300.220.
    [Omicron] With the Secretary...........................  300.176(a).
 FAPE policy.............................  300.101(a).
 Joint establishment of eligibility        300.223.
 (Requirements).
 Modifications of:
    [Omicron] LEA or State agency policies.................  300.220(b).
    [Omicron] Required by Secretary........................  300.176(c).
    [Omicron] State policies (By a State)..................  300.176(b).
 Public participation....................  300.165.
 Secretary of the Interior...............  300.708.
    [Omicron] Public participation.........................  300.709.
    [Omicron] Submission of information....................  300.708.
 

[[Page 163]]

 
PREPONDERANCE OF EVIDENCE
 Civil action............................  300.516(c)(3).
 
PRESCHOOL GRANTS
 Allocations to LEAs.....................  300.816.
    [Omicron] Subgrants to LEAs............................  300.815.
 Other State-level activities............  300.814.
    [Omicron] Provide early intervention services in         300.814(e).
     accordance with Part C of the Act.
    [Omicron] Service coordination or case management......  300.814(f).
 State administration....................  300.813.
 Use of funds for administration of Part   300.813(b).
 C.
 
PRIOR NOTICE
 By public agency........................  300.503.
 Notice required before a hearing on a     300.508(c).
 due process complaint.
 Procedural safeguards notice............  300.504.
 
PRISONS (See ``Adult prisons'')
 
PRIVATE INSURANCE
 Children with disabilities who are        300.154(e).
 covered by.
    [Omicron] Proceeds from public benefits or insurance or  300.154(g).
     private insurance.
    [Omicron] Use of Part B funds..........................  300.154(f).
 
PRIVATE SCHOOLS AND FACILITIES
 Applicability of this part to State and
 local agencies:
    [Omicron] CWDs placed in private schools by parents      300.2(c)(2).
     under Sec.   300.148.
    [Omicron] CWDs referred to or placed in private schools  300.2(c)(1).
     by public agency.
 
PRIVATE SCHOOL CHILDREN ENROLLED BY THEIR PARENTS
 Placement of children by parents when     300.148.
 FAPE is at issue.
 See ``Parentally-placed private school
 children with disabilities''
 
PRIVATE SCHOOL PLACEMENTS BY PUBLIC AGENCIES (A-D)
 Applicability of this part to private     300.2(c)(1).
 schools.
 Applicable standards (SEA to disseminate  300.147(b).
 to private schools involved).
 
PRIVATE SCHOOL PLACEMENTS BY PUBLIC AGENCIES (E-Z)
 Implementation by SEA (Must monitor,      300.147.
 provide standards, etc.).
 Monitor compliance......................  300.147(a).
 Input by private schools (Provide for)..  300.147(c).
 Responsibility of SEA...................  300.146.
 
PROCEDURAL SAFEGUARDS: DUE PROCESS PROCEDURES (A-C)
 Additional disclosure of information (5   300.512(b).
 business days before hearing).
 Agency responsible for conducting         300.511(b).
 hearing.
 Appeal of hearing decisions; impartial    300.514(b).
 review.
 Attorneys' fees.........................  300.517.
 Child's status during proceedings.......  300.518.
 Civil action............................  300.516.
 Consent (Definition)....................  300.9.
 Court (See ``Court(s)'')
 

[[Page 164]]

 
PROCEDURAL SAFEGUARDS: DUE PROCESS PROCEDURES (D-H)
 Electronic mail (Parent may elect to      300.505.
 receive notices by).
 Evaluation (Definition).................  300.15.
 Evaluations: Hearing officer requests     300.502(d).
 for.
 Finality of decision; appeal; impartial   300.514.
 review.
 Findings and decision to advisory panel   300.513(d).
 and public.
 Hearing rights..........................  300.512.
 
PROCEDURAL SAFEGUARDS: DUE PROCESS PROCEDURES (I-Pa)
 Impartial due process hearing...........  300.511.
 Impartial hearing officer...............  300.511(c).
 Impartiality of mediator................  300.506(c).
 Independent educational evaluation......  300.502.
    [Omicron] Definition...................................  300.502(a)(3)(i).
 Jurisdiction of district courts.........  300.516(d).
    [Omicron] See ``Court(s)''
 Mediation...............................  300.506.
    [Omicron] Opportunity to meet with a disinterested       300.506(b)(2).
     party.
 Model form to assist parties in filing a  300.509.
 due process or State complaint.
 Notice required before a hearing on a     300.508(c).
 due process complaint.
 Opportunity to examine records..........  300.501(a).
 Parental consent........................  300.300.
 Parent-initiated evaluations............  300.502(c).
 Parent involvement in placement           300.501(c).
 decisions.
 Parent participation in meetings........  300.501(b).
 Parental rights at hearings.............  300.512(c).
 Parent right to evaluation at public      300.502(b).
 expense.
    [Omicron] Public expense (Definition)..................  300.502(a)(3)(ii).
 
PROCEDURAL SAFEGUARDS: DUE PROCESS PROCEDURES (Pe-Z)
 Pendency................................  300.518.
 Personally identifiable (Definition)....  300.32.
 Prior notice by public agency...........  300.503.
 Procedural safeguards notice............  300.504.
 Prohibition on introduction of            300.512(a)(3).
 undisclosed evidence 5 business days before hearing.
 Record of hearing.......................  300.512(a)(4).
 Resolution process......................  300.510.
 SEA implementation of...................  300.150.
 See ``Civil Action Proceedings,''
 ``Court(s),'' ``Hearing Officer(s),'' ``Timelines''
 Surrogate parents.......................  300.519.
 Timelines and convenience of hearings...  300.515.
 Transfer of parental rights at age of     300.520.
 majority.
 
PROCEDURAL SAFEGUARDS NOTICE...............................  300.504.
 Internet Web site (Notice on)...........  300.504(b).
 
PROCEEDS FROM PUBLIC BENEFITS OR INSURANCE OR PRIVATE        300.154(g).
 INSURANCE.
 
PROGRAM INCOME (Not treated as proceeds from insurance)....  300.154(g.)
 
PROGRAM MODIFICATIONS OR SUPPORTS (IEP content)............  300.320(a)(4).
 

[[Page 165]]

 
PROPORTIONATE SHARE CALCULATION (See appendix B)
 
PROTECTIONS FOR CHILDREN NOT DETERMINED ELIGIBLE             300.534.
 (Discipline).
 
PSYCHOLOGICAL SERVICES (Definition)........................  300.34(c)(10).
 
PUBLIC AGENCY (Definition).................................  300.33.
 
PUBLIC BENEFITS OR INSURANCE...............................  300.154(d).
 
PUBLIC BENEFITS OR INSURANCE OR PRIVATE INSURANCE (Proceeds  300.154(g).
 from).
 
PUBLIC CHARTER SCHOOLS (See ``Charter schools'')
 
PUBLIC EXPENSE (Definition under IEE)......................  300.502(a)(3)(ii).
 
PUBLIC HEARINGS (On policies)
 State eligibility.......................  300.165(a).
 Secretary of the Interior...............  300.708(g).
 
PUBLIC INFORMATION (LEA)...................................  300.212.
 
PUBLIC NOTICE
 LEA and State agency compliance.........  300.222(b).
 Public attention (If State has received   300.606.
 a notice under Sec.   300.603).
 
PURPOSES (Of this Part 300)................................  300.1.
 
QUALIFIED PERSONNEL........................................  300.156.
 Related services definitions (see Sec.
 300.34(c)(2), (c)(5), (c)(6), (c)(7), (c)(9), (c)(12),
 (c)(13)).
 
RATE OF INFLATION (In the Consumer Price Index for All
 Urban Consumers) (see Sec.  Sec.   300.702(b),
 300.704(a)(2)(ii), 300.704(b)(2), 300.812(b)(2)).
REALLOCATION OF LEA FUNDS (If SEA determines LEA adequately
 providing FAPE) (see Sec.  Sec.   300.705(c), 300.817)).
 
RECORDS (A-D)
 Access rights (Parents' right to          300.613.
 inspect).
    [Omicron] Fees for records.............................  300.617.
    [Omicron] Records on more than one child...............  300.615.
 Civil action (Court shall receive         300.516(c)(1).
 records).
 Conducting IEP Team meetings without      300.322(d).
 parents (Records of attempts to convince parents).
Confidentiality (See ``Confidentiality'')
 Consent to release records..............  300.622(b).
Disciplinary records:
    [Omicron] Determination that behavior not manifestation  300.530(e).
    [Omicron] Disciplinary information.....................  300.229(c).
    [Omicron] Referral to and action by law enforcement and  300.535.
     judicial authorities.
 
RECORDS (E-Z)
 Education records (Definition)..........  300.611(b).
 Of parentally-placed private school CWDs  300.132(c).
 (LEA to SEA).
 Opportunity to examine records..........  300.501(a).
 Procedural safeguards notice (Access to   300.504(c)(4).
 education records).
 Record of access........................  300.614.
 See also ``Transfer during academic
 year''
 
RECREATION (Definition)....................................  300.34(c)(11).
 
REDUCTION OF FUNDS FOR FAILURE TO MAINTAIN SUPPORT.........  300.163(b).
 

[[Page 166]]

 
REEVALUATION
 Frequency of occurrence.................  300.303(b).
 Parental consent required before          300.300(c)(1).
 conducting.
    [Omicron] If parent fails to consent...................  300.300(c)(1)(ii).
 Parental consent not required for:
    [Omicron] Administering a test that all children take..  300.300(d)(1)(ii).
    [Omicron] Reviewing existing data......................  300.300(d)(1)(i).
 Parent refusal to consent...............  300.300(c)(1)(ii).
 Review of existing evaluation data......  300.305(a).
 Revision of IEP (To address               300.324(b)(1)(ii).
 reevaluation).
 
REFERRAL (A-M)
 Discipline:
    [Omicron] Referral to and action by law enforcement and  300.535.
     judicial authorities.
    [Omicron] Protections for children not determined        300.534.
     eligible.
 Enforcement (Referral for)..............  300.604(b)(2)(vi).
 Indian children (Referral for services    300.712(d)(2).
 or further diagnosis).
 Medical attention (Referral for):
    [Omicron] Audiology....................................  300.34(c)(1)(ii).
    [Omicron] Speech-language pathology services...........  300.34(c)(15)(iii).
 
REFERRAL (N-Z)
 Nonacademic and extracurricular services  300.107(b).
 (Referral to agencies regarding assistance to individuals
 with disabilities).
 Prior notice (If not initial referral     300.503(b)(4).
 for evaluation).
 Private school placement when FAPE is at  300.148(c).
 issue (Reimbursement when no referral by public agency).
 Procedural safeguards notice (Upon        300.504(a)(1).
 initial referral for evaluation).
 Referral to and action by law             300.535.
 enforcement and judicial authorities.
 
REGULAR EDUCATION TEACHER
 Access to IEP...........................  300.323(d).
 IEP Team member.........................  300.321(a)(2).
 Participate in IEP development..........  300.324(a)(3).
    [Omicron] Behavioral interventions.....................  300.324(a)(3)(i).
    [Omicron] Supplementary aids and services..............  300.324(a)(3)(ii).
 
REGULATIONS
 Applicable regulations (Secretary of the  300.716.
 Interior).
 Applicability of this part to State,      300.2.
 local, and private agencies.
 
REHABILITATION
 Assistive technology service (see Sec.
 300.6(d), (f))
 Rehabilitation Act of 1973 (see Sec.
 Sec.   300.34(c)(12), 300.516(e))
 Rehabilitation counseling services:
    [Omicron] Definition...................................  300.34(c)(12).
    [Omicron] In vocational rehabilitation (VR) programs...  300.34(c)(12).
 Transition services (State VR agency      300.324(c)(2).
 responsibility).
 
REHABILITATION COUNSELING SERVICES.........................  300.34(c)(12).
 
REIMBURSEMENT
 Methods of ensuring services (see Sec.
 300.154(a)(3), (b)(1)(ii), (b)(2), (g)(2))
 Private school placement when FAPE is at
 issue:
    [Omicron] Limitation on reimbursement..................  300.148(d).
    [Omicron] Reimbursement for private school placement...  300.148(c).

[[Page 167]]

 
    [Omicron] Subject to due process procedures............  300.148(b).
 Reimbursement by non-educational public   300.154(b)(2).
 agency.
 Reimbursement by SEA to LEA.............  300.704(c)(7).
 
RELATED SERVICES
 Definition..............................  300.34.
 Observations by teachers and related      300.305(a)(1)(iii).
 services providers regarding existing evaluation data.
 
RELATION OF PART B TO OTHER FEDERAL PROGRAMS...............  300.186.
 
RELIGIOUS SCHOOLS
 Child find for parentally-placed private  300.131(a).
 school children.
 Child find for out-of-State children....  300.131(f).
 Formula for LEA expenditures on.........  300.133(a).
 See ``Parentally-placed private school
 children with disabilities''
 Services plan for each child served.....  300.137(c).
 Services provided on-site...............  300.139(a).
 
REMEDIES FOR DENIAL OF APPROPRIATE SERVICES................  300.151(b).
 
REPORTS (A-C)
 Annual report of children served........  300.640.
    [Omicron] See also Sec.  Sec.   300.641 through 300.646
 Annual report to Secretary of Interior    300.715(a).
 by advisory board on Indian children.
 Biennial report (Indian tribes).........  300.712(e).
 Child count (Annual report of children    300.641.
 served).
 
REPORTS (D-Z)
 Evaluation reports to parents...........  300.306(a)(2).
 Monitoring compliance of publicly placed  300.147(a).
 children in private schools (e.g., written reports).
 Monitoring reports (Waiver of             300.164(c)(3).
 nonsupplanting requirement).
 Performance goals (Progress reports)....  300.157(c).
 Secretary's report to States regarding    300.812(b).
 25% of funds.
 
REPORT CARDS...............................................  300.320(a)(3)(ii).
 
REPORTING A CRIME to law enforcement and judicial            300.535.
 authorities.
 
RESIDENTIAL PLACEMENTS.....................................  300.104.
 
REVOKE CONSENT AT ANY TIME (In definition of ``Consent'')..  300.9(c)(1).
 
RHEUMATIC FEVER............................................  300.8(c)(9)(i).
 
RISK OF LOSS OF ELIGIBILITY FOR INSURANCE..................  300.154(d)(2)(iii)(D).
 
SCHOOL DAY
 Definition..............................  300.11(c).
 See ``Timelines,'' ``Timelines--
 Discipline''
 
SCHOOL HEALTH SERVICES AND SCHOOL NURSE SERVICES...........  300.34(c)(13).
 
SCHOOL PERSONNEL
 Content of IEP..........................  300.320(a)(4).
 Development, review, and revision of IEP  300.324(a)(4).
 Disciplinary authority..................  300.530.
 Use of private school personnel.........  300.142(b).
 Use of public school personnel..........  300.142(a).
 
SCHOOLWIDE PROGRAMS........................................  300.206.
 
SEA RESPONSIBILITY

[[Page 168]]

 
 For all education programs..............  300.149.
 For direct services.....................  300.227.
 For each parentally-placed private        300.132(b).
 school child designated to receive services.
 For impartial review....................  300.514(b)(2).
 Prohibition of LEA from reducing          300.608.
 maintenance of effort.
 
SECRETARY
 Determination that a State is eligible..  300.178.
 Notice and hearing before determining     300.179.
 that a State is not eligible.
 Waiver of nonsupplanting requirement....  300.164.
 
SECRETARY OF THE INTERIOR
 Advisory board establishment............  300.714.
    [Omicron] Annual report by advisory board..............  300.715.
 Biennial report (By tribe or tribal       300.712(e).
 organization).
 Eligibility (see Sec.  Sec.   300.708
 through 300.716)
 Payments for:
    [Omicron] Children aged 3 through 5....................  300.712.
    [Omicron] Child find and screening.....................  300.712(d).
 Plan for coordination of services.......  300.713.
 Use of funds for early intervening        300.711.
 services.
 
SEPARATION--DIVORCE (Authority to review records)..........  300.613(c).
 
SERVICES PLAN for parentally-placed private school children
 (see Sec.  Sec.   300.132(b), 300.137(c) 300.138(b))
 
SERVICES THAT ALSO BENEFIT NONDISABLED CHILDREN............  300.208(a)(1).
 
SHORTAGE OF PERSONNEL (Policy to address)..................  300.704(b)(4)(vii).
 
SHORT TERM OBJECTIVES OR BENCHMARKS........................  300.320(a)(2)(ii).
 
SHOULD HAVE KNOWN (Regarding due process complaint)........  300.511(e).
 
SHOW CAUSE HEARING.........................................  300.194.
 Decision................................  300.195.
 Implementation of by-pass (see Sec.
 Sec.   300.192(b)(2), 300.193)
 Right to legal counsel..................  300.194(a)(3).
 
SICKLE CELL ANEMIA.........................................  300.8(c)(9)(i).
 
SLD (See ``Specific Learning Disability'')
 
SOCIAL WORK SERVICES IN SCHOOLS (Definition)...............  300.34(b)(14).
 
SPECIAL FACTORS (IEP Team).................................  300.324(a)(2).
 
SPECIAL EDUCATION (Definition).............................  300.39.
 
SPECIAL EDUCATION PROVIDER.................................  300.321(a)(3).
 
SPECIAL EDUCATION TEACHER
 IEP accessible to.......................  300.323(d).
 On IEP Team.............................  300.321(a)(3).
 Requirements regarding highly qualified.  300.18.
 
SPECIAL RULE
 Adjustments to local efforts............  300.205(d).
 For child's eligibility determination...  300.306(b).
 For increasing funds....................  300.704(e).
 Methods of ensuring services............  300.154(c).
 LEA high cost fund......................  300.704(c).
 Regarding outlying areas and freely       300.701(a)(3).
 associated States.
 Regarding transfer of rights............  300.520(b).
 Regarding use of FY 1999 amount.........  300.703(b).
 State advisory panel (Parent members)...  300.168(b).
 
SPECIFIC LEARNING DISABILITY

[[Page 169]]

 
 Definition..............................  300.8(c)(10).
 Evaluation requirements and report (see
 Sec.  Sec.   300.306(a), 300.307 through 300.311)
 Other alternative research-based          300.307(a)(3).
 procedures.
 Response to scientific, research-based
 intervention (see Sec.  Sec.   300.307(a)(2),
 300.309(a)(2)(i), 300.311(a)(7))
 Scientifically based research:
    [Omicron] Definition...................................  300.35.
    [Omicron] Enforcement..................................  300.604(a)(1)(ii).
 Severe discrepancy......................  300.307(a)(1).
 
SPEECH-LANGUAGE PATHOLOGY SERVICES
 Definition..............................  300.34(b)(15).
 Speech or language impairment             300.8(c)(11).
 (Definition).
 
STATE
 Definition..............................  300.40.
 Special definition for grants...........  300.717(c).
 Sovereign immunity......................  300.177.
 
STATE ADMINISTRATION (Use of funds for) (see Sec.  Sec.
 300.704(a), 300.812(a)).
 
STATE ADVISORY PANEL.......................................  300.167
 Due process hearings (Findings and
 decisions to State advisory panel) (see Sec.  Sec.
 300.513(d)(1), 300.514(c)(1))
 Duties..................................  300.169.
 Establishment...........................  300.167.
 Membership..............................  300.168.
 Waiver of nonsupplant requirement (State  300.164(c)(4).
 has consulted with advisory panel regarding provision of
 FAPE).
 
STATE AGENCIES
 Applicability of Part B to other State    300.2(b)(1)(iii).
 agencies.
 Compliance (LEA and State agency).......  300.222.
 Eligibility (LEA and State agency):
    [Omicron] General conditions (see Sec.  Sec.   300.200
     through 300.213)
 Notification of LEA or State agency in    300.221.
 case of ineligibility.
 State advisory panel (Membership).......  300.168.
 State agency eligibility................  300.228.
 State Medicaid agency...................  300.154(a)(1), (h).
 
STATE COMPLAINT PROCEDURES (see Sec.  Sec.   300.151
 through 300.153)
 See ``Complaint(s): State complaint
 procedures''
 
STATE ELIGIBILITY
 Condition of assistance.................  300.100.
 Department procedures (see Sec.  Sec.
 300.178 through 300.186)
 Determination of eligibility (By the      300.178.
 Secretary).
 General conditions......................  300.100.
 Notice and hearing before determining     300.179.
 that a State is not eligible.
 Specific conditions (see Sec.  Sec.
 300.101 through 300.176)
 
STATE JUVENILE AND ADULT CORRECTIONAL FACILITIES...........  300.2(b)(1)(iv).
 See also ``Correctional facilities,''
 ``Adult prisons''
 
STATE-LEVEL ACTIVITIES (With Part B funds).................  300.704.
 
STATE-LEVEL NONSUPPLANTING.................................  300.162(c).
 Waiver by Secretary.....................  300.162(c)(2).
 Waiver of requirement...................  300.164.
 

[[Page 170]]

 
STATE MAINTENANCE OF EFFORT................................  300.163.
 
SUBGRANT(S)
 State agency eligibility................  300.228.
 To LEAs.................................  300.705(a).
 
STATE MEDICAID AGENCY
 Methods of ensuring services............  300.154(a)(1).
 See also ``Medicaid''
 
STATE SCHOOLS
 Applicability of this part to schools     300.2(b)(1)(iii).
 for children with deafness or blindness.
 
STATE VOCATIONAL REHABILITATION AGENCY (See
 ``Rehabilitation'')
 
STATES' SOVEREIGN IMMUNITY.................................  300.177.
 
STAY-PUT (Child's status during proceedings)...............  300.518.
 See also ``Pendency''
 
SUBSTANTIAL LIKELIHOOD OF INJURY (Discipline)..............  300.532(a).
 
SUPPLEMENTARY AIDS AND SERVICES
 Definition..............................  300.42.
 IEP content.............................  300.320(a)(4).
 In ``assistive technology''.............  300.105(a)(3).
 LRE requirements........................  300.114(a)(2)(ii).
 Methods of ensuring services............  300.154(b).
 Requirement regarding regular education   300.324(a)(3)(ii).
 teacher (IEP).
 Services that also benefit nondisabled    300.208(a)(1).
 children.
SUPPLEMENT--NOT SUPPLANT
 LEA requirement.........................  300.202(a)(3).
 State level nonsupplanting..............  300.162(c).
 See ``Nonsupplanting''
 
SUPPORT SERVICES (see Sec.  Sec.   300.704(b)(4)(i)),
 300.814(a))
 
SURGICALLY IMPLANTED MEDICAL DEVICE (see Sec.  Sec.
 300.5, 300.34(b), 300.113(b))
 
SURROGATE PARENTS..........................................  300.519.
 Appointed for homeless youth............  300.519(f).
 In definition of ``Parent''.............  300.30(a)(5).
 Timeline for assignment.................  300.519(h).
 
SUSPENSION (EXPULSION)
 Alternative programming for children      300.704(b)(4)(ix).
 expelled.
 Provision of FAPE.......................  300.101(a).
 Suspension and expulsion rates..........  300.170(a).
 Suspension or expulsion without services  300.534(d)(2)(ii).
 
TEACHERS
See ``Regular education teacher''
See ``Special education teacher''
TECHNICAL ASSISTANCE (Amounts to support)..................  300.702.
 
TECHNICALLY SOUND INSTRUMENTS (Evaluation).................  300.304(b)(3).
 
TERMINATION OF AGENCY OBLIGATION to provide special          300.204(c).
 education to a particular child (Exception to MOE).
 
THERAPEUTIC RECREATION.....................................  300.34(b)(11)(ii).
 
TIMELINES (A-D)
 Access rights (Confidentiality: 45 days)  300.613(a).
 Annual report of children served          300.641(a).
 (Between Oct. 1 and Dec. 1).
 Annual count of parentally-placed         300.133(c).
 private school children (Between Oct. 1 and Dec. 1).

[[Page 171]]

 
 Assignment of surrogate parent (Not more  300.519(h).
 than 30 days).
 Attorneys' fees (10 days prohibition)...  300.517(c)(2)(i).
 Complaint procedures (State: 60 days)...  300.152(a).
 Department hearing procedures (30 days).  300.179(b)(3).
    [Omicron] See also Sec.  Sec.   300.181 through 300.184
 Due process hearings and reviews (see
 Sec.  Sec.   300.510(b)(2), 300.511(e), (f)):
    [Omicron] Conducted within 20 school days; decision      300.532(c)(2).
     within 10 school days.
    [Omicron] Decision within 45 days after expiration of    300.515(a).
     30 day period.
    [Omicron] Disclose evaluations before hearings (5        300.512(a)(3).
     business days).
 
TIMELINES (E-H)
 Hearing procedures (State eligibility:    300.179(b)(3).
 30 days).
 Hearing rights:
    [Omicron] Disclosure of evaluations (At least 5          300.512(b)(1).
     business days before hearing).
    [Omicron] Prohibit introduction of evidence not          300.512(a)(3).
     disclosed (At least 5 business days before hearing).
    [Omicron] Reviews (Decision not later than 30 days)....  300.515(b).
 
TIMELINES (I-Z)
 IEP (Initial meeting: 30 days)..........  300.323(c)(1).
 Initial evaluation (60 days)............  300.301(c)(1).
 Parent notice before private placement    300.148(d)(2).
 (At least 10 business days).
 Show cause hearing......................  300.194(g).
 Decision................................  300.195(a)(1).
 State eligibility: Department hearing
 procedures (see Sec.  Sec.   300.179(b)(3), 300.181(b),
 300.182(d), (e), (g), (k), 300.184)
 Timelines and convenience of hearings     300.515.
 and reviews.
 
TIMELINES--DISCIPLINE (A-P)
 Authority of hearing officer (May order   300.532(b)(2)(ii).
 change of placement for not more than 45 school days).
 Authority of school personnel:
    [Omicron] Change of placement for not more than 45       300.530(g).
     consecutive days for weapons or drugs.
    [Omicron] Removal of a child for not more than 10        300.530(b).
     school days.
 Change of placement for disciplinary
 removals:
    [Omicron] Of more than 10 consecutive school days......  300.536(a)(1).
    [Omicron] Because series of removals total more than 10  300.536(a)(2)(i).
     school days.
 Due process hearing request.............  300.507(a)(2).
 Expedited due process hearings:
    [Omicron] Conducted within 20 days.....................  300.532(c)(2).
    [Omicron] Decision within 10 days......................  300.532(c)(3)(i).
 Hearing officer (Order change of          300.532(b)(2)(ii).
 placement for not more than 45 days).
 Manifestation determination review        300.530(e).
 (Conducted in no more than 10 school days).
 Placement during appeals (Not longer      300.532(b)(2)(ii).
 than 45 days).
 
TIMELINES--DISCIPLINE (Q-Z)
 Removals for not more than:
    [Omicron] 10 school days (By school personnel).........  300.530(b).
    [Omicron] 45 days (To interim alternative educational    300.532(b)(2)(ii).
     setting).

[[Page 172]]

 
        By hearing officer (For substantial likelihood of    300.532(b)(2)(ii).
         injury to child or others).
        By school personnel (For weapons or drugs) (see
         Sec.   300.530(g)(1), (g)(2))
 
TIMETABLE: Full educational opportunity goal (FEOG)........  300.109.
 
TRAINING
 Assistive technology services (see Sec.
  300.6(e), (f))
 Confidentiality procedures (Personnel     300.623(c).
 using personally identifiable information must receive
 training).
 Parent counseling and training..........  300.34(b)(8).
 Technical assistance and training for     300.119.
 teachers and administrators.
 Travel training (see Sec.
 300.39(a)(2)(ii), (b)(4))
 
TRANSFER DURING ACADEMIC YEAR
 Assessments coordinated between public    300.304(c)(5).
 agencies.
 New school district responsibilities
 (see Sec.   300.323(e), (f))
 Transmittal of records..................  300.323(g).
 
TRANSFER OF PARENTAL RIGHTS................................  300.520.
 IEP requirement.........................  300.320(c).
 Special rule............................  300.520(b).
 To children in correctional institutions  300.520(a)(2).
 
TRANSITION FROM PART C TO PART B...........................  300.124.
 
TRANSITION SERVICES (NEEDS)
 Agency responsibilities for (see Sec.
 Sec.   300.321(b)(3), 300.324(c)(2))
 Alternative strategies..................  300.324(c)(1).
 Child participation in IEP Team meetings  300.321(b)(1).
 Definition..............................  300.43.
 IEP requirement (Statement of)
    [Omicron] Transition service needs.....................  300.320(b).
    [Omicron] Needed transition services...................  300.43(b).
 State rehabilitation agency.............  300.324(c)(2).
TRANSMITTAL OF RECORDS TO LAW ENFORCEMENT AND JUDICIAL       300.535(b).
 AUTHORITIES.
 
TRANSPORTATION
 Definition..............................  300.34(c)(16).
 Nonacademic services....................  300.107(b).
 Of private school children..............  300.139(b).
 
TRAUMATIC BRAIN INJURY (Definition)........................  300.8(c)(12).
 
TRAVEL TRAINING (see Sec.   300.39(a)(2)(ii), (b)(4))
 Definition..............................  300.39(b)(4).
 
TREATMENT OF CHARTER SCHOOLS AND THEIR STUDENTS............  300.209.
 
TREATMENT OF FEDERAL FUNDS IN CERTAIN YEARS................  300.205.
 
UNIVERSAL DESIGN
 Definition..............................  300.44.
 Support technology with universal design  300.704(b)(4)(v).
 principles.
 
USE OF AMOUNTS (LEA).......................................  300.202.
 
USE OF FUNDS BY LEAs
 Coordinated services system.............  300.208(a)(2).
 For school-wide programs................  300.206.
 For services and aids that also benefit   300.208(a)(1).
 nondisabled children.
 For use in accordance with Part B.......  300.705.
 

[[Page 173]]

 
USE OF FUNDS BY STATES (SEAs) (A-C)
 Administering Part B State activities...  300.704(a)(1).
 Administering Part C (If SEA is Lead      300.704(a)(4).
 Agency).
 Administrative costs of monitoring and    300.704(b)(3)(i).
 complaint investigations.
 Allowable costs.........................  300.704(b)(3).
 Amount for State administration.........  300.704(a)
 Annual description of use of Part B       300.171.
 funds.
 Assist LEAs in meeting personnel          300.704(b)(4)(vii).
 shortages.
 Complaint investigations................  300.704(b)(3)(i).
 Coordination of activities with other     300.704(b)(1).
 programs.
USE OF FUNDS BY STATES (SEAs) (D-Z)
 Direct and support services.............  300.704(b)(4)(i).
 High cost fund..........................  300.704(c).
 Mediation process.......................  300.704(b)(3)(ii).
 Monitoring..............................  300.704(b)(3)(i).
 Personnel preparation, professional
 development and training (see Sec.   300.704(b)(4)(i),
 (b)(4)(xi)).
 State plan..............................  300.704(c)(3)(i).
 Statewide coordinated services system...  300.814(d).
 Support and direct services.............  300.704(b)(4)(i).
 Technical assistance:
    [Omicron] To LEAs......................................  300.704(b)(4)(xi).
    [Omicron] To other programs that provide services......  300.704(a)(1).
 
USE OF FUNDS BY SECRETARY OF THE INTERIOR (see Sec.  Sec.
 300.707 through 300.716)
 By Indian tribes:
    [Omicron] For child find for children aged 3 throught 5  300.712(d).
    [Omicron] For coordination of assistance for services..  300.712(a).
 For administrative costs................  300.710(a).
 
USE OF SEA ALLOCATIONS.....................................  300.704.
 Inapplicability of requirements that      300.704(d).
 prohibit commingling and supplanting of funds.
 
VISUAL IMPAIRMENT INCLUDING BLINDNESS (Definition).........  300.8(c)(13).
 
VOCATIONAL EDUCATION
 Definition..............................  300.39(b)(5).
 In definition of ``Special education''..  300.39(a)(2)(iii).
 Program options.........................  300.110.
 Transition services.....................  300.320(b)(1).
 
VOCATIONAL REHABILITATION (See ``Rehabilitation'')
 
VOLUNTARY DEPARTURE OF PERSONNEL
(Exception to LEA maintenance of effort)...................  300.204(a).
 
WAIVER(S)
 For exceptional and uncontrollable        300.163(c).
 circumstances (State maintenance of effort).
 ``In whole or in part''.................  300.164(e).
 Public benefits or insurance (Risk of     300.154(d)(2)(iii)(D).
 loss of eligibility for home and community-based waivers).
 State-level nonsupplanting..............  300.162(c).
 State maintenance of effort.............  300.163.
 State's procedures for monitoring.......  300.164(c)(2)(ii)(B).
 Waiver procedures.......................  300.164.
 
WARD OF THE STATE
 Appointment of surrogate parent.........  300.519(c).
 Definition..............................  300.45.
 See definition of ``Parent''............  300.30(a)(3).

[[Page 174]]

 
 See ``Surrogate parents''...............  300.519(a)(3).
 
WEAPON (Definition)........................................  300.530(i)(4).
 
WHEN IEPS MUST BE IN EFFECT................................  300.323.
 


[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007. 
Redesignated at 80 FR 23667, Apr. 28, 2015, as amended at 82 FR 31913, 
July 11, 2017]



PART 303_EARLY INTERVENTION PROGRAM FOR INFANTS AND TODDLERS WITH DISABILITIES

                            Subpart A_General

                   Purpose and Applicable Regulations

Sec.
303.1 Purpose of the early intervention program for infants and toddlers 
          with disabilities.
303.2 Eligible recipients of an award and applicability of this part.
303.3 Applicable regulations.

                      Definitions Used in This Part

303.4 Act.
303.5 At-risk infant or toddler.
303.6 Child.
303.7 Consent.
303.8 Council.
303.9 Day.
303.10 Developmental delay.
303.11 Early intervention service program.
303.12 Early intervention service provider.
303.13 Early intervention services.
303.14 Elementary school.
303.15 Free appropriate public education.
303.16 Health services.
303.17 Homeless children.
303.18 Include; including.
303.19 Indian; Indian tribe.
303.20 Individualized family service plan.
303.21 Infant or toddler with a disability.
303.22 Lead agency.
303.23 Local educational agency.
303.24 Multidisciplinary.
303.25 Native language.
303.26 Natural environments.
303.27 Parent.
303.28 Parent training and information center.
303.29 Personally identifiable information.
303.30 Public agency.
303.31 Qualified personnel.
303.32 [Reserved]
303.33 Secretary.
303.34 Service coordination services (case management).
303.35 State.
303.36 State educational agency.
303.37 Ward of the State.

Subpart B_State Eligibility for a Grant and Requirements for a Statewide 
                                 System

                    General Authority and Eligibility

303.100 General authority.
303.101 State eligibility--requirements for a grant under this part.

    State Conformity With Part C of the Act and Abrogation of State 
                           Sovereign Immunity

303.102 State conformity with Part C of the Act.
303.103 Abrogation of State sovereign immunity.

                       Equipment and Construction

303.104 Acquisition of equipment and construction or alteration of 
          facilities.

   Positive Efforts To Employ and Advance Qualified Individuals With 
                              Disabilities

303.105 Positive efforts to employ and advance qualified individuals 
          with disabilities.

                Minimum Components of a Statewide System

303.110 Minimum components of a statewide system.
303.111 State definition of developmental delay.
303.112 Availability of early intervention services.
303.113 Evaluation, assessment, and nondiscriminatory procedures.
303.114 Individualized family service plan (IFSP).
303.115 Comprehensive child find system.
303.116 Public awareness program.
303.117 Central directory.
303.118 Comprehensive system of personnel development (CSPD).
303.119 Personnel standards.
303.120 Lead agency role in supervision, monitoring, funding, 
          interagency coordination, and other responsibilities.
303.121 Policy for contracting or otherwise arranging for services.
303.122 Reimbursement procedures.
303.123 Procedural safeguards.
303.124 Data collection.
303.125 State interagency coordinating council.
303.126 Early intervention services in natural environments.

[[Page 175]]

               Subpart C_State Application and Assurances

                                 General

303.200 State application and assurances.

                        Application Requirements

303.201 Designation of lead agency.
303.202 Certification regarding financial responsibility.
303.203 Statewide system and description of services.
303.204 Application's definition of at-risk infants and toddlers and 
          description of services.
303.205 Description of use of funds.
303.206 Referral policies for specific children.
303.207 Availability of resources.
303.208 Public participation policies and procedures.
303.209 Transition to preschool and other programs.
303.210 Coordination with Head Start and Early Head Start, early 
          education, and child care programs.
303.211 State option to make services under this part available to 
          children ages three and older.
303.212 Additional information and assurances.

                               Assurances

303.220 Assurances satisfactory to the Secretary.
303.221 Expenditure of funds.
303.222 Payor of last resort.
303.223 Control of funds and property.
303.224 Reports and records.
303.225 Prohibition against supplanting; indirect costs.
303.226 Fiscal control.
303.227 Traditionally underserved groups.

 Subsequent Applications and Modifications, Eligibility Determinations, 
                       and Standard of Disapproval

303.228 Subsequent State application and modifications of application.
303.229 Determination by the Secretary that a State is eligible.
303.230 Standard for disapproval of an application.

                          Department Procedures

303.231 Notice and hearing before determining that a State is not 
          eligible.
303.232 Hearing Official or Panel.
303.233 Hearing procedures.
303.234 Initial decision; final decision.
303.235 Filing requirements.
303.236 Judicial review.

 Subpart D_Child Find, Evaluations and Assessments, and Individualized 
                          Family Service Plans

                                 General

303.300 General.

 Pre-Referral Procedures--Public Awareness Program and Child Find System

303.301 Public awareness program--information for parents.
303.302 Comprehensive child find system.

                           Referral Procedures

303.303 Referral procedures.
303.304-303.309 [Reserved]

   Post-Referral Procedures--Screenings, Evaluations, and Assessments

303.310 Post-referral timeline (45 days).
303.311-303.319 [Reserved]
303.320 Screening procedures (optional).
303.321 Evaluation of the child and assessment of the child and family.
303.322 Determination that a child is not eligible.

                Individualized Family Service Plan (IFSP)

303.340 Individualized family service plan--general.
303.341 [Reserved]
303.342 Procedures for IFSP development, review, and evaluation.
303.343 IFSP Team meeting and periodic review.
303.344 Content of an IFSP.
303.345 Interim IFSPs--provision of services before evaluations and 
          assessments are completed.
303.346 Responsibility and accountability.

                     Subpart E_Procedural Safeguards

                                 General

303.400 General responsibility of lead agency for procedural safeguards.

    Confidentiality of Personally Identifiable Information and Early 
                          Intervention Records

303.401 Confidentiality and opportunity to examine records.
303.402 Confidentiality.
303.403 Definitions.
303.404 Notice to parents.
303.405 Access rights.
303.406 Record of access.
303.407 Records on more than one child.
303.408 List of types and locations of information.
303.409 Fees for records.
303.410 Amendment of records at a parent's request.

[[Page 176]]

303.411 Opportunity for a hearing.
303.412 Result of hearing.
303.413 Hearing procedures.
303.414 Consent prior to disclosure or use.
303.415 Safeguards.
303.416 Destruction of information.
303.417 Enforcement.

                       Parental Consent and Notice

303.420 Parental consent and ability to decline services.
303.421 Prior written notice and procedural safeguards notice.

                            Surrogate Parents

303.422 Surrogate parents.

                       Dispute Resolution Options

303.430 State dispute resolution options.

                                Mediation

303.431 Mediation.

                       State Complaint Procedures

303.432 Adoption of State complaint procedures.
303.433 Minimum State complaint procedures.
303.434 Filing a complaint.

 States That Choose To Adopt the Part C Due Process Hearing Procedures 
                      Under Section 639 of the Act

303.435 Appointment of an impartial due process hearing officer.
303.436 Parental rights in due process hearing proceedings.
303.437 Convenience of hearings and timelines.
303.438 Civil action.

 States That Choose To Adopt the Part B Due Process Hearing Procedures 
                      Under Section 615 of the Act

303.440 Filing a due process complaint.
303.441 Due process complaint.
303.442 Resolution process.
303.443 Impartial due process hearing.
303.444 Hearing rights.
303.445 Hearing decisions.
303.446 Finality of decision; appeal; impartial review.
303.447 Timelines and convenience of hearings and reviews.
303.448 Civil action.
303.449 State enforcement mechanisms.

             Subpart F_Use of Funds and Payor of Last Resort

                                 General

303.500 Use of funds, payor of last resort and system of payments.

                              Use of Funds

303.501 Permissive use of funds by the lead agency.

                Payor of Last Resort--General Provisions

303.510 Payor of last resort.
303.511 Methods to ensure the provision of, and financial responsibility 
          for, Part C services.

Payor of Last Resort & System of Payments Provisions--Use of Insurance, 
                 Benefits, Systems of Payments, and Fees

303.520 Policies related to use of insurance to pay for Part C services.
303.521 System of payments and fees.

            Subpart G_State Interagency Coordinating Council

303.600 Establishment of Council.
303.601 Composition.
303.602 Meetings.
303.603 Use of funds by the Council.
303.604 Functions of the Council--required duties.
303.605 Authorized activities by the Council.

  Subpart H_-State Monitoring and Enforcement; Federal Monitoring and 
             Enforcement; Reporting; and Allocation of Funds

              Federal and State Monitoring and Enforcement

303.700 State monitoring and enforcement.
303.701 State performance plans and data collection.
303.702 State use of targets and reporting.
303.703 Secretary's review and determination regarding State 
          performance.
303.704 Enforcement.
303.705 Withholding funds.
303.706 Public attention.
303.707 Rule of construction.
303.708 State enforcement.

                      Reports--Program Information

303.720 Data requirements--general.
303.721 Annual report of children served--report requirement.
303.722 Data reporting.
303.723 Annual report of children served--certification.
303.724 Annual report of children served--other responsibilities of the 
          lead agency.

                           Allocation of Funds

303.730 Formula for State allocations.
303.731 Payments to Indians.
303.732 State allotments.
303.733 Reallotment of funds.
303.734 Reservation for State incentive grants.

[[Page 177]]


Appendix A to Part 303--Index for IDEA Part C Regulations

    Authority: 20 U.S.C. 1431 through 1444, unless otherwise noted.

    Source: 76 FR 60244, Sept. 28, 2011, unless otherwise noted.

                            Subpart A_General

                   Purpose and Applicable Regulations

Sec.  303.1  Purpose of the early intervention program for infants and 
          toddlers with disabilities.

    The purpose of this part is to provide financial assistance to 
States to--
    (a) Develop and implement a statewide, comprehensive, coordinated, 
multidisciplinary, interagency system that provides early intervention 
services for infants and toddlers with disabilities and their families;
    (b) Facilitate the coordination of payment for early intervention 
services from Federal, State, local, and private sources (including 
public and private insurance coverage);
    (c) Enhance State capacity to provide quality early intervention 
services and expand and improve existing early intervention services 
being provided to infants and toddlers with disabilities and their 
families;
    (d) Enhance the capacity of State and local agencies and service 
providers to identify, evaluate, and meet the needs of all children, 
including historically underrepresented populations, particularly 
minority, low-income, inner-city, and rural children, and infants and 
toddlers in foster care; and
    (e) Encourage States to expand opportunities for children under 
three years of age who would be at risk of having substantial 
developmental delay if they did not receive early intervention services.

(Authority: 20 U.S.C. 1400(d)(2), 1431(a)(5), 1431(b))

Sec.  303.2  Eligible recipients of an award and applicability of this 
          part.

    (a) Eligible recipients of an award. Eligible recipients include the 
50 States, the Commonwealth of Puerto Rico, the District of Columbia, 
the Secretary of the Interior, and the following jurisdictions: Guam, 
American Samoa, the United States Virgin Islands, and the Commonwealth 
of the Northern Mariana Islands.
    (b) Applicability of this part. (1) The provisions of this part 
apply to--
    (i) The State lead agency and any EIS provider that is part of the 
statewide system of early intervention, regardless of whether that EIS 
provider receives funds under part C of the Act; and
    (ii) All children referred to the part C program, including infants 
and toddlers with disabilities consistent with the definitions in 
Sec. Sec.  303.6 and 303.21, and their families.
    (2) The provisions of this part do not apply to any child with a 
disability receiving a free appropriate public education or FAPE under 
34 CFR part 300.

(Authority: 20 U.S.C. 1401(31), 1434, 1435(a)(10)(A))

Sec.  303.3  Applicable regulations.

    (a) The following regulations apply to this part:
    (1) The regulations in this part 303.
    (2) EDGAR, including 34 CFR parts 76 (except for Sec.  76.103), 77, 
79, 81, 82, 84, and 86.
    (3) The Uniform Administrative Requirements, Cost Principles, and 
Audit Requirements for Federal Awards in 2 CFR part 200, as adopted in 
part 3474, and the OMB Guidelines to Agencies on Governmentwide 
Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted 
in 2 CFR part 3485.
    (b) In applying the regulations cited in paragraph (a)(2) of this 
section, any reference to--
    (1) State educational agency means the lead agency under this part; 
and
    (2) Education records or records means early intervention records.

(Authority: 20 U.S.C. 1221(b), 1221e-3, 1431-1444)

[76 FR 60244, Sept. 28, 2011, as amended at 79 FR 76097, Dec. 19, 2014

                      Definitions Used in This Part

Sec.  303.4  Act.

    Act means the Individuals with Disabilities Education Act, as 
amended.

(Authority: 20 U.S.C. 1400(a))

[[Page 178]]

Sec.  303.5  At-risk infant or toddler.

    At-risk infant or toddler means an individual under three years of 
age who would be at risk of experiencing a substantial developmental 
delay if early intervention services were not provided to the 
individual. At the State's discretion, at-risk infant or toddler may 
include an infant or toddler who is at risk of experiencing 
developmental delays because of biological or environmental factors that 
can be identified (including low birth weight, respiratory distress as a 
newborn, lack of oxygen, brain hemorrhage, infection, nutritional 
deprivation, a history of abuse or neglect, and being directly affected 
by illegal substance abuse or withdrawal symptoms resulting from 
prenatal drug exposure).

(Authority: 20 U.S.C. 1432(1), 1432(5)(B)(i) and 1437(a)(6))

Sec.  303.6  Child.

    Child means an individual under the age of six and may include an 
infant or toddler with a disability, as that term is defined in Sec.  
303.21.

(Authority: 20 U.S.C. 1432(5))

Sec.  303.7  Consent.

    Consent means that--
    (a) The parent has been fully informed of all information relevant 
to the activity for which consent is sought, in the parent's native 
language, as defined in Sec.  303.25;
    (b) The parent understands and agrees in writing to the carrying out 
of the activity for which the parent's consent is sought, and the 
consent form describes that activity and lists the early intervention 
records (if any) that will be released and to whom they will be 
released; 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 apply to an action that occurred before the consent 
was revoked).

(Authority: 20 U.S.C. 1439)

Sec.  303.8  Council.

    Council means the State Interagency Coordinating Council that meets 
the requirements of subpart G of this part.

(Authority: 20 U.S.C. 1432(2))

Sec.  303.9  Day.

    Day means calendar day, unless otherwise indicated.

(Authority: 20 U.S.C. 1221e-3)

Sec.  303.10  Developmental delay.

    Developmental delay, when used with respect to a child residing in a 
State, has the meaning given that term by the State under Sec.  303.111.

(Authority: 20 U.S.C. 1432(3))

Sec.  303.11  Early intervention service program.

    Early intervention service program or EIS program means an entity 
designated by the lead agency for reporting under Sec. Sec.  303.700 
through 303.702.

(Authority: 20 U.S.C. 1416, 1431-1444)

Sec.  303.12  Early intervention service provider.

    (a) Early intervention service provider or EIS provider means an 
entity (whether public, private, or nonprofit) or an individual that 
provides early intervention services under part C of the Act, whether or 
not the entity or individual receives Federal funds under part C of the 
Act, and may include, where appropriate, the lead agency and a public 
agency responsible for providing early intervention services to infants 
and toddlers with disabilities in the State under part C of the Act.
    (b) An EIS provider is responsible for--
    (1) Participating in the multidisciplinary individualized family 
service plan (IFSP) Team's ongoing assessment of an infant or toddler 
with a disability and a family-directed assessment of the resources, 
priorities, and concerns of the infant's or toddler's family, as related 
to the needs of the infant or toddler, in the development of integrated 
goals and outcomes for the IFSP;
    (2) Providing early intervention services in accordance with the 
IFSP of the infant or toddler with a disability; and

[[Page 179]]

    (3) Consulting with and training parents and others regarding the 
provision of the early intervention services described in the IFSP of 
the infant or toddler with a disability.

(Authority: 20 U.S.C. 1431-1444)

Sec.  303.13  Early intervention services.

    (a) General. Early intervention services means developmental 
services that--
    (1) Are provided under public supervision;
    (2) Are selected in collaboration with the parents;
    (3) Are provided at no cost, except, subject to Sec. Sec.  303.520 
and 303.521, where Federal or State law provides for a system of 
payments by families, including a schedule of sliding fees;
    (4) Are designed to meet the developmental needs of an infant or 
toddler with a disability and the needs of the family to assist 
appropriately in the infant's or toddler's development, as identified by 
the IFSP Team, in any one or more of the following areas, including--
    (i) Physical development;
    (ii) Cognitive development;
    (iii) Communication development;
    (iv) Social or emotional development; or
    (v) Adaptive development;
    (5) Meet the standards of the State in which the early intervention 
services are provided, including the requirements of part C of the Act;
    (6) Include services identified under paragraph (b) of this section;
    (7) Are provided by qualified personnel (as that term is defined in 
Sec.  303.31), including the types of personnel listed in paragraph (c) 
of this section;
    (8) To the maximum extent appropriate, are provided in natural 
environments, as defined in Sec.  303.26 and consistent with Sec. Sec.  
303.126 and 303.344(d); and
    (9) Are provided in conformity with an IFSP adopted in accordance 
with section 636 of the Act and Sec.  303.20.
    (b) Types of early intervention services. Subject to paragraph (d) 
of this section, early intervention services include the following 
services defined in this paragraph:
    (1) Assistive technology device and service are defined as follows:
    (i) 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 an infant or toddler with a disability. 
The term does not include a medical device that is surgically implanted, 
including a cochlear implant, or the optimization (e.g., mapping), 
maintenance, or replacement of that device.
    (ii) Assistive technology service means any service that directly 
assists an infant or toddler with a disability in the selection, 
acquisition, or use of an assistive technology device. The term 
includes--
    (A) The evaluation of the needs of an infant or toddler with a 
disability, including a functional evaluation of the infant or toddler 
with a disability in the child's customary environment;
    (B) Purchasing, leasing, or otherwise providing for the acquisition 
of assistive technology devices by infants or toddlers 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 an infant or toddler 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) or other 
individuals who provide services to, or are otherwise substantially 
involved in the major life functions of, infants and toddlers with 
disabilities.
    (2) Audiology services include--
    (i) Identification of children with auditory impairments, using at-
risk criteria and appropriate audiologic screening techniques;
    (ii) Determination of the range, nature, and degree of hearing loss 
and communication functions, by use of audiological evaluation 
procedures;
    (iii) Referral for medical and other services necessary for the 
habilitation

[[Page 180]]

or rehabilitation of an infant or toddler with a disability who has an 
auditory impairment;
    (iv) Provision of auditory training, aural rehabilitation, speech 
reading and listening devices, orientation and training, and other 
services;
    (v) Provision of services for prevention of hearing loss; and
    (vi) Determination of the child's individual amplification, 
including selecting, fitting, and dispensing appropriate listening and 
vibrotactile devices, and evaluating the effectiveness of those devices.
    (3) Family training, counseling, and home visits means services 
provided, as appropriate, by social workers, psychologists, and other 
qualified personnel to assist the family of an infant or toddler with a 
disability in understanding the special needs of the child and enhancing 
the child's development.
    (4) Health services has the meaning given the term in Sec.  303.16.
    (5) Medical services means services provided by a licensed physician 
for diagnostic or evaluation purposes to determine a child's 
developmental status and need for early intervention services.
    (6) Nursing services include--
    (i) The assessment of health status for the purpose of providing 
nursing care, including the identification of patterns of human response 
to actual or potential health problems;
    (ii) The provision of nursing care to prevent health problems, 
restore or improve functioning, and promote optimal health and 
development; and
    (iii) The administration of medications, treatments, and regimens 
prescribed by a licensed physician.
    (7) Nutrition services include--
    (i) Conducting individual assessments in--
    (A) Nutritional history and dietary intake;
    (B) Anthropometric, biochemical, and clinical variables;
    (C) Feeding skills and feeding problems; and
    (D) Food habits and food preferences;
    (ii) Developing and monitoring appropriate plans to address the 
nutritional needs of children eligible under this part, based on the 
findings in paragraph (b)(7)(i) of this section; and
    (iii) Making referrals to appropriate community resources to carry 
out nutrition goals.
    (8) Occupational therapy includes services to address the functional 
needs of an infant or toddler with a disability related to adaptive 
development, adaptive behavior, and play, and sensory, motor, and 
postural development. These services are designed to improve the child's 
functional ability to perform tasks in home, school, and community 
settings, and include--
    (i) Identification, assessment, and intervention;
    (ii) Adaptation of the environment, and selection, design, and 
fabrication of assistive and orthotic devices to facilitate development 
and promote the acquisition of functional skills; and
    (iii) Prevention or minimization of the impact of initial or future 
impairment, delay in development, or loss of functional ability.
    (9) Physical therapy includes services to address the promotion of 
sensorimotor function through enhancement of musculoskeletal status, 
neurobehavioral organization, perceptual and motor development, 
cardiopulmonary status, and effective environmental adaptation. These 
services include--
    (i) Screening, evaluation, and assessment of children to identify 
movement dysfunction;
    (ii) Obtaining, interpreting, and integrating information 
appropriate to program planning to prevent, alleviate, or compensate for 
movement dysfunction and related functional problems; and
    (iii) Providing individual and group services or treatment to 
prevent, alleviate, or compensate for, movement dysfunction and related 
functional problems.
    (10) Psychological services include--
    (i) Administering psychological and developmental tests and other 
assessment procedures;
    (ii) Interpreting assessment results;
    (iii) Obtaining, integrating, and interpreting information about 
child behavior and child and family conditions related to learning, 
mental health, and development; and

[[Page 181]]

    (iv) Planning and managing a program of psychological services, 
including psychological counseling for children and parents, family 
counseling, consultation on child development, parent training, and 
education programs.
    (11) Service coordination services has the meaning given the term in 
Sec.  303.34.
    (12) Sign language and cued language services include teaching sign 
language, cued language, and auditory/oral language, providing oral 
transliteration services (such as amplification), and providing sign and 
cued language interpretation.
    (13) Social work services include--
    (i) Making home visits to evaluate a child's living conditions and 
patterns of parent-child interaction;
    (ii) Preparing a social or emotional developmental assessment of the 
infant or toddler within the family context;
    (iii) Providing individual and family-group counseling with parents 
and other family members, and appropriate social skill-building 
activities with the infant or toddler and parents;
    (iv) Working with those problems in the living situation (home, 
community, and any center where early intervention services are 
provided) of an infant or toddler with a disability and the family of 
that child that affect the child's maximum utilization of early 
intervention services; and
    (v) Identifying, mobilizing, and coordinating community resources 
and services to enable the infant or toddler with a disability and the 
family to receive maximum benefit from early intervention services.
    (14) Special instruction includes--
    (i) The design of learning environments and activities that promote 
the infant's or toddler's acquisition of skills in a variety of 
developmental areas, including cognitive processes and social 
interaction;
    (ii) Curriculum planning, including the planned interaction of 
personnel, materials, and time and space, that leads to achieving the 
outcomes in the IFSP for the infant or toddler with a disability;
    (iii) Providing families with information, skills, and support 
related to enhancing the skill development of the child; and
    (iv) Working with the infant or toddler with a disability to enhance 
the child's development.
    (15) Speech-language pathology services include--
    (i) Identification of children with communication or language 
disorders and delays in development of communication skills, including 
the diagnosis and appraisal of specific disorders and delays in those 
skills;
    (ii) Referral for medical or other professional services necessary 
for the habilitation or rehabilitation of children with communication or 
language disorders and delays in development of communication skills; 
and
    (iii) Provision of services for the habilitation, rehabilitation, or 
prevention of communication or language disorders and delays in 
development of communication skills.
    (16) Transportation and related costs include the cost of travel and 
other costs that are necessary to enable an infant or toddler with a 
disability and the child's family to receive early intervention 
services.
    (17) Vision services mean--
    (i) Evaluation and assessment of visual functioning, including the 
diagnosis and appraisal of specific visual disorders, delays, and 
abilities that affect early childhood development;
    (ii) Referral for medical or other professional services necessary 
for the habilitation or rehabilitation of visual functioning disorders, 
or both; and
    (iii) Communication skills training, orientation and mobility 
training for all environments, visual training, and additional training 
necessary to activate visual motor abilities.
    (c) Qualified personnel. The following are the types of qualified 
personnel who provide early intervention services under this part:
    (1) Audiologists.
    (2) Family therapists.
    (3) Nurses.
    (4) Occupational therapists.
    (5) Orientation and mobility specialists.
    (6) Pediatricians and other physicians for diagnostic and evaluation 
purposes.
    (7) Physical therapists.
    (8) Psychologists.
    (9) Registered dieticians.

[[Page 182]]

    (10) Social workers.
    (11) Special educators, including teachers of children with hearing 
impairments (including deafness) and teachers of children with visual 
impairments (including blindness).
    (12) Speech and language pathologists.
    (13) Vision specialists, including ophthalmologists and 
optometrists.
    (d) Other services. The services and personnel identified and 
defined in paragraphs (b) and (c) of this section do not comprise 
exhaustive lists of the types of services that may constitute early 
intervention services or the types of qualified personnel that may 
provide early intervention services. Nothing in this section prohibits 
the identification in the IFSP of another type of service as an early 
intervention service provided that the service meets the criteria 
identified in paragraph (a) of this section or of another type of 
personnel that may provide early intervention services in accordance 
with this part, provided such personnel meet the requirements in Sec.  
303.31.

(Authority: 20 U.S.C. 1432(4))

Sec.  303.14  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.  303.15  Free appropriate public education.

    Free appropriate public education or FAPE, as used in Sec. Sec.  
303.211, 303.501, and 303.521, 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 State educational agency (SEA), 
including the requirements of part B of the Act;
    (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 34 CFR 300.320 through 
300.324.

(Authority: 20 U.S.C. 1401(9))

Sec.  303.16  Health services.

    (a) Health services mean services necessary to enable an otherwise 
eligible child to benefit from the other early intervention services 
under this part during the time that the child is eligible to receive 
early intervention services.
    (b) The term includes--
    (1) Such services as clean intermittent catheterization, 
tracheostomy care, tube feeding, the changing of dressings or colostomy 
collection bags, and other health services; and
    (2) Consultation by physicians with other service providers 
concerning the special health care needs of infants and toddlers with 
disabilities that will need to be addressed in the course of providing 
other early intervention services.
    (c) The term does not include--
    (1) Services that are--
    (i) Surgical in nature (such as cleft palate surgery, surgery for 
club foot, or the shunting of hydrocephalus);
    (ii) Purely medical in nature (such as hospitalization for 
management of congenital heart ailments, or the prescribing of medicine 
or drugs for any purpose); or
    (iii) Related to the implementation, optimization (e.g., mapping), 
maintenance, or replacement of a medical device that is surgically 
implanted, including a cochlear implant.
    (A) Nothing in this part limits the right of an infant or toddler 
with a disability with a surgically implanted device (e.g., cochlear 
implant) to receive the early intervention services that are identified 
in the child's IFSP as being needed to meet the child's developmental 
outcomes.
    (B) Nothing in this part prevents the EIS provider from routinely 
checking that either the hearing aid or the external components of a 
surgically implanted device (e.g., cochlear implant) of an infant or 
toddler with a disability are functioning properly;
    (2) Devices (such as heart monitors, respirators and oxygen, and 
gastrointestinal feeding tubes and pumps) necessary to control or treat 
a medical condition; and
    (3) Medical-health services (such as immunizations and regular 
``well-

[[Page 183]]

baby'' care) that are routinely recommended for all children.

(Authority: 20 U.S.C. 1432(4))

Sec.  303.17  Homeless children.

    Homeless children means children who meet the definition 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.  303.18  Include; including.

    Include or including 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.  303.19  Indian; 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)-(13))

Sec.  303.20  Individualized family service plan.

    Individualized family service plan or IFSP means a written plan for 
providing early intervention services to an infant or toddler with a 
disability under this part and the infant's or toddler's family that--
    (a) Is based on the evaluation and assessment described in Sec.  
303.321;
    (b) Includes the content specified in Sec.  303.344;
    (c) Is implemented as soon as possible once parental consent for the 
early intervention services in the IFSP is obtained (consistent with 
Sec.  303.420); and
    (d) Is developed in accordance with the IFSP procedures in 
Sec. Sec.  303.342, 303.343, and 303.345.

(Authority: 20 U.S.C. 1401(15), 1435(a)(4), 1436)

Sec.  303.21  Infant or toddler with a disability.

    (a) Infant or toddler with a disability means an individual under 
three years of age who needs early intervention services because the 
individual--
    (1) Is experiencing a developmental delay, as measured by 
appropriate diagnostic instruments and procedures, in one or more of the 
following areas:
    (i) Cognitive development.
    (ii) Physical development, including vision and hearing.
    (iii) Communication development.
    (iv) Social or emotional development.
    (v) Adaptive development; or
    (2) Has a diagnosed physical or mental condition that--
    (i) Has a high probability of resulting in developmental delay; and
    (ii) Includes conditions such as chromosomal abnormalities; genetic 
or congenital disorders; sensory impairments; inborn errors of 
metabolism; disorders reflecting disturbance of the development of the 
nervous system; congenital infections; severe attachment disorders; and 
disorders secondary to exposure to toxic substances, including fetal 
alcohol syndrome.
    (b) Infant or toddler with a disability may include, at a State's 
discretion, an at-risk infant or toddler (as defined in Sec.  303.5).
    (c) Infant or toddler with a disability may include, at a State's 
discretion, a child with a disability who is eligible for services under 
section 619 of the Act and who previously received services under this 
part until the child enters, or is eligible under State law to enter, 
kindergarten or elementary school, as appropriate, provided that any 
programs under this part must include--
    (1) An educational component that promotes school readiness and 
incorporates pre-literacy, language, and numeracy skills for children 
ages three

[[Page 184]]

and older who receive part C services pursuant to Sec.  303.211; and
    (2) A written notification to parents of a child with a disability 
who is eligible for services under section 619 of the Act and who 
previously received services under this part of their rights and 
responsibilities in determining whether their child will continue to 
receive services under this part or participate in preschool programs 
under section 619 of the Act.

(Authority: 20 U.S.C. 1401(16), 1432(5))

Sec.  303.22  Lead agency.

    Lead agency means the agency designated by the State's Governor 
under section 635(a)(10) of the Act and Sec.  303.120 that receives 
funds under section 643 of the Act to administer the State's 
responsibilities under part C of the Act.

(Authority: 20 U.S.C. 1435(a)(10))

Sec.  303.23  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 schools 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 the following:
    (1) Educational service agency, defined as a regional public 
multiservice agency--
    (i) Authorized by State law to develop, manage, and provide services 
or programs to LEAs; and
    (ii) 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.
    (2) Any other public institution or agency having administrative 
control and direction of a public elementary school or secondary school, 
including a public charter school that is established as an LEA under 
State law.
    (3) Entities that meet the definition of intermediate educational 
unit or IEU in section 602(23) of the Act, as in effect prior to June 4, 
1997. Under that definition an intermediate educational unit or IEU 
means any public authority other than an LEA that--
    (i) Is under the general supervision of a State educational agency;
    (ii) Is established by State law for the purpose of providing FAPE 
on a regional basis; and
    (iii) Provides special education and related services to children 
with disabilities within the State.
    (c) BIE-funded schools. The term includes an elementary school or 
secondary school funded by the Bureau of Indian Education, and not 
subject to the jurisdiction of any SEA other than the Bureau of Indian 
Education, 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(5), 1401(19))

Sec.  303.24  Multidisciplinary.

    Multidisciplinary means the involvement of two or more separate 
disciplines or professions and with respect to--
    (a) Evaluation of the child in Sec. Sec.  303.113 and 
303.321(a)(1)(i) and assessments of the child and family in Sec.  
303.321(a)(1)(ii), may include one individual who is qualified in more 
than one discipline or profession; and
    (b) The IFSP Team in Sec.  303.340 must include the involvement of 
the parent and two or more individuals from separate disciplines or 
professions and one of these individuals must be the service coordinator 
(consistent with Sec.  303.343(a)(1)(iv)).

(Authority: 20 U.S.C. 1221e-3, 1435(a)(3), 1436(a)(1), 1436(a)(3))

[[Page 185]]

Sec.  303.25  Native language.

    (a) Native language, when used with respect to an individual who is 
limited English proficient or LEP (as that term is defined in section 
602(18) of the Act), means--
    (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; and
    (2) For evaluations and assessments conducted pursuant to Sec.  
303.321(a)(5) and (a)(6), the language normally used by the child, if 
determined developmentally appropriate for the child by qualified 
personnel conducting the evaluation or assessment.
    (b) Native language, when used with respect to an individual who is 
deaf or hard of hearing, blind or visually impaired, or for an 
individual with no written language, means the mode of communication 
that is normally used by the individual (such as sign language, braille, 
or oral communication).

(Authority: 20 U.S.C. 1401(20))

Sec.  303.26  Natural environments.

    Natural environments means settings that are natural or typical for 
a same-aged infant or toddler without a disability, may include the home 
or community settings, and must be consistent with the provisions of 
Sec.  303.126.

(Authority: 20 U.S.C. 1432, 1435, 1436)

Sec.  303.27  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 early intervention, educational, health or 
developmental 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.  303.422 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 or 
early intervention service decisions for the child.
    (2) If a judicial decree or order identifies a specific person or 
persons under paragraphs (a)(1) through (a)(4) of this section to act as 
the ``parent'' of a child or to make educational or early intervention 
service decisions on behalf of a child, then the person or persons must 
be determined to be the ``parent'' for purposes of part C of the Act, 
except that if an EIS provider or a public agency provides any services 
to a child or any family member of that child, that EIS provider or 
public agency may not act as the parent for that child.

(Authority: 20 U.S.C. 1401(23), 1439(a)(5))

Sec.  303.28  Parent training and information center.

    Parent training and information center means a center assisted under 
section 671 or 672 of the Act.

(Authority: 20 U.S.C. 1401(25))

Sec.  303.29  Personally identifiable information.

    Personally identifiable information means personally identifiable 
information as defined in 34 CFR 99.3, as amended, except that the term 
``student'' in the definition of personally identifiable information in 
34 CFR 99.3 means ``child'' as used in this part and any reference to 
``school'' means ``EIS provider'' as used in this part.

(Authority: 20 U.S.C. 1415, 1439)

Sec.  303.30  Public agency.

    As used in this part, public agency means the lead agency and any 
other

[[Page 186]]

agency or political subdivision of the State.

(Authority: 20 U.S.C. 1435(a)(10))

Sec.  303.31  Qualified personnel.

    Qualified personnel means personnel who have met State approved or 
recognized certification, licensing, registration, or other comparable 
requirements that apply to the areas in which the individuals are 
conducting evaluations or assessments or providing early intervention 
services.

(Authority: 20 U.S.C. 1432(4)(F))

Sec.  303.32  [Reserved]

Sec.  303.33  Secretary.

    Secretary means the Secretary of Education.

(Authority: 20 U.S.C. 1401(28))

Sec.  303.34  Service coordination services (case management).

    (a) General. (1) As used in this part, service coordination services 
mean services provided by a service coordinator to assist and enable an 
infant or toddler with a disability and the child's family to receive 
the services and rights, including procedural safeguards, required under 
this part.
    (2) Each infant or toddler with a disability and the child's family 
must be provided with one service coordinator who is responsible for--
    (i) Coordinating all services required under this part across agency 
lines; and
    (ii) Serving as the single point of contact for carrying out the 
activities described in paragraphs (a)(3) and (b) of this section.
    (3) Service coordination is an active, ongoing process that 
involves--
    (i) Assisting parents of infants and toddlers with disabilities in 
gaining access to, and coordinating the provision of, the early 
intervention services required under this part; and
    (ii) Coordinating the other services identified in the IFSP under 
Sec.  303.344(e) that are needed by, or are being provided to, the 
infant or toddler with a disability and that child's family.
    (b) Specific service coordination services. Service coordination 
services include--
    (1) Assisting parents of infants and toddlers with disabilities in 
obtaining access to needed early intervention services and other 
services identified in the IFSP, including making referrals to providers 
for needed services and scheduling appointments for infants and toddlers 
with disabilities and their families;
    (2) Coordinating the provision of early intervention services and 
other services (such as educational, social, and medical services that 
are not provided for diagnostic or evaluative purposes) that the child 
needs or is being provided;
    (3) Coordinating evaluations and assessments;
    (4) Facilitating and participating in the development, review, and 
evaluation of IFSPs;
    (5) Conducting referral and other activities to assist families in 
identifying available EIS providers;
    (6) Coordinating, facilitating, and monitoring the delivery of 
services required under this part to ensure that the services are 
provided in a timely manner;
    (7) Conducting follow-up activities to determine that appropriate 
part C services are being provided;
    (8) Informing families of their rights and procedural safeguards, as 
set forth in subpart E of this part and related resources;
    (9) Coordinating the funding sources for services required under 
this part; and
    (10) Facilitating the development of a transition plan to preschool, 
school, or, if appropriate, to other services.
    (c) Use of the term service coordination or service coordination 
services. The lead agency's or an EIS provider's use of the term service 
coordination or service coordination services does not preclude 
characterization of the services as case management or any other service 
that is covered by another payor of last resort (including Title XIX of 
the Social Security Act--Medicaid), for purposes of claims in compliance 
with the requirements of Sec. Sec.  303.501 through 303.521 (Payor of 
last resort provisions).

(Authority: 20 U.S.C. 1432(4), 1435(a)(4), 1436(d)(7), 1440)

[[Page 187]]

Sec.  303.35  State.

    Except as provided in Sec.  303.732(d)(3) (regarding State 
allotments under this part), State means each of the 50 States, the 
Commonwealth of Puerto Rico, the District of Columbia, and the four 
outlying areas and jurisdictions of Guam, American Samoa, the United 
States Virgin Islands, and the Commonwealth of the Northern Mariana 
Islands.

(Authority: 20 U.S.C. 1401(31))

Sec.  303.36  State educational agency.

    (a) 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.
    (b) The term includes the agency that receives funds under sections 
611 and 619 of the Act to administer the State's responsibilities under 
part B of the Act.

(Authority: 20 U.S.C. 1401(32))

Sec.  303.37  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.  
303.27.

(Authority: 20 U.S.C. 1401(36))

Subpart B_State Eligibility for a Grant and Requirements for a Statewide 
                                 System

                    General Authority and Eligibility

Sec.  303.100  General authority.

    The Secretary, in accordance with part C of the Act, makes grants to 
States (from their allotments under section 643 of the Act) to assist 
each State to maintain and implement a statewide, comprehensive, 
coordinated, multidisciplinary, interagency system to provide early 
intervention services for infants and toddlers with disabilities and 
their families.

(Authority: 20 U.S.C. 1433)

Sec.  303.101  State eligibility--requirements for a grant under this 
          part.

    In order to be eligible for a grant under part C of the Act for any 
fiscal year, a State must meet the following conditions:
    (a) Assurances regarding early intervention services and a statewide 
system. The State must provide assurances to the Secretary that--
    (1) The State has adopted a policy that appropriate early 
intervention services, as defined in Sec.  303.13, are available to all 
infants and toddlers with disabilities in the State and their families, 
including--
    (i) Indian infants and toddlers with disabilities and their families 
residing on a reservation geographically located in the State;
    (ii) Infants and toddlers with disabilities who are homeless 
children and their families; and
    (iii) Infants and toddlers with disabilities who are wards of the 
State; and
    (2) The State has in effect a statewide system of early intervention 
services that meets the requirements of section 635 of the Act, 
including policies and procedures that address, at a minimum, the 
components required in Sec. Sec.  303.111 through 303.126.
    (b) State application and assurances. The State must provide 
information and assurances to the Secretary, in accordance with subpart 
C of this part, including--
    (1) Information that shows that the State meets the State 
application requirements in Sec. Sec.  303.200 through 303.212; and
    (2) Assurances that the State also meets the requirements in 
Sec. Sec.  303.221 through 303.227.
    (c) Approval before implementation. The State must obtain approval 
by the Secretary before implementing any

[[Page 188]]

policy or procedure required to be submitted as part of the State's 
application in Sec. Sec.  303.203, 303.204, 303.206, 303.207, 303.208, 
303.209, and 303.211.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1434, 1435, 1437)

    State Conformity With Part C of the Act and Abrogation of State 
                           Sovereign Immunity

Sec.  303.102  State conformity with Part C of the Act.

    Each State that receives funds under part C of the Act must ensure 
that any State rules, regulations, and policies relating to this part 
conform to the purposes and requirements of this part.

(Authority: 20 U.S.C. 1407(a)(1))

Sec.  303.103  Abrogation of State sovereign immunity.

    (a) General. A State is not immune under the 11th amendment of the 
Constitution of the United States from suit in Federal court for a 
violation of part C of the Act.
    (b) Remedies. In a suit against a State for a violation of part C of 
the Act, remedies (including remedies both at law and in equity) are 
available for such a violation to the same extent as those remedies are 
available for such a violation in a suit against any public entity other 
than a State.
    (c) Effective date. Paragraphs (a) and (b) of this section apply 
with respect to violations that occur in whole or part after October 30, 
1990, the date of enactment of the Education of the Handicapped Act 
Amendments of 1990.

(Authority: 20 U.S.C. 1403)

                       Equipment and Construction

Sec.  303.104  Acquisition of equipment and construction or alteration 
          of facilities.

    (a) General. If the Secretary determines that a program authorized 
under part C of the Act will be improved by permitting program funds to 
be used to acquire appropriate equipment or to construct new facilities 
or alter existing facilities, the Secretary may allow the use of those 
funds for those purposes.
    (b) Compliance with certain regulations. Any construction of new 
facilities or alteration of existing facilities under paragraph (a) of 
this section must comply with the requirements of--
    (1) Appendix A of part 36 of title 28, Code of Federal Regulations 
(commonly known as the ``Americans with Disabilities Act Accessibility 
Guidelines for Buildings and Facilities''); or
    (2) Appendix A of subpart 101-19.6 of title 41, Code of Federal 
Regulations (commonly known as the ``Uniform Federal Accessibility 
Standards'').

(Authority: 20 U.S.C. 1404)

   Positive Efforts To Employ and Advance Qualified Individuals With 
                              Disabilities

Sec.  303.105  Positive efforts to employ and advance qualified 
          individuals with disabilities.

    Each recipient of assistance under part C of the Act must make 
positive efforts to employ and advance in employment, qualified 
individuals with disabilities in programs assisted under part C of the 
Act.

(Authority: 20 U.S.C. 1405)

                Minimum Components of a Statewide System

Sec.  303.110  Minimum components of a statewide system.

    Each statewide system (system) must include, at a minimum, the 
components described in Sec. Sec.  303.111 through 303.126.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a))

Sec.  303.111  State definition of developmental delay.

    Each system must include the State's rigorous definition of 
developmental delay, consistent with Sec. Sec.  303.10 and 303.203(c), 
that will be used by the State in carrying out programs under part C of 
the Act in order to appropriately identify infants and toddlers with 
disabilities who are in need of services under part C of the Act. The 
definition must--
    (a) Describe, for each of the areas listed in Sec.  303.21(a)(1), 
the evaluation

[[Page 189]]

and assessment procedures, consistent with Sec.  303.321, that will be 
used to measure a child's development; and
    (b) Specify the level of developmental delay in functioning or other 
comparable criteria that constitute a developmental delay in one or more 
of the developmental areas identified in Sec.  303.21(a)(1).

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(1))

Sec.  303.112  Availability of early intervention services.

    Each system must include a State policy that is in effect and that 
ensures that appropriate early intervention services are based on 
scientifically based research, to the extent practicable, and are 
available to all infants and toddlers with disabilities and their 
families, including--
    (a) Indian infants and toddlers with disabilities and their families 
residing on a reservation geographically located in the State; and
    (b) Infants and toddlers with disabilities who are homeless children 
and their families.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(2))

Sec.  303.113  Evaluation, assessment, and nondiscriminatory procedures.

    (a) Subject to paragraph (b) of this section, each system must 
ensure the performance of--
    (1) A timely, comprehensive, multidisciplinary evaluation of the 
functioning of each infant or toddler with a disability in the State; 
and
    (2) A family-directed identification of the needs of the family of 
the infant or toddler to assist appropriately in the development of the 
infant or toddler.
    (b) The evaluation and family-directed identification required in 
paragraph (a) of this section must meet the requirements of Sec.  
303.321.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(3))

Sec.  303.114  Individualized family service plan (IFSP).

    Each system must ensure, for each infant or toddler with a 
disability and his or her family in the State, that an IFSP, as defined 
in Sec.  303.20, is developed and implemented that meets the 
requirements of Sec. Sec.  303.340 through 303.345, and that includes 
service coordination services, as defined in Sec.  303.34.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(4))

Sec.  303.115  Comprehensive child find system.

    Each system must include a comprehensive child find system that 
meets the requirements in Sec. Sec.  303.302 and 303.303.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(5))

Sec.  303.116  Public awareness program.

    Each system must include a public awareness program that--
    (a) Focuses on the early identification of infants and toddlers with 
disabilities; and
    (b) Provides information to parents of infants and toddlers through 
primary referral sources in accordance with Sec.  303.301.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(6))

Sec.  303.117  Central directory.

    Each system must include a central directory that is accessible to 
the general public (i.e., through the lead agency's Web site and other 
appropriate means) and includes accurate, up-to-date information about--
    (a) Public and private early intervention services, resources, and 
experts available in the State;
    (b) Professional and other groups (including parent support, and 
training and information centers, such as those funded under the Act) 
that provide assistance to infants and toddlers with disabilities 
eligible under part C of the Act and their families; and
    (c) Research and demonstration projects being conducted in the State

[[Page 190]]

relating to infants and toddlers with disabilities.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(7))

Sec.  303.118  Comprehensive system of personnel development (CSPD).

    Each system must include a comprehensive system of personnel 
development, including the training of paraprofessionals and the 
training of primary referral sources with respect to the basic 
components of early intervention services available in the State. A 
comprehensive system of personnel development--
    (a) Must include--
    (1) Training personnel to implement innovative strategies and 
activities for the recruitment and retention of EIS providers;
    (2) Promoting the preparation of EIS providers who are fully and 
appropriately qualified to provide early intervention services under 
this part; and
    (3) Training personnel to coordinate transition services for infants 
and toddlers with disabilities who are transitioning from an early 
intervention service program under part C of the Act to a preschool 
program under section 619 of the Act, Head Start, Early Head Start, an 
elementary school program under part B of the Act, or another 
appropriate program.
    (b) May include--
    (1) Training personnel to work in rural and inner-city areas;
    (2) Training personnel in the emotional and social development of 
young children; and
    (3) Training personnel to support families in participating fully in 
the development and implementation of the child's IFSP; and
    (4) Training personnel who provide services under this part using 
standards that are consistent with early learning personnel development 
standards funded under the State Advisory Council on Early Childhood 
Education and Care established under the Head Start Act, if applicable.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(8))

Sec.  303.119  Personnel standards.

    (a) General. Each system must include policies and procedures 
relating to the establishment and maintenance of qualification standards 
to ensure that personnel necessary to carry out the purposes of this 
part are appropriately and adequately prepared and trained.
    (b) Qualification standards. The policies and procedures required in 
paragraph (a) of this section must provide for the establishment and 
maintenance of qualification standards that are consistent with any 
State-approved or State-recognized certification, licensing, 
registration, or other comparable requirements that apply to the 
profession, discipline, or area in which personnel are providing early 
intervention services.
    (c) Use of paraprofessionals and assistants. Nothing in part C of 
the Act may be construed to prohibit the use of paraprofessionals and 
assistants who are appropriately trained and supervised in accordance 
with State law, regulation, or written policy to assist in the provision 
of early intervention services under part C of the Act to infants and 
toddlers with disabilities.
    (d) Policy to address shortage of personnel. A State may adopt a 
policy that includes making ongoing good-faith efforts to recruit and 
hire appropriately and adequately trained personnel to provide early 
intervention services to infants and toddlers with disabilities, 
including, in a geographic area of the State where there is a shortage 
of such personnel, the most qualified individuals available who are 
making satisfactory progress toward completing applicable course work 
necessary to meet the standards described in paragraphs (a) and (b) of 
this section.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(9), 1435(b))

Sec.  303.120  Lead agency role in supervision, monitoring, funding, 
          interagency coordination, and other responsibilities.

    Each system must include a single line of responsibility in a lead 
agency

[[Page 191]]

designated or established by the Governor that is responsible for the 
following:
    (a)(1) The general administration and supervision of programs and 
activities administered by agencies, institutions, organizations, and 
EIS providers receiving assistance under part C of the Act.
    (2) The monitoring of programs and activities used by the State to 
carry out part C of the Act (whether or not the programs or activities 
are administered by agencies, institutions, organizations, and EIS 
providers that are receiving assistance under part C of the Act), to 
ensure that the State complies with part C of the Act, including--
    (i) Monitoring agencies, institutions, organizations, and EIS 
providers used by the State to carry out part C of the Act;
    (ii) Enforcing any obligations imposed on those agencies, 
institutions, organizations, and EIS providers under part C of the Act 
and these regulations;
    (iii) Providing technical assistance, if necessary, to those 
agencies, institutions, organizations, and EIS providers;
    (iv) Correcting any noncompliance identified through monitoring as 
soon as possible and in no case later than one year after the lead 
agency's identification of the noncompliance; and
    (v) Conducting the activities in paragraphs (a)(2)(i) through 
(a)(2)(iv) of this section, consistent with Sec. Sec.  303.700 through 
303.707, and any other activities required by the State under those 
sections.
    (b) The identification and coordination of all available resources 
for early intervention services within the State, including those from 
Federal, State, local, and private sources, consistent with subpart F of 
this part.
    (c) The assignment of financial responsibility in accordance with 
subpart F of this part.
    (d) The development of procedures in accordance with subpart F of 
this part to ensure that early intervention services are provided to 
infants and toddlers with disabilities and their families under part C 
of the Act in a timely manner, pending the resolution of any disputes 
among public agencies or EIS providers.
    (e) The resolution of intra- and interagency disputes in accordance 
with subpart F of this part.
    (f) The entry into formal interagency agreements or other written 
methods of establishing financial responsibility, consistent with Sec.  
303.511, that define the financial responsibility of each agency for 
paying for early intervention services (consistent with State law) and 
procedures for resolving disputes and that include all additional 
components necessary to ensure meaningful cooperation and coordination 
as set forth in subpart F of this part.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1416, 1435(a)(10), 1442)

Sec.  303.121  Policy for contracting or otherwise arranging for 
          services.

    Each system must include a policy pertaining to the contracting or 
making of other arrangements with public or private individuals or 
agency service providers to provide early intervention services in the 
State, consistent with the provisions of part C of the Act, including 
the contents of the application, and the conditions of the contract or 
other arrangements. The policy must--
    (a) Include a requirement that all early intervention services must 
meet State standards and be consistent with the provisions of this part; 
and
    (b) Be consistent with 2 CFR part 200, as adopted at 2 CFR part 
3474.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(11))

[76 FR 60244, Sept. 28, 2011, as amended at 79 FR 76097, Dec. 19, 2014]

Sec.  303.122  Reimbursement procedures.

    Each system must include procedures for securing the timely 
reimbursement of funds used under part C of the Act, in accordance with 
subpart F of this part.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(12), 1440(a))

[[Page 192]]

Sec.  303.123  Procedural safeguards.

    Each system must include procedural safeguards that meet the 
requirements of subpart E of this part.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(13), 1439)

Sec.  303.124  Data collection.

    (a) Each statewide system must include a system for compiling and 
reporting timely and accurate data that meets the requirements in 
paragraph (b) of this section and Sec. Sec.  303.700 through 303.702 and 
303.720 through 303.724.
    (b) The data system required in paragraph (a) of this section must 
include a description of the process that the State uses, or will use, 
to compile data on infants or toddlers with disabilities receiving early 
intervention services under this part, including a description of the 
State's sampling methods, if sampling is used, for reporting the data 
required by the Secretary under sections 616 and 618 of the Act and 
Sec. Sec.  303.700 through 303.707 and 303.720 through 303.724.

(Approved by Office of Management and Budget under control number 1820-
0550, 1820-0557 and 1820-0578)

(Authority: 20 U.S.C. 1416, 1418(a)-(c), 1435(a)(14), 1442)

Sec.  303.125  State interagency coordinating council.

    Each system must include a State Interagency Coordinating Council 
(Council) that meets the requirements of subpart G of this part.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(15))

Sec.  303.126  Early intervention services in natural environments.

    Each system must include policies and procedures to ensure, 
consistent with Sec. Sec.  303.13(a)(8) (early intervention services), 
303.26 (natural environments), and 303.344(d)(1)(ii) (content of an 
IFSP), that early intervention services for infants and toddlers with 
disabilities are provided--
    (a) To the maximum extent appropriate, in natural environments; and
    (b) In settings other than the natural environment that are most 
appropriate, as determined by the parent and the IFSP Team, only when 
early intervention services cannot be achieved satisfactorily in a 
natural environment.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(16))

               Subpart C_State Application and Assurances

                                 General

Sec.  303.200  State application and assurances.

    Each application must contain--
    (a) The specific State application requirements (including 
certifications, descriptions, methods, and policies and procedures) 
required in Sec. Sec.  303.201 through 303.212; and
    (b) The assurances required in Sec. Sec.  303.221 through 303.227.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437)

                        Application Requirements

Sec.  303.201  Designation of lead agency.

    Each application must include the name of the State lead agency, as 
designated under Sec.  303.120, that will be responsible for the 
administration of funds provided under this part.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437(a)(1))

Sec.  303.202  Certification regarding financial responsibility.

    Each application must include a certification to the Secretary that 
the arrangements to establish financial responsibility for the provision 
of part C services among appropriate public agencies under Sec.  303.511 
and the lead agency's contracts with EIS providers regarding financial 
responsibility for the provision of part C services both meet the 
requirements in subpart F of this part (Sec. Sec.  303.500 through 
303.521) and

[[Page 193]]

are current as of the date of submission of the certification.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437(a)(2))

Sec.  303.203  Statewide system and description of services.

    Each application must include --
    (a) A description of services to be provided under this part to 
infants and toddlers with disabilities and their families through the 
State's system;
    (b) The State's policies and procedures regarding the identification 
and coordination of all available resources within the State from 
Federal, State, local, and private sources as required under subpart F 
of this part and including--
    (1) Policies or procedures adopted by the State as its system of 
payments that meet the requirements in Sec. Sec.  303.510, 303.520 and 
303.521 (regarding the use of public insurance or benefits, private 
insurance, or family costs or fees); and
    (2) Methods used by the State to implement the requirements in Sec.  
303.511(b)(2) and (b)(3); and
    (c) The State's rigorous definition of developmental delay as 
required under Sec. Sec.  303.10 and 303.111.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1432(3), 1432(4)(B), 1432(4)(C), 1435(a)(1), 
1435(a)(10)(B), 1437(a)(3), 1440)

Sec.  303.204  Application's definition of at-risk infants and toddlers 
          and description of services.

    If the State provides services under this part to at-risk infants 
and toddlers through the statewide system, the application must 
include--
    (a) The State's definition of at-risk infants and toddlers with 
disabilities who are eligible in the State for services under part C of 
the Act (consistent with Sec. Sec.  303.5 and 303.21(b)); and
    (b) A description of the early intervention services provided under 
this part to at-risk infants and toddlers with disabilities who meet the 
State's definition described in paragraph (a) of this section.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437(a)(4))

Sec.  303.205  Description of use of funds.

    (a) General. Each State application must include a description of 
the uses for funds under this part for the fiscal year or years covered 
by the application. The description must be presented separately for the 
lead agency and the Council and include the information required in 
paragraphs (b) through (e) of this section.
    (b) State administration funds including administrative positions. 
For lead agencies other than State educational agencies (SEAs), each 
application must include the total--
    (1) Amount of funds retained by the lead agency for administration 
purposes, including the amount in paragraph (b)(2) of this section; and
    (2) Number of full-time equivalent administrative positions to be 
used to implement part C of the Act, and the total amount of salaries 
(including benefits) for those positions.
    (c) Maintenance and implementation activities. Each application must 
include a description of the nature and scope of each major activity to 
be carried out under this part, consistent with Sec.  303.501, and the 
approximate amount of funds to be spent for each activity.
    (d) Direct services. Each application must include a description of 
any direct services that the State expects to provide to infants and 
toddlers with disabilities and their families with funds under this 
part, consistent with Sec.  303.501, and the approximate amount of funds 
under this part to be used for the provision of each direct service.
    (e) Activities by other public agencies. If other public agencies 
are to receive funds under this part, the application must include--
    (1) The name of each agency expected to receive funds;
    (2) The approximate amount of funds each agency will receive; and

[[Page 194]]

    (3) A summary of the purposes for which the funds will be used.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(10)(B), 1435(a)(10)(F), 1437(a)(3), 
1437(a)(5))

Sec.  303.206  Referral policies for specific children.

    Each application must include the State's policies and procedures 
that require the referral for early intervention services under this 
part of specific children under the age of three, as described in Sec.  
303.303(b).

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1412(a)(3)(A), 1431, 1434(1), 1435(a)(2), 
1435(a)(5), 1435(c)(2)(G), 1437(a)(6), 1437(a)(10), 1441)

Sec.  303.207  Availability of resources.

    Each application must include a description of the procedure used by 
the State to ensure that resources are made available under this part 
for all geographic areas within the State.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437(a)(7))

Sec.  303.208  Public participation policies and procedures.

    (a) Application. At least 60 days prior to being submitted to the 
Department, each application for funds under this part (including any 
policies, procedures, descriptions, methods, certifications, assurances 
and other information required in the application) must be published in 
a manner that will ensure circulation throughout the State for at least 
a 60-day period, with an opportunity for public comment on the 
application for at least 30 days during that period.
    (b) State Policies and Procedures. Each application must include a 
description of the policies and procedures used by the State to ensure 
that, before adopting any new policy or procedure (including any 
revision to an existing policy or procedure) needed to comply with part 
C of the Act and these regulations, the lead agency--
    (1) Holds public hearings on the new policy or procedure (including 
any revision to an existing policy or procedure);
    (2) Provides notice of the hearings held in accordance with 
paragraph (b)(1) of this section at least 30 days before the hearings 
are conducted to enable public participation; and
    (3) Provides an opportunity for the general public, including 
individuals with disabilities, parents of infants and toddlers with 
disabilities, EIS providers, and the members of the Council, to comment 
for at least 30 days on the new policy or procedure (including any 
revision to an existing policy or procedure) needed to comply with part 
C of the Act and these regulations.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1231d, 1221e-3, 1437(a)(8))

Sec.  303.209  Transition to preschool and other programs.

    (a) Application requirements. Each State must include the following 
in its application:
    (1) A description of the policies and procedures it will use to 
ensure a smooth transition for infants and toddlers with disabilities 
under the age of three and their families from receiving early 
intervention services under this part to--
    (i) Preschool or other appropriate services (for toddlers with 
disabilities); or
    (ii) Exiting the program for infants and toddlers with disabilities.
    (2) A description of how the State will meet each of the 
requirements in paragraphs (b) through (f) of this section.
    (3)(i)(A) If the lead agency is not the SEA, an interagency 
agreement between the lead agency and the SEA; or
    (B) If the lead agency is the SEA, an intra-agency agreement between 
the program within that agency that administers part C of the Act and 
the program within the agency that administers section 619 of the Act.
    (ii) To ensure a seamless transition between services under this 
part and under part B of the Act, an interagency agreement under 
paragraph (a)(3)(i)(A) of this section or an intra-agency agreement 
under paragraph (a)(3)(i)(B) of this section must address how the lead 
agency and the SEA will meet the

[[Page 195]]

requirements of paragraphs (b) through (f) of this section (including 
any policies adopted by the lead agency under Sec.  303.401(d) and (e)), 
Sec.  303.344(h), and 34 CFR 300.101(b), 300.124, 300.321(f), and 
300.323(b).
    (4) Any policy the lead agency has adopted under Sec.  303.401(d) 
and (e).
    (b) Notification to the SEA and appropriate LEA. (1) The State lead 
agency must ensure that--
    (i) Subject to paragraph (b)(2) of this section, not fewer than 90 
days before the third birthday of the toddler with a disability if that 
toddler may be eligible for preschool services under part B of the Act, 
the lead agency notifies the SEA and the LEA for the area in which the 
toddler resides that the toddler on his or her third birthday will reach 
the age of eligibility for services under part B of the Act, as 
determined in accordance with State law;
    (ii) Subject to paragraph (b)(2) of this section, if the lead agency 
determines that the toddler is eligible for early intervention services 
under part C of the Act more than 45 but less than 90 days before that 
toddler's third birthday and if that toddler may be eligible for 
preschool services under part B of the Act, the lead agency, as soon as 
possible after determining the child's eligibility, notifies the SEA and 
the LEA for the area in which the toddler with a disability resides that 
the toddler on his or her third birthday will reach the age of 
eligibility for services under part B of the Act, as determined in 
accordance with State law; or
    (iii) Subject to paragraph (b)(2) of this section, if a toddler is 
referred to the lead agency fewer than 45 days before that toddler's 
third birthday and that toddler may be eligible for preschool services 
under part B of the Act, the lead agency, with parental consent required 
under Sec.  303.414, refers the toddler to the SEA and the LEA for the 
area in which the toddler resides; but, the lead agency is not required 
to conduct an evaluation, assessment, or an initial IFSP meeting under 
these circumstances.
    (2) The State must ensure that the notification required under 
paragraphs (b)(1)(i) and (b)(1)(ii) of this section is consistent with 
any policy that the State has adopted, under Sec.  303.401(e), 
permitting a parent to object to disclosure of personally identifiable 
information.
    (c) Conference to discuss services. The State lead agency must 
ensure that--
    (1) If a toddler with a disability may be eligible for preschool 
services under part B of the Act, the lead agency, with the approval of 
the family of the toddler, convenes a conference, among the lead agency, 
the family, and the LEA not fewer than 90 days--and, at the discretion 
of all parties, not more than 9 months--before the toddler's third 
birthday to discuss any services the toddler may receive under part B of 
the Act; and.
    (2) If the lead agency determines that a toddler with a disability 
is not potentially eligible for preschool services under part B of the 
Act, the lead agency, with the approval of the family of that toddler, 
makes reasonable efforts to convene a conference among the lead agency, 
the family, and providers of other appropriate services for the toddler 
to discuss appropriate services that the toddler may receive.
    (d) Transition plan. The State lead agency must ensure that for all 
toddlers with disabilities--
    (1)(i) It reviews the program options for the toddler with a 
disability for the period from the toddler's third birthday through the 
remainder of the school year; and
    (ii) Each family of a toddler with a disability who is served under 
this part is included in the development of the transition plan required 
under this section and Sec.  303.344(h);
    (2) It establishes a transition plan in the IFSP not fewer than 90 
days--and, at the discretion of all parties, not more than 9 months--
before the toddler's third birthday; and
    (3) The transition plan in the IFSP includes, consistent with Sec.  
303.344(h), as appropriate--
    (i) Steps for the toddler with a disability and his or her family to 
exit from the part C program; and
    (ii) Any transition services that the IFSP Team identifies as needed 
by that toddler and his or her family.
    (e) Transition conference and meeting to develop transition plan. 
Any conference conducted under paragraph (c) of this section or meeting 
to develop

[[Page 196]]

the transition plan under paragraph (d) of this section (which 
conference and meeting may be combined into one meeting) must meet the 
requirements in Sec. Sec.  303.342(d) and (e) and 303.343(a).
    (f) Applicability of transition requirements. (1) The transition 
requirements in paragraphs (b)(1)(i) and (b)(1)(ii), (c)(1), and (d) of 
this section apply to all toddlers with disabilities receiving services 
under this part before those toddlers turn age three, including any 
toddler with a disability under the age of three who is served by a 
State that offers services under Sec.  303.211.
    (2) In a State that offers services under Sec.  303.211, for 
toddlers with disabilities identified in Sec.  303.209(b)(1)(i), the 
parent must be provided at the transition conference conducted under 
paragraph (c)(1) of this section:
    (i) An explanation, consistent with Sec.  303.211(b)(1)(ii), of the 
toddler's options to continue to receive early intervention services 
under this part or preschool services under section 619 of the Act.
    (ii) The initial annual notice referenced in Sec.  303.211(b)(1).
    (3) For children with disabilities age three and older who receive 
services pursuant to Sec.  303.211, the State must ensure that it 
satisfies the separate transition requirements in Sec.  
303.211(b)(6)(ii).

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1412(a)(3) and (a)(9), 1436(a)(3), 1437(a)(9))

Sec.  303.210  Coordination with Head Start and Early Head Start, early 
          education, and child care programs.

    (a) Each application must contain a description of State efforts to 
promote collaboration among Head Start and Early Head Start programs 
under the Head Start Act (42 U.S.C. 9801, et seq., as amended), early 
education and child care programs, and services under this part.

(Approved by Office of Management and Budget under control number 1820-
0550)

    (b) The State lead agency must participate, consistent with section 
642B(b)(1)(C)(viii) of the Head Start Act, on the State Advisory Council 
on Early Childhood Education and Care established under the Head Start 
Act.

(Authority: 20 U.S.C. 1437(a)(10))

Sec.  303.211  State option to make services under this part available 
          to children ages three and older.

    (a) General. (1) Subject to paragraphs (a)(2) and (b) of this 
section, a State may elect to include in its application for a grant 
under this part a State policy, developed and implemented jointly by the 
lead agency and the SEA, under which a parent of a child with a 
disability who is eligible for preschool services under section 619 of 
the Act and who previously received early intervention services under 
this part, may choose the continuation of early intervention services 
under this part for his or her child after the child turns three until 
the child enters, or is eligible under State law to enter, kindergarten 
or elementary school.
    (2) A State that adopts the policy described in paragraph (a)(1) of 
this section may determine whether it applies to children with 
disabilities--
    (i) From age three until the beginning of the school year following 
the child's third birthday;
    (ii) From age three until the beginning of the school year following 
the child's fourth birthday; or
    (iii) From age three until the beginning of the school year 
following the child's fifth birthday.
    (3) In no case may a State provide services under this section 
beyond the age at which the child actually enters, or is eligible under 
State law to enter, kindergarten or elementary school in the State.
    (b) Requirements. If a State's application for a grant under this 
part includes the State policy described in paragraph (a) of this 
section, the system must ensure the following:
    (1) Parents of children with disabilities who are eligible for 
services under section 619 of the Act and who previously received early 
intervention services under this part will be provided an annual notice 
that contains--
    (i) A description of the rights of the parents to elect to receive 
services pursuant to this section or under part B of the Act; and

[[Page 197]]

    (ii) An explanation of the differences between services provided 
pursuant to this section and services provided under part B of the Act, 
including--
    (A) The types of services and the locations at which the services 
are provided;
    (B) The procedural safeguards that apply; and
    (C) Possible costs (including the costs or fees to be charged to 
families as described in Sec. Sec.  303.520 and 303.521), if any, to 
parents of children eligible under this part.
    (2) Consistent with Sec.  303.344(d), services provided pursuant to 
this section will include an educational component that promotes school 
readiness and incorporates preliteracy, language, and numeracy skills.
    (3) The State policy ensures that any child served pursuant to this 
section has the right, at any time, to receive FAPE (as that term is 
defined at Sec.  303.15) under part B of the Act instead of early 
intervention services under part C of the Act.
    (4) The lead agency must continue to provide all early intervention 
services identified in the toddler with a disability's IFSP under Sec.  
303.344 (and consented to by the parent under Sec.  303.342(e)) beyond 
age three until that toddler's initial eligibility determination under 
part B of the Act is made under 34 CFR 300.306. This provision does not 
apply if the LEA has requested parental consent for the initial 
evaluation under 34 CFR 300.300(a) and the parent has not provided that 
consent.
    (5) The lead agency must obtain informed consent from the parent of 
any child with a disability for the continuation of early intervention 
services pursuant to this section for that child. Consent must be 
obtained before the child reaches three years of age, where practicable.
    (6)(i) For toddlers with disabilities under the age of three in a 
State that offers services under this section, the lead agency ensures 
that the transition requirements in Sec.  303.209(b)(1)(i) and 
(b)(1)(ii), (c)(1), and (d) are met.
    (ii) For toddlers with disabilities age three and older in a State 
that offers services under this section, the lead agency ensures a 
smooth transition from services under this section to preschool, 
kindergarten or elementary school by--
    (A) Providing the SEA and LEA where the child resides, consistent 
with any State policy adopted under Sec.  303.401(e), the information 
listed in Sec.  303.401(d)(1) not fewer than 90 days before the child 
will no longer be eligible under paragraph (a)(2) of this section to 
receive, or will no longer receive, early intervention services under 
this section;
    (B) With the approval of the parents of the child, convening a 
transition conference, among the lead agency, the parents, and the LEA, 
not fewer than 90 days--and, at the discretion of all parties, not more 
than 9 months--before the child will no longer be eligible under 
paragraph (a)(2) of this section to receive, or no longer receives, 
early intervention services under this section, to discuss any services 
that the child may receive under part B of the Act; and
    (C) Establishing a transition plan in the IFSP not fewer than 90 
days--and, at the discretion of all parties, not more than 9 months--
before the child will no longer be eligible under paragraph (a)(2) of 
this section to receive, or no longer receives, early intervention 
services under this section.
    (7) In States that adopt the option to make services under this part 
available to children ages three and older pursuant to this section, 
there will be a referral to the part C system, dependent upon parental 
consent, of a child under the age of three who directly experiences a 
substantiated case of trauma due to exposure to family violence, as 
defined in section 320 of the Family Violence Prevention and Services 
Act, 42 U.S.C. 10401, et seq.
    (c) Reporting requirement. If a State includes in its application a 
State policy described in paragraph (a) of this section, the State must 
submit to the Secretary, in the State's report under Sec.  303.124, the 
number and percentage of children with disabilities who are eligible for 
services under section 619 of the Act but whose parents choose for their 
children to continue to receive early intervention services under this 
part.

[[Page 198]]

    (d) Available funds. The State policy described in paragraph (a) of 
this section must describe the funds--including an identification as 
Federal, State, or local funds--that will be used to ensure that the 
option described in paragraph (a) of this section is available to 
eligible children and families who provide the consent described in 
paragraph (b)(5) of this section, including fees, if any, to be charged 
to families as described in Sec. Sec.  303.520 and 303.521.
    (e) Rules of construction. (1) If a statewide system includes a 
State policy described in paragraph (a) of this section, a State that 
provides services in accordance with this section to a child with a 
disability who is eligible for services under section 619 of the Act 
will not be required to provide the child FAPE under part B of the Act 
for the period of time in which the child is receiving services under 
this part.
    (2) Nothing in this section may be construed to require a provider 
of services under this part to provide a child served under this part 
with FAPE.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(c), 1437(a)(11))

Sec.  303.212  Additional information and assurances.

    Each application must contain--
    (a) A description of the steps the State is taking to ensure 
equitable access to, and equitable participation in, the part C 
statewide system as required by section 427(b) of GEPA; and
    (b) Other information and assurances as the Secretary may reasonably 
require.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1228a(b), 1437(a)(11))

                               Assurances

Sec.  303.220  Assurances satisfactory to the Secretary.

    Each application must contain assurances satisfactory to the 
Secretary that the State has met the requirements in Sec. Sec.  303.221 
through 303.227.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437(b))

Sec.  303.221  Expenditure of funds.

    The State must ensure that Federal funds made available to the State 
under section 643 of the Act will be expended in accordance with the 
provisions of this part, including Sec. Sec.  303.500 and 303.501.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437(b)(1))

Sec.  303.222  Payor of last resort.

    The State must ensure that it will comply with the requirements in 
Sec. Sec.  303.510 and 303.511 in subpart F of this part.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437(b)(2))

Sec.  303.223  Control of funds and property.

    The State must ensure that--
    (a) The control of funds provided under this part, and title to 
property acquired with those funds, will be in a public agency for the 
uses and purposes provided in this part; and
    (b) A public agency will administer the funds and property.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437(b)(3))

Sec.  303.224  Reports and records.

    The State must ensure that it will--
    (a) Make reports in the form and containing the information that the 
Secretary may require; and
    (b) Keep records and afford access to those records as the Secretary 
may find necessary to ensure compliance with the requirements of this 
part, the correctness and verification of reports, and the proper 
disbursement of funds provided under this part.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437(b)(4))

Sec.  303.225  Prohibition against supplanting; indirect costs.

    (a) Each application must provide satisfactory assurance that the 
Federal funds made available under section 643 of the Act to the State:

[[Page 199]]

    (1) Will not be commingled with State funds; and
    (2) Will be used so as to supplement the level of State and local 
funds expended for infants and toddlers with disabilities and their 
families and in no case to supplant those State and local funds.
    (b) To meet the requirement in paragraph (a) of this section, the 
total amount of State and local funds budgeted for expenditures in the 
current fiscal year for early intervention services for children 
eligible under this part and their families must be at least equal to 
the total amount of State and local funds actually expended for early 
intervention services for these children and their families in the most 
recent preceding fiscal year for which the information is available. 
Allowance may be made for--
    (1) A decrease in the number of infants and toddlers who are 
eligible to receive early intervention services under this part; and
    (2)) Unusually large amounts of funds expended for such long-term 
purposes as the acquisition of equipment and the construction of 
facilities.
    (c) Requirement regarding indirect costs. (1) Except as provided in 
paragraph (c)(2) of this section, a lead agency under this part may not 
charge indirect costs to its part C grant.
    (2) If approved by the lead agency's cognizant Federal agency or by 
the Secretary, the lead agency must charge indirect costs through 
either--
    (i) A restricted indirect cost rate that meets the requirements in 
34 CFR 76.560 through 76.569; or
    (ii) A cost allocation plan that meets the non-supplanting 
requirements in paragraph (b) of this section and 34 CFR part 76 of 
EDGAR.
    (3) In charging indirect costs under paragraph (c)(2)(i) and 
(c)(2)(ii) of this section, the lead agency may not charge rent, 
occupancy, or space maintenance costs directly to the part C grant, 
unless those costs are specifically approved in advance by the 
Secretary.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437(b)(5))

Sec.  303.226  Fiscal control.

    The State must ensure that fiscal control and fund accounting 
procedures will be adopted as necessary to ensure proper disbursement 
of, and accounting for, Federal funds paid under this part.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437(b)(6))

Sec.  303.227  Traditionally underserved groups.

    The State must ensure that policies and practices have been adopted 
to ensure--
    (a) That traditionally underserved groups, including minority, low-
income, homeless, and rural families and children with disabilities who 
are wards of the State, are meaningfully involved in the planning and 
implementation of all the requirements of this part; and
    (b) That these families have access to culturally competent services 
within their local geographical areas.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1231d, 1437(b)(7))

 Subsequent Applications and Modifications, Eligibility Determinations, 
                       and Standard of Disapproval

Sec.  303.228  Subsequent State application and modifications of 
          application.

    (a) Subsequent State application. If a State has on file with the 
Secretary a policy, procedure, method, or assurance that demonstrates 
that the State meets an application requirement in this part, including 
any policy, procedure, method, or assurance filed under this part (as in 
effect before the date of enactment of the Act, December 3, 2004), the 
Secretary considers the State to have met that requirement for purposes 
of receiving a grant under this part.
    (b) Modification of application. An application submitted by a State 
that meets the requirements of this part remains in effect until the 
State submits to the Secretary such modifications as the State 
determines necessary. This section applies to a modification of an 
application to the same extent and in

[[Page 200]]

the same manner as this paragraph applies to the original application.
    (c) Modifications required by the Secretary. The Secretary may 
require a State to modify its application under this part to the extent 
necessary to ensure the State's compliance with this part if--
    (1) An amendment is made to the Act or to a Federal regulation 
issued under the Act;
    (2) A new interpretation of the Act is made by a Federal court or 
the State's highest court; or
    (3) An official finding of noncompliance with Federal law or 
regulations is made with respect to the State.

(Authority: 20 U.S.C. 1437(d)-(f))

Sec.  303.229  Determination by the Secretary that a State is eligible.

    If the Secretary determines that a State is eligible to receive a 
grant under part C of the Act, the Secretary notifies the State of that 
determination.

(Authority: 20 U.S.C. 1437)

Sec.  303.230  Standard for disapproval of an application.

    The Secretary does not disapprove an application under this part 
unless the Secretary determines, after notice and opportunity for a 
hearing in accordance with the procedures in Sec. Sec.  303.231 through 
303.236, that the application fails to comply with the requirements of 
this part.

(Authority: 20 U.S.C. 1437(c))

                          Department Procedures

Sec.  303.231  Notice and hearing before determining that a State is not 
          eligible.

    (a) General. (1) The Secretary does not make a final determination 
that a State is not eligible to receive a grant under part C of the Act 
until providing the State--
    (i) Reasonable notice; and
    (ii) An opportunity for a hearing.
    (2) In implementing paragraph (a)(1)(i) of this section, the 
Secretary sends a written notice to the lead agency by certified mail 
with a 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 lead agency 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 lead agency with information about the hearing 
procedures that will be followed.

(Authority: 20 U.S.C. 1437(c))

Sec.  303.232  Hearing Official or Panel.

    (a) If the lead agency 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. 1437(c))

Sec.  303.233  Hearing procedures.

    (a) As used in Sec. Sec.  303.231 through 303.235, the term party or 
parties means any of the following:
    (1) A lead agency 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.

[[Page 201]]

    (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 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.
    (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 an 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 an estimation of time for each 
presentation; and
    (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 (c)(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 the parties to 
state their positions and to provide all or part of their evidence in 
writing.
    (e) The Hearing Official or Hearing Panel may require the 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, information, and lists of witnesses, and to 
send copies to the Hearing Official or Hearing 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 must 
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.

[[Page 202]]

    (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.
    (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. 1437(c))

Sec.  303.234  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 lead agency under Sec.  303.231, including any 
amendments to or further clarification of the issues under Sec.  
303.233(c).
    (b) The initial decision of a Hearing Panel is made by a majority of 
Hearing 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, 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.

(Authority: 20 U.S.C. 1437(c))

Sec.  303.235  Filing requirements.

    (a) Any written submission by a party under Sec. Sec.  303.230 
through 303.236 must be filed with the Secretary by hand-delivery, by 
mail, or by facsimile

[[Page 203]]

transmission. The Secretary discourages the use of facsimile 
transmission for documents longer than five pages.
    (b) The filing date under paragraph (a) of this section is the date 
the document is--
    (1) Hand-delivered;
    (2) Mailed; or
    (3) Sent by facsimile transmission.
    (c) A party filing by facsimile transmission is responsible for 
confirming that a complete and legible copy of the document was received 
by the Department.
    (d) If a document is filed by facsimile transmission, the Secretary, 
the Hearing Official, or the Panel, as applicable, may require the 
filing of a follow-up hard copy by hand-delivery or by mail within a 
reasonable period of time.
    (e) If agreed upon by the parties, service of a document may be made 
upon the other party by facsimile transmission.

(Authority: 20 U.S.C. 1437(c))

Sec.  303.236  Judicial review.

    If a State is dissatisfied with the Secretary's final decision with 
respect to the eligibility of the State under part C 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 action was based, as provided in 28 U.S.C. 2112.

(Authority: 20 U.S.C. 1437(c))

 Subpart D_Child Find, Evaluations and Assessments, and Individualized 
                          Family Service Plans

Sec.  303.300  General.

    The statewide comprehensive, coordinated, multidisciplinary 
interagency system to provide early intervention services for infants 
and toddlers with disabilities and their families referenced in Sec.  
303.100 must include the following components:
    (a) Pre-referral policies and procedures that include--
    (1) A public awareness program as described in Sec.  303.301; and
    (2) A comprehensive child find system as described in Sec.  303.302.
    (b) Referral policies and procedures as described in Sec.  303.303.
    (c) Post-referral policies and procedures that ensure compliance 
with the timeline requirements in Sec.  303.310 and include--
    (1) Screening, if applicable, as described in Sec.  303.320;
    (2) Evaluations and assessments as described in Sec. Sec.  303.321 
and 303.322; and
    (3) Development, review, and implementation of IFSPs as described in 
Sec. Sec.  303.340 through 303.346.

 Pre-Referral Procedures--Public Awareness Program and Child Find System

Sec.  303.301  Public awareness program--information for parents.

    (a) Preparation and dissemination. In accordance with Sec.  303.116, 
each system must include a public awareness program that requires the 
lead agency to--
    (1)(i) Prepare information on the availability of early intervention 
services under this part, and other services, as described in paragraph 
(b) of this section; and
    (ii) Disseminate to all primary referral sources (especially 
hospitals and physicians) the information to be given to parents of 
infants and toddlers, especially parents with premature infants or 
infants with other physical risk factors associated with learning or 
developmental complications; and
    (2) Adopt procedures for assisting the primary referral sources 
described in Sec.  303.303(c) in disseminating the information described 
in paragraph (b) of this section to parents of infants and toddlers with 
disabilities.
    (b) Information to be provided. The information required to be 
prepared and disseminated under paragraph (a) of this section must 
include--
    (1) A description of the availability of early intervention services 
under this part;
    (2) A description of the child find system and how to refer a child 
under the

[[Page 204]]

age of three for an evaluation or early intervention services; and
    (3) A central directory, as described in Sec.  303.117.
    (c) Information specific to toddlers with disabilities. Each public 
awareness program also must include a requirement that the lead agency 
provide for informing parents of toddlers with disabilities of the 
availability of services under section 619 of the Act not fewer than 90 
days prior to the toddler's third birthday.

(Authority: 20 U.S.C. 1435(a)(6), 1437(a)(9))

Sec.  303.302  Comprehensive child find system.

    (a) General. Each system must include a comprehensive child find 
system that--
    (1) Is consistent with part B of the Act (see 34 CFR 300.111);
    (2) Includes a system for making referrals to lead agencies or EIS 
providers under this part that--
    (i) Includes timelines; and
    (ii) Provides for participation by the primary referral sources 
described in Sec.  303.303(c);
    (3) Ensures rigorous standards for appropriately identifying infants 
and toddlers with disabilities for early intervention services under 
this part that will reduce the need for future services; and
    (4) Meets the requirements in paragraphs (b) and (c) of this section 
and Sec. Sec.  303.303, 303.310, 303.320, and 303.321.
    (b) Scope of child find. The lead agency, as part of the child find 
system, must ensure that--
    (1) All infants and toddlers with disabilities in the State who are 
eligible for early intervention services under this part are identified, 
located, and evaluated, including--
    (i) Indian infants and toddlers with disabilities residing on a 
reservation geographically located in the State (including coordination, 
as necessary, with tribes, tribal organizations, and consortia to 
identify infants and toddlers with disabilities in the State based, in 
part, on the information provided by them to the lead agency under Sec.  
303.731(e)(1)); and
    (ii) Infants and toddlers with disabilities who are homeless, in 
foster care, and wards of the State; and
    (iii) Infants and toddlers with disabilities that are referenced in 
Sec.  303.303(b); and
    (2) An effective method is developed and implemented to identify 
children who are in need of early intervention services.
    (c) Coordination. (1) The lead agency, with the assistance of the 
Council, as defined in Sec.  303.8, must ensure that the child find 
system under this part--
    (i) Is coordinated with all other major efforts to locate and 
identify children by other State agencies responsible for administering 
the various education, health, and social service programs relevant to 
this part, including Indian tribes that receive payments under this 
part, and other Indian tribes, as appropriate; and
    (ii) Is coordinated with the efforts of the--
    (A) Program authorized under part B of the Act;
    (B) Maternal and Child Health program, including the Maternal, 
Infant, and Early Childhood Home Visiting Program, under Title V of the 
Social Security Act, as amended, (MCHB or Title V) (42 U.S.C. 701(a));
    (C) Early Periodic Screening, Diagnosis, and Treatment (EPSDT) under 
Title XIX of the Social Security Act (42 U.S.C. 1396(a)(43) and 
1396(a)(4)(B));
    (D) Programs under the Developmental Disabilities Assistance and 
Bill of Rights Act of 2000 (42 U.S.C. 15001 et seq.);
    (E) Head Start Act (including Early Head Start programs under 
section 645A of the Head Start Act) (42 U.S.C. 9801 et seq.);
    (F) Supplemental Security Income program under Title XVI of the 
Social Security Act (42 U.S.C. 1381);
    (G) Child protection and child welfare programs, including programs 
administered by, and services provided through, the foster care agency 
and the State agency responsible for administering the Child Abuse 
Prevention and Treatment Act (CAPTA) (42 U.S.C. 5106(a));
    (H) Child care programs in the State;
    (I) The programs that provide services under the Family Violence 
Prevention and Services Act (42 U.S.C. 10401 et seq.);

[[Page 205]]

    (J) Early Hearing Detection and Intervention (EHDI) systems (42 
U.S.C. 280g-1) administered by the Centers for Disease Control (CDC); 
and
    (K) Children's Health Insurance Program (CHIP) authorized under 
Title XXI of the Social Security Act (42 U.S.C. 1397aa et seq.).
    (2) The lead agency, with the advice and assistance of the Council, 
must take steps to ensure that--
    (i) There will not be unnecessary duplication of effort by the 
programs identified in paragraph (c)(1)(ii) of this section; and
    (ii) The State will make use of the resources available through each 
public agency and EIS provider in the State to implement the child find 
system in an effective manner.

(Authority: 20 U.S.C. 1412(a)(3)(A), 1431, 1434(1), 1435(a)(2), 
1435(a)(5), 1435(c)(2)(G), 1437(a)(6), 1437(a)(10), 1441)

                           Referral Procedures

Sec.  303.303  Referral procedures.

    (a) General. (1) The lead agency's child find system described in 
Sec.  303.302 must include the State's procedures for use by primary 
referral sources for referring a child under the age of three to the 
part C program.
    (2) The procedures required in paragraph (a)(1) of this section 
must--
    (i) Provide for referring a child as soon as possible, but in no 
case more than seven days, after the child has been identified; and
    (ii) Meet the requirements in paragraphs (b) and (c) of this 
section.
    (b) Referral of specific at-risk infants and toddlers. The 
procedures required in paragraph (a) of this section must provide for 
requiring the referral of a child under the age of three who--
    (1) Is the subject of a substantiated case of child abuse or 
neglect; or
    (2) Is identified as directly affected by illegal substance abuse or 
withdrawal symptoms resulting from prenatal drug exposure.
    (c) Primary referral sources. As used in this subpart, primary 
referral sources include--
    (1) Hospitals, including prenatal and postnatal care facilities;
    (2) Physicians;
    (3) Parents, including parents of infants and toddlers;
    (4) Child care programs and early learning programs;
    (5) LEAs and schools;
    (6) Public health facilities;
    (7) Other public health or social service agencies;
    (8) Other clinics and health care providers;
    (9) Public agencies and staff in the child welfare system, including 
child protective service and foster care;
    (10) Homeless family shelters; and
    (11) Domestic violence shelters and agencies.

(Authority: 20 U.S.C. 1412(a)(3)(A), 1431, 1434(1), 1435(a)(2), 
1435(a)(5), 1435(a)(6), 1435(c)(2)(G), 1437(a)(6), 1437(a)(10), 1441)

Sec. Sec.  303.304-303.309  [Reserved]

   Post-Referral Procedures--Screenings, Evaluations, and Assessments

Sec.  303.310  Post-referral timeline (45 days).

    (a) Except as provided in paragraph (b) of this section, any 
screening under Sec.  303.320 (if the State has adopted a policy and 
elects, and the parent consents, to conduct a screening of a child); the 
initial evaluation and the initial assessments of the child and family 
under Sec.  303.321; and the initial IFSP meeting under Sec.  303.342 
must be completed within 45 days from the date the lead agency or EIS 
provider receives the referral of the child.
    (b) Subject to paragraph (c) of this section, the 45-day timeline 
described in paragraph (a) of this section does not apply for any period 
when--
    (1) The child or parent is unavailable to complete the screening (if 
applicable), the initial evaluation, the initial assessments of the 
child and family, or the initial IFSP meeting due to exceptional family 
circumstances that are documented in the child's early intervention 
records; or
    (2) The parent has not provided consent for the screening (if 
applicable), the initial evaluation, or the initial assessment of the 
child, despite documented, repeated attempts by the lead agency or EIS 
provider to obtain parental consent.

[[Page 206]]

    (c) The lead agency must develop procedures to ensure that in the 
event the circumstances described in (b)(1) or (b)(2) of this section 
exist, the lead agency or EIS provider must--
    (1) Document in the child's early intervention records the 
exceptional family circumstances or repeated attempts by the lead agency 
or EIS provider to obtain parental consent;
    (2) Complete the screening (if applicable), the initial evaluation, 
the initial assessments (of the child and family), and the initial IFSP 
meeting as soon as possible after the documented exceptional family 
circumstances described in paragraph (b)(1) of this section no longer 
exist or parental consent is obtained for the screening (if applicable), 
the initial evaluation, and the initial assessment of the child; and
    (3) Develop and implement an interim IFSP, to the extent appropriate 
and consistent with Sec.  303.345.
    (d) The initial family assessment must be conducted within the 45-
day timeline in paragraph (a) of this section if the parent concurs and 
even if other family members are unavailable.

(Authority: 20 U.S.C. 1433, 1435(a), 1436(c))

Sec. Sec.  303.311-303.319  [Reserved]

Sec.  303.320  Screening procedures (optional).

    (a) General. (1) The lead agency may adopt procedures, consistent 
with the requirements of this section, to screen children under the age 
of three who have been referred to the part C program to determine 
whether they are suspected of having a disability under this part. If 
the lead agency or EIS provider proposes to screen a child, it must--
    (i) Provide the parent notice under Sec.  303.421 of its intent to 
screen the child to identify whether the child is suspected of having a 
disability and include in that notice a description of the parent's 
right to request an evaluation under Sec.  303.321 at any time during 
the screening process; and
    (ii) Obtain parental consent as required in Sec.  303.420(a)(1) 
before conducting the screening procedures.
    (2) If the parent consents to the screening and the screening or 
other available information indicates that the child is--
    (i) Suspected of having a disability, after notice is provided under 
Sec.  303.421 and once parental consent is obtained as required in Sec.  
303.420, an evaluation and assessment of the child must be conducted 
under Sec.  303.321; or
    (ii) Not suspected of having a disability, the lead agency or EIS 
provider must ensure that notice of that determination is provided to 
the parent under Sec.  303.421, and that the notice describes the 
parent's right to request an evaluation.
    (3) If the parent of the child requests and consents to an 
evaluation at any time during the screening process, evaluation of the 
child must be conducted under Sec.  303.321, even if the lead agency or 
EIS provider has determined under paragraph (a)(2)(ii) of this section 
that the child is not suspected of having a disability.
    (b) Definition of screening procedures. Screening procedures--
    (1) Means activities under paragraphs (a)(1) and (a)(2) of this 
section that are carried out by, or under the supervision of, the lead 
agency or EIS provider to identify, at the earliest possible age, 
infants and toddlers suspected of having a disability and in need of 
early intervention services; and
    (2) Includes the administration of appropriate instruments by 
personnel trained to administer those instruments.
    (c) Condition for evaluation or early intervention services. For 
every child under the age of three who is referred to the part C program 
or screened in accordance with paragraph (a) of this section, the lead 
agency is not required to--
    (1) Provide an evaluation of the child under Sec.  303.321 unless 
the child is suspected of having a disability or the parent requests an 
evaluation under paragraph (a)(3) of this section; or
    (2) Make early intervention services available under this part to 
the child unless a determination is made that the child meets the 
definition of infant or toddler with a disability under Sec.  303.21.

(Authority: 20 U.S.C. 1432(4)(E)(ix), 1434(1), 1435(a)(2), 1435(a)(5) 
and (a)(6), 1435(c)(2)(G), 1437(a)(6), 1439(a)(6))

[[Page 207]]

Sec.  303.321  Evaluation of the child and assessment of the child and 
          family.

    (a) General. (1) The lead agency must ensure that, subject to 
obtaining parental consent in accordance with Sec.  303.420(a)(2), each 
child under the age of three who is referred for evaluation or early 
intervention services under this part and suspected of having a 
disability, receives--
    (i) A timely, comprehensive, multidisciplinary evaluation of the 
child in accordance with paragraph (b) of this section unless 
eligibility is established under paragraph (a)(3)(i) of this section; 
and
    (ii) If the child is determined eligible as an infant or toddler 
with a disability as defined in Sec.  303.21--
    (A) A multidisciplinary assessment of the unique strengths and needs 
of that infant or toddler and the identification of services appropriate 
to meet those needs;
    (B) A family-directed assessment of the resources, priorities, and 
concerns of the family and the identification of the supports and 
services necessary to enhance the family's capacity to meet the 
developmental needs of that infant or toddler. The assessments of the 
child and family are described in paragraph (c) of this section and 
these assessments may occur simultaneously with the evaluation, provided 
that the requirements of paragraph (b) of this section are met.
    (2) As used in this part--
    (i) Evaluation means the procedures used by qualified personnel to 
determine a child's initial and continuing eligibility under this part, 
consistent with the definition of infant or toddler with a disability in 
Sec.  303.21. An initial evaluation refers to the child's evaluation to 
determine his or her initial eligibility under this part;
    (ii) Assessment means the ongoing procedures used by qualified 
personnel to identify the child's unique strengths and needs and the 
early intervention services appropriate to meet those needs throughout 
the period of the child's eligibility under this part and includes the 
assessment of the child, consistent with paragraph (c)(1) of this 
section and the assessment of the child's family, consistent with 
paragraph (c)(2) of this section; and
    (iii) Initial assessment refers to the assessment of the child and 
the family assessment conducted prior to the child's first IFSP meeting.
    (3)(i) A child's medical and other records may be used to establish 
eligibility (without conducting an evaluation of the child) under this 
part if those records indicate that the child's level of functioning in 
one or more of the developmental areas identified in Sec.  303.21(a)(1) 
constitutes a developmental delay or that the child otherwise meets the 
criteria for an infant or toddler with a disability under Sec.  303.21. 
If the child's part C eligibility is established under this paragraph, 
the lead agency or EIS provider must conduct assessments of the child 
and family in accordance with paragraph (c) of this section.
    (ii) Qualified personnel must use informed clinical opinion when 
conducting an evaluation and assessment of the child. In addition, the 
lead agency must ensure that informed clinical opinion may be used as an 
independent basis to establish a child's eligibility under this part 
even when other instruments do not establish eligibility; however, in no 
event may informed clinical opinion be used to negate the results of 
evaluation instruments used to establish eligibility under paragraph (b) 
of this section.
    (4) All evaluations and assessments of the child and family must be 
conducted by qualified personnel, in a nondiscriminatory manner, and 
selected and administered so as not to be racially or culturally 
discriminatory.
    (5) Unless clearly not feasible to do so, all evaluations and 
assessments of a child must be conducted in the native language of the 
child, in accordance with the definition of native language in Sec.  
303.25.
    (6) Unless clearly not feasible to do so, family assessments must be 
conducted in the native language of the family members being assessed, 
in accordance with the definition of native language in Sec.  303.25.
    (b) Procedures for evaluation of the child. In conducting an 
evaluation, no single procedure may be used as the sole criterion for 
determining a child's eligibility under this part. Procedures must 
include--

[[Page 208]]

    (1) Administering an evaluation instrument;
    (2) Taking the child's history (including interviewing the parent);
    (3) Identifying the child's level of functioning in each of the 
developmental areas in Sec.  303.21(a)(1);
    (4) Gathering information from other sources such as family members, 
other care-givers, medical providers, social workers, and educators, if 
necessary, to understand the full scope of the child's unique strengths 
and needs; and
    (5) Reviewing medical, educational, or other records.
    (c) Procedures for assessment of the child and family. (1) An 
assessment of each infant or toddler with a disability must be conducted 
by qualified personnel in order to identify the child's unique strengths 
and needs and the early intervention services appropriate to meet those 
needs. The assessment of the child must include the following--
    (i) A review of the results of the evaluation conducted under 
paragraph (b) of this section;
    (ii) Personal observations of the child; and
    (iii) The identification of the child's needs in each of the 
developmental areas in Sec.  303.21(a)(1).
    (2) A family-directed assessment must be conducted by qualified 
personnel in order to identify the family's resources, priorities, and 
concerns and the supports and services necessary to enhance the family's 
capacity to meet the developmental needs of the family's infant or 
toddler with a disability. The family-directed assessment must--
    (i) Be voluntary on the part of each family member participating in 
the assessment;
    (ii) Be based on information obtained through an assessment tool and 
also through an interview with those family members who elect to 
participate in the assessment; and
    (iii) Include the family's description of its resources, priorities, 
and concerns related to enhancing the child's development.

(Authority: 20 U.S.C. 1435(a)(3), 1435(a)(5), 1436(a)(1)-(2))

Sec.  303.322  Determination that a child is not eligible.

    If, based on the evaluation conducted under Sec.  303.321, the lead 
agency determines that a child is not eligible under this part, the lead 
agency must provide the parent with prior written notice required in 
Sec.  303.421, and include in the notice information about the parent's 
right to dispute the eligibility determination through dispute 
resolution mechanisms under Sec.  303.430, such as requesting a due 
process hearing or mediation or filing a State complaint.

(Authority: 20 U.S.C. 1439(a)(6))

                Individualized Family Service Plan (IFSP)

Sec.  303.340  Individualized family service plan--general.

    For each infant or toddler with a disability, the lead agency must 
ensure the development, review, and implementation of an individualized 
family service plan or IFSP developed by a multidisciplinary team, which 
includes the parent, that--
    (a) Is consistent with the definition of that term in Sec.  303.20; 
and
    (b) Meets the requirements in Sec. Sec.  303.342 through 303.346 of 
this subpart.

(Authority: 20 U.S.C. 1435(a)(4), 1436)

Sec.  303.341  [Reserved]

Sec.  303.342  Procedures for IFSP development, review, and evaluation.

    (a) Meeting to develop initial IFSP--timelines. For a child referred 
to the part C program and determined to be eligible under this part as 
an infant or toddler with a disability, a meeting to develop the initial 
IFSP must be conducted within the 45-day time period described in Sec.  
303.310.
    (b) Periodic review. (1) A review of the IFSP for a child and the 
child's family must be conducted every six months, or more frequently if 
conditions warrant, or if the family requests such a review. The purpose 
of the periodic review is to determine--
    (i) The degree to which progress toward achieving the results or 
outcomes identified in the IFSP is being made; and

[[Page 209]]

    (ii) Whether modification or revision of the results, outcomes, or 
early intervention services identified in the IFSP is necessary.
    (2) The review may be carried out by a meeting or by another means 
that is acceptable to the parents and other participants.
    (c) Annual meeting to evaluate the IFSP. A meeting must be conducted 
on at least an annual basis to evaluate and revise, as appropriate, the 
IFSP for a child and the child's family. The results of any current 
evaluations and other information available from the assessments of the 
child and family conducted under Sec.  303.321 must be used in 
determining the early intervention services that are needed and will be 
provided.
    (d) Accessibility and convenience of meetings. (1) IFSP meetings 
must be conducted--
    (i) In settings and at times that are convenient for the family; and
    (ii) In the native language of the family or other mode of 
communication used by the family, unless it is clearly not feasible to 
do so.
    (2) Meeting arrangements must be made with, and written notice 
provided to, the family and other participants early enough before the 
meeting date to ensure that they will be able to attend.
    (e) Parental consent. The contents of the IFSP must be fully 
explained to the parents and informed written consent, as described in 
Sec.  303.7, must be obtained, as required in Sec.  303.420(a)(3), prior 
to the provision of early intervention services described in the IFSP. 
Each early intervention service must be provided as soon as possible 
after the parent provides consent for that service, as required in Sec.  
303.344(f)(1).

(Authority: 20 U.S.C. 1435(a)(4), 1436)

Sec.  303.343  IFSP Team meeting and periodic review.

    (a) Initial and annual IFSP Team meeting. (1) Each initial meeting 
and each annual IFSP Team meeting to evaluate the IFSP must include the 
following participants:
    (i) The parent or parents of the child.
    (ii) Other family members, as requested by the parent, if feasible 
to do so.
    (iii) An advocate or person outside of the family, if the parent 
requests that the person participate.
    (iv) The service coordinator designated by the public agency to be 
responsible for implementing the IFSP.
    (v) A person or persons directly involved in conducting the 
evaluations and assessments in Sec.  303.321.
    (vi) As appropriate, persons who will be providing early 
intervention services under this part to the child or family.
    (2) If a person listed in paragraph (a)(1)(v) of this section is 
unable to attend a meeting, arrangements must be made for the person's 
involvement through other means, including one of the following:
    (i) Participating in a telephone conference call.
    (ii) Having a knowledgeable authorized representative attend the 
meeting.
    (iii) Making pertinent records available at the meeting.
    (b) Periodic review. Each periodic review under Sec.  303.342(b) 
must provide for the participation of persons in paragraphs (a)(1)(i) 
through (a)(1)(iv) of this section. If conditions warrant, provisions 
must be made for the participation of other representatives identified 
in paragraph (a) of this section.

(Authority: 20 U.S.C. 1435(a)(4), 1436)

Sec.  303.344  Content of an IFSP.

    (a) Information about the child's status. The IFSP must include a 
statement of the infant or toddler with a disability's present levels of 
physical development (including vision, hearing, and health status), 
cognitive development, communication development, social or emotional 
development, and adaptive development based on the information from that 
child's evaluation and assessments conducted under Sec.  303.321.
    (b) Family information. With the concurrence of the family, the IFSP 
must include a statement of the family's resources, priorities, and 
concerns related to enhancing the development of the child as identified 
through the assessment of the family under Sec.  303.321(c)(2).
    (c) Results or outcomes. The IFSP must include a statement of the 
measurable results or measurable outcomes expected to be achieved for 
the child

[[Page 210]]

(including pre-literacy and language skills, as developmentally 
appropriate for the child) and family, and the criteria, procedures, and 
timelines used to determine--
    (1) The degree to which progress toward achieving the results or 
outcomes identified in the IFSP is being made; and
    (2) Whether modifications or revisions of the expected results or 
outcomes, or early intervention services identified in the IFSP are 
necessary.
    (d) Early intervention services. (1) The IFSP must include a 
statement of the specific early intervention services, based on peer-
reviewed research (to the extent practicable), that are necessary to 
meet the unique needs of the child and the family to achieve the results 
or outcomes identified in paragraph (c) of this section, including--
    (i) The length, duration, frequency, intensity, and method of 
delivering the early intervention services;
    (ii)(A) A statement that each early intervention service is provided 
in the natural environment for that child or service to the maximum 
extent appropriate, consistent with Sec. Sec.  303.13(a)(8), 303.26 and 
303.126, or, subject to paragraph (d)(1)(ii)(B) of this section, a 
justification as to why an early intervention service will not be 
provided in the natural environment.
    (B) The determination of the appropriate setting for providing early 
intervention services to an infant or toddler with a disability, 
including any justification for not providing a particular early 
intervention service in the natural environment for that infant or 
toddler with a disability and service, must be--
    (1) Made by the IFSP Team (which includes the parent and other team 
members);
    (2) Consistent with the provisions in Sec. Sec.  303.13(a)(8), 
303.26, and 303.126; and
    (3) Based on the child's outcomes that are identified by the IFSP 
Team in paragraph (c) of this section;
    (iii) The location of the early intervention services; and
    (iv) The payment arrangements, if any.
    (2) As used in paragraph (d)(1)(i) of this section--
    (i) Frequency and intensity mean the number of days or sessions that 
a service will be provided, and whether the service is provided on an 
individual or group basis;
    (ii) Method means how a service is provided;
    (iii) Length means the length of time the service is provided during 
each session of that service (such as an hour or other specified time 
period); and
    (iv) Duration means projecting when a given service will no longer 
be provided (such as when the child is expected to achieve the results 
or outcomes in his or her IFSP).
    (3) As used in paragraph (d)(1)(iii) of this section, location means 
the actual place or places where a service will be provided.
    (4) For children who are at least three years of age, the IFSP must 
include an educational component that promotes school readiness and 
incorporates pre-literacy, language, and numeracy skills.
    (e) Other services. To the extent appropriate, the IFSP also must--
    (1) Identify medical and other services that the child or family 
needs or is receiving through other sources, but that are neither 
required nor funded under this part; and
    (2) If those services are not currently being provided, include a 
description of the steps the service coordinator or family may take to 
assist the child and family in securing those other services.
    (f) Dates and duration of services. The IFSP must include--
    (1) The projected date for the initiation of each early intervention 
service in paragraph (d)(1) of this section, which date must be as soon 
as possible after the parent consents to the service, as required in 
Sec. Sec.  303.342(e) and 303.420(a)(3); and
    (2) The anticipated duration of each service.
    (g) Service coordinator. (1) The IFSP must include the name of the 
service coordinator from the profession most relevant to the child's or 
family's needs (or who is otherwise qualified to carry out all 
applicable responsibilities under this part), who will be responsible 
for implementing the early intervention services identified in a child's 
IFSP, including transition services,

[[Page 211]]

and coordination with other agencies and persons.
    (2) In meeting the requirements in paragraph (g)(1) of this section, 
the term ``profession'' includes ``service coordination.''
    (h) Transition from Part C services. (1) The IFSP must include the 
steps and services to be taken to support the smooth transition of the 
child, in accordance with Sec. Sec.  303.209 and 303.211(b)(6), from 
part C services to--
    (i) Preschool services under part B of the Act, to the extent that 
those services are appropriate;
    (ii) Part C services under Sec.  303.211; or
    (iii) Other appropriate services.
    (2) The steps required in paragraph (h)(1) of this section must 
include--
    (i) Discussions with, and training of, parents, as appropriate, 
regarding future placements and other matters related to the child's 
transition;
    (ii) Procedures to prepare the child for changes in service 
delivery, including steps to help the child adjust to, and function in, 
a new setting;
    (iii) Confirmation that child find information about the child has 
been transmitted to the LEA or other relevant agency, in accordance with 
Sec.  303.209(b) (and any policy adopted by the State under Sec.  
303.401(e)) and, with parental consent if required under Sec.  303.414, 
transmission of additional information needed by the LEA to ensure 
continuity of services from the part C program to the part B program, 
including a copy of the most recent evaluation and assessments of the 
child and the family and most recent IFSP developed in accordance with 
Sec. Sec.  303.340 through 303.345; and
    (iv) Identification of transition services and other activities that 
the IFSP Team determines are necessary to support the transition of the 
child.

(Authority: 20 U.S.C. 1435(a)(10)(B), 1435(a)(16), 1436(a)(3), 1436(d), 
1437(a)(9)-(10), 1440)

Sec.  303.345  Interim IFSPs--provision of services before evaluations 
          and assessments are completed.

    Early intervention services for an eligible child and the child's 
family may commence before the completion of the evaluation and 
assessments in Sec.  303.321, if the following conditions are met:
    (a) Parental consent is obtained.
    (b) An interim IFSP is developed that includes--
    (1) The name of the service coordinator who will be responsible, 
consistent with Sec.  303.344(g), for implementing the interim IFSP and 
coordinating with other agencies and persons; and
    (2) The early intervention services that have been determined to be 
needed immediately by the child and the child's family.
    (c) Evaluations and assessments are completed within the 45-day 
timeline in Sec.  303.310.

(Authority: 20 U.S.C. 1436(c))

Sec.  303.346  Responsibility and accountability.

    Each public agency or EIS provider who has a direct role in the 
provision of early intervention services is responsible for making a 
good faith effort to assist each eligible child in achieving the 
outcomes in the child's IFSP. However, part C of the Act does not 
require that any public agency or EIS provider be held accountable if an 
eligible child does not achieve the growth projected in the child's 
IFSP.

(Authority: 20 U.S.C. 1436)

                     Subpart E_Procedural Safeguards

                                 General

Sec.  303.400  General responsibility of lead agency for procedural 
          safeguards.

    Subject to paragraph (c) of this section, each lead agency must--
    (a) Establish or adopt the procedural safeguards that meet the 
requirements of this subpart, including the provisions on 
confidentiality in Sec. Sec.  303.401 through 303.417, parental consent 
and notice in Sec. Sec.  303.420 and 303.421, surrogate parents in Sec.  
303.422, and dispute resolution procedures in Sec.  303.430;
    (b) Ensure the effective implementation of the safeguards by each 
participating agency (including the lead agency and EIS providers) in 
the statewide system that is involved in the provision of early 
intervention services under this part; and

[[Page 212]]

    (c) Make available to parents an initial copy of the child's early 
intervention record, at no cost to the parents.

(Authority: 20 U.S.C. 1439(a))

    Confidentiality of Personally Identifiable Information and Early 
                          Intervention Records

Sec.  303.401  Confidentiality and opportunity to examine records.

    (a) General. Each State must ensure that the parents of a child 
referred under this part are afforded the right to confidentiality of 
personally identifiable information, including the right to written 
notice of, and written consent to, the exchange of that information 
among agencies, consistent with Federal and State laws.
    (b) Confidentiality procedures. As required under sections 617(c) 
and 642 of the Act, the regulations in Sec. Sec.  303.401 through 
303.417 ensure the protection of the confidentiality of any personally 
identifiable data, information, and records collected or maintained 
pursuant to this part by the Secretary and by participating agencies, 
including the State lead agency and EIS providers, in accordance with 
the protections under the Family Educational Rights and Privacy Act 
(FERPA) in 20 U.S.C. 1232g and 34 CFR part 99. Each State must have 
procedures in effect to ensure that--
    (1) Participating agencies (including the lead agency and EIS 
providers) comply with the part C confidentiality procedures in 
Sec. Sec.  303.401 through 303.417; and
    (2) The parents of infants or toddlers who are referred to, or 
receive services under this part, are afforded the opportunity to 
inspect and review all part C early intervention records about the child 
and the child's family that are collected, maintained, or used under 
this part, including records related to evaluations and assessments, 
screening, eligibility determinations, development and implementation of 
IFSPs, provision of early intervention services, individual complaints 
involving the child, or any part of the child's early intervention 
record under this part.
    (c) Applicability and timeframe of procedures. The confidentiality 
procedures described in paragraph (b) of this section apply to the 
personally identifiable information of a child and the child's family 
that--
    (1) Is contained in early intervention records collected, used, or 
maintained under this part by the lead agency or an EIS provider; and
    (2) Applies from the point in time when the child is referred for 
early intervention services under this part until the later of when the 
participating agency is no longer required to maintain or no longer 
maintains that information under applicable Federal and State laws.
    (d) Disclosure of information. (1) Subject to paragraph (e) of this 
section, the lead agency must disclose to the SEA and the LEA where the 
child resides, in accordance with Sec.  303.209(b)(1)(i) and (b)(1)(ii), 
the following personally identifiable information under the Act:
    (i) A child's name.
    (ii) A child's date of birth.
    (iii) Parent contact information (including parents' names, 
addresses, and telephone numbers).
    (2) The information described in paragraph (d)(1) of this section is 
needed to enable the lead agency, as well as LEAs and SEAs under part B 
of the Act, to identify all children potentially eligible for services 
under Sec.  303.211 and part B of the Act.
    (e) Option to inform a parent about intended disclosure. (1) A lead 
agency, through its policies and procedures, may require EIS providers, 
prior to making the limited disclosure described in paragraph (d)(1) of 
this section, to inform parents of a toddler with a disability of the 
intended disclosure and allow the parents a specified time period to 
object to the disclosure in writing.
    (2) If a parent (in a State that has adopted the policy described in 
paragraph (e)(1) of this section) objects during the time period 
provided by the State, the lead agency and EIS provider are not 
permitted to make such a disclosure under paragraph (d) of this section 
and Sec.  303.209(b)(1)(i) and (b)(1)(ii).

(Authority: 20 U.S.C. 1412(a)(8), 1412(a)(9), 1417(c), 1435(a)(5), 
1437(a)(9), 1439(a)(2), 1439(a)(4), 1439(a)(6), 1442)

[[Page 213]]

Sec.  303.402  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, 
maintained, or used by the Secretary and by lead agencies and EIS 
providers pursuant to part C of the Act, and consistent with Sec. Sec.  
303.401 through 303.417. The regulations in Sec. Sec.  303.401 through 
303.417 ensure the protection of the confidentiality of any personally 
identifiable data, information, and records collected or maintained 
pursuant to this part by the Secretary and by participating agencies, 
including the State lead agency and EIS providers, in accordance with 
the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g, 
and 34 CFR part 99.

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1442)

Sec.  303.403  Definitions.

    The following definitions apply to Sec. Sec.  303.402 through 
303.417 in addition to the definition of personally identifiable 
information in Sec.  303.29 and disclosure in 34 CFR 99.3:
    (a) Destruction means physical destruction of the record or ensuring 
that personal identifiers are removed from a record so that the record 
is no longer personally identifiable under Sec.  303.29.
    (b) Early intervention records mean all records regarding a child 
that are required to be collected, maintained, or used under part C of 
the Act and the regulations in this part.
    (c) Participating agency means any individual, agency, entity, or 
institution that collects, maintains, or uses personally identifiable 
information to implement the requirements in part C of the Act and the 
regulations in this part with respect to a particular child. A 
participating agency includes the lead agency and EIS providers and any 
individual or entity that provides any part C services (including 
service coordination, evaluations and assessments, and other part C 
services), but does not include primary referral sources, or public 
agencies (such as the State Medicaid or CHIP program) or private 
entities (such as private insurance companies) that act solely as 
funding sources for part C services.

(Authority: 20 U.S.C. 1221e-3, 1417(c), 1435(a)(5), 1439(a)(2), 1442)

Sec.  303.404  Notice to parents.

    The lead agency must give notice when a child is referred under part 
C of the Act that is adequate to fully inform parents about the 
requirements in Sec.  303.402, including--
    (a) A description of the children on whom personally identifiable 
information is maintained, the types of information sought, the methods 
the State intends to use in gathering the information (including the 
sources from whom information is gathered), and the uses to be made of 
the information;
    (b) 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;
    (c) A description of all the rights of parents and children 
regarding this information, including their rights under the part C 
confidentiality provisions in Sec. Sec.  303.401 through 303.417; and
    (d) A description of the extent that the notice is provided in the 
native languages of the various population groups in the State.

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1442)

Sec.  303.405  Access rights.

    (a) Each participating agency must permit parents to inspect and 
review any early intervention records relating to their children that 
are collected, maintained, or used by the agency under this part. The 
agency must comply with a parent's request to inspect and review records 
without unnecessary delay and before any meeting regarding an IFSP, or 
any hearing pursuant to Sec. Sec.  303.430(d) and 303.435 through 
303.439, and in no case more than 10 days after the request has been 
made.
    (b) The right to inspect and review early intervention records under 
this section includes--
    (1) The right to a response from the participating agency to 
reasonable requests for explanations and interpretations of the early 
intervention records;

[[Page 214]]

    (2) The right to request that the participating agency provide 
copies of the early intervention 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 early intervention 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 provided documentation that the parent does not have the authority 
under applicable State laws governing such matters as custody, foster 
care, guardianship, separation, and divorce.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.406  Record of access.

    Each participating agency must keep a record of parties obtaining 
access to early intervention records collected, maintained, or used 
under part C of the Act (except access by parents and authorized 
representatives and 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 early intervention records.

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.407  Records on more than one child.

    If any early intervention 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. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.408  List of types and locations of information.

    Each participating agency must provide parents, on request, a list 
of the types and locations of early intervention records collected, 
maintained, or used by the agency.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.409  Fees for records.

    (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, except as provided in paragraph (c) of this 
section.
    (b) A participating agency may not charge a fee to search for or to 
retrieve information under this part.
    (c) A participating agency must provide at no cost to parents, a 
copy of each evaluation, assessment of the child, family assessment, and 
IFSP as soon as possible after each IFSP meeting.

(Authority: 20 U.S.C. 1417(c), 1432(4)(B), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.410  Amendment of records at a parent's request.

    (a) A parent who believes that information in the early intervention 
records collected, maintained, or used under this part is inaccurate, 
misleading, or violates the privacy or other rights of the child or 
parent may request that the participating agency that maintains the 
information amend the information.
    (b) The participating 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 participating agency refuses 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.  303.411.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.411  Opportunity for a hearing.

    The participating agency must, on request, provide parents with the 
opportunity for a hearing to challenge information in their child's 
early intervention records to ensure that it is not inaccurate, 
misleading, or otherwise in violation of the privacy or other rights of 
the child or parents. A parent may request a due process hearing under 
the procedures in Sec.  303.430(d)(1) provided that such hearing 
procedures meet the

[[Page 215]]

requirements of the hearing procedures in Sec.  303.413 or may request a 
hearing directly under the State's procedures in Sec.  303.413 (i.e., 
procedures that are consistent with the FERPA hearing requirements in 34 
CFR 99.22).

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.412  Result of hearing.

    (a) If, as a result of the hearing, the participating agency decides 
that the information is inaccurate, misleading or in violation of the 
privacy or other rights of the child or parent, 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 in violation of the 
privacy or other rights of the child or parent, it must inform the 
parent of the right to place in the early intervention records it 
maintains on the child a statement commenting on the information or 
setting forth any reasons for disagreeing with the decision of the 
agency.
    (c) Any explanation placed in the early intervention records of the 
child under this section must--
    (1) Be maintained by the agency as part of the early intervention 
records of the child as long as the record or contested portion is 
maintained by the agency; and
    (2) If the early intervention records of the child or the contested 
portion are disclosed by the agency to any party, the explanation must 
also be disclosed to the party.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.413  Hearing procedures.

    A hearing held under Sec.  303.411 must be conducted according to 
the procedures under 34 CFR 99.22.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.414  Consent prior to disclosure or use.

    (a) Except as provided in paragraph (b) of this section, prior 
parental consent must be obtained before personally identifiable 
information is--
    (1) Disclosed to anyone other than authorized representatives, 
officials, or employees of participating agencies collecting, 
maintaining, or using the information under this part, subject to 
paragraph (b) of this section; or
    (2) Used for any purpose other than meeting a requirement of this 
part.
    (b) A lead agency or other participating agency may not disclose 
personally identifiable information, as defined in Sec.  303.29, to any 
party except participating agencies (including the lead agency and EIS 
providers) that are part of the State's part C system without parental 
consent unless authorized to do so under--
    (1) Sections 303.401(d), 303.209(b)(1)(i) and (b)(1)(ii), and 
303.211(b)(6)(ii)(A); or
    (2) One of the exceptions enumerated in 34 CFR 99.31 (where 
applicable to part C), which are expressly adopted to apply to part C 
through this reference. In applying the exceptions in 34 CFR 99.31 to 
this part, participating agencies must also comply with the pertinent 
conditions in 34 CFR 99.32, 99.33, 99.34, 99.35, 99.36, 99.38, and 
99.39; in applying these provisions in 34 CFR part 99 to part C, the 
reference to--
    (i) 34 CFR 99.30 means Sec.  303.414(a);
    (ii) ``Education records'' means early intervention records under 
Sec.  303.403(b);
    (iii) ``Educational'' means early intervention under this part;
    (iv) ``Educational agency or institution'' means the participating 
agency under Sec.  303.404(c);
    (v) ``School officials and officials of another school or school 
system'' means qualified personnel or service coordinators under this 
part;
    (vi) ``State and local educational authorities'' means the lead 
agency under Sec.  303.22; and
    (vii) ``Student'' means child under this part.
    (c) The lead agency must provide policies and procedures to be used 
when a parent refuses to provide consent under this section (such as a 
meeting to explain to parents how their failure to consent affects the 
ability of their child to receive services under this part), provided 
that those procedures do not override a parent's right to refuse consent 
under Sec.  303.420.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

[[Page 216]]

Sec.  303.415  Safeguards.

    (a) Each participating agency must protect the confidentiality of 
personally identifiable information at the collection, maintenance, use, 
storage, disclosure, and destruction stages.
    (b) One official at each participating agency must assume 
responsibility for ensuring the confidentiality of any personally 
identifiable information.
    (c) All persons collecting or using personally identifiable 
information must receive training or instruction regarding the State's 
policies and procedures under Sec. Sec.  303.401 through 303.417 and 34 
CFR part 99.
    (d) Each participating agency must maintain, for public inspection, 
a current listing of the names and positions of those employees within 
the agency who may have access to personally identifiable information.

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.416  Destruction of information.

    (a) The participating agency must inform parents when personally 
identifiable information collected, maintained, or used under this part 
is no longer needed to provide services to the child under Part C of the 
Act, the GEPA provisions in 20 U.S.C. 1232f, EDGAR, 34 CFR part 76, and 
2 CFR part 200, as adopted in 2 CFR part 3474.
    (b) Subject to paragraph (a) of this section, the information must 
be destroyed at the request of the parents. However, a permanent record 
of a child's name, date of birth, parent contact information (including 
address and phone number), names of service coordinator(s) and EIS 
provider(s), and exit data (including year and age upon exit, and any 
programs entered into upon exiting) may be maintained without time 
limitation.

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1439(a)(4), 1442)

[76 FR 60244, Sept. 28, 2011, as amended at 79 FR 76097, Dec. 19, 2014]

Sec.  303.417  Enforcement.

    The lead agency must have in effect the policies and procedures, 
including sanctions and the right to file a complaint under Sec. Sec.  
303.432 through 303.434, that the State uses to ensure that its policies 
and procedures, consistent with Sec. Sec.  303.401 through 303.417, are 
followed and that the requirements of the Act and the regulations in 
this part are met.

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1439(a)(4), 1442)

                       Parental Consent and Notice

Sec.  303.420  Parental consent and ability to decline services.

    (a) The lead agency must ensure parental consent is obtained 
before--
    (1) Administering screening procedures under Sec.  303.320 that are 
used to determine whether a child is suspected of having a disability;
    (2) All evaluations and assessments of a child are conducted under 
Sec.  303.321;
    (3) Early intervention services are provided to the child under this 
part;
    (4) Public benefits or insurance or private insurance is used if 
such consent is required under Sec.  303.520; and
    (5) Disclosure of personally identifiable information consistent 
with Sec.  303.414.
    (b) If a parent does not give consent under paragraph (a)(1), 
(a)(2), or (a)(3) of this section, the lead agency must make reasonable 
efforts to ensure that the parent--
    (1) Is fully aware of the nature of the evaluation and assessment of 
the child or early intervention services that would be available; and
    (2) Understands that the child will not be able to receive the 
evaluation, assessment, or early intervention service unless consent is 
given.
    (c) The lead agency may not use the due process hearing procedures 
under this part or part B of the Act to challenge a parent's refusal to 
provide any consent that is required under paragraph (a) of this 
section.
    (d) The parents of an infant or toddler with a disability--
    (1) Determine whether they, their infant or toddler with a 
disability, or other family members will accept or decline any early 
intervention service under this part at any time, in accordance with 
State law; and
    (2) May decline a service after first accepting it, without 
jeopardizing

[[Page 217]]

other early intervention services under this part.

(Authority: 20 U.S.C. 1436(e), 1439(a)(3))

Sec.  303.421  Prior written notice and procedural safeguards notice.

    (a) General. Prior written notice must be provided to parents a 
reasonable time before the lead agency or an EIS provider proposes, or 
refuses, to initiate or change the identification, evaluation, or 
placement of their infant or toddler, or the provision of early 
intervention services to the infant or toddler with a disability and 
that infant's or toddler's family.
    (b) Content of notice. The notice must be in sufficient detail to 
inform parents about--
    (1) The action that is being proposed or refused;
    (2) The reasons for taking the action; and
    (3) All procedural safeguards that are available under this subpart, 
including a description of mediation in Sec.  303.431, how to file a 
State complaint in Sec. Sec.  303.432 through 303.434 and a due process 
complaint in the provisions adopted under Sec.  303.430(d), and any 
timelines under those procedures.
    (c) Native language. (1) The notice must be--
    (i) Written in language understandable to the general public; and
    (ii) Provided in the native language, as defined in Sec.  303.25, 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 or designated EIS 
provider must take steps to ensure that--
    (i) The notice is translated orally or by other means to the parent 
in the parent's native language or other mode of communication;
    (ii) The parent understands the notice; and
    (iii) There is written evidence that the requirements of this 
paragraph have been met.

(Authority: 20 U.S.C. 1439(a)(6)-(7))

                            Surrogate Parents

Sec.  303.422  Surrogate parents.

    (a) General. Each lead agency or other public agency must ensure 
that the rights of a child are protected when--
    (1) No parent (as defined in Sec.  303.27) can be identified;
    (2) The lead agency or other public agency, after reasonable 
efforts, cannot locate a parent; or
    (3) The child is a ward of the State under the laws of that State.
    (b) Duty of lead agency and other public agencies. (1) The duty of 
the lead agency, or other public agency under paragraph (a) of this 
section, includes the assignment of an individual to act as a surrogate 
for the parent. This assignment process must include a method for--
    (i) Determining whether a child needs a surrogate parent; and
    (ii) Assigning a surrogate parent to the child.
    (2) In implementing the provisions under this section for children 
who are wards of the State or placed in foster care, the lead agency 
must consult with the public agency that has been assigned care of the 
child.
    (c) Wards of the State. In the case of a child who is a ward of the 
State, the surrogate parent, instead of being appointed by the lead 
agency under paragraph (b)(1) of this section, may be appointed by the 
judge overseeing the infant or toddler's case provided that the 
surrogate parent meets the requirements in paragraphs (d)(2)(i) and (e) 
of this section.
    (d) Criteria for selection of surrogate parents. (1) The lead agency 
or other 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 lead agency or any other public agency 
or EIS provider that provides early intervention services, education, 
care, or other services to the child or any family member of the child;

[[Page 218]]

    (ii) Has no personal or professional interest that conflicts with 
the interest of the child he or she represents; and
    (iii) Has knowledge and skills that ensure adequate representation 
of the child.
    (e) Non-employee requirement; compensation. A person who is 
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) Surrogate parent responsibilities. The surrogate parent has the 
same rights as a parent for all purposes under this part.
    (g) Lead agency responsibility. The lead agency 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. 1439(a)(5))

                       Dispute Resolution Options

Sec.  303.430  State dispute resolution options.

    (a) General. Each statewide system must include written procedures 
for the timely administrative resolution of complaints through 
mediation, State complaint procedures, and due process hearing 
procedures, described in paragraphs (b) through (e) of this section.
    (b) Mediation. Each lead agency must make available to parties to 
disputes involving any matter under this part the opportunity for 
mediation that meets the requirements in Sec.  303.431.
    (c) State complaint procedures. Each lead agency must adopt written 
State complaint procedures to resolve any State complaints filed by any 
party regarding any violation of this part that meet the requirements in 
Sec. Sec.  303.432 through 303.434.
    (d) Due process hearing procedures. Each lead agency must adopt 
written due process hearing procedures to resolve complaints with 
respect to a particular child regarding any matter identified in Sec.  
303.421(a), by either adopting--
    (1) The part C due process hearing procedures under section 639 of 
the Act that--
    (i) Meet the requirements in Sec. Sec.  303.435 through 303.438; and
    (ii) Provide a means of filing a due process complaint regarding any 
matter listed in Sec.  303.421(a); or
    (2) The part B due process hearing procedures under section 615 of 
the Act and Sec. Sec.  303.440 through 303.449 (with either a 30-day or 
45-day timeline for resolving due process complaints, as provided in 
Sec.  303.440(c)).
    (e) Status of a child during the pendency of a due process 
complaint. (1) During the pendency of any proceeding involving a due 
process complaint under paragraph (d) of this section, unless the lead 
agency and parents of an infant or toddler with a disability otherwise 
agree, the child must continue to receive the appropriate early 
intervention services in the setting identified in the IFSP that is 
consented to by the parents.
    (2) If the due process complaint under paragraph (d) of this section 
involves an application for initial services under part C of the Act, 
the child must receive those services that are not in dispute.

(Approved by Office of Management and Budget under control number 1820-
0678 and 1820-NEW)

(Authority: 20 U.S.C. 1415(e), 1415(f)(1)(A), 1415(f)(3)(A)-(D), 1439)

                                Mediation

Sec.  303.431  Mediation.

    (a) General. Each lead agency must ensure that procedures are 
established 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 
at any time.
    (b) Requirements. The procedures must meet the following 
requirements:
    (1) The procedures must ensure that the mediation process--
    (i) Is voluntary on the part of the parties;
    (ii) Is not used to deny or delay a parent's right to a due process 
hearing, or to deny any other rights afforded under part C of the Act; 
and
    (iii) Is conducted by a qualified and impartial mediator who is 
trained in effective mediation techniques.

[[Page 219]]

    (2)(i) The State must maintain a list of individuals who are 
qualified mediators and knowledgeable in laws and regulations relating 
to the provision of early intervention services.
    (ii) The lead agency must select mediators on a random, rotational, 
or other impartial basis.
    (3) The State must bear the cost of the mediation process, including 
the costs of meetings described in paragraph (d) of this section.
    (4) Each session in the mediation process must be scheduled in a 
timely manner and must be held in a location that is convenient to the 
parties to the dispute.
    (5) 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 lead 
agency who has the authority to bind such agency.
    (6) 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.
    (7) 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 lead agency or an EIS provider 
that is involved in the provision of early intervention services or 
other services to 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 a lead agency or an early intervention provider solely 
because he or she is paid by the agency or provider to serve as a 
mediator.
    (d) Meeting to encourage mediation. A lead agency may establish 
procedures to offer to parents and EIS providers 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--
    (1) 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
    (2) Who would explain the benefits of, and encourage the use of, the 
mediation process to the parents.

(Approved by Office of Management and Budget under control number 1820-
NEW)

(Authority: 20 U.S.C. 1415(e), 1439(a)(8))

                       State Complaint Procedures

Sec.  303.432  Adoption of State complaint procedures.

    (a) General. Each lead agency 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 in Sec.  303.434 by providing for the filing of a complaint 
with the lead agency; and
    (2) Widely disseminating to parents and other interested 
individuals, including parent training and information centers, 
Protection and Advocacy (P&A) agencies, and other appropriate entities, 
the State procedures under Sec. Sec.  303.432 through 303.434.
    (b) Remedies for denial of appropriate services. In resolving a 
complaint in which the lead agency has found a failure to provide 
appropriate services, the lead agency, pursuant to its general 
supervisory authority under part C of the Act, must address--
    (1) The failure to provide appropriate services, including 
corrective actions appropriate to address the needs of the infant or 
toddler with a disability who is the subject of the complaint and the 
infant's or toddler's family (such as compensatory services or monetary 
reimbursement); and

[[Page 220]]

    (2) Appropriate future provision of services for all infants and 
toddlers with disabilities and their families.

(Approved by Office of Management and Budget under control number 1820-
NEW)

(Authority: 20 U.S.C. 1439(a)(1))

Sec.  303.433  Minimum State complaint procedures.

    (a) Time limit; minimum procedures. Each lead agency must include in 
its complaint procedures a time limit of 60 days after a complaint is 
filed under Sec.  303.434 to--
    (1) Carry out an independent on-site investigation, if the lead 
agency 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 lead agency, public agency, or EIS provider with an 
opportunity to respond to the complaint, including, at a minimum--
    (i) At the discretion of the lead agency, a proposal to resolve the 
complaint; and
    (ii) An opportunity for a parent who has filed a complaint and the 
lead agency, public agency, or EIS provider to voluntarily engage in 
mediation, consistent with Sec. Sec.  303.430(b) and 303.431;
    (4) Review all relevant information and make an independent 
determination as to whether the lead agency, public agency, or EIS 
provider is violating a requirement of part C 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 lead agency's final decision.
    (b) Time extension; final decision; implementation. The lead 
agency's procedures described in paragraph (a) of this section also 
must--
    (1) Permit an extension of the time limit under paragraph (a) of 
this section only if--
    (i) Exceptional circumstances exist with respect to a particular 
complaint; or
    (ii) The parent (or individual or organization, if mediation is 
available to the individual or organization under State procedures) and 
the lead agency, public agency or EIS provider involved agree to extend 
the time to engage in mediation pursuant to paragraph (a)(3)(ii) of this 
section; and
    (2) Include procedures for effective implementation of the lead 
agency's final decision, if needed, including--
    (i) Technical assistance activities;
    (ii) Negotiations; and
    (iii) Corrective actions to achieve compliance.
    (c) Complaints filed under this section and due process hearings 
under Sec.  303.430(d). (1) If a written complaint is received that is 
also the subject of a due process hearing under Sec.  303.430(d), 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 hearing 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 lead agency must inform the complainant to that effect.
    (3) A complaint alleging a lead agency, public agency, or EIS 
provider's failure to implement a due process hearing decision must be 
resolved by the lead agency.

(Approved by Office of Management and Budget under control number 1820-
NEW)

(Authority: 20 U.S.C. 1439(a)(1))

Sec.  303.434  Filing a complaint.

    (a) An organization or individual may file a signed written 
complaint under the procedures described in Sec. Sec.  303.432 and 
303.433.
    (b) The complaint must include--
    (1) A statement that the lead agency, public agency, or EIS provider 
has violated a requirement of part C of the Act;
    (2) The facts on which the statement is based;

[[Page 221]]

    (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 EIS provider serving the child;
    (iii) A description of the nature of the problem of the child, 
including facts relating to the problem; and
    (iv) 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.  303.432.
    (d) The party filing the complaint must forward a copy of the 
complaint to the public agency or EIS provider serving the child at the 
same time the party files the complaint with the lead agency.

(Approved by Office of Management and Budget under control number 1820-
NEW)

(Authority: 20 U.S.C. 1439(a)(1))

 States That Choose To Adopt the Part C Due Process Hearing Procedures 
                      Under Section 639 of the Act

Sec.  303.435  Appointment of an impartial due process hearing officer.

    (a) Qualifications and duties. Whenever a due process complaint is 
received under Sec.  303.430(d), a due process hearing officer must be 
appointed to implement the complaint resolution process in this subpart. 
The person must--
    (1) Have knowledge about the provisions of this part and the needs 
of, and early intervention services available for, infants and toddlers 
with disabilities and their families; and
    (2) Perform the following duties:
    (i)(A) Listen to the presentation of relevant viewpoints about the 
due process complaint.
    (B) Examine all information relevant to the issues.
    (C) Seek to reach a timely resolution of the due process complaint.
    (ii) Provide a record of the proceedings, including a written 
decision.
    (b) Definition of impartial. (1) Impartial means that the due 
process hearing officer appointed to implement the due process hearing 
under this part--
    (i) Is not an employee of the lead agency or an EIS provider 
involved in the provision of early intervention services or care of the 
child; and
    (ii) Does not have a personal or professional interest that would 
conflict with his or her objectivity in implementing the process.
    (2) A person who otherwise qualifies under paragraph (b)(1) of this 
section is not an employee of an agency solely because the person is 
paid by the agency to implement the due process hearing procedures or 
mediation procedures under this part.

(Authority: 20 U.S.C. 1439(a)(1))

Sec.  303.436  Parental rights in due process hearing proceedings.

    (a) General. Each lead agency must ensure that the parents of a 
child referred to part C are afforded the rights in paragraph (b) of 
this section in the due process hearing carried out under Sec.  
303.430(d).
    (b) Rights. Any parent involved in a due process hearing has the 
right to--
    (1) Be accompanied and advised by counsel and by individuals with 
special knowledge or training with respect to early intervention 
services for infants and toddlers with disabilities;
    (2) Present evidence and confront, cross-examine, and compel the 
attendance of witnesses;
    (3) Prohibit the introduction of any evidence at the hearing that 
has not been disclosed to the parent at least five days before the 
hearing;
    (4) Obtain a written or electronic verbatim transcription of the 
hearing at no cost to the parent; and
    (5) Receive a written copy of the findings of fact and decisions at 
no cost to the parent.

(Authority: 20 U.S.C. 1439(a))

Sec.  303.437  Convenience of hearings and timelines.

    (a) Any due process hearing conducted under this subpart must be 
carried out at a time and place that is reasonably convenient to the 
parents.

[[Page 222]]

    (b) Each lead agency must ensure that, not later than 30 days after 
the receipt of a parent's due process complaint, the due process hearing 
required under this subpart is completed and a written decision mailed 
to each of the parties.
    (c) A hearing officer may grant specific extensions of time beyond 
the period set out in paragraph (b) of this section at the request of 
either party.

(Authority: 20 U.S.C. 1439(a)(1))

Sec.  303.438  Civil action.

    Any party aggrieved by the findings and decision issued pursuant to 
a due process complaint has the right to bring a civil action in State 
or Federal court under section 639(a)(1) of the Act.

(Authority: 20 U.S.C. 1439(a)(1))

 States That Choose To Adopt the Part B Due Process Hearing Procedures 
                      Under Section 615 of the Act

Sec.  303.440  Filing a due process complaint.

    (a) General. (1) A parent, EIS provider, or a lead agency may file a 
due process complaint on any of the matters described in Sec.  
303.421(a), relating to the identification, evaluation, or placement of 
a child, or the provision of early intervention services to the infant 
or toddler with a disability and his or her family under part C of the 
Act.
    (2) The due process complaint must allege a violation that occurred 
not more than two years before the date the parent or EIS provider 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 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.  303.443(f) apply to the timeline in this 
section.
    (b) Information for parents. The lead 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 EIS provider files a due process complaint under 
this section.
    (c) Timeline for Resolution. The lead agency may adopt a 30- or 45-
day timeline, subject to Sec.  303.447(a), for the resolution of due 
process complaints and must specify in its written policies and 
procedures under Sec.  303.123 and in its prior written notice under 
Sec.  303.421, the specific timeline it has adopted.

(Approved by Office of Management and Budget under control number 1820-
NEW)

(Authority: 20 U.S.C. 1415(b)(6), 1439)

Sec.  303.441  Due process complaint.

    (a) General. (1) The lead 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 lead agency.
    (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 EIS provider serving the child;
    (4) In the case of a homeless child (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 EIS provider serving the child;
    (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

[[Page 223]]

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 in 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.  303.442; 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.  303.442(a) and the time period to 
resolve in Sec.  303.442(b) begin again with the filing of the amended 
due process complaint.
    (e) Lead agency response to a due process complaint. (1) If the lead 
agency has not sent a prior written notice under Sec.  303.421 to the 
parent regarding the subject matter contained in the parent's due 
process complaint, the lead agency or EIS provider must, within 10 days 
of receiving the due process complaint, send to the parent a response 
that includes--
    (i) An explanation of why the lead agency or EIS provider proposed 
or refused to take the action raised in the due process complaint;
    (ii) A description of other options that the IFSP Team considered 
and the reasons why those options were rejected;
    (iii) A description of each evaluation procedure, assessment, 
record, or report the lead agency or EIS provider 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 or EIS provider's proposed or refused action.
    (2) A response by the lead agency under paragraph (e)(1) of this 
section does not preclude the lead agency 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), 1439)

Sec.  303.442  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.  303.443, the lead agency must convene a 
meeting with the parent and the relevant member or members of the IFSP 
Team who have specific knowledge of the facts identified in the due 
process complaint that--
    (i) Includes a representative of the lead agency who has decision-
making authority on behalf of that agency; and
    (ii) May not include an attorney of the lead agency unless the 
parent is accompanied by an attorney.
    (2) The purpose of the resolution 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 lead agency has the 
opportunity to resolve the dispute that is the basis for the due process 
complaint.
    (3) The meeting described in paragraphs (a)(1) and (a)(2) of this 
section need not be held if--
    (i) The parent and lead agency agree in writing to waive the 
meeting; or
    (ii) The parent and lead agency agree to use the mediation process 
described in Sec.  303.431.
    (4) The parent and the lead agency must determine the relevant 
members of the IFSP Team to attend the meeting.

[[Page 224]]

    (b) Resolution period. (1) If the lead agency has not resolved the 
due process complaint to the satisfaction of the parties 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.  303.447 begins at the 
expiration of the 30-day period in paragraph (b)(1) of this section.
    (3) Except where the parties have jointly agreed to waive the 
resolution process or to use mediation, notwithstanding paragraphs 
(b)(1) and (b)(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 lead agency is unable to obtain the participation of the 
parent in the resolution meeting after reasonable efforts have been 
made, including documenting its efforts, the lead agency may, at the 
conclusion of the 30-day period, request that the hearing officer 
dismiss the parent's due process complaint.
    (5) If the lead agency 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 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 30- or 45-day 
timeline adopted by the lead agency under Sec.  303.440(c) for the due 
process hearing described in Sec.  303.447(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 lead 
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 (a)(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 lead 
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 lead agency, if the 
State has other mechanisms or procedures that permit parties to seek 
enforcement of resolution agreements pursuant to this section.
    (e) Agreement review period. If the parties execute an agreement 
pursuant to paragraph (d) of this section, a party may void the 
agreement within three business days of the agreement's execution.

(Authority: 20 U.S.C. 1415(f)(1)(B), 1439)

Sec.  303.443  Impartial due process hearing.

    (a) General. Whenever a due process complaint is received consistent 
with Sec.  303.440, the parents or the EIS provider involved in the 
dispute must have an opportunity for an impartial due process hearing, 
consistent with the procedures in Sec. Sec.  303.440 through 303.442.
    (b) Agency responsible for conducting the due process hearing. The 
hearing described in paragraph (a) of this section must be conducted by 
the lead agency directly responsible for the early intervention services 
of the infant or toddler, as determined under State statute, State 
regulation, or a written policy of the lead agency.
    (c) Impartial hearing officer. (1) At a minimum, a hearing officer--
    (i) Must not be--
    (A) An employee of the lead agency or the EIS provider that is 
involved in the early intervention services or care of the infant or 
toddler; 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

[[Page 225]]

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 lead 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.  
303.441(b), unless the other party agrees otherwise.
    (e) Timeline for requesting a hearing. A parent, lead agency, or EIS 
provider must request an impartial hearing on their due process 
complaint within two years of the date the parent, lead agency, or EIS 
provider 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 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 lead agency or EIS provider 
that it had resolved the problem forming the basis of the due process 
complaint; or
    (2) The lead agency's or EIS provider's failure to provide the 
parent information that was required under this part to be provided to 
the parent.

(Approved by Office of Management and Budget under control number 1820-
NEW)

(Authority: 20 U.S.C. 1415(f)(1)(A), 1415(f)(3)(A)-(D), 1439)

Sec.  303.444  Hearing rights.

    (a) General. Any party to a hearing conducted pursuant to Sec. Sec.  
303.440 through 303.445, or an appeal conducted pursuant to Sec.  
303.446, 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 infants or 
toddlers with disabilities;
    (2) Present evidence and confront, cross-examine, and compel the 
attendance of witnesses;
    (3) Prohibit the introduction of any evidence at the hearing that 
has not been disclosed to that party at least five 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.  303.443(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--
    (1) Be given the right to open the hearing to the public; and
    (2) Receive a copy of the record of the hearing and the findings of 
fact and decisions described in paragraphs (a)(4) and (a)(5) of this 
section at no cost.

(Authority: 20 U.S.C. 1415(f)(2), 1415(h), 1439)

Sec.  303.445  Hearing decisions.

    (a) Decision of hearing officer. (1) Subject to paragraph (a)(2) of 
this section, a hearing officer's determination of whether an infant or 
toddler was appropriately identified, evaluated, or placed, or whether 
the infant or toddler with a disability and his or her family were 
appropriately provided early intervention services under part C of

[[Page 226]]

the Act, must be based on substantive grounds.
    (2) In matters alleging a procedural violation, a hearing officer 
may find that a child was not appropriately identified, evaluated, 
placed, or provided early intervention services under part C of the Act 
only if the procedural inadequacies--
    (i) Impeded the child's right to identification, evaluation, and 
placement or provision of early intervention services for the child and 
that child's family under part C of the Act;
    (ii) Significantly impeded the parent's opportunity to participate 
in the decision-making process regarding identification, evaluation, 
placement or provision of early intervention services for the child and 
that child's family under part C of the Act; or
    (iii) Caused a deprivation of educational or developmental benefit.
    (3) Nothing in paragraph (a) of this section precludes a hearing 
officer from ordering the lead agency or EIS provider to comply with 
procedural requirements under Sec. Sec.  303.400 through 303.449.
    (b) Construction clause. Nothing in Sec. Sec.  303.440 through 
303.445 affects the right of a parent to file an appeal of the due 
process hearing decision with the lead agency under Sec.  303.446(b), if 
the lead agency level appeal is available.
    (c) Separate due process complaint. Nothing in Sec. Sec.  303.440 
through 303.449 precludes a parent from filing a separate due process 
complaint on an issue separate from a due process complaint already 
filed.
    (d) Findings and decisions to general public. The lead agency, after 
deleting any personally identifiable information, must make the findings 
and decisions available to the public.

(Authority: 20 U.S.C. 1415(f)(3)(E)-(F), 1415(h)(4), 1415(o), 1439)

Sec.  303.446  Finality of decision; appeal; impartial review.

    (a) Finality of hearing decision. A decision made in a hearing 
conducted pursuant to Sec. Sec.  303.440 through 303.445 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.  303.448.
    (b) Appeal of decisions; impartial review. (1) The lead agency may 
provide for procedures to allow any party aggrieved by the findings and 
decision in the hearing to appeal to the lead agency.
    (2) If there is an appeal, the lead agency 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.  303.444 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 of fact and decision to the general public. The lead 
agency, after deleting any personally identifiable information, must 
make the findings of fact and decisions described in paragraph 
(b)(2)(vi) of this section available to the general public.
    (d) Finality of review decision. The decision made by the reviewing 
official is final unless a party brings a civil action under Sec.  
303.448.

(Authority: 20 U.S.C. 1415(g), 1415(h)(4), 1415(i)(1)(A), 1415(i)(2), 
1439)

Sec.  303.447  Timelines and convenience of hearings and reviews.

    (a) The lead agency must ensure that not later than either 30 days 
or 45 days (consistent with the lead agency's written policies and 
procedures adopted under Sec.  303.440(c)) after the expiration of the 
30-day period in Sec.  303.442(b), or the adjusted 30-day time periods 
described in Sec.  303.442(c))--
    (1) A final decision is reached in the hearing; and
    (2) A copy of the decision is mailed to each of the parties.

[[Page 227]]

    (b) The lead agency 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), 1439)

Sec.  303.448  Civil action.

    (a) General. Any party aggrieved by the findings and decision made 
under Sec. Sec.  303.440 through 303.445 who does not have the right to 
an appeal under Sec.  303.446(b), and any party aggrieved by the 
findings and decision under Sec.  303.446(b), has the right to bring a 
civil action with respect to the due process complaint under Sec.  
303.440. 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 has 90 days from 
the date of the decision of the hearing officer or, if applicable, the 
decision of the State review official, to file a civil action, or, if 
the State has an explicit time limitation for bringing civil actions 
under part C 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 Sec. Sec.  303.440 and 
303.446 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), 1415(i)(3)(A), 1415(l), 1439)

Sec.  303.449  State enforcement mechanisms.

    Notwithstanding Sec. Sec.  303.431(b)(6) and 303.442(d)(2), which 
provide for judicial enforcement of a written agreement reached as a 
result of a mediation or a resolution meeting, there is nothing in this 
part that would prevent the State 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 or competent 
jurisdiction or in a district court of the United States.

(Authority: 20 U.S.C. 1415(e)(2)(F), 1415(f)(1)(B), 1439)

             Subpart F_Use of Funds and Payor of Last Resort

                                 General

Sec.  303.500  Use of funds, payor of last resort, and system of 
          payments.

    (a) Statewide system. Each statewide system must include written 
policies and procedures that meet the requirements of the--
    (1) Use of funds provisions in Sec.  303.501; and
    (2) Payor of last resort provisions in Sec. Sec.  303.510 through 
303.521 (regarding the identification and coordination of

[[Page 228]]

funding resources for, and the provision of, early intervention services 
under part C of the Act within the State).
    (b) System of Payments. A State may establish, consistent with 
Sec. Sec.  303.13(a)(3) and 303.203(b), a system of payments for early 
intervention services under part C of the Act, including a schedule of 
sliding fees or cost participation fees (such as co-payments, premiums, 
or deductibles) required to be paid under Federal, State, local, or 
private programs of insurance or benefits for which the infant or 
toddler with a disability or the child's family is enrolled, that meets 
the requirements of Sec. Sec.  303.520 and 303.521.

(Authority: 20 U.S.C. 1432(4)(B), 1435(a)(10)-(12), 1437(b), 1438, 
1439(a), 1440)

                              Use of Funds

Sec.  303.501  Permissive use of funds by the lead agency.

    Consistent with Sec. Sec.  303.120 through 303.122 and Sec. Sec.  
303.220 through 303.226, a lead agency may use funds under this part for 
activities or expenses that are reasonable and necessary for 
implementing the State's early intervention program for infants and 
toddlers with disabilities including funds--
    (a) For direct early intervention services for infants and toddlers 
with disabilities and their families under this part that are not 
otherwise funded through other public or private sources (subject to 
Sec. Sec.  303.510 through 303.521);
    (b) To expand and improve services for infants and toddlers with 
disabilities and their families under this part that are otherwise 
available;
    (c)(1) To provide FAPE as that term is defined in Sec.  303.15, in 
accordance with part B of the Act, to children with disabilities from 
their third birthday to the beginning of the following school year;
    (2) The provision of FAPE under paragraph (c)(1) of this section 
does not apply to children who continue to receive early intervention 
services under this part in accordance with paragraph (d) of this 
section and Sec.  303.211;
    (d) With the written consent of the parents, to continue to provide 
early intervention services under this part, in lieu of FAPE provided in 
accordance with part B of the Act, to children with disabilities from 
their third birthday (pursuant to Sec.  303.211) until those children 
enter, or are eligible under State law to enter, kindergarten; and
    (e) In any State that does not provide services under Sec.  303.204 
for at-risk infants and toddlers, as defined in Sec.  303.5, to 
strengthen the statewide system by initiating, expanding, or improving 
collaborative efforts related to at-risk infants and toddlers, including 
establishing linkages with appropriate public and private community-
based organizations, services, and personnel for the purposes of--
    (1) Identifying and evaluating at-risk infants and toddlers;
    (2) Making referrals for the infants and toddlers identified and 
evaluated under paragraph (e)(1) of this section; and
    (3) Conducting periodic follow-up on each referral, to determine if 
the status of the infant or toddler involved has changed with respect to 
the eligibility of the infant or toddler for services under this part.

(Authority: 20 U.S.C. 1435(a)(10)-(12), 1437(b), 1438)

                Payor of Last Resort--General Provisions

Sec.  303.510  Payor of last resort.

    (a) Nonsubstitution of funds. Except as provided in paragraph (b) of 
this section, funds under this part may not be used to satisfy a 
financial commitment for services that would otherwise have been paid 
for from another public or private source, including any medical program 
administered by the Department of Defense, but for the enactment of part 
C of the Act. Therefore, funds under this part may be used only for 
early intervention services that an infant or toddler with a disability 
needs but is not currently entitled to receive or have payment made from 
any other Federal, State, local, or private source (subject to 
Sec. Sec.  303.520 and 303.521).
    (b) Interim payments--reimbursement. If necessary to prevent a delay 
in the timely provision of appropriate early intervention services to a 
child or the child's family, funds under this part may be used to pay 
the provider of

[[Page 229]]

services (for services and functions authorized under this part, 
including health services, as defined in Sec.  303.16 (but not medical 
services), functions of the child find system described in Sec. Sec.  
303.115 through 303.117 and Sec. Sec.  303.301 through 303.320, and 
evaluations and assessments in Sec.  303.321), pending reimbursement 
from the agency or entity that has ultimate responsibility for the 
payment.
    (c) Non-reduction of benefits. Nothing in this part may be construed 
to permit a State to reduce medical or other assistance available in the 
State or to alter eligibility under Title V of the Social Security Act, 
42 U.S.C. 701, et seq. (SSA) (relating to maternal and child health) or 
Title XIX of the SSA, 42 U.S.C. 1396 (relating to Medicaid), including 
section 1903(a) of the SSA regarding medical assistance for services 
furnished to an infant or toddler with a disability when those services 
are included in the child's IFSP adopted pursuant to part C of the Act.

(Authority: 20 U.S.C. 1435(a)(10)(B), 1437(a)(2), 1440(a), 1440(c))

Sec.  303.511  Methods to ensure the provision of, and financial 
          responsibility for, Part C services.

    (a) General. Each State must ensure that it has in place methods for 
State interagency coordination. Under these methods, the Chief Executive 
Officer of a State or designee of the Officer must ensure that the 
interagency agreement or other method for interagency coordination is in 
effect between each State public agency and the designated lead agency 
in order to ensure--
    (1) The provision of, and establishing financial responsibility for, 
early intervention services provided under this part; and
    (2) Such services are consistent with the requirement in section 635 
of the Act and the State's application under section 637 of the Act, 
including the provision of such services during the pendency of any 
dispute between State agencies.
    (b) The methods in paragraph (a) of this section must meet all 
requirements in this section and be set forth in one of the following:
    (1) State law or regulation;
    (2) Signed interagency and intra-agency agreements between 
respective agency officials that clearly identify the financial and 
service provision responsibilities of each agency (or entity within the 
agency); or
    (3) Other appropriate written methods determined by the Governor of 
the State, or the Governor's designee, and approved by the Secretary 
through the review and approval of the State's application.
    (c) Procedures for resolving disputes. (1) Each method must include 
procedures for achieving a timely resolution of intra-agency and 
interagency disputes about payments for a given service, or disputes 
about other matters related to the State's early intervention service 
program. Those procedures must include a mechanism for resolution of 
disputes within agencies and for the Governor, Governor's designee, or 
the lead agency to make a final determination for interagency disputes, 
which determination must be binding upon the agencies involved.
    (2) The method must--
    (i) Permit the agency to resolve its own internal disputes (based on 
the agency's procedures that are included in the agreement), so long as 
the agency acts in a timely manner; and
    (ii) Include the process that the lead agency will follow in 
achieving resolution of intra-agency disputes, if a given agency is 
unable to resolve its own internal disputes in a timely manner.
    (3) If, during the lead agency's resolution of the dispute, the 
Governor, Governor's designee, or lead agency determines that the 
assignment of financial responsibility under this section was 
inappropriately made--
    (i) The Governor, Governor's designee, or lead agency must reassign 
the financial responsibility to the appropriate agency; and
    (ii) The lead agency must make arrangements for reimbursement of any 
expenditures incurred by the agency originally assigned financial 
responsibility.
    (d) Delivery of services in a timely manner. The methods adopted by 
the State under this section must--
    (1) Include a mechanism to ensure that no services that a child is 
entitled to receive under this part are delayed

[[Page 230]]

or denied because of disputes between agencies regarding financial or 
other responsibilities; and
    (2) Be consistent with the written funding policies adopted by the 
State under this subpart and include any provisions the State has 
adopted under Sec.  303.520 regarding the use of insurance to pay for 
part C services.
    (e) Additional components. Each method must include any additional 
components necessary to ensure effective cooperation and coordination 
among, and the lead agency's general supervision (including monitoring) 
of, EIS providers (including all public agencies) involved in the 
State's early intervention service programs.

(Authority: 20 U.S.C. 1435(a)(10), 1437(a)(2), 1440(b))

Payor of Last Resort & System of Payments Provisions--Use of Insurance, 
                 Benefits, Systems of Payments, and Fees

Sec.  303.520  Policies related to use of public benefits or insurance 
          or private insurance to pay for Part C services.

    (a) Use of public benefits or public insurance to pay for part C 
services. (1) A State may not use the public benefits or insurance of a 
child or parent to pay for part C services unless the State provides 
written notification, consistent with Sec.  303.520(a)(3), to the 
child's parents, and the State meets the no-cost protections identified 
in paragraph (a)(2) of this section.
    (2) With regard to using the public benefits or insurance of a child 
or parent to pay for part C services, the State--
    (i) May not require a parent to sign up for or enroll in public 
benefits or insurance programs as a condition of receiving part C 
services and must obtain consent prior to using the public benefits or 
insurance of a child or parent if that child or parent is not already 
enrolled in such a program;
    (ii) Must obtain consent, consistent with Sec. Sec.  303.7 and 
303.420(a)(4), to use a child's or parent's public benefits or insurance 
to pay for part C services if that use would--
    (A) Decrease available lifetime coverage or any other insured 
benefit for that child or parent under that program;
    (B) Result in the child's parents paying for services that would 
otherwise be covered by the public benefits or insurance program;
    (C) Result in any increase in premiums or discontinuation of public 
benefits or insurance for that child or that child's parents; or
    (D) Risk loss of eligibility for the child or that child's parents 
for home and community-based waivers based on aggregate health-related 
expenditures.
    (iii) If the parent does not provide consent under paragraphs 
(a)(2)(i) or (a)(2)(ii) of this section, the State must still make 
available those part C services on the IFSP to which the parent has 
provided consent.
    (3) Prior to using a child's or parent's public benefits or 
insurance to pay for part C services, the State must provide written 
notification to the child's parents. The notification must include--
    (i) A statement that parental consent must be obtained under Sec.  
303.414, if that provision applies, before the State lead agency or EIS 
provider discloses, for billing purposes, a child's personally 
identifiable information to the State public agency responsible for the 
administration of the State's public benefits or insurance program 
(e.g., Medicaid);
    (ii) A statement of the no-cost protection provisions in Sec.  
303.520(a)(2) and that if the parent does not provide the consent under 
Sec.  303.520(a)(2), the State lead agency must still make available 
those part C services on the IFSP for which the parent has provided 
consent;
    (iii) A statement that the parents have the right under Sec.  
303.414, if that provision applies, to withdraw their consent to 
disclosure of personally identifiable information to the State public 
agency responsible for the administration of the State's public benefits 
or insurance program (e.g., Medicaid) at any time; and
    (iv) A statement of the general categories of costs that the parent 
would incur as a result of participating in a public benefits or 
insurance program (such as co-payments or deductibles, or the required 
use of private insurance as the primary insurance).

[[Page 231]]

    (4) If a State requires a parent to pay any costs that the parent 
would incur as a result of the State's using a child's or parent's 
public benefits or insurance to pay for part C services (such as co-
payments or deductibles, or the required use of private insurance as the 
primary insurance), those costs must be identified in the State's system 
of payments policies under Sec.  303.521 and included in the 
notification provided to the parent under paragraph (a)(3) of this 
section; otherwise, the State cannot charge those costs to the parent.
    (b) Use of private insurance to pay for Part C services. (1)(i) The 
State may not use the private insurance of a parent of an infant or 
toddler with a disability to pay for part C services unless the parent 
provides parental consent, consistent with Sec. Sec.  303.7 and 
303.420(a)(4), to use private insurance to pay for part C services for 
his or her child or the State meets one of the exceptions in paragraph 
(b)(2) of this section. This includes the use of private insurance when 
such use is a prerequisite for the use of public benefits or insurance. 
Parental consent must be obtained--
    (A) When the lead agency or EIS provider seeks to use the parent's 
private insurance or benefits to pay for the initial provision of an 
early intervention service in the IFSP; and
    (B) Each time consent for services is required under Sec.  
303.420(a)(3) due to an increase (in frequency, length, duration, or 
intensity) in the provision of services in the child's IFSP.
    (ii) If a State requires a parent to pay any costs that the parent 
would incur as a result of the State's use of private insurance to pay 
for early intervention services (such as co-payments, premiums, or 
deductibles), those costs must be identified in the State's system of 
payments policies under Sec.  303.521; otherwise, the State may not 
charge those costs to the parent.
    (iii) When obtaining parental consent required under paragraph 
(b)(1)(i) of this section or initially using benefits under a child or 
parent's private insurance policy to pay for an early intervention 
service under paragraph (b)(2) of this section, the State must provide 
to the parent a copy of the State's system of payments policies that 
identifies the potential costs that the parent may incur when their 
private insurance is used to pay for early intervention services under 
this part (such as co-payments, premiums, or deductibles or other long-
term costs such as the loss of benefits because of annual or lifetime 
health insurance coverage caps under the insurance policy).
    (2) The parental consent requirements in paragraph (b)(1) of this 
section do not apply if the State has enacted a State statute regarding 
private health insurance coverage for early intervention services under 
part C of the Act, that expressly provides that--
    (i) The use of private health insurance to pay for part C services 
cannot count towards or result in a loss of benefits due to the annual 
or lifetime health insurance coverage caps for the infant or toddler 
with a disability, the parent, or the child's family members who are 
covered under that health insurance policy;
    (ii) The use of private health insurance to pay for part C services 
cannot negatively affect the availability of health insurance to the 
infant or toddler with a disability, the parent, or the child's family 
members who are covered under that health insurance policy, and health 
insurance coverage may not be discontinued for these individuals due to 
the use of the health insurance to pay for services under part C of the 
Act; and
    (iii) The use of private health insurance to pay for part C services 
cannot be the basis for increasing the health insurance premiums of the 
infant or toddler with a disability, the parent, or the child's family 
members covered under that health insurance policy.
    (3) If a State has enacted a State statute that meets the 
requirements in paragraph (b)(2) of this section, regarding the use of 
private health insurance coverage to pay for early intervention services 
under part C of the Act, the State may reestablish a new baseline of 
State and local expenditures under Sec.  303.225(b) in the next Federal 
fiscal year following the effective date of the statute.
    (c) Inability to pay. If a parent or family of an infant or toddler 
with a disability is determined unable to pay under the State's 
definition of inability to pay under Sec.  303.521(a)(3) and does not

[[Page 232]]

provide consent under paragraph (b)(1), the lack of consent may not be 
used to delay or deny any services under this part to that child or 
family.
    (d) Proceeds or funds from public insurance or benefits or from 
private insurance. (1) Proceeds or funds from public insurance or 
benefits or from private insurance are not treated as program income for 
purposes of 2 CFR 200.307.
    (2) If the State receives reimbursements from Federal funds (e.g., 
Medicaid reimbursements attributable directly to Federal funds) for 
services under part C of the Act, those funds are considered neither 
State nor local funds under Sec.  303.225(b).
    (3) If the State spends funds from private insurance for services 
under this part, those funds are considered neither State nor local 
funds under Sec.  303.225.
    (e) Funds received from a parent or family member under a State's 
system of payments. Funds received by the State from a parent or family 
member under the State's system of payments established under Sec.  
303.521 are considered program income under 2 CFR 200.307. These funds--
    (1) Are not deducted from the total allowable costs charged under 
part C of the Act (as set forth in 2 CFR 200.307(e)(1));
    (2) Must be used for the State's part C early intervention services 
program, consistent with 2 CFR 200.307(e)(2); and
    (3) Are considered neither State nor local funds under Sec.  
303.225(b).

(Authority: 20 U.S.C. 1432(4)(B), 1435(a)(10), 1439(a))

[76 FR 60244, Sept. 28, 2011, as amended at 79 FR 76097, Dec. 19, 2014]

Sec.  303.521  System of payments and fees.

    (a) General. If a State elects to adopt a system of payments in 
Sec.  303.500(b), the State's system of payments policies must be in 
writing and specify which functions or services, if any, are subject to 
the system of payments (including any fees charged to the family as a 
result of using one or more of the family's public insurance or benefits 
or private insurance), and include--
    (1) The payment system and schedule of sliding or cost participation 
fees that may be charged to the parent for early intervention services 
under this part;
    (2) The basis and amount of payments or fees;
    (3) The State's definition of ability to pay (including its 
definition of income and family expenses, such as extraordinary medical 
expenses), its definition of inability to pay, and when and how the 
State makes its determination of the ability or inability to pay;
    (4) An assurance that--
    (i) Fees will not be charged to parents for the services that a 
child is otherwise entitled to receive at no cost (including those 
services identified under paragraphs (a)(4)(ii), (b), and (c) of this 
section);
    (ii) The inability of the parents of an infant or toddler with a 
disability to pay for services will not result in a delay or denial of 
services under this part to the child or the child's family such that, 
if the parent or family meets the State's definition of inability to 
pay, the infant or toddler with a disability must be provided all part C 
services at no cost.
    (iii) Families will not be charged any more than the actual cost of 
the part C service (factoring in any amount received from other sources 
for payment for that service); and
    (iv) Families with public insurance or benefits or private insurance 
will not be charged disproportionately more than families who do not 
have public insurance or benefits or private insurance;
    (5) Provisions stating that the failure to provide the requisite 
income information and documentation may result in a charge of a fee on 
the fee schedule and specify the fee to be charged; and
    (6) Provisions that permit, but do not require, the lead agency to 
use part C or other funds to pay for costs such as the premiums, 
deductibles, or co-payments.
    (b) Functions not subject to fees. The following are required 
functions that must be carried out at public expense, and for which no 
fees may be charged to parents:
    (1) Implementing the child find requirements in Sec. Sec.  303.301 
through 303.303.

[[Page 233]]

    (2) Evaluation and assessment, in accordance with Sec.  303.320, and 
the functions related to evaluation and assessment in Sec.  303.13(b).
    (3) Service coordination services, as defined in Sec. Sec.  
303.13(b)(11) and 303.33.
    (4) Administrative and coordinative activities related to--
    (i) The development, review, and evaluation of IFSPs and interim 
IFSPs in accordance with Sec. Sec.  303.342 through 303.345; and
    (ii) Implementation of the procedural safeguards in subpart E of 
this part and the other components of the statewide system of early 
intervention services in subpart D of this part and this subpart.
    (c) States with FAPE mandates, or that use funds under Part B of the 
Act to serve children under age three. If a State has in effect a State 
law requiring the provision of FAPE for, or uses part B funds to serve, 
an infant or toddler with a disability under the age of three (or any 
subset of infants and toddlers with disabilities under the age of 
three), the State may not charge the parents of the infant or toddler 
with a disability for any services (e.g., physical or occupational 
therapy) under this part that are part of FAPE for that infant or 
toddler and the child's family, and those FAPE services must meet the 
requirements of both parts B and C of the Act.
    (d) Family fees. (1) Fees or costs collected from a parent or the 
child's family to pay for early intervention services under a State's 
system of payments are program income under 2 CFR 200.307. A State may 
add this program income to its part C grant funds, rather than deducting 
the program income from the amount of the State's part C grant. Any fees 
collected must be used for the purposes of the grant under part C of the 
Act.
    (2) Fees collected under a system of payments are considered neither 
State nor local funds under Sec.  303.225(b).
    (e) Procedural Safeguards. (1) Each State system of payments must 
include written policies to inform parents that a parent who wishes to 
contest the imposition of a fee, or the State's determination of the 
parent's ability to pay, may do one of the following:
    (i) Participate in mediation in accordance with Sec.  303.431.
    (ii) Request a due process hearing under Sec.  303.436 or 303.441, 
whichever is applicable.
    (iii) File a State complaint under Sec.  303.434.
    (iv) Use any other procedure established by the State for speedy 
resolution of financial claims, provided that such use does not delay or 
deny the parent's procedural rights under this part, including the right 
to pursue, in a timely manner, the redress options described in 
paragraphs (e)(2)(i) through (e)(2)(iii) of this section.
    (2) A State must inform parents of these procedural safeguard 
options by either--
    (i) Providing parents with a copy of the State's system of payments 
policies when obtaining consent for provision of early intervention 
services under Sec.  303.420(a)(3); or
    (ii) Including this information with the notice provided to parents 
under Sec.  303.421.

(Authority: 20 U.S.C. 1432(4)(B), 1439(a), 1440)

[76 FR 60244, Sept. 28, 2011, as amended at 79 FR 76097, Dec. 19, 2014]

            Subpart G_State Interagency Coordinating Council

Sec.  303.600  Establishment of Council.

    (a) A State that desires to receive financial assistance under part 
C of the Act must establish a State Interagency Coordinating Council 
(Council) as defined in Sec.  303.8.
    (b) The Council must be appointed by the Governor. The Governor must 
ensure that the membership of the Council reasonably represents the 
population of the State.
    (c) The Governor must designate a member of the Council to serve as 
the chairperson of the Council or require the Council to do so. Any 
member of the Council who is a representative of the lead agency 
designated under Sec.  303.201 may not serve as the chairperson of the 
Council.

(Authority: 20 U.S.C. 1441(a))

Sec.  303.601  Composition.

    (a) The Council must be composed as follows:

[[Page 234]]

    (1)(i) At least 20 percent of the members must be parents, including 
minority parents, of infants or toddlers with disabilities or children 
with disabilities aged 12 years or younger, with knowledge of, or 
experience with, programs for infants and toddlers with disabilities.
    (ii) At least one parent member must be a parent of an infant or 
toddler with a disability or a child with a disability aged six years or 
younger.
    (2) At least 20 percent of the members must be public or private 
providers of early intervention services.
    (3) At least one member must be from the State legislature.
    (4) At least one member must be involved in personnel preparation.
    (5) At least one member must--
    (i) Be from each of the State agencies involved in the provision of, 
or payment for, early intervention services to infants and toddlers with 
disabilities and their families; and
    (ii) Have sufficient authority to engage in policy planning and 
implementation on behalf of these agencies.
    (6) At least one member must--
    (i) Be from the SEA responsible for preschool services to children 
with disabilities; and
    (ii) Have sufficient authority to engage in policy planning and 
implementation on behalf of the SEA.
    (7) At least one member must be from the agency responsible for the 
State Medicaid and CHIP program.
    (8) At least one member must be from a Head Start or Early Head 
Start agency or program in the State.
    (9) At least one member must be from a State agency responsible for 
child care.
    (10) At least one member must be from the agency responsible for the 
State regulation of private health insurance.
    (11) At least one member must be a representative designated by the 
Office of the Coordination of Education of Homeless Children and Youth.
    (12) At least one member must be a representative from the State 
child welfare agency responsible for foster care.
    (13) At least one member must be from the State agency responsible 
for children's mental health.
    (b) The Governor may appoint one member to represent more than one 
program or agency listed in paragraphs (a)(7) through (a)(13) of this 
section.
    (c) The Council may include other members selected by the Governor, 
including a representative from the Bureau of Indian Education (BIE) or, 
where there is no school operated or funded by the BIE in the State, 
from the Indian Health Service or the tribe or tribal council.
    (d) No member of the Council may cast a vote on any matter that 
would provide direct financial benefit to that member or otherwise give 
the appearance of a conflict of interest under State law.

(Authority: 20 U.S.C. 1231d, 1441(b), 1441(f))

Sec.  303.602  Meetings.

    (a) The Council must meet, at a minimum, on a quarterly basis, and 
in such places as it determines necessary.
    (b) The meetings must--
    (1) Be publicly announced sufficiently in advance of the dates they 
are to be held to ensure that all interested parties have an opportunity 
to attend;
    (2) To the extent appropriate, be open and accessible to the general 
public; and
    (3) As needed, provide for interpreters for persons who are deaf and 
other necessary services for Council members and participants. The 
Council may use funds under this part to pay for those services.

(Authority: 20 U.S.C. 1441(c))

Sec.  303.603  Use of funds by the Council.

    (a) Subject to the approval by the Governor, the Council may use 
funds under this part to--
    (1) Conduct hearings and forums;
    (2) Reimburse members of the Council for reasonable and necessary 
expenses for attending Council meetings and performing Council duties 
(including child care for parent representatives);
    (3) Pay compensation to a member of the Council if the member is not 
employed or must forfeit wages from other employment when performing 
official Council business;
    (4) Hire staff; and

[[Page 235]]

    (5) Obtain the services of professional, technical, and clerical 
personnel as may be necessary to carry out the performance of its 
functions under part C of the Act.
    (b) Except as provided in paragraph (a) of this section, Council 
members must serve without compensation from funds available under part 
C of the Act.

(Authority: 20 U.S.C. 1441(d))

Sec.  303.604  Functions of the Council--required duties.

    (a) Advising and assisting the lead agency. The Council must advise 
and assist the lead agency in the performance of its responsibilities in 
section 635(a)(10) of the Act, including--
    (1) Identification of sources of fiscal and other support for 
services for early intervention service programs under part C of the 
Act;
    (2) Assignment of financial responsibility to the appropriate 
agency;
    (3) Promotion of methods (including use of intra-agency and 
interagency agreements) for intra-agency and interagency collaboration 
regarding child find under Sec. Sec.  303.115 and 303.302, monitoring 
under Sec.  303.120 and Sec. Sec.  303.700 through 303.708, financial 
responsibility and provision of early intervention services under 
Sec. Sec.  303.202 and 303.511, and transition under Sec.  303.209; and
    (4) Preparation of applications under this part and amendments to 
those applications.
    (b) Advising and assisting on transition. The Council must advise 
and assist the SEA and the lead agency regarding the transition of 
toddlers with disabilities to preschool and other appropriate services.
    (c) Annual report to the Governor and to the Secretary. (1) The 
Council must--
    (i) Prepare and submit an annual report to the Governor and to the 
Secretary on the status of early intervention service programs for 
infants and toddlers with disabilities and their families under part C 
of the Act operated within the State; and
    (ii) Submit the report to the Secretary by a date that the Secretary 
establishes.
    (2) Each annual report must contain the information required by the 
Secretary for the year for which the report is made.

(Authority: 20 U.S.C. 1441(e)(1))

Sec.  303.605  Authorized activities by the Council.

    The Council may carry out the following activities:
    (a) Advise and assist the lead agency and the SEA regarding the 
provision of appropriate services for children with disabilities from 
birth through age five.
    (b) Advise appropriate agencies in the State with respect to the 
integration of services for infants and toddlers with disabilities and 
at-risk infants and toddlers and their families, regardless of whether 
at-risk infants and toddlers are eligible for early intervention 
services in the State.
    (c) Coordinate and collaborate with the State Advisory Council on 
Early Childhood Education and Care for children, as described in section 
642B(b)(1)(A)(i) of the Head Start Act, 42 U.S.C. 9837b(b)(1)(A)(i), if 
applicable, and other State interagency early learning initiatives, as 
appropriate.

(Authority: 20 U.S.C. 1435(a)(10), 1441(e)(2))

   Subpart H_State Monitoring and Enforcement; Federal Monitoring and 
             Enforcement; Reporting; and Allocation of Funds

              Federal and State Monitoring and Enforcement

Sec.  303.700  State monitoring and enforcement.

    (a) The lead agency must--
    (1) Monitor the implementation of this part;
    (2) Make determinations annually about the performance of each EIS 
program using the categories identified in Sec.  303.703(b);
    (3) Enforce this part consistent with Sec.  303.704, using 
appropriate enforcement mechanisms, which must include, if applicable, 
the enforcement mechanisms identified in Sec.  303.704(a)(1) (technical 
assistance) and Sec.  303.704(a)(2) (imposing conditions on the lead 
agency's funding of an EIS program or, if the lead agency does not 
provide part C funds to the

[[Page 236]]

EIS program, an EIS provider), Sec.  303.704(b)(2)(i) (corrective action 
or improvement plan) and Sec.  303.704(b)(2)(iv) (withholding of funds, 
in whole or in part by the lead agency), and Sec.  303.704(c)(2) 
(withholding of funds, in whole or in part by the lead agency); and
    (4) Report annually on the performance of the State and of each EIS 
program under this part as provided in Sec.  303.702.
    (b) The primary focus of the State's monitoring activities must be 
on--
    (1) Improving early intervention results and functional outcomes for 
all infants and toddlers with disabilities; and
    (2) Ensuring that EIS programs meet the program requirements under 
part C of the Act, with a particular emphasis on those requirements that 
are most closely related to improving early intervention results for 
infants and toddlers 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 lead agency must monitor each EIS program 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) Early intervention services in natural environments.
    (2) State exercise of general supervision, including child find, 
effective monitoring, the use of resolution sessions (if the State 
adopts part B due process hearing procedures under Sec.  303.430(d)(2)), 
mediation, and a system of transition services as defined in section 
637(a)(9) of the Act.
    (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 EIS programs and 
providers, 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 Office of Management and Budget under control number 1820-
0578)

(Authority: 20 U.S.C. 1416(a), 1442)

Sec.  303.701  State performance plans and data collection.

    (a) General. Each State must have in place a performance plan that 
meets the requirements described in section 616 of the Act; is approved 
by the Secretary; and includes an evaluation of the State's efforts to 
implement the requirements and purposes of part C of the Act, a 
description of how the State will improve implementation, and measurable 
and rigorous targets for the indicators established by the Secretary 
under the priority areas described in Sec.  303.700(d).
    (b) Review of State performance plan. Each State must review its 
State performance plan at least once every six years and submit any 
amendments to the Secretary.
    (c) Data collection. (1) Each State must collect valid and reliable 
information as needed to report annually to the Secretary under Sec.  
303.702(b)(2) 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 
data for a particular indicator through State monitoring or sampling, 
the State must collect and report data on those indicators for each EIS 
program at least once during the six-year period of a State performance 
plan.
    (3) Nothing in part C of the Act or these regulations may 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 C of the Act.

(Approved by Office of Management and Budget under control number 1820-
0578)

(Authority: 20 U.S.C. 1416(b), 1442)

Sec.  303.702  State use of targets and reporting.

    (a) General. Each State must use the targets established in the 
State's performance plan under Sec.  303.701 and the

[[Page 237]]

priority areas described in Sec.  303.700(d) to analyze the performance 
of each EIS program in implementing part C of the Act.
    (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 EIS 
program 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 the State's performance plan under Sec.  303.701(a), annual 
performance reports under paragraph (b)(2) of this section, and the 
State's annual reports on the performance of each EIS program under 
paragraph (b)(1)(i)(A) of this section available through public means, 
including by posting on the Web site of the lead agency, distribution to 
the media, and distribution to EIS programs.
    (ii) If the State, in meeting the requirements of paragraph 
(b)(1)(i)(A) of this section, collects data through State monitoring or 
sampling, the State must include in its public report on EIS programs 
under paragraph (b)(1)(i)(A) of this section the most recently available 
performance data on each EIS program and the date the data were 
collected.
    (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 Office of Management and Budget under control number 1820-
0578)

(Authority: 20 U.S.C. 1416(b)(2)(B)-(C), 1442)

Sec.  303.703  Secretary's review and determination regarding State 
          performance.

    (a) Review. The Secretary annually reviews the State's performance 
report submitted pursuant to Sec.  303.702(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 C of the Act;
    (ii) Needs assistance in implementing the requirements of part C of 
the Act;
    (iii) Needs intervention in implementing the requirements of part C 
of the Act; or
    (iv) Needs substantial intervention in implementing the requirements 
of part C 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)(i) of this section 
consists of an opportunity to meet with the Assistant Secretary for 
Special Education and Rehabilitative Services to demonstrate why the 
Secretary should not make the determination described in paragraph 
(b)(1)(iii) or (b)(1)(iv) of this section.

(Authority: 20 U.S.C. 1416(d), 1442)

Sec.  303.704  Enforcement.

    (a) Needs assistance. If the Secretary determines, for two 
consecutive years, that a State needs assistance under Sec.  
303.703(b)(1)(ii) in implementing the requirements of part C 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

[[Page 238]]

the Secretary, and other federally funded nonprofit agencies, and 
requires the State to work with appropriate entities. This 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 
areas of concern within a specified period of time;
    (ii) Assistance in identifying and implementing professional 
development, early intervention service provision strategies, and 
methods of early intervention service provision that are based on 
scientifically based research;
    (iii) Designating and using administrators, service coordinators, 
service providers, and other personnel from the EIS program 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) Identifies the State as a high-risk grantee and imposes special 
conditions on the State's grant under part C of the Act.
    (b) Needs intervention. If the Secretary determines, for three or 
more consecutive years, that a State needs intervention under Sec.  
303.703(b)(1)(iii) in implementing the requirements of part C of the 
Act, the following 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 (GEPA), 
20 U.S.C. 1234f, if the Secretary has reason to believe that the State 
cannot correct the problem within one year.
    (iii) Seeks to recover funds under section 452 of GEPA, 20 U.S.C. 
1234a.
    (iv) Withholds, in whole or in part, any further payments to the 
State under part C of the Act.
    (v) 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 C of the Act or that there is a substantial failure to comply with 
any requirement under part C of the Act by the lead agency or an EIS 
program in the State, the Secretary takes one or more of the following 
actions:
    (1) Recovers funds under section 452 of GEPA, 20 U.S.C. 1234a.
    (2) Withholds, in whole or in part, any further payments to the 
State under part C of the Act.
    (3) Refers the case to the Office of Inspector General of 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 Labor 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)-(3), 1416(e)(5), 1442)

Sec.  303.705  Withholding funds.

    (a) Opportunity for hearing. Prior to withholding any funds under 
part C of the Act, the Secretary provides reasonable notice and an 
opportunity for a hearing to the lead agency involved, pursuant to the 
procedures in Sec. Sec.  303.231 through 303.236.
    (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 C of the Act, or both, after the recipient has 
been given reasonable notice and

[[Page 239]]

an opportunity to show cause why future payments or authority to 
obligate funds under part C of the Act should not be suspended.
    (c) Nature of withholding. (1) Limitation. If the Secretary 
determines that it is appropriate to withhold further payments under 
section 616(e)(2) or (e)(3) of the Act, the Secretary may determine--
    (i) That such withholding will be limited to programs or projects, 
or portions of programs or projects, that affected the Secretary's 
determination under Sec.  303.703(b)(1); or
    (ii) That the lead agency must not make further payments of funds 
under part C of the Act to specified State agencies, EIS programs or, if 
the lead agency does not provide part C funds to the EIS program, EIS 
providers that caused or were involved in the Secretary's determination 
under Sec.  303.703(b)(1).
    (2) Withholding until rectified. Until the Secretary is satisfied 
that the condition that caused the initial withholding has been 
substantially rectified--
    (i) Payments to the State under part C of the Act must be withheld 
in whole or in part; and
    (ii) Payments by the lead agency under part C of the Act must be 
limited to State agencies and EIS providers whose actions did not cause 
or were not involved in the Secretary's determination under Sec.  
303.703(b)(1).

(Authority: 20 U.S.C. 1416(e)(4), 1416(e)(6), 1442)

Sec.  303.706  Public attention.

    Whenever a State receives notice that the Secretary is proposing to 
take or is taking an enforcement action pursuant to Sec.  303.704, the 
State must, by means of a public notice, take such measures as may be 
necessary to bring the pendency of an action pursuant to section 616(e) 
of the Act and Sec.  303.704 of the regulations to the attention of the 
public within the State, including by posting the notice on the Web site 
of the lead agency and distributing the notice to the media and to EIS 
programs.

(Authority: 20 U.S.C. 1416(e)(7), 1442)

Sec.  303.707  Rule of construction.

    Nothing in this subpart may be construed to restrict the Secretary 
from utilizing any authority under GEPA, 20 U.S.C. 1221 et seq., the 
regulations 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 
3474.5(e).

(Authority: 20 U.S.C. 1416(g), 1442)

[79 FR 76097, Dec. 19, 2014]

Sec.  303.708  State enforcement.

    Nothing in this subpart may be construed to restrict a State from 
utilizing any other authority available to it to monitor and enforce the 
requirements of the Act.

(Authority: 20 U.S.C. 1416(a)(1)(C), 1442)

                      Reports--Program Information

Sec.  303.720  Data requirements--general.

    (a) The lead agency must annually report to the Secretary and to the 
public on the information required by section 618 of the Act at the 
times specified by the Secretary.
    (b) The lead agency must submit the report to the Secretary in the 
manner prescribed by the Secretary.

(Approved by Office of Management and Budget under control number 1820-
0557)

(Authority: 20 U.S.C. 1418, 1435(a)(14), 1442)

Sec.  303.721  Annual report of children served--report requirement.

    (a) For the purposes of the annual report required by section 618 of 
the Act and Sec.  303.720, the lead agency must count and report the 
number of infants and toddlers receiving early intervention services on 
any date between October 1 and December 1 of each year. The report must 
include--
    (1) The number and percentage of infants and toddlers with 
disabilities in the State, by race, gender, and ethnicity, who are 
receiving early intervention services (and include in this number any 
children reported to it by tribes, tribal organizations, and consortia 
under Sec.  303.731(e)(1));
    (2) The number and percentage of infants and toddlers with 
disabilities, by race, gender, and ethnicity, who, from

[[Page 240]]

birth through age two, stopped receiving early intervention services 
because of program completion or for other reasons; and
    (3) The number and percentage of at-risk infants and toddlers (as 
defined in section 632(1) of the Act), by race and ethnicity, who are 
receiving early intervention services under part C of the Act.
    (b) If a State adopts the option under section 635(c) of the Act and 
Sec.  303.211 to make services under this part available to children 
ages three and older, the State must submit to the Secretary a report on 
the number and percentage of children with disabilities who are eligible 
for services under section 619 of the Act but whose parents choose for 
those children to continue to receive early intervention services.
    (c) The number of due process complaints filed under section 615 of 
the Act, the number of hearings conducted and the number of mediations 
held, and the number of settlement agreements reached through such 
mediations.

(Approved by Office of Management and Budget under control number 1820-
0557)

(Authority: 20 U.S.C. 1418(a)(1)(B), (C), (F), (G), and (H), 
1435(a)(14), 1435(c)(3), 1442)

Sec.  303.722  Data reporting.

    (a) Protection of identifiable data. The data described in section 
618(a) of the Act and in Sec.  303.721 must be publicly reported by each 
State in a manner that does not result in disclosure of data 
identifiable to individual children.
    (b) Sampling. The Secretary may permit States and outlying areas to 
obtain data in section 618(a) of the Act through sampling.

(Approved by Office of Management and Budget under control number 1820-
0557)

(Authority: 20 U.S.C. 1418(b), 1435(a)(14), 1442)

Sec.  303.723  Annual report of children served--certification.

    The lead agency must include in its report a certification signed by 
an authorized official of the agency that the information provided under 
Sec.  303.721 is an accurate and unduplicated count of infants and 
toddlers with disabilities receiving early intervention services.

(Approved by Office of Management and Budget under control number 1820-
0557)

(Authority: 20 U.S.C. 1418(a)(3), 1435(a)(14), 1442)

Sec.  303.724  Annual report of children served--other responsibilities 
          of the lead agency.

    In addition to meeting the requirements of Sec. Sec.  303.721 
through 303.723, the lead agency must conduct its own child count or use 
EIS providers to complete its child count. If the lead agency uses EIS 
providers to complete its child count, then the lead agency must--
    (a) Establish procedures to be used by EIS providers in counting the 
number of children with disabilities receiving early intervention 
services;
    (b) Establish dates by which those EIS providers must report to the 
lead agency to ensure that the State complies with Sec.  303.721(a);
    (c) Obtain certification from each EIS provider that an unduplicated 
and accurate count has been made;
    (d) Aggregate the data from the count obtained from each EIS 
provider and prepare the report required under Sec. Sec.  303.721 
through 303.723; and
    (e) Ensure that documentation is maintained to enable the State and 
the Secretary to audit the accuracy of the count.

(Approved by Office of Management and Budget under control number 1820-
0557)

(Authority: 20 U.S.C. 1418(a), 1435(a)(14), 1442)

                           Allocation of Funds

Sec.  303.730  Formula for State allocations.

    (a) Reservation of funds for outlying areas. From the sums 
appropriated to carry out part C of the Act for any fiscal year, the 
Secretary may reserve not more than one percent for payments to American 
Samoa, the Commonwealth of the Northern Mariana Islands, Guam, and the 
United States Virgin Islands in accordance with their respective needs 
for assistance under part C of the Act.
    (b) Consolidation of funds. The provisions of the Omnibus 
Territories Act of

[[Page 241]]

1977, Pub. L. 95-134, permitting the consolidation of grants to the 
outlying areas, do not apply to the funds provided under part C of the 
Act.

(Authority: 20 U.S.C. 1443(a))

Sec.  303.731  Payments to Indians.

    (a) General. (1) The Secretary makes payments to the Secretary of 
the Interior under part C of the Act, which the Secretary of the 
Interior must distribute to tribes or tribal organizations (as defined 
under section 4 of the Indian Self-Determination and Education 
Assistance Act, as amended, 25 U.S.C. 450b), or consortia of those 
entities, for the coordination of assistance in the provision of early 
intervention services by States to infants and toddlers with 
disabilities and their families on reservations served by elementary and 
secondary schools for Indian children operated or funded by the 
Secretary of the Interior.
    (2) A tribe, tribal organization, or consortium of those entities is 
eligible to receive a payment under this section if the tribe, tribal 
organization, or consortium of those entities is on a reservation that 
is served by an elementary or secondary school operated or funded by the 
Secretary of the Interior.
    (3) The amount of the payment to the Secretary of the Interior under 
this section for any fiscal year is 1.25 percent of the aggregate amount 
available to all States under part C of the Act.
    (b) Allocation. For each fiscal year, the Secretary of the Interior 
must distribute the entire payment received under paragraph (a)(1) of 
this section by providing to each tribe, tribal organization, or 
consortium an amount based on the number of infants and toddlers 
residing on the reservation, as determined annually, divided by the 
total number of those children served by all tribes, tribal 
organizations, or consortia.
    (c) Information. To receive a payment under this section, the tribe, 
tribal organization, or consortium must submit the appropriate 
information to the Secretary of the Interior to determine the amounts to 
be distributed under paragraph (b) of this section.
    (d) Use of funds. (1) The funds received by a tribe, tribal 
organization, or consortium must be used to assist States in child find, 
screening, and other procedures for the early identification of Indian 
children under three years of age and for parent training. The funds 
also may be used to provide early intervention services in accordance 
with part C of the Act. These activities may be carried out directly or 
through contracts or cooperative agreements with the Bureau of Indian 
Education, local educational agencies, and other public or private 
nonprofit organizations. The tribe, tribal organization, or consortium 
is encouraged to involve Indian parents in the development and 
implementation of these activities.
    (2) The tribe, tribal organization, or consortium must, as 
appropriate, make referrals to local, State, or Federal entities for the 
provision of services or further diagnosis.
    (e) Reports. (1) To be eligible to receive a payment under paragraph 
(b) of this section, a tribe, tribal organization, or consortium must 
make a biennial report to the Secretary of the Interior of activities 
undertaken under this section, including the number of contracts and 
cooperative agreements entered into, the number of infants and toddlers 
contacted and receiving services for each year, and the estimated number 
of infants and toddlers needing services during the two years following 
the year in which the report is made. This report must include an 
assurance that the tribe, tribal organization, or consortium has 
provided the lead agency in the State child find information (including 
the names and dates of birth and parent contact information) for infants 
or toddlers with disabilities who are included in the report in order to 
meet the child find coordination and child count requirements in 
sections 618 and 643 of the Act.
    (2) The Secretary of the Interior must provide a summary of this 
information (including confirmation that each tribe, tribal 
organization, or consortium has provided to the Secretary of the 
Interior the assurance required under paragraph (e)(1) of this section) 
on a biennial basis to the Secretary along with such other information 
as

[[Page 242]]

required of the Secretary of the Interior under part C of the Act. The 
Secretary may require additional information from the Secretary of the 
Interior.
    (3) Within 90 days after the end of each fiscal year the Secretary 
of the Interior must provide the Secretary with a report on the payments 
distributed under this section. The report must include--
    (i) The name of each tribe, tribal organization, or combination of 
those entities that received a payment for the fiscal year;
    (ii) The amount of each payment; and
    (iii) The date of each payment.
    (f) Prohibited uses of funds. None of the funds under this section 
may be used by the Secretary of the Interior for administrative 
purposes, including child count and the provision of technical 
assistance.

(Authority: 20 U.S.C. 1443(b))

Sec.  303.732  State allotments.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, for each fiscal year, from the aggregate amount of funds 
available under part C of the Act for distribution to the States, the 
Secretary allots to each State an amount that bears the same ratio to 
the aggregate amount as the number of infants and toddlers in the State 
bears to the number of infants and toddlers in all States.
    (b) Minimum allocations. Except as provided in paragraph (c) of this 
section, no State may receive less than 0.5 percent of the aggregate 
amount available under this section or $500,000, whichever is greater.
    (c) Ratable reduction. (1) If the sums made available under part C 
of the Act for any fiscal year are insufficient to pay the full amount 
that all States are eligible to receive under this section for that 
year, the Secretary ratably reduces the allotments to those States for 
such year.
    (2) If additional funds become available for making payments under 
this section, allotments that were reduced under paragraph (c)(1) of 
this section will be increased on the same basis the allotments were 
reduced.
    (d) Definitions. For the purpose of allotting funds to the States 
under this section--
    (1) Aggregate amount means the amount available for distribution to 
the States after the Secretary determines the amount of payments to be 
made to the Secretary of the Interior under Sec.  303.731, to the 
outlying areas under Sec.  303.730, and any amount to be reserved for 
State incentive grants under Sec.  303.734;
    (2) Infants and toddlers means children from birth through age two 
in the general population, based on the most recent satisfactory data as 
determined by the Secretary; and
    (3) State means each of the 50 States, the District of Columbia, and 
the Commonwealth of Puerto Rico.

(Authority: 20 U.S.C. 1443(c))

Sec.  303.733  Reallotment of funds.

    If a State (as defined in Sec.  303.35) elects not to receive its 
allotment, the Secretary reallots those funds among the remaining States 
(as defined in Sec.  303.732(d)(3)), in accordance with Sec.  
303.732(c)(2).

(Authority: 20 U.S.C. 1443(d))

Sec.  303.734  Reservation for State incentive grants.

    (a) General. For any fiscal year for which the amount appropriated 
pursuant to the authorization of appropriations under section 644 of the 
Act exceeds $460,000,000, the Secretary reserves 15 percent of the 
appropriated amount exceeding $460,000,000 to provide grants to States 
that are carrying out the policy described in section 635(c) of the Act 
and in Sec.  303.211 (including a State that makes part C services 
available under Sec.  303.211(a)(2)), in order to facilitate the 
implementation of that policy.
    (b) Amount of grant. (1) General. Notwithstanding section 643(c)(2) 
and (c)(3) of the Act, the Secretary provides a grant to each State 
under this section in an amount that bears the same ratio to the amount 
reserved under paragraph (a) of this section as the number of infants 
and toddlers in the State bears to the number of infants and toddlers in 
all States receiving grants under paragraph (a) of this section.
    (2) Maximum amount. No State may receive a grant under paragraph (a) 
of this section for any fiscal year in an amount that is

[[Page 243]]

greater than 20 percent of the amount reserved under that paragraph for 
the fiscal year.
    (c) Carryover of amounts pursuant to section 643(e)(3) of the Act. 
(1) First succeeding fiscal year. Pursuant to section 421(b) of GEPA, 20 
U.S.C. 1221 et seq., amounts under a grant provided under paragraph (a) 
of this section that are not obligated and expended prior to the 
beginning of the first fiscal year succeeding the fiscal year for which 
those amounts were appropriated must remain available for obligation and 
expenditure during the first succeeding fiscal year.
    (2) Second succeeding fiscal year. Amounts under a grant provided 
under paragraph (a) of this section that are not obligated and expended 
prior to the beginning of the second fiscal year succeeding the fiscal 
year for which those amounts were appropriated must be returned to the 
Secretary and used to make grants to States under section 633 of the Act 
(from their allotments identified in Sec. Sec.  303.731 through 303.733) 
during the second succeeding fiscal year.

(Authority: 20 U.S.C. 1443)



     Sec. Appendix A to Part 303--Index for IDEA Part C Regulations

ABILITY TO PAY (State definition)  303.521(a)(3).
ABROGATION OF STATE SOVEREIGN      303.103.
 IMMUNITY.
ABUSE or NEGLECT:
     At-risk     303.5.
     infant or toddler
     (Definition).
     Referral    303.303(b).
     of specific at-risk infants
     and toddlers.
ACCESS (TO); ACCESSING (A-O):
     Access      303.405.
     rights (of parents).
     Culturally  303.227(b).
     competent services
     (Traditionally underserved
     groups).
     Early       303.403(b).
     Intervention records
     (definition).
     Early       303.34(b)(1).
     Intervention services.
     See also
     ``Service Coordination
     (Services)''.
ACCESS (TO); ACCESSING (P-Z):
     Personally  303.415(d).
     identifiable information
     (Employees with access).
     Private     303.520(b)(1)(i).
     insurance (Parental consent
     prior to using or accessing).
     Public      303.520(a).
     Insurance (Written
     notification prior to using
     or accessing.
     Records     303.224(b).
     (Keep and afford access to
     the Secretary).
     Safeguards  303.415(d).
     (Employees with access to
     personally identifiable
     information).
ACCESSIBLE; ACCESSIBILITY:
     Central     303.117.
     directory (Accessible to
     general public).
                 303.342(d).
     Individualized family
     service plan (IFSP) meetings
     (Accessibility and
     convenience of).
     See also    303.602(b)(2).
     ``Convenience (of hearings;
     meetings)''.
     Meetings
     (Of Council).
ACCESSIBILITY STANDARDS
 (Construction or Alteration):
     Americans   303.104(b)(1).
     with Disabilities Act
     Accessibility Guidelines for
     Buildings and Facilities.
     Uniform     303.104(b)(2).
     Federal Accessibility
     Standards.
ACQUISITION OF EQUIPMENT
 (Construction):
                 303.104.
     Appropriate equipment and
     construction or alteration
     of facilities.
     See also
     ``Accessibility standards''.
ACT:
     Definition  303.4.
     (Individuals with
     Disabilities Education Act
     (IDEA)).
ADAPTIVE DEVELOPMENT:
                 303.21(a)(1)(v).
     Developmental delay in.
     Early       303.13(a)(4)(v).
     Intervention services
     (Definition).
        [cir] See also in          303.13(b)(8).
         ``Occupational therapy''.
     Evaluation  303.321(b)(3).
     and assessment (Of the
     child).
                 303.344(a).
     Individualized family
     service plan (IFSP) content
     (Child's status).
     Infant or   303.21(a)(1)(v).
     toddler with a disability
     (Definition).
ADVOCATE (Noun):
                 303.343(a)(1)(iii).
     Individualized family
     service plan (IFSP) Team.

[[Page 244]]

 
AGGREGATE AMOUNT:
     Payments    303.731(a)(3).
     to Indians.
     State       303.732(d)(1).
     allotments (Definition).
        [cir] See also ``State     303.732(a),(b).
         allotments''.
AMENDMENTS (To a State's
 application):
     Functions   303.604(a)(4).
     of the Council (Advise and
     assist lead agency with).
                 303.228(c)(1).
     Modifications required by
     the Secretary.
AMERICANS WITH DISABILITIES ACT:
     Civil       303.448(e).
     Action.
APPLICABLE REGULATIONS...........  303.3.
APPLICATION:
     See
     ``State Application''.
ASSESSMENT:
     Assessment  303.321(a)(2)(ii).
     of child and family
     (Definition).
     Early       303.13(b)(6)(i), (b)(7)(i),
     Intervention services (Types   (b)(8)(i), (b)(9)(i), (b)(10)(i)-
     of services).                  (b)(10)(ii), (b)(13)(ii),
                                    (b)(17)(i).
     Procedures  303.321(c)(1).
     for assessment of the child.
     Procedures  303.321(c)(2).
     for assessment of the family.
     Voluntary   303.321(c)(2)(i).
     on part of the family.
     See also
     ``Evaluation (And
     Assessment)''.
ASSISTANTS (In personnel
 standards):
     Use of....  303.119(c).
     See also
     ``Paraprofessionals''.
ASSISTIVE and ORTHOTIC DEVICES:
                 303.13(b)(8)(ii).
     Occupational therapy
     (Fabrication of).
ASSISTIVE TECHNOLOGY (AT):
     Assistive   303.13(b)(1)(i).
     Technology (AT) device.
     Assistive   303.13(b)(1)(ii).
     Technology (AT) service.
AT NO COST:
     Early       303.13(a)(3).
     Intervention services.
     Initial     303.409(c).
     copy of Early Intervention
     record.
     Parental    303.444(c)(2).
     rights at hearings (Record
     of hearing).
     System of   303.521(a)(4)(i)-(a)(4)(ii).
     payments and fees.
AT-RISK:
     Annual      303.721(a)(3).
     report of children served.
     Audiology   303.13(b)(2)(i).
     services (At-risk criteria).
     Council     303.605(b).
     (Authorized activities).
     Definition  303.5.
     (Infant or toddler).
                 303.204(b).
     Description of Early
     Intervention services to.
     Infant or   303.21(b).
     toddler with a disability.
     Permissive  303.501(e).
     use of funds by lead agency.
     Referral    303.303(b).
     of specific at-risk infants
     and toddlers.
     State's     303.204(a).
     definition of (Application
     requirements).
AUDIOLOGY SERVICES:
     Definition  303.13(b)(2).
     Qualified   303.13(c)(1).
     personnel (Audiologists).
AUTHORIZED ACTIVITIES:
     Council...  303.605.
AWARD:
     Eligible    303.2(a).
     recipients.
     See also
     ``Grants''.
BIE:
     See
     ``Bureau of Indian
     Education''.
BLINDNESS; BLIND:
     Native      303.25(b).
     language.
     Special     303.13(c)(11).
     educators (Teachers of
     children with visual
     impairments (Including
     blindness)).
BRAILLE:
     Native      303.25(b).
     language.
BRAIN HEMORRAGE:
     At-Risk     303.5.
     infant or toddler
     (Definition)..
BUREAU OF INDIAN EDUCATION (BIE):
     Bureau of   303.23(c).
     Indian Education (BIE)-
     funded schools.

[[Page 245]]

 
     Council     303.601(c).
     Composition (Other members
     selected by the Governor).
     Payments    303.731(d).
     to Indians.
BUSINESS DAY (In Individuals with
 Disabilities Education Act
 (IDEA) Part B):
     Resolution  303.442(e).
     process (Agreement review
     period).
     Hearing     303.444(a)(3), (b)(1).
     rights.
CALENDAR DAY:
     See         303.9.
     ``Day'' (Definition).
CHILD ABUSE, PREVENTION, AND
 TREATMENT ACT (CAPTA):
     Child       303.302(c)(1)(ii)(G).
     protection and welfare
     programs under CAPTA.
CASE MANAGEMENT:
     In          303.34.
     ``Service coordination
     services''.
     Medicaid    303.34(c).
     reference to.
CENTRAL DIRECTORY:
     Public      303.301(b)(3).
     awareness program.
     State       303.117.
     system requirement.
CERTIFICATION (In
 Administration):
     Annual      303.723.
     report of children served.
     Annual      303.724(c).
     report of children served
     (Other responsibilities of
     the lead agency).
     Public      303.208(a).
     participation application.
     Regarding   303.202.
     financial responsibility.
     State       303.200(a).
     application requirement.
CERTIFICATION (Of personnel):
     Personnel   303.119(b).
     qualification standards.
     Qualified   303.31.
     personnel (Definition).
    CHILD (Definition)...........  303.6.
CHILD ABUSE, PREVENTION, AND
 TREATMENT ACT:
     See
     ``CAPTA''.
CHILD COUNT:
     Accurate    303.723.
     and unduplicated count
     (Annual report of children
     served--certification).
     Count and   303.721(a).
     report (Annual report of
     children served--report
     requirement).
     Other
     responsibilities of lead
     agency:
        [cir] Aggregate count      303.724(d).
         data.
        [cir] Ensure               303.724(e).
         documentation of count
         is maintained.
        [cir] Obtain               303.724(c).
         certification (Of
         unduplicated and
         accurate count).
     Prohibited  303.731(f).
     uses of funds (By Secretary
     of the Interior).
CHILD'S ELIGIBILITY:
     Evaluation  303.320(a)(2)(i).
     and assessment of child.
     No single   303.321(b).
     procedure as sole criterion.
     Not         303.322.
     eligible (Agency
     determination).
     Parental    303.420(a)(1)-(2).
     consent before determining a
     child's eligibility.
     Status of   303.430(e)(2).
     child during pendency of a
     due process complaint.
     Transition  303.209(b)(1).
     to preschool.
CHILD FIND (A-E):
     At public   303.521(b)(1).
     expense (Functions not
     subject to fees).
    
     Comprehensive child find
     system:
        [cir] State system         303.115.
         requirement.
        [cir] Substantive          303.302.
         requirement.
     Consistent  303.302(a)(1).
     with Part B.
     Content of  303.344(h)(2)(iii).
     an individualized family
     service plan (IFSP)
     (Transmission of child find
     information).
                 303.302(c)(1)-(c)(2).
     Coordination with other
     Federal and State efforts.
CHILD FIND (F-PO):
     Financial   303.511(a).
     responsibility for.
     Functions   303.604(a)(3).
     of the Council (Intra-agency
     and interagency
     collaboration).
     Payments    303.731(d).
     to Indians (Use of funds).
     Payor of    303.510(b).
     last resort (Interim
     payments and reimbursement).

[[Page 246]]

 
CHILD FIND (PR-Z):
     Primary     303.303(c).
     referral sources.
     Public      303.301(b).
     awareness program
     (Information to be provided
     to parents).
     Referral    303.303(a)(1).
     procedures (In general).
     Scope of    303.302(b).
     child find.
     Screening   303.320.
     procedures.
     State       303.700(d)(2).
     monitoring and enforcement.
     State       303.115.
     system requirement.
CHILD WITH A DISABILITY:
                 303.601(a)(1)(ii).
     Composition of the Council.
     Infant or   303.21(c).
     toddler with a disability
     (Definition).
     State       303.211(e)(1).
     option to make Early
     Intervention services
     available to children three
     and older (Rules of
     construction).
CHROMOSOMAL ABNORMALITIES:
     Diagnosed   303.21(a)(2)(ii).
     physical or mental condition.
CIVIL ACTION (Part B):
     Civil       303.448(a).
     action (In general).
     Finality    303.446(d).
     of review decision.
     Rule of     303.448(e).
     construction.
     Time        303.448(b).
     limitation.
CIVIL ACTION (Part C)............  303.438.
CLEFT PALATE; CLUB FOOT (Surgery
 for):
     Health      303.16(c)(1)(i).
     services (Not included).
COCHLEAR IMPLANT:
     Assistive   303.13(b)(1)(i).
     technology device (Not
     included).
     Health      303.16(c)(1)(iii).
     services (Not included).
COGNITIVE DEVELOPMENT:
     Content of  303.344(a).
     an individualized family
     service plan (IFSP) (Child's
     status).
                 303.21(a)(1)(i).
     Developmental delay in.
     Early       303.13(a)(4)(ii).
     Intervention services
     (Definition).
     Evaluation  303.321(b)(3).
     and assessment (Of child).
     Infant or   303.21(a)(1)(i).
     toddler with a disability
     (Definition).
COLOSTOMY COLLECTION BAGS:
     Health      303.16(b)(1).
     services (Included).
COMMINGLING:
                 303.225(a)(1).
     Prohibition against.
COMMUNICATION DEVELOPMENT:
     Content of  303.344(a).
     individualized family
     service plan (IFSP) (Child's
     status).
                 303.21(a)(1)(iii).
     Developmental delay in.
     Early       303.13(a)(4)(iii).
     Intervention services
     (Definition).
     Evaluation  303.321(b)(3).
     and assessment (Of child).
     Infant or   303.21(a)(1)(iii).
     toddler with a disability
     (Definition).
COMPLAINTS:
     Annual      303.721(c).
     report of children served
     (Number of due process
     complaints).
                 303.401(b)(2).
     Confidentiality procedures.
     Minimum     303.433(c).
     State complaint procedures
     (Comparison with due process
     complaints).
        [cir] See also ``State
         Complaint Procedures''.
     State
     dispute resolution options:
        [cir] Due process hearing  303.430(d).
         procedures.
        [cir] In general.........  303.430(a).
        [cir] State complaint      303.430(c).
         procedures.
COMPLIANCE:
     Compliance  303.704(b)(2)(ii).
     agreement (Enforcement).
     Compliance  303.104(b).
     with certain regulations
     (Construction or alteration
     of facilities).
     Corrective  303.704(b)(2)(i).
     action plans to achieve
     compliance (Enforcement).
                 303.228(c).
     Modifications of State
     application required by the
     Secretary (For compliance).
     Reports     303.224(b).
     and records (To ensure
     compliance with Part C).

[[Page 247]]

 
COMPREHENSIVE SYSTEM OF PERSONNEL  303.118.
 DEVELOPMENT (CSPD).
CONFIDENTIALITY (A-D):
     Access      303.405.
     rights.
                 303.401(a)-(c).
     Confidentiality and
     opportunity to examine
     records.
     Consent     303.414.
     prior to disclosure or use.
    
     Definitions:
        [cir] Destruction........  303.403(a).
        [cir] Early Intervention   303.403(b).
         records.
        [cir] Participating        303.403(c).
         agency.
                 303.416.
     Destruction of information.
CONFIDENTIALITY (E-N):
                 303.417.
     Enforcement by lead agency.
     Family      303.401(b).
     Educational Rights and
     Privacy Act (FERPA).
     Fees for    303.409.
     records.
     Hearing     303.413.
     procedures.
     List of     303.408.
     types and locations of
     information.
     Notice to   303.404.
     parents.
CONFIDENTIALITY (O-Z):
                 303.411.
     Opportunity for a hearing.
     Parental    303.405(c).
     authority to inspect and
     review records.
     Record of   303.406.
     access.
     Records on  303.407.
     more than one child.
     Result of   303.412.
     hearing.
     Safeguards  303.415.
                 303.402.
     Secretary's action (To
     protect).
CONGENITAL DISORDERS:
     Diagnosed   303.21(a)(2)(ii).
     physical or mental condition
     (Infant or toddler with a
     disability).
CONGENITAL HEART AILMENTS:
     Health      303.16(c)(1)(ii).
     services (Not included).
CONGENITAL INFECTIONS:
     Diagnosed   303.21(a)(2)(ii).
     physical or mental condition
     (Infant or toddler with a
     disability).
CONSENT (A-H):
     Continue    303.501(d).
     Early Intervention services
     from age three to
     kindergarten, with consent.
     Definition  303.7.
     Due         303.441(d)(3)(i).
     process complaint
     (Sufficiency to amend).
     Early       303.420(a)(3).
     Intervention services.
     Early       303.501(d).
     Intervention services in
     lieu of Free Appropriate
     Public Education (FAPE) from
     age three to kindergarten.
     Evaluation  303.420(a)(2).
     and assessment of a child.
     Granting    303.7(c)(1).
     of consent is voluntary.
     Hearing     303.444(b)(2).
     rights (Additional
     disclosure).
CONSENT (I-Q):
                 303.20(c).
     Individualized family
     service plan (IFSP)
     (Definition).
     Insurance:
        [cir] Private insurance..  303.520(b).
        [cir] Public insurance...  303.520(a).
     Interim     303.345(a).
     individualized family
     service plan (IFSP).
     Lead        303.400(a).
     agency responsible for
     procedural safeguards
     (Consent and notice, etc.).
     Lead        303.420(b).
     agency role if consent not
     given.
     Parental    303.420.
     consent and ability to
     decline services.
     Permissive  303.501(d).
     use of funds by lead agency
     (Continue Early Intervention
     services in lieu of Free
     Appropriate Public Education
     (FAPE)).
     Prior to    303.414.
     disclosure or use of
     personally identifiable
     information.
     Provision   303.345(a).
     of Early Intervention
     services before evaluation
     and assessment are completed.
CONSENT (R-Z):
     Required
     before:
        [cir] Administering        303.420(a)(1).
         screening procedures.

[[Page 248]]

 
        [cir] Conducting an        303.420(a)(2).
         evaluation and
         assessment of a child.
        [cir] Providing Early      303.420(a)(3).
         Intervention services.
        [cir] Using private        303.520(b).
         insurance.
     Revocation  303.7(c)(2).
     of consent (Not retroactive).
     State
     option for Early
     Intervention services after
     age three:
        [cir] Available funds for  303.211(d).
        [cir] Continuation of      303.211(b)(5).
         Early Intervention
         services.
        [cir] Referral to Part C   303.211(b)(7).
         (Trauma due to exposure
         to family violence,
         under age three).
     Status of   303.430(e).
     child during due process
     complaint.
     Timelines   303.310(b)(2).
     for screening, initial
     evaluation, or assessments.
CONSTRUCTION or ALTERATION (Of
 facilities):
     Compliance  303.104(b).
     with certain regulations.
     Use of      303.104(a).
     funds for.
CONSTRUCTION CLAUSES (A-M):
     Civil       303.448(e).
     action (Nothing restricts
     rights, except that
     procedures under Sec.  Sec.
      303.440 and 303.446 must be
     exhausted before filing a
     civil action).
     Hearing
     decisions--Nothing:
        [cir] Affects the right    303.445(b).
         of a parent to appeal a
         hearing decision.
        [cir] Precludes a hearing  303.445(a)(3).
         officer from requiring
         compliance with Sec.
         Sec.   303.440-449.
        [cir] Precludes a parent   303.445(c).
         from filing a separate
         due process complaint.
     Indian      303.19(c).
     tribe (Nothing requires
     services or funding to a
     State Indian Tribe not in
     the Federal Register list
     pursuant to the Federally
     Recognized Indian Tribe List
     Act of 1994).
CONSTRUCTION CLAUSES (N-Z):
     Nationwide  303.701(c)(3).
     database of personally
     identifiable information on
     individuals involved in
     studies, etc. (Nothing
     construed to authorize).
     Non-        303.510(c).
     reduction of benefits (Payor
     of last resort).
     Personnel   303.119(c).
     standards (Nothing prohibits
     the use of paraprofessionals
     and assistants).
                 303.707.
     Secretary's authority to
     monitor enforcement of
     General Education Provisions
     Act (GEPA).
     State
     option to make services
     available after age three:
        [cir] If Early             303.211(e)(1).
         Intervention services
         provided to a child
         eligible under Sec.
         619, Free Appropriate
         Public Education (FAPE)
         not required.
        [cir] Service provider     303.211(e)(2).
         under Part C not
         required to provide Free
         Appropriate Public
         Education (FAPE).
CONSULTATION:
     By          303.16(b)(2).
     physicians (Health services).
     On child    303.13(b)(10)(iv).
     development (Psychological
     services).
CONTENT OF INDIVIDUALIZED FAMILY   303.344.
 SERVICE PLAN (IFSP).
     See also
     ``Individualized Family
     Service Plan (IFSP)
     Content''.
CONTRACTS:
                 303.202.
     Certification regarding
     financial responsibility
     (Lead agency's contracts
     with Early Intervention
     service providers).
     Payments
     to Indians:
        [cir] Biennial report to   303.731(e)(1).
         Secretary of the
         Interior (Number of
         contracts, etc.).
        [cir] Use of funds for     303.731(d)(1).
         Early Intervention
         services through
         contracts or cooperative
         agreements.
     Mediation   303.431(d)(1).
     (Meeting to encourage).
     Parent      303.27(a)(2).
     (Definition).

[[Page 249]]

 
     Policy for  303.121.
     contracting for services.
CONVENIENCE (OF HEARINGS;
 MEETINGS):
                 303.437.
     Convenience of hearings and
     timelines (Part C).
                 303.342(d).
     Individualized family
     service plan (IFSP) meetings
     (Accessibility and
     convenience of).
     Timelines   303.447.
     and convenience of hearings
     and reviews (Part B).
     See also
     ``Accessible;
     Accessibility''.
COORDINATION (A-O):
     Child find  303.302(c)(1).
     (Coordination of lead
     agency's efforts with the
     assistance of Council).
                 303.511(e).
     Establishing financial
     responsibility for, and
     methods of, ensuring
     services (Additional
     components).
     Head        303.210(a).
     Start, Early Head Start,
     early education, and child
     care.
    
     Individualized family
     service plan (IFSP):
        [cir] Content of (Service  303.344(g)(1).
         coordinator).
        [cir] Statewide system     303.114.
         requirement (Including
         service coordination
         services).
     Lead        303.120(b), (f).
     agency role in interagency
     coordination, etc..
     Methods     303.511.
     for financial interagency
     coordination.
COORDINATION (P-Z):
     Payor of    303.500(a)(2).
     last resort (Coordination of
     funding resources).
     Purpose of  303.1(b).
     Early Intervention program
     (Facilitate coordination of
     payment).
     Service     303.13(b)(11).
     coordination services (In
     definition of ``Early
     Intervention services'').
        [cir] See ``Service        303.34.
         coordination services
         (Case management).''.
        [cir] See also ``Service
         Coordination''.
     Services    303.345(b)(1).
     before evaluations and
     assessments completed
     (Service coordinator).
     Statewide   303.203(b).
     system and description of
     services.
     Use of      303.500(a)(2).
     funds and payor of last
     resort (Coordination of
     funding resources).
CO-PAYMENTS; CO-PAYS:
     Policies
     related to use of insurance
     for payment for services:
        [cir] Private insurance..  303.520(b).
        [cir] Public insurance...  303.520(a).
     System of   303.521(a)(6).
     payments and fees.
     See also
     ``System of Payments'';
     ``Fees''.
COST PARTICIPATION FEES:
     System of   303.521(a)(1).
     payments and fees.
COUNCIL:
     Definition  303.8.
     See         303.600-303.605.
     ``State Interagency
     Coordinating Council''.
CRITERIA:
     Assessment  303.321(c).
     of the child and family.
     At-risk     303.5, 303.204.
     criteria.
     Content of  303.344(c).
     individualized family
     service plan (IFSP) (Results
     or outcomes).
     Early       303.13(b)(2)(i).
     Intervention services
     (Audiology services).
     Early       303.13(d).
     Intervention services (Other
     services).
     State       303.111(b).
     definition of developmental
     delay.
     Surrogate   303.422(d).
     parents (Selection of).
CSPD (COMPREHENSIVE SYSTEM OF      303.118.
 PERSONNEL DEVELOPMENT).
CULTURALLY COMPETENT SERVICES....  303.227(b).
CURRICULUM PLANNING:
     In ``Early  303.13(b)(14)(ii).
     Intervention services''
     definition (Special
     instruction).
DATA (A-H):
     Annual      303.724(d).
     report of children served
     (Aggregate data).
                 303.402.
     Confidentiality (Personally
     identifiable data).
     Data        303.701(c)(3).
     collection (Construction
     clause).

[[Page 250]]

 
     Data        303.124.
     collection (Statewide
     system).
     Data
     reporting:
        [cir] Protection of        303.722(a).
         identifiable data.
        [cir] Sampling...........  303.722(b).
     Data        303.720.
     requirements (In general).
     Exit data   303.416(b).
     (Destruction of information).
DATA (I-Z):
     Infants     303.732(d)(2).
     and toddlers (Definition).
                 303.702(b)(3).
     Insufficient data (State use
     of targets and reporting).
     State       303.701.
     performance plans and data
     collection.
        [cir] Construction clause  303.701(c)(3).
         (Nationwide data base).
        [cir] Data collection....  303.701(c).
        [cir] Data on specific     303.701(c)(2).
         indicators.
     State use   303.702(b)(1)(ii).
     of targets and reporting..
                 303.702(b)(3).
     Statistically reliable
     information (Insufficient
     data).
DAY:
     Definition  303.9.
     See also
     ``Timelines''
DEAF; DEAFNESS:
     Council     303.602(b)(3).
     Meetings (Interpreters for).
     Early       303.13(c)(11).
     Intervention services
     (Special educators).
     Native      303.25(b).
     language.
DEFINITIONS (A-D):
     Ability to  303.521(a)(3).
     pay (State's definition).
     Act.......  303.4.
     Aggregate   303.732(d)(1).
     amount (State allotments).
     Assessment  303.321(a)(2)(ii), 303.321(c)(1)-
     of the child and the family.   (c)(2).
     Assistive   303.13(b)(1).
     technology devices and
     services.
     Audiology   303.13(b)(2).
     services.
     Child.....  303.6.
     Consent...  303.7.
     Council...  303.8.
     Day.......  303.9.
                 303.403(a).
     Destruction (Of a record).
                 303.10.
     Developmental delay.
     Duration    303.344(d)(2)(iv).
     (Content of an
     individualized family
     service plan (IFSP)).
DEFINITIONS (E-H):
     Early       303.3(b)(2), 303.403(b).
     Intervention record.
     Early       303.11.
     Intervention service program.
     Early       303.12.
     Intervention service
     provider.
     Early       303.13.
     Intervention services.
     Education   303.3(b)(2).
     records.
     Elementary  303.14.
     school.
     Evaluation  303.321(a)(2)(i).
     Family      303.13(b)(3).
     training, counseling, and
     home visits.
     Free        303.15.
     Appropriate Public Education
     (FAPE).
     Frequency   303.344(d)(2)(i).
     and intensity (Content of an
     individualized family
     service plan (IFSP)).
     Health      303.16.
     services.
     Homeless    303.17.
     children.
DEFINITIONS (I-M):
     Impartial.  303.435(b).
     Include;    303.18.
     including.
     Indian;     303.19.
     Indian tribe.
                 303.20.
     Individualized family
     service plan (IFSP).
     Infants     303.732(d)(2).
     and toddlers (State
     allotments).
     Infant or   303.21.
     toddler with a disability.
     Lead        303.22.
     agency.
     Length      303.344(d)(2)(iii).
     (Content of an
     individualized family
     service plan (IFSP)).
     Local       303.23.
     educational agency (LEA).
     Location    303.344(d)(3).
     (Content of an
     individualized family
     service plan (IFSP)).
     Medical     303.13(b)(5).
     services.

[[Page 251]]

 
     Method      303.344(d)(2)(ii).
     (Content of an
     individualized family
     service plan (IFSP)).
                 303.24.
     Multidisciplinary.
DEFINITIONS (N-R):
     Native      303.25.
     language.
     Natural     303.26.
     environments.
     Nursing     303.13(b)(6).
     services.
     Nutrition   303.13(b)(7).
     services.
                 303.13(b)(8).
     Occupational therapy.
     Parent....  303.27.
                 303.403(c).
     Participating agency
     (Personally identifiable
     information).
     Parent      303.28.
     training and information
     center.
     Personally  303.29, 303.401.
     identifiable information.
     Physical    303.13(b)(9).
     Therapy.
     Primary     303.303(c).
     referral sources.
                 303.13(b)(10).
     Psychological services.
     Public      303.30.
     agency.
     Qualified   303.31.
     personnel.
DEFINITIONS (S-Z):
                 303.32.
     Scientifically based
     research.
     Screening   303.320(b).
     procedures.
     Secretary.  303.33.
     Service     303.34.
     coordination services (Case
     management).
        [cir] See also ``Early     303.13(b)(11).
         Intervention services''
         definition.
     Sign        303.13(b)(12).
     language and cued language.
     Social      303.13(b)(13).
     work services.
     Special     303.13(b)(14).
     instruction.
     Speech-     303.13(b)(15).
     language pathology services.
     State.....  303.35.
     State       303.732(d)(3).
     (State allotments).
     State       303.36.
     educational agency (SEA).
                 303.13(b)(16).
     Transportation and related
     costs.
     Vision      303.13(b)(17).
     services.
     Ward of     303.37.
     the State.
DEPARTMENT PROCEDURES:
     State       303.231-303.236.
     application and assurances.
DEVELOPMENTAL DELAY:
     At-risk     303.5.
     infant or toddler
     (Definition).
     Definition  303.10.
     Infant or   303.21(a)(1), (a)(2)(i).
     toddler with a disability
     (Definition).
     Purpose of  303.1(e).
     the Early Intervention
     program.
     Statewide   303.203(c).
     system (State's rigorous
     definition).
     State       303.111.
     definition.
DEVELOPMENTAL DISABILITIES
 ASSISTANCE and BILL OF RIGHTS
 ACT:
     Child find  303.302(c)(1)(ii)(D).
     coordination.
DIAGNOSED PHYSICAL OR MENTAL
 CONDITION:
     Infant or   303.21(a)(2).
     toddler with a disability
     (Definition).
DIETICIANS:
     Early       303.13(c)(9).
     Intervention services
     (Qualified personnel).
DIRECT SERVICES:
                 303.205(d).
     Description of use of funds.
        [cir] See also ``Use of
         Funds''.
DISORDERS:
     Infant or   303.21(a)(2)(ii).
     toddler with a disability
     (Definition).
     Speech-     303.13(b)(15).
     language pathology services
     (Definition).
     Vision      303.13(b)(17).
     services (Definition).
DISPUTES; DISPUTE RESOLUTION:
     Impartial   303.443(a).
     due process hearing.
     Intra-      303.511(c)(1).
     agency or interagency
     disputes.
     Lead        303.120(d)-(f).
     agency role in resolving
     disputes.
     Mediation
        [cir] In general.........  303.431.
        [cir] State dispute        303.430(b).
         resolution.

[[Page 252]]

 
     Procedures  303.511(c).
     for resolving disputes
     (Methods of ensuring
     services).
     Resolution
     process (Part B).
        [cir] Due process          303.430(d).
         procedures (Comparison
         of Part B and C).
        [cir] Resolution meeting.  303.442(a).
        [cir] Written settlement   303.442(d).
         agreement.
     State
     dispute resolution options:
        [cir] Mediation..........  303.430(b).
        [cir] Status of child      303.430(e).
         during pendency of a due
         process complaint.
DRESSINGS; COLOSTOMY BAGS
 (Changing of):
     Health      303.16(b)(1).
     services (Definition).
DUE PROCESS HEARING PROCEDURES--
 Options:
     Part B      303.430(d)(2).
     procedures.
     Part C      303.430(d)(1).
     procedures.
DUE PROCESS PROCEDURES--Part B:
     Adopting    303.430(d)(2).
     Part B procedures (By lead
     agency).
     Civil       303.448.
     action.
     Due         303.441.
     process complaint.
     Filing a    303.440.
     due process complaint.
     Finality    303.446.
     of decision; appeal;
     impartial review.
     Hearing     303.445.
     decisions.
     Hearing     303.444.
     rights.
     Impartial   303.443.
     due process hearing.
     Resolution  303.442.
     process.
     State       303.449.
     enforcement mechanisms.
     Timelines   303.447.
     and convenience of hearings
     and reviews.
DUE PROCESS PROCEDURES-Part C:
                 303.435.
     Appointment of impartial
     hearing officer.
        [cir] Definition of        303.435(b).
         ``impartial''.
        [cir] Qualifications and   303.435(a).
         duties.
     Civil       303.438.
     action.
                 303.437.
     Convenience of hearings and
     timelines.
     Parental    303.436.
     rights in due process
     hearings.
     See         303.430(e).
     ``Status of child during
     pendency of a due process
     hearing request''.
     See also
     ``Procedural Safeguards''.
EARLY HEAD START:
     Child find  303.302(c)(1)(ii)(E).
     Coordination.
     Content of  303.344(h)(1)(ii).
     an individualized family
     service plan (IFSP)
     (Transition from Part C).
                 303.210(a).
     Coordination with Head Start
     and Early Head Start, early
     education, and child care
     programs.
                 303.118(a)(3).
     Comprehensive system of
     personnel development (CSPD)
     (Transition from Part C).
EARLY HEARING DETECTION AND
 INTERVENTION (EHDI):
     Child find  303.302(c)(1)(ii)(J).
     system.
EARLY INTERVENTION SERVICES:
    
     Definitions:
        [cir] General............  303.13(a).
        [cir] Other services.....  303.13(d).
        [cir] Qualified personnel  303.13(c).
        [cir] Types of Early       303.13(b).
         Intervention services.
EARLY INTERVENTION SERVICE (EIS)
 PROGRAM:
     Definition  303.11.
     State       303.700.
     monitoring and enforcement.
     State       303.701.
     performance plans and data
     collection.
     State use   303.702.
     of targets and reporting.
EARLY INTERVENTION SERVICE (EIS)
 PROVIDER:
                 303.2(b)(1)(i).
     Applicability of this part.
     Definition  303.12(a).
                 303.403(c).
     Participating agency
     (Definition).
                 303.343(a)(1)(vi).
     Requirement to attend
     individualized family
     service plan (IFSP) meetings.
                 303.12(b), 303.346.
     Responsibility and
     accountability.

[[Page 253]]

 
     State       303.700(a)(3).
     ability to impose funding
     conditions (State's
     monitoring and enforcement).
     State       303.430.
     dispute resolution options.
     State       303.120.
     requirement to monitor.
EARLY PERIODIC DIAGNOSIS,
 SCREENING, AND TREATMENT
 (EPSDT):
     Child find  303.302 (c)(1)(ii)(C).
     (Coordination).
EDUCATIONAL SERVICE AGENCY:
     Local       303.23(b)(1).
     educational agency (LEA)
     (Definition).
EHDI--Early Hearing Detection and  303.302(c)(1)(ii)(J).
 Intervention.
ELIGIBLE RECIPIENTS OF AN AWARD..  303.2.
ELIGIBILITY (CHILD):
     See
     ``Child Eligibility''
ELIGIBILITY (STATE):
                 303.101.
     Requirements for a grant.
ENVIRONMENTAL or BIOLOGICAL
 FACTORS:
     At-risk     303.5.
     infant or toddler
     (Definition).
EPSDT:
     See
     ``Early Periodic Screening,
     Diagnosis, and Treatment''.
EQUITABLE ACCESS TO, AND EQUAL     303.212(a).
 PARTICIPATION IN, THE PART C
 STATEWIDE SYSTEM.
ESTABLISHING FINANCIAL             303.511.
 RESPONSIBILITY and METHODS OF
 ENSURING SERVICES.
EVALUATION, ASSESSMENT, and        303.113.
 NONDISCRIMINATORY PROCEDURES.
EVALUATION (AND ASSESSMENT) (A-
 E):
     Assessment  303.321(c)(1).
     of child (Definition).
     Assessment  303.321(c)(2).
     of family (Definition).
                 303.401(b)(2).
     Confidentiality procedures.
     Consent     303.420(a)(2).
     before evaluations and
     assessments are conducted.
                 303.322.
     Determination that a child
     is not eligible.
     Due         303.441(e)(1)(iii).
     process complaint.
     Early
     Intervention services:
        [cir] Qualified personnel  303.13(c)(6).
         (Pediatricians, etc, for
         diagnosis and
         evaluation).
        [cir] Types of services..  303.13(b)(1)(ii)(A), (b)(2)(ii),
                                    (b)(5), (b)(9)(i), (b)(17)(i).
     Evaluation  303.321(a)(2)(i).
     (Definition).
EVALUATION (AND ASSESSMENT) (F-
 L):
     Family      303.321(c)(2), 303.344(b).
     assessment.
     Family      303.344(b).
     information.
     Filing a    303.440(a)(1).
     due process complaint (Part
     B).
     Financial   303.511(a).
     responsibility.
     Functions   303.521(b)(2).
     not subject to fees.
     Hearing     303.445(a)(2)(i)-(ii).
     officer decision.
     Hearing     303.444(b).
     rights.
    
     Individualized family
     service plan (IFSP):
        [cir] Annual meeting to    303.342(c).
         evaluate the
         individualized family
         service plan (IFSP).
        [cir] Child's status.....  303.344(a).
        [cir] Definition.........  303.20(a).
     Initial     303.343(a)(1)(v).
     and annual individualized
     family service plan (IFSP)
     Team meetings.
EVALUATION (AND ASSESSMENT) (M-
 PO):
    
     Multidisciplinary:
        [cir] Definition.........  303.24.
        [cir] Early Intervention   303.12(b)(1).
         service (EIS) provider.
        [cir] Evaluation and       303.321(a)(1)(i).
         assessment of the child.
        [cir] Statewide system...  303.113(a)(1).
     Native      303.25(a)(2).
     language (Definition).
    
     Nondiscriminatory:
        [cir] Evaluation of the    303.321(a)(4).
         child (No single
         procedure used).
        [cir] Nondiscriminatory    303.113.
         procedures (Title).

[[Page 254]]

 
     Parental    303.420(a)(2), (b)(1)-(b)(2), (c)(1).
     consent.
     Payor of    303.510(b).
     last resort (Interim
     payments).
     Post-       303.310.
     referral timeline (45 days).
        [cir] Exceptional          303.310(b)(1).
         circumstances (Not
         within 45 days).
EVALUATION (AND ASSESSMENT) (PR-
 Z):
     Prior       303.421(a).
     written notice.
     Prior       303.421(c).
     written notice (Must be in
     native language).
     Provision   303.345.
     of Services before
     evaluations and assessments
     are completed.
     Public      303.301(b)(2).
     awareness program.
     Referral    303.303.
     procedures.
     Screening   303.320(a), (c).
     procedures.
     Service     303.34(b)(3).
     coordination services (Case
     management).
     Timelines   303.310(a).
     (45 days).
        [cir] Exception to 45-day  303.310(b).
         timeline.
     Transition  303.344(h)(2)(iii).
     from Part C services.
     See also
     ``Assessment''.
EVALUATION, ASSESSMENT, AND        303.113.
 NONDISCRIMINATORY PROCEDURES.
EXCEPTION(S):
     Consent     303.414(b).
     prior to disclosure (Except
     to lead agency and Early
     Intervention service (EIS)
     providers).
     Filing a    303.440(a)(2).
     due process complaint.
     Post-       303.310(b)(1).
     referral timeline
     (Exceptional circumstances).
     Timeline    303.443(f).
     for requesting a hearing
     (Exceptions).
     Ward of     303.37(b).
     the State (Definition).
FAMILY; FAMILIES (A-E):
     Ability to  303.521(a)(3).
     pay (State's definition).
     Assessment  303.321(a)(1)(ii)(B).
     of the family.
                 303.112.
     Availability of Early
     Intervention services.
                 303.118(b)(3).
     Comprehensive system of
     personnel development (CSPD)
     (Training personnel to
     support families).
     Due         303.435(a)(1), 303.440(a)(1).
     process.
     Early       303.13(a)(3)-(a)(4), (b)(1)(ii)(E),
     Intervention services.         (b)(3), (b)(10)(iii), (b)(10)(iv),
                                    (b)(13)(iii)-(b)(13)(v),
                                    (b)(14)(iii), (b)(16).
     Evaluation
     and assessment of child and
     family:
        [cir] In native language.  303.321(a)(5)-(6).
        [cir] Post-referral        303.310(a).
         timeline.
FAMILY; FAMILIES (F-H):
     Family-     303.113(a)(2), (b).
     directed identification of
     needs.
     Family      303.13(c)(2).
     therapists.
     Family      303.13(b)(3).
     training, counseling, and
     home visits.
     Family      303.211(b)(7), 303.302(c)(1)(ii)(I).
     Violence Prevention and
     Services Act.
     Homeless    303.303(c)(10).
     family shelters (Primary
     referral sources).
FAMILY; FAMILIES (INDIVIDUALIZED
 FAMILY SERVICE PLAN (IFSP)):
     Content of  303.344(b), (c).
     an individualized family
     service plan (IFSP) (Family
     information).
    
     Individualized family
     service plan (IFSP) Team
     meetings:
        [cir] Accessibility and    303.342(d)(1)(i), (d)(2).
         convenience.
        [cir] Advocate outside     303.343(a)(1)(iii).
         the family.
        [cir] Native language      303.342(d)(1)(ii).
         (Meeting conducted in).
        [cir] Other family         303.343(a)(1)(ii).
         members as requested by
         parent.
        [cir] Written notice to    303.342(d)(2).
         family.
FAMILY; FAMILIES (IN-R):
     Interim     303.345.
     individualized family
     service plan (IFSP).
     Parents     303.420(d)(1).
     determine whether to accept
     or decline service (For
     other family members).
     Payor of    303.510(b).
     last resort (Interim
     payments).
     Permissive  303.501(a)-(b).
     use of funds by lead agency.
     Prior       303.421(a).
     written notice.

[[Page 255]]

 
     Private     303.520(b)(2)(i)-(b)(2)(iii).
     insurance.
FAMILY; FAMILIES (SE-ST):
     Service
     coordination services (Case
     management):
        [cir] Specific service     303.34(b)(1), (b)(5).
         coordination services.
        [cir] Definition.........  303.34(a).
     State       303.432(b).
     complaint procedures.
     State       303.101(a)(1)(i)-(a)(1)(ii).
     eligibility requirements
     (Assurance regarding Early
     Intervention services).
     State
     option to make Early
     Intervention services
     available for children three
     and older:
        [cir] Possible costs to    303.211(b)(1)(ii)(C).
         families.
        [cir] Referral of a child  303.211(b)(7).
         (Substantiated case of
         trauma due to family
         violence).
FAMILY; FAMILIES (SU-Z):
     Surrogate   303.422(d).
     parents.
    
     Traditionally underserved
     groups:
        [cir] Access to            303.227(b).
         culturally competent
         services.
        [cir] Minority, low-       303.227(a).
         income, homeless, and
         rural families and wards
         of the State.
     Transition
     to preschool:
        [cir] Conference to        303.209(c).
         discuss services.
        [cir] Notification of      303.209(b).
         local educational agency
         (LEA).
        [cir] Transition plan....  303.209(d)(3).
FAMILY ASSESSMENT:
     Assessment  303.321(c)(2).
     of the family (Definition).
     Content of  303.344(b).
     an individualized family
     service plan (IFSP) (Family
     information).
     Evaluation  303.321(c).
     and assessment of child and
     family.
     Post-       303.310(a).
     referral timeline.
FAMILY-DIRECTED:
     Assessment  303.12(b)(1).
     of resources.
                 303.113(a)(2), (b).
     Identification of needs.
FAMILY EDUCATIONAL RIGHTS AND
 PRIVACY ACT (FERPA):
                 303.401(b)(1).
     Confidentiality procedures.
FAMILY THERAPISTS:
     Qualified   303.13(c)(2).
     personnel (Early
     Intervention services).
FAMILY TRAINING, COUNSELING, AND
 HOME VISITS:
     Early       303.13(b)(3).
     Intervention services
     (Definition).
FAMILY VIOLENCE PREVENTION AND     303.211(b)(7), 303.302(c)(1)(ii)(A).
 SERVICES ACT.
FAPE
     See ``Free
     Appropriate Public
     Education.''
FEDERAL COURT:
     Civil       303.438.
     action (Part C).
     Impartial   303.443(c)(1)(ii).
     hearing officer.
     Mediation   303.431(b)(7).
     (Discussions not used in
     court).
     State       303.228(c)(2).
     application (Modifications
     to).
FEDERAL FUNDS:
                 303.221.
     Expenditure of funds.
     Fiscal      303.226.
     control.
     Indirect    303.225(c)(2).
     costs (Cognizant Federal
     agency).
     Proceeds    303.520(d).
     from public or private
     insurance.
                 303.225(a).
     Requirement to supplement
     and not supplant.
FEDERAL LAW(S):
    1.  Alaska   303.19(b).
     Native Claims Settlement Act.
    2.           303.448(e).
     Americans With Disabilities
     Act (ADA) of 1990.
    3.  Child
     Abuse Prevention and
     Treatment Act (CAPTA), see
     CAPTA.
    4.           303.401(a), (c)(2).
     Confidentiality.
    5.           303.302(c)(1)(ii)(D).
     Developmental Disabilities
     Assistance and Bill of
     Rights Act.
    6.  Early    303.13(a)(3).
     Intervention services
     (Services at no cost unless
     Federal or State law
     requires fees).
    7.  Family   303.401(b).
     Educational Rights and
     Privacy Act (FERPA).

[[Page 256]]

 
    8.  Family   303.211(b)(7), 303.302(c)(1)(ii)(A).
     Violence Prevention &
     Services Act.
    9.           303.19(c).
     Federally Recognized Indian
     Tribe List Act of 1994
     (section 104).
    10.  Head
     Start Act, see Head Start.
    11.  Indian  303.731(a)(1).
     Self-Determination and
     Education Assistance Act.
    12.          303.4.
     Individuals with
     Disabilities Education Act
     (IDEA).
    13.          303.448(e).
     Rehabilitation Act of 1973
     (title V).
    14.  Social
     Security Act (MCHB/Title V,
     SSI/XVI, and Medicaid/Title
     XIX,), see Social Security
     Act.
    15.  State   303.228(c)(3).
     application (Modifications).
FEDERALLY RECOGNIZED INDIAN TRIBE  303.19(c).
 LIST ACT OF 1994.
FEDERAL REGULATIONS:
     Amendment   303.228(c)(1).
     to Act or a Federal
     regulation.
     Knowledge   303.443(c)(1)(ii).
     of impartial hearing officer.
FEES (A-R):
     Ability to  303.521(a)(3).
     pay (State's definition).
     Assurance   303.521(a)(4)(i).
     (Fees will not be charged
     for services entitled to at
     no cost).
     Co-         303.521(a)(6).
     payments or deductible
     amounts.
     Cost        303.521(a)(1).
     participation fees.
     Fees        303.409.
     (Under confidentiality).
     Functions   303.521(b).
     not subject to fees.
     Income and  303.521(a)(3).
     family expenses (State's
     definition).
     Inability   303.521(a)(3).
     to pay--State's definition.
FEES (S-Z):
     State       303.211(b)(1)(ii)(C), (d).
     option to make services
     available to children ages
     three and older.
     Sliding
     fees (Schedule of):
        [cir] Early Intervention   303.13(a)(3).
         services.
        [cir] System of payments   303.521(a)(1).
         and fees.
     State's     303.521(a)(3).
     definition of ability to pay.
     State       303.203(b).
     system of payments and fees.
     See also
     ``INSURANCE.''
FERPA (Family Educational Rights   303.401(b)(1).
 and Privacy Act).
FETAL ALCOHOL SYNDROME:
     Diagnosed   303.21(a)(2)(ii).
     physical or mental condition.
FILING (FILED) REQUIREMENTS:
     Adoption    303.432(a)(1).
     of State complaint
     procedures.
     Civil       303.448(e).
     action (Rule of
     construction).
     Due         303.441(a)(2), (d)(4).
     process complaint.
     Due         303.430(d)(1)(ii).
     process hearing procedures.
     Filing a    303.430(d)(1)(ii), 303.440(a)(2).
     due process complaint.
     Filing a    303.434(d).
     State complaint.
     Filing      303.235.
     requirements regarding a
     State application.
     Impartial   303.443(f).
     due process hearing
     (Exception to timeline).
     Mediation.  303.431(a).
     Resolution  303.442(b)(3).
     process.
     Separate    303.445(c).
     due process complaint.
FISCAL CONTROL (AND FUND           303.226.
 ACCOUNTING PROCEDURES).
FORMULA:
     For State   303.730.
     allocations.
FOSTER CARE:
     Child
     find:
        [cir] Scope..............  303.302(b)(1)(ii).
        [cir] Coordination.......  303.302(c)(1)(ii)(G).
                 303.405(c).
     Confidentiality (Access
     rights).
     Council     303.601(a)(12).
     (Composition).
     Primary     303.303(c)(9).
     referral sources.
     Purpose of  303.1(d).
     Early Intervention Program.
FOSTER PARENT:
     Parent      303.27(a)(2).
     (Definition).
     Ward of     303.37(b).
     the State (Exception).
FREE APPROPRIATE PUBLIC EDUCATION
 (FAPE):
     Definition  303.15.

[[Page 257]]

 
     Permissive  303.501(c)-(d).
     use of funds by lead agency.
     State       303.211(e)(1)-(2).
     option to make services
     available to children ages
     three and older.
     States      303.521(c).
     with Free Appropriate Public
     Education (FAPE) mandates to
     serve children under age
     three.
FREQUENCY and INTENSITY:
     Content of  303.344(d)(1)(i).
     an individualized family
     service plan (IFSP).
     Definition  303.344(d)(2)(i).
FUNCTIONS NOT SUBJECT TO FEES:
                 303.521(b)(4).
     Administrative and
     coordinative activities.
     Child find  303.521(b)(1).
     requirements.
     Evaluation  303.521(b)(2).
     and assessment.
     Service     303.521(b)(3).
     coordination services.
FUNDING SOURCES:
     Service     303.34(b)(9).
     coordination services.
FUNDS (A-D):
                 303.104(a).
     Acquisition of equipment and
     construction or alteration
     of facilities.
     Allocation
     of funds (Outlying areas):
        [cir] Consolidation of     303.730(b).
         funds.
        [cir] Reservation of       303.730(a).
         funds.
     Control of  303.223.
     funds and property.
     Council:
        [cir] Funds for            303.602(b)(3).
         interpreters.
        [cir] Use of funds by....  303.603.
                 303.201.
     Designation of lead agency.
                 303.205.
     Description of use of funds.
     Direct      303.205(d).
     services.
FUNDS (E-FA):
     Early       303.12(a).
     Intervention service
     provider.
    
     Enforcement (By the
     Secretary):
        [cir] Needs intervention   303.704(b)(2)(iii).
         (Seeks to recover funds).
        [cir] Needs substantial    303.704(c)(1).
         intervention.
        [cir] Opportunity for      303.705(a).
         hearing.
        [cir] Suspension (Of       303.705(b).
         payments).
        [cir] Withholding funds..  303.705.
                 303.221.
     Expenditure of (Federal)
     funds.
     Family      303.521(d).
     fees.
FUNDS (FE-O):
     Federal     303.225(a)(2).
     funds to supplement.
     Fiscal      303.226.
     control.
     Funds       303.521(a)(6), (d).
     under a State's system of
     payments.
     Inability   303.520(e), 303.521(a)(3).
     to pay.
     Lead        303.22.
     agency (Receives Federal
     funds to administer Part C).
     Non-        303.510(a).
     substitution of funds (Payor
     of last resort).
     Outlying    303.730.
     areas (Formula for State
     allocations).
FUNDS (PA-R):
     Payments
     to Indians:
        [cir] Prohibited uses of   303.731(f).
         funds.
        [cir] Use of funds.......  303.731(d)(1).
     Payor of    303.510(a).
     last resort (Non-
     substitution of funds).
     Permissive  303.501.
     use of funds.
     Proceeds    303.520(d).
     or funds from public or
     private insurance.
                 303.225(a)(1).
     Prohibition against
     commingling.
                 303.225(a)(2).
     Prohibition against
     supplanting.
                 303.733.
     Reallotment of (State) funds.
                 303.122.
     Reimbursement procedures.
     Reports     303.224.
     and records.
                 303.730(a).
     Reservation of funds for
     outlying areas.
FUNDS (S-Z)
     State       303.732(a), (c)(2), (d).
     allotments.
     State       303.102.
     conformity with Part C.
     State       303.36(b).
     educational agency (SEA).

[[Page 258]]

 
     State       303.700(a)(3), 303.704(b)(2)(iii),
     monitoring and enforcement.    303.704(c)(1), 300.705(a)-(b).
     State       303.211(d).
     option to make services
     available to children ages
     three and older (Available
     funds).
     States      303.521(c).
     with Free Appropriate Public
     Education (FAPE) mandates.
     State's     303.521(a)(3), (a)(4)(ii).
     definition (Inability to
     pay).
     Suspension  303.705(b).
     (Of payments).
     System of   303.521(a)(6), (c), (d).
     payments and fees.
     Unable to   303.520(d), 303.520(c),
     pay.                           303.521(a)(6).
     Use of      303.510(a).
     funds (Payor of last resort).
                 303.705.
     Withholding funds.
     See also
     ``Grants'' and ``Payments''.
FUNDS (PART B):
     States      303.521(c).
     with Free Appropriate Public
     Education (FAPE) mandates or
     that use Part B funds for
     children under age three.
FUNDS (PART C):
     Early       303.12(a).
     Intervention service
     provider.
     State       303.102.
     conformity with Part C.
    
     Withholding funds:
        [cir] Opportunity for a    303.705(a).
         hearing.
        [cir] Suspension.........  303.705(b).
GENETIC or CONGENITAL DISORDERS:
     Diagnosed   303.21(a)(2)(ii).
     physical or mental condition
     (Infant or toddler with a
     disability).
GOVERNOR; GOVERNOR'S DESIGNEE:
     Council:
        [cir] Appointed by         303.600(b).
         Governor.
        [cir] Chairperson........  303.600(c).
        [cir] Composition........  303.601(b)-(c).
        [cir] Functions (Annual    303.604(c).
         report to Governor).
        [cir] Use of funds by      303.603(a).
         Council (Approval).
     Financial
     responsibility and methods
     of ensuring services:
        [cir] Other methods        303.511(b)(3).
         determined by Governor.
        [cir] Procedures for       303.511(c)(1).
         resolving disputes.
     Lead
     agency:
        [cir] Designated by        303.22.
         Governor.
        [cir] Role in              303.120.
         supervision, etc..
     State       303.36(a).
     educational agency (SEA).
GRANDPARENT:
     Parent      303.27(a)(4).
     (Definition).
GRANTS; GRANTS TO STATES:
                 303.730(b).
     Consolidation of grants
     (Outlying areas).
                 303.734.
     Reservation for State
     incentive grants.
                 303.100.
     Secretary's authority to
     make grants.
     See also
     ``Award'' and ``Payments to
     Indians''.
GUARDIAN:
     Parent      303.27(a)(3).
     (Definition).
GUARDIANSHIP:
                 303.405(c).
     Confidentiality (Access
     rights).
HEAD START; HEAD START ACT:
     Child find  303.302(c)(1)(ii)(E).
     system (Coordination).
     Council     303.601(a)(8).
     (Composition).
                 303.118(a)(3), (b)(4).
     Comprehensive system of
     personnel development (CSPD)
     (Training to coordinate
     transition services and
     personnel).
     Early Head
     Start:
        [cir] Coordination with..  303.210(a).
        [cir] Content of an        303.344(h)(1)(ii).
         individualized family
         service plan (IFSP)
         (Transition from Part C).
     Head Start  303.210(a), 303.302 (c)(1)(ii)(E),
     Act (References).              303.601(a)(8).

[[Page 259]]

 
HEALTH INSURANCE.................  303.520(b)(2), 303.601 (a)(10).
HEALTH SERVICES:
     Definition  303.16.
     Early       303.13(b)(4).
     Intervention services
     (Definition).
     Interim     303.510(b).
     payments--Reimbursement
     (Payor of last resort).
     Non-        303.16(c).
     covered services and devices.
     Services    303.16(b).
     included.
HEALTH STATUS (MEDICAL HISTORY):
     Evaluation  303.321(a)(3)(i).
     and assessment.
     Content of  303.344(a).
     an individualized family
     service plan (IFSP)
     (Information about child's
     status).
HEARING AID:
     Health      303.16(c)(1)(iii)(B).
     services (Nothing prevents
     routinely checking).
HEARING IMPAIRED; HEARING
 IMPAIRMENTS:
     Special     303.13(c)(11).
     educators including teachers
     of children with hearing
     impairments.
HEARING LOSS:
     Audiology   303.13(b)(2)(ii), (b)(2)(v).
     services.
HEARING OFFICER:
                 303.443(c), 303.435.
     Appointment of.
     Dismissal   303.442(b)(4).
     of complaint.
     Duties and  303.435(a), 303.443(c).
     qualifications.
     Hearing     303.445.
     decisions.
     Impartial   303.435(b), 303.443(c).
     (Definition).
                 303.441(d).
     Sufficiency of complaint.
HEART AILMENTS:
     Health      303.16(c)(1)(ii).
     services (Non-covered
     services).
HISTORY OF ABUSE OR NEGLECT:
     At-risk     303.5.
     infant or toddler
     (Definition).
HISTORICALLY UNDERREPRESENTED
 POPULATIONS:
     Purpose of  303.1(d).
     Early Intervention program.
     See
     ``Inner-city,'' ``Low-
     income,'' ``Minority,'' and
     ``Rural'' (Children), and
     ``Foster care.''
     See also    303.227.
     ``Traditionally underserved
     groups.''.
HOMELESS CHILDREN:
     Assurances  303.101(a)(1)(ii).
     regarding Early Intervention
     services and a statewide
     system.
     Child find  303.302(b)(1)(ii).
     system.
     Council     303.601(a)(11).
     (Composition)
     (Representative designated
     by Office of the
     Coordination and Education
     of Homeless Children and
     Youth).
     Definition  303.17.
     Due         303.441(b)(4).
     process complaint (Content).
                 303.227(a).
     Traditionally underserved
     groups.
HOMELESS FAMILY SHELTERS:
     Primary     303.303(c)(10).
     referral sources.
HOSPITALS:
     Primary     303.303(c)(1).
     referral sources.
     Public      303.301(a)(1)(ii).
     awareness program.
HOSPITALIZATION (For management
 of congenital heart ailments):
     Non-        303.16(c)(1)(ii).
     covered health services.
HYDROCEPHALUS (Shunting of):
     Non-        303.16(c)(1)(i).
     covered health services.
IDEA (INDIVIDUALS WITH
 DISABILITIES EDUCATION ACT):
     Act         303.4.
     (Definition).
IEP (INDIVIDUALIZED EDUCATION
 PROGRAM):
     Free        303.15(d).
     appropriate public education
     (FAPE) (Definition).
IEU (INTERMEDIATE EDUCATIONAL
 UNIT):
     Local       303.23(b)(3).
     educational agency (LEA)
     (Definition).
IFSP (INDIVIDUALIZED FAMILY
 SERVICE PLAN) (A-F):
     Acceptable  303.342(b)(2).
     time to meet for parents and
     others.
                 303.346.
     Accountability and
     responsibility.
     Annual      303.342(c).
     meeting to evaluate.
     Component   303.114.
     of statewide system.
     Content of
     an individualized family
     service plan (IFSP)

[[Page 260]]

 
        [cir] See ``IFSP
         (Individualized family
         service plan) Content''.
     Dates and   303.344(f).
     duration of services.
     Definition  303.20.
                 303.342(a).
     Development of.
     Early       303.344(d).
     Intervention services.
        [cir] See also ``IFSP
         (Individualized family
         service plan) Content''.
                 303.344(d)(4).
     Educational component (For
     children at least three
     years old).
     Family      303.344(b).
     information.
IFSP (INDIVIDUALIZED FAMILY
 SERVICE PLAN) (I-N):
    
     Individualized family
     service plan (IFSP) Team.
        [cir] See ``IFSP
         (Individualized family
         service plan) Team''.
                 303.344(a).
     Information about child's
     status.
     Initial     303.342(a).
     individualized family
     service plan (IFSP) Meeting.
     Interim     303.345.
     individualized family
     service plan (IFSP).
                 303.344(d)(1)(ii).
     Justification (Natural
     environments)...
     Lead        303.340.
     agency responsibility.
     Location    303.344(d)(1)(ii)-(iii), (d)(3).
     of services.
    
     Meeting(s):
        [cir] Accessibility and    303.342(d).
         convenience of.
        [cir] Annual meeting to    303.342(c).
         evaluate individualized
         family service plan
         (IFSP).
        [cir] To develop initial   303.342(a).
         individualized family
         service plan (IFSP).
     Natural     303.344(d)(1)(ii).
     environments.
        [cir] See also ``Natural
         Environments''.
     Numeracy    303.344(d)(4).
     skills.
IFSP (INDIVIDUALIZED FAMILY
 SERVICE PLAN) (O-Q):
     Other       303.344(e).
     services.
     Outcomes    303.344(c).
     or results.
        [cir] See also
         ``Outcomes''.
     Parental    303.342(e).
     consent before providing
     services.
        [cir] Services before      303.345(a).
         evaluation completed.
     Periodic    303.342(b).
     review.
     Pre-        303.344(d)(4).
     literacy, language, and
     numeracy skills.
     Procedures  303.342.
     for individualized family
     service plan (IFSP)
     development, review, and
     evaluation.
IFSP (INDIVIDUALIZED FAMILY
 SERVICE PLAN) (R-Z):
                 303.346.
     Responsibility and
     accountability.
     Results or  303.344(c).
     outcomes.
     Review and  303.342(b).
     revision (Periodic).
     Service     303.344(g).
     coordinator.
     Services    303.345.
     before evaluation completed.
     Statewide   303.114.
     system component.
     Transition  303.344(h).
     from Part C services.
IFSP (INDIVIDUALIZED FAMILY
 SERVICE PLAN) CONTENT (A-E):
     Child's     303.344(a).
     status (Information about).
     Dates and   303.344(f).
     duration of services.
     Early
     Intervention services:
        [cir] Definition.........  303.13(a).
        [cir] Duration,            303.344(d)(1)(i).
         frequency, intensity,
         length, and method of
         services.
        [cir] Educational          303.344(d)(4).
         component that promotes
         school readiness, and
         incorporates pre-
         literacy, language, and
         numeracy skills.
        [cir] Location of          303.344(d)(1)(iii), (d)(3).
         services.
        [cir] Payment              303.344(d)(1)(iv).
         arrangements, if any.
        [cir] Natural              303.344(d)(1)(ii).
         environments, including
         a justification, if
         applicable.
        [cir] See also ``Natural
         Environments''.
IFSP (INDIVIDUALIZED FAMILY
 SERVICE PLAN) CONTENT (F-Z):

[[Page 261]]

 
     Family      303.344(b).
     information.
                 303.344(a).
     Information about child's
     status.
     Other       303.344(e).
     services.
     Results or  303.344(c).
     outcomes.
     Service     303.344(g).
     coordinator.
     Transition  303.344(h).
     from Part C services.
IFSP (INDIVIDUALIZED FAMILY
 SERVICE PLAN) TEAM:
                 303.343(a)(1).
     Composition (Meetings and
     periodic reviews).
     Due         303.441(e)(1)(ii).
     process complaint (Other
     options considered by
     individualized family
     service plan (IFSP) Team).
     Early       303.126.
     Intervention services in
     natural environments.
     IFSP Team   303.343.
     meetings and periodic
     reviews.
     Initial     303.343(a).
     and annual individualized
     family service plan (IFSP)
     Team meetings.
                 303.24(b).
     Multidisciplinary.
     Natural     303.344(d)(1)(ii)(B)(1),
     environments.                  (d)(1)(ii)(B)(3).
     Resolution  303.442(a)(4).
     meeting.
     Transition  303.344(h)(2)(iv).
     from Part C services.
ILLEGAL SUBSTANCE ABUSE:
     At-risk     303.5.
     infant or toddler.
     Referral    303.303(b)(2).
     of specific at-risk infants
     and toddlers.
IMMUNIZATIONS AND REGULAR WELL-
 BABY CARE:
     Non-        303.16(c)(3).
     covered medical-health
     services.
IMPARTIAL:
                 303.435, 303.443(c).
     Appointment of impartial
     hearing officer.
     Definition  303.435(b)(1), 303.443(c).
     Hearing     303.233(c).
     procedures (Impartial
     proceeding).
     Mediator    303.431(b)(1)(iii), (b)(2)(ii), (c).
     (Qualified and impartial).
INABILITY TO PAY:
     Assurance   303.521(a)(4)(ii).
     that ``inability to pay''
     will not delay or deny
     services if parent or family
     meets State's definition.
     Lack of     303.520(c).
     consent (And inability to
     pay) may not delay or deny
     services.
     Private     303.520(c).
     insurance.
     State's     303.521(a)(3).
     definition.
     System of   303.521(a)(3)-(a)(4).
     payments and fees.
INBORN ERRORS OF METABOLISM:
     Diagnosed   303.21(a)(2)(ii).
     physical or mental condition
     (Infant or toddler with a
     disability).
INDIAN CHILDREN:
     Payments    303.731(a)(1), (d)(1).
     to Indians.
     See
     ``Indian infants and
     toddlers''.
INDIAN; INDIAN TRIBE:
     Definition  303.19.
     See
     ``Tribe; Tribal
     organization''.
INDIAN INFANTS AND TODDLERS:
     Assurances  303.101(a)(1)(i).
     regarding Early Intervention
     services.
                 303.112(a).
     Availability of Early
     Intervention services.
     Scope of    303.302(b)(1)(i).
     child find.
INDIAN SELF-DETERMINATION AND      303.731(a)(1).
 EDUCATION ASSISTANCE ACT.
INDIVIDUALIZED FAMILY SERVICE
 PLAN (IFSP):
     See
     ``IFSP''; ``IFSP Content'';
     ``IFSP Team.''
INDIVIDUALS WITH DISABILITIES
 EDUCATION ACT (IDEA):
     Act         303.4.
     (Definition).
INFANT(S) and/or TODDLER(S):
     Annual      303.721(a).
     report of children served.
     At-risk     303.5.
     infant or toddler
     (Definition).
     Authorized  303.605(b).
     activities of the Council.
     Definition  303.732(d)(2).
     (In State allotments).
     Permissive  303.501(e).
     use of funds.
     Payments    303.731(b), (e).
     to Indians.
     Primary     303.303(c)(3).
     referral sources.
     Public      303.301(a)(1)(ii).
     awareness program.

[[Page 262]]

 
                 303.734(b)(1).
     Reservation for State
     incentive grants.
     Screening   303.320(b)(1).
     procedures.
INFANT OR TODDLER WITH A
 DISABILITY:
     Definition  303.21.
INFECTION; CONGENITAL INFECTIONS:
     At-risk     303.5.
     infant or toddler
     (Definition).
     Infant or   303.21(a)(2)(ii).
     toddler with a disability
     (Definition).
INFORMED CLINICAL OPINION:
     Procedures  303.321(a)(3)(ii).
     for assessment of child.
INFORMED WRITTEN CONSENT:
                 303.342(e).
     Individualized family
     service plan (IFSP)
     (Informed written consent
     before providing services).
     State       303.211(b)(5).
     option to make services
     available to children ages
     three and older.
     See also
     ``Consent''.
INNER-CITY:
                 303.118(b)(1).
     Comprehensive system of
     personnel development (CSPD)
     (Training personnel to work
     in rural and inner-city
     areas).
     Purpose of  303.1(d).
     Early Intervention program
     (Enhance capacity to meet
     needs of inner-city
     children).
INSURANCE (A-E):
     Consent
     regarding:
        [cir] Private insurance..  303.520(b)(1), (b)(2).
        [cir] Public insurance...  303.520(a)(3)(i).
     Co-
     payments.
                 303.601(a)(10).
     Composition of Council
     (Agency responsible for
     State regulation of health
     insurance).
                 303.510(c).
     Construction clause (Non-
     reduction of Medicaid
     benefits).
     Cost        303.521(a)(1).
     participation fees or
     sliding fees.
     Costs to    303.520(a)(4), 303.520(b)(1)(ii),
     parents (Use of private        303.520(b)(1)(ii)-(b)(1)(iii).
     insurance to pay for Part C
     services).
     Deductible  303.521(a)(6).
     amounts or co-payments.
     Enrollment  303.520(a)(2)(i).
     in public insurance or
     benefits program (May not
     require parent to enroll).
INSURANCE (F-O):
     Family or
     parent funds:
        [cir] Not treated as       303.520(d)(1).
         ``program income''.
        [cir] Used for Part C      303.520(d)(2).
         services.
     Funds       303.520(e).
     received under a State's
     system of payments.
     Health      303.520(b)(2), 303.601(a)(10).
     insurance.
     Lack of     303.520(b).
     consent may not delay or
     deny services.
     Medicaid    303.510(c).
     (Payor of last resort).
INSURANCE (P-PR):
     Parental    303.420(a)(4).
     consent and ability to
     decline services.
     Parent or   303.520(d)(1).
     family funds to State not
     considered ``program
     income''.
     Policies    303.520(a), 303.520(b).
     related to use of insurance
     to pay for services.
     Private     303.520(b).
     insurance.
     Proceeds
     from public or private
     insurance:
        [cir] Not treated as       303.520(d)(1).
         income.
        [cir] Reimbursements       303.520(d)(2).
         (Medicaid, etc.) for
         Early Intervention
         services are not State
         or local funds.
INSURANCE (PU-Z):
     Public      303.520(a).
     insurance.
     Purpose of  303.1(b).
     Early Intervention program.
     Schedule
     of sliding fees:
        [cir] Early Intervention   303.13(a)(3).
         services (Definition).
        [cir] System of payments   303.521(a)(1).
         and fees.
     State,      303.521(a).
     local, or private programs
     of insurance.
     State       303.520(b)(2).
     statute regarding private
     health insurance (Impact on
     consent requirements).
     System of   303.520(a), 303.521(a).
     payments and fees.
     See also
     ``Fees'' and ``Inability to
     pay''.

[[Page 263]]

 
     Use of      303.520(a).
     public insurance to pay for
     services.
     Written     303.520(a)(3).
     notification (prior to use
     of public insurance).
     See also
     ``Fees'' and ``Inability to
     pay''.
INTERAGENCY AGREEMENTS:
     Functions   303.604(a)(3).
     of the Council (Promotion of
     methods for intra-agency and
     interagency collaboration).
     Lead        303.120(f).
     agency role (In funding,
     inter-agency agreements,
     etc.).
     Transition  303.209(a)(3).
     to preschool.
INTERAGENCY COORDINATION:
     See
     ``Coordination.''
INTERIM INDIVIDUALIZED FAMILY
 SERVICE PLAN (IFSP):
     Services    303.345.
     before evaluations and
     assessments completed.
INTERMEDIATE EDUCATIONAL UNIT
 (IEU):
     Local       303.23(b)(3).
     educational agency (LEA)
     (Definition).
JURISDICTION(S) (Geographic
 location):
     Eligible    303.2(a).
     recipients of an award.
     State       303.35.
     (Definition).
LACK OF CONSENT (INABILITY TO      303.520(c).
 PAY).
     See also
     ``Inability to Pay''.
LACK OF OXYGEN:
     At-risk     303.5.
     infant or toddler
     (Definition).
LEAD AGENCY:
     Definition  303.22.
                 303.201.
     Designation of.
     Lead        303.120.
     agency role in supervision,
     etc..
     Public      303.30.
     agency (Definition).
LIMITED ENGLISH PROFICIENCY
 (LEP):
     Native      303.25(a).
     language (Definition).
        [cir] See ``Native
         language''.
LOCAL EDUCATIONAL AGENCY (LEA):
     Definition  303.23.
                 303.209(b).
     Notification of child
     transitioning to.
LOW BIRTH WEIGHT:
     At-risk     303.5.
     infant or toddler
     (Definition).
LOW-INCOME (Children and
 families):
     Purpose of  303.1(d).
     Early Intervention program
     (Historically
     underrepresented
     populations).
                 303.227(a).
     Traditionally underserved
     groups (Low-income families).
MAPPING:
     Of          303.13(b)(1)(i), 303.16(c)(1)(iii).
     surgically implanted medical
     devices.
MATERNAL AND CHILD HEALTH:
     Child find  303.302(c)(1)(ii)(B).
     (Coordination).
     Payor of    303.510(c).
     last resort--Non-reduction
     of benefits (Construction).
MEDIATION (A-L):
     Annual      303.721(c).
     report of children served
     (Number of mediations held).
     Benefits    303.431(d)(1).
     of (Meeting to explain).
                 303.431(b)(5)(i), (b)(7).
     Confidential discussions.
     Cost of     303.431(b)(3).
     (Borne by State).
     Disputes    303.431(a).
     (Resolve through mediation).
                 303.431(d).
     Disinterested party (to
     encourage).
                 303.431(c).
     Impartiality of mediator.
     Lead        303.431(a).
     agency procedures (to
     resolve disputes through
     mediation).
     Legally     303.431(b)(5).
     binding agreement (if
     parties resolve dispute
     through mediation).
MEDIATION (M-O):
    
     Mediator(s):
        [cir] Impartiality of....  303.431(c).
        [cir] List of............  303.431(b)(2)(i).
        [cir] Qualified and        303.431(b)(1)(iii).
         impartial.
        [cir] Random selection of  303.431(b)(2)(ii).
        [cir] Trained in           303.431(b)(1)(iii).
         effective mediation
         techniques.

[[Page 264]]

 
     Meeting to  303.431(d).
     encourage mediation.
     Not used    303.431(b)(7).
     as evidence in hearing or
     civil proceeding.
     Not used    303.431(b)(1)(ii).
     to delay/deny right of
     hearing.
MEDIATION (P-Z):
     Parent      303.431(d)(1).
     training and information
     center.
     Prior       303.421(b).
     written notice--Content.
                 303.431(b)(1)-(b)(7).
     Requirements.
     Sessions    303.431(b)(4).
     scheduled--Timely manner and
     convenient location.
     State       303.430.
     dispute resolution options.
     State       303.700(d)(2).
     monitoring and enforcement.
     Voluntary.  303.431(b)(1)(i).
     Written     303.431(b)(6).
     mediation agreement
     (Enforceable in court).
MEDICAID:
     Council--   303.601(a)(7).
     Composition (Member from
     State Medicaid program).
     Non-        303.510(c).
     reduction of benefits (Payor
     of last resort)--
     Construction.
     Proceeds    303.520(d)(2).
     from public-private
     insurance for Part C--
     Neither State nor local
     funds under ``nonsupplant''
     (Sec.   303.325(b)).
     ``Service   303.34(c).
     coordination''--Use of term
     not intended to affect
     seeking Medicaid.
MEDICAL SERVICES:
     In Early    303.13(b)(5).
     Intervention Services
     definition.
     Interim     303.510(b).
     payments--reimbursement
     (Payor of last resort).
MEDICAL SERVICES FOR DIAGNOSTIC
 OR EVALUATION PURPOSES:
     See         303.13(b)(5).
     ``Medical services''
     (Definition).
MEDICINE OR DRUGS:
                 303.16(c)(1)(ii).
     Prescribing for any purpose--
     Not covered.
METHOD (Of delivering Individual   303.344(d)(1)(i).
 Family Service Plan (IFSP)
 services).
     Definition  303.344(d)(2)(ii).
METHODS OF ENSURING SERVICES.....  303.511.
METABOLISM (Inborn errors of):
     Diagnosed   303.21(a)(2)(ii).
     physical or mental condition.
MINORITY (Children, Families,
 Parents):
     Council--   303.601(a)(1)(i).
     Composition (Minority
     parents).
     Purpose of  303.1(d).
     Early Intervention Program.
                 303.227(a).
     Traditionally underserved
     groups.
MONITOR; MONITORING:
     Council--   303.604(a)(3).
     Functions.
     Financial   303.511(e).
     responsibility and methods
     of ensuring services--Added
     components.
     Lead        303.120(a)(2)(i), (a)(2)(iv).
     agency role in monitoring.
     Rule of     303.707.
     construction--Nothing
     restricts Secretary's
     authority under General
     Education Provisions Act
     (GEPA) to monitor-enforce
     requirements of the Act.
                 303.703(b).
     Secretary's review &
     determination regarding
     State performance.
     State       303.700(a)(1), (b), (d)(2).
     monitoring and enforcement.
     State       303.701(c)(2).
     performance and data
     collection.
     State use   303.702(b)(1)(ii).
     of targets and reporting.
MULTIDISCIPLINARY:
     Definition  303.24.
     Evaluation  303.321(a)(1)(i).
     and assessment.
                 303.113(a)(1).
     Evaluation, assessment, and
     nondiscriminatory procedures.
     Purpose of  303.1(a).
     Early Intervention program.
     State       303.100.
     eligibility (General
     authority).
NATIVE LANGUAGE:
     Consent...  303.7(a).
     Definition  303.25.
     Evaluation  303.321(a)(5), (a)(6).
     and assessment.

[[Page 265]]

 
                 303.342(d)(1)(ii).
     Individualized Family
     Service Plan (IFSP)
     meetings--Accessibility and
     convenience.
     Notice      303.404.
     regarding confidentiality
     and availability of notice
     in native language.
     Prior       303.421(c).
     written notice--Native
     language.
NATURAL ENVIRONMENTS:
     Definition  303.26.
                 303.344(d)(1)(ii)(A)-(B).
     Determination of appropriate
     setting for Early
     Intervention services.
     Early       303.13(a)(8).
     Intervention services
     (Definition).
     Early       303.126.
     Intervention services in
     natural environments
     (Component of statewide
     system).
                 303.344(d)(1)(ii)(A)-(B).
     Individualized Family
     Service Plan (IFSP) content--
     Early Intervention services
     in.
     State       303.700(d)(1).
     monitoring and enforcement.
NEGLECT or ABUSE:
     See
     ``Abuse or neglect''.
NERVOUS SYSTEM (``Disorders
 reflecting disturbance of
 development of''):
     Diagnosed   303.21(a)(2)(ii).
     physical or mental condition
     (Infant or toddler with a
     disability).
NONCOMMINGLING...................  303.225(a).
NONDISCRIMINATORY:
                 303.113, 303.321(a)(4).
     Evaluation, assessment and
     nondiscriminatory procedures.
     Evaluation  303.321(a)(4).
     and assessment--in a
     nondiscriminatory manner.
NON-REDUCTION OF BENEFITS........  303.510(c).
NONSUBSTITUTION OF FUNDS.........  303.510(a).
NONSUPPLANT:
                 303.225(b).
     Requirement to supplement
     not supplant.
                 303.225(c)(2)(ii).
     Requirement regarding
     indirect costs.
NOTICE & HEARING BEFORE            303.231.
 DETERMINING A STATE NOT ELIGIBLE.
NOTICES (State administration):
     Public      303.208(b)(2).
     participation policies--Lead
     agency notice of hearings.
     State
     applications, eligibility
     determinations, etc.:
        [cir] Determination by     303.229.
         Secretary that a State
         is eligible (Secretary
         notifies State).
        [cir] Disapproval of an    303.230.
         application--Standard
         for.
        [cir] Initial decision;    303.234(a), (c).
         final decision.
        [cir] Judicial review....  303.236.
        [cir] Notice and hearing   303.231(a)(1)(i), (a)(2)(b).
         before determining a
         State not eligible.
        [cir] Standard for         303.230.
         disapproval of an
         application.
NOTICES (State monitoring &
 enforcement):
     Public      303.706.
     attention by State--If
     Secretary proposing
     enforcement.
                 303.703(b)(2)(i).
     Secretary's review and
     determination regarding
     State performance.
    
     Withholding funds:
        [cir] Opportunity for a    303.705(a).
         hearing.
        [cir] Suspension.........  303.705(b).
NOTICES (To parents; family) (A-
 O):
                 303.401(a).
     Confidentiality and
     opportunity to examine
     records.
     Due
     process procedures--Part B:
        [cir] Filing a due         303.440(c).
         process complaint (Time-
         line for resolution).
        [cir] Lead agency          303.441(e)(1).
         response to a due
         process complaint.
        [cir] Notice required      303.441(c).
         before a hearing.
        [cir] Resolution process.  303.442(a)(1), (b)(5).
                 303.342(d)(2).
     Individualized Family
     Service Plan (IFSP)
     meetings--Written notice to
     family, etc.
     Lead        303.400(a).
     agency--General
     responsibility for
     procedural safeguards.

[[Page 266]]

 
     Native      303.404(d).
     language.
     Notice to   303.404.
     parents Re-confidentiality.
NOTICES (To parents; family) (P-
 Z):
     Parental    303.420.
     consent and ability to
     decline service.
     Prior       303.421.
     written notice and
     procedural safeguards notice.
        [cir] Content of notice..  303.421(b).
        [cir] General............  303.421(a).
        [cir] Native language....  303.421(c)(1), (c)(2)(i)-(c)(2)(ii).
     Procedural  303.400(a).
     safeguards--General
     responsibility of lead
     agency for.
     Screening   303.320(a)(1)(i), (2).
     procedures.
     State       303.211(b)(1).
     option--Services to children
     three and older (Annual
     notice to parents).
NUMERACY SKILLS:
     Infant or   303.21(c)(1).
     toddler with a disability.
                 303.344(d)(4).
     Individualized Family
     Service Plan (IFSP).
     State       303.211(b)(2).
     option--Services to children
     ages three and older.
NURSES:
     Early       303.13(c)(3).
     Intervention services
     (Definition)--Qualified
     personnel.
NURSING SERVICES:
     Definition  303.13(b)(6).
NUTRITION SERVICES:
    Definition...................  303.13(b)(7).
NUTRITIONAL DEPRIVATION:
     At risk     303.5.
     infant or toddler
     (Definition).
OCCUPATIONAL THERAPY:
     Definition  303.13(b)(8).
                 303.13(c)(4).
     Occupational therapists.
OPTIMIZATION (Relating to          303.13(b)(1)(i), 303.16(c)(1)(iii).
 Cochlear Implants, etc.).
ORIENTATION AND MOBILITY
 TRAINING:
     Early       303.13(b)(17)(iii).
     Intervention services
     (Definition)--In ``Vision
     services.''.
                 303.13(c)(5).
     Orientation and mobility
     specialists.
OTHER SERVICES:
     Early       303.13(d).
     Intervention services
     (Definition).
                 303.344(e).
     Individualized Family
     Service Plan (IFSP) content.
OUTCOMES:
     Early       303.12(b)(1).
     Intervention services
     provider (Definition).
     Health      303.16(c)(1)(iii)(A).
     services--Developmental
     outcomes.
    
     Individualized Family
     Service Plan (IFSP)--
     Content:
        [cir] Duration...........  303.344(d)(2)(iv).
        [cir] Early Intervention   303.344(d)(1).
         services.
        [cir] Early Intervention   303.344(d)(1)(ii)(B)(3).
         services in natural
         environments.
        [cir] Results or outcomes  303.344(c).
                 303.342(b)(1)(i)-(b)(1)(ii).
     Individualized Family
     Service Plan (IFSP)--
     Periodic review.
                 303.346.
     Individualized Family
     Service Plan (IFSP)--
     Responsibility and
     accountability.
     Special     303.13(b)(14)(ii).
     instruction (Definition).
PARAPROFESSIONALS:
                 303.118.
     Comprehensive System of
     Personnel Development (CSPD)
     (Training of).
     Use of....  303.119(c).
PARENT:
     Biological  303.27(a)(1), (a)(4).
     or adoptive parent of a
     child.
     Definition  303.27.
     Foster      303.27(a)(2).
     parent.
                 303.27(a)(4).
     Grandparent.
     Guardian..  303.27(a)(3).
                 303.301(a)(1)(ii).
     Dissemination of Information
     (Public awareness program).
     Stepparent  303.27(a)(4).
     Surrogate   303.27(a)(5).
     parent.

[[Page 267]]

 
        [cir] See also
         ``Surrogate Parent(s).''
PARENTAL RIGHTS (A-C):
    
     Confidentiality:
        [cir] Access rights......  303.405.
        [cir] Amendment of         303.410.
         records at parent's
         request.
        [cir] Consent prior to     303.414.
         disclosure or use.
        [cir] Council--            303.601(a)(1).
         Composition.
        [cir] Destruction of       303.416.
         information.
        [cir] List of types and    303.408.
         locations of information.
        [cir] Notice to parents..  303.404.
        [cir] Opportunity for a    303.411.
         hearing on records.
        [cir] Opportunity to       303.401(b)(2).
         inspect-review records.
        [cir] Right to             303.401(a).
         confidentiality of
         personally identifiable
         information.
     Consent     303.7.
     (Definition).
PARENTAL RIGHTS (D--Part B):
     Due
     process hearings--Part B:
        [cir] Construction--       303.445(b).
         parent's right to file
         an appeal.
        [cir] Construction--       303.445(c).
         filing a separate due
         process complaint.
        [cir] Filing a due         303.440(a)-(b).
         process complaint.
        [cir] Findings of fact     303.444(a)(5), 303.446(b)(2)(vi).
         and decisions.
        [cir] Hearing officer      303.445(a)(2)(ii).
         finding--matters
         alleging procedural
         violations.
        [cir] Hearing rights.....  303.444.
        [cir] Impartial due        303.443(a), (e), (f)(2).
         process hearing.
        [cir] Lead agency          303.441(e).
         response to a due
         process complaint.
        [cir] Parental rights at   303.444(c).
         hearings.
        [cir] Resolution process.  303.442.
        [cir] Separate request     303.445(c).
         for a due process
         hearing.
PARENTAL RIGHTS (D--Part C to
 IF):
     Due
     process hearings--Part C:
        [cir] Convenience of       303.437.
         hearings & timelines.
        [cir] Parental rights in   303.436.
         due process hearings.
     Functions   303.521(b).
     not subject to fees.
    
     Individualized Family
     Service Plan (IFSP)--Consent
     provisions:
        [cir] Parental consent     303.342(e).
         regarding IFSP contents.
        [cir] Services before      303.345(a).
         evaluation completed
         (Parental consent).
    
     Individualized Family
     Service Plan (IFSP) Team
     meeting participants:
        [cir] An advocate or       303.343(a)(1)(iii).
         person outside the
         family--If parent
         requests.
        [cir] Other family         303.343(a)(1)(ii).
         members, if requested by
         the parent.
        [cir] The parent or        303.343(a)(1)(i).
         parents.
        [cir] See also ``Family
         (Families) (IFSP)''.
PARENTAL RIGHTS (IN-O):
     Inability   303.521(a)(4)(ii).
     of parents to pay will not
     delay-deny services.
     Mediation:
        [cir] Binding agreement    303.431(b)(5)(ii).
         to resolve a dispute--
         signed by parents &
         agency.
        [cir] Meeting to           303.431(d).
         encourage.
        [cir] Not used to deny or  303.431(b)(1)(ii).
         delay a parent's right
         to a hearing.
     Native
     language:
        [cir] Consent              303.7(a).
         (definition).
        [cir] Definition.........  303.25.
        [cir] Prior notice--       303.421(c).
         Native language.
PARENTAL RIGHTS (P-Z):
     Parental    303.420.
     consent and ability to
     decline service.
     Payments    303.731(d)(1).
     to Indians--Use of funds
     (Encouraged to involve
     Indian parents).
     Pendency..  303.430(e).

[[Page 268]]

 
     Prior       303.421.
     notice.
     State
     complaint procedures:
        [cir] Adoption of (and     303.432(a).
         widely disseminating
         procedures to parents).
        [cir] Opportunity to       303.433(a)(3)(ii).
         engage in mediation.
        [cir] Time extension.....  303.433(b)(1)(ii).
     States      303.521(c).
     with Free Appropriate Public
     Education (FAPE) mandates
     may not charge parents for
     services under Part B.
     Status of   303.430(e).
     child during pendency of due
     process hearing.
     State       303.520(a)(4), 303.520(b)(1)(iii).
     system of payments copy for
     parents.
     See also
     ``Due Process Procedures,''
     ``Family (Families),'' and
     ``Procedural Safeguards''.
PARENT TRAINING:
     Payment to  303.731(d).
     Indians--Use of funds.
                 303.13(b)(10)(iv).
     Psychological services
     (Definition).
PARENT TRAINING & INFORMATION
 CENTER(S):
     Definition  303.28.
     Mediation-- 303.431(d)(1).
     Meeting to encourage.
     State       303.432(a)(2).
     complaint procedures--Widely
     disseminated to Parent
     Training and Information
     Centers.
PART B (IDEA) (A-O):
     Child       303.302(a)(1), (c)(1)(ii)(A).
     find--Coordination with.
                 303.401(d)(2).
     Confidentiality.
                 303.118(a)(3).
     Comprehensive System of
     Personnel Development (CSPD)
     (Training personnel relating
     to transition).
     Due         303.430(d)(2).
     process hearing procedures
     (Dispute resolution options).
     Free        303.15(b).
     Appropriate Public Education
     (FAPE) (Definition).
     Financial   303.511(b).
     responsibility and methods
     of ensuring services.
                 303.209(d)(3).
     Individualized Family
     Service Plan (IFSP) Content-
     Transition to preschool.
     Monitoring  303.700(d).
     and enforcement.
PART B (IDEA) (P-Z):
     Permissive  303.501(c)(1), (d).
     use of funds.
     State       303.36(b).
     educational agency
     (Definition).
     State       303.211(b)(1)(i)-(b)(1)(ii), (b)(3).
     option-Services to children
     three and older.
        [cir] Construction--If     303.211(e)(1).
         child receives Part C
         services, free
         appropriate public
         education (FAPE) not
         required.
     States      303.521(c).
     with free appropriate public
     education (FAPE) mandates.
PARTICIPATING AGENCY:
     Definition  303.403(c).
     of.
     See also
     ``Confidentiality'' (A-D)
     and Personally
     ``Identifiable Information''
     (A-C).
PAYMENT(S) FOR EARLY INTERVENTION
 SERVICES:
                 303.1(b).
     Coordination of.
                 303.344(d)(1)(iv).
     Individualized Family
     Service Plan (IFSP) content--
     Payment arrangements, if any.
     Interim     303.510(b).
     payments--reimbursement
     (payor of last resort).
     Policies    303.520.
     Re use of insurance for
     payment for services.
     Timely      303.511(c).
     resolution of disputes about
     payments (Methods of
     ensuring services).
     To          303.730(a).
     outlying areas.
     To          303.731(a)(1).
     Secretary of the Interior.
PAYMENTS TO INDIANS..............  303.731.
     Allocation  303.731(b).
                 303.731(c).
     Information.
     Prohibited  303.731(f).
     use of funds.
     Reports...  303.731(e).
     Use of      303.731(d).
     funds.

[[Page 269]]

 
PAYOR OF LAST RESORT:
     Assurance   303.222.
     regarding.
     General     303.500.
     requirement.
     Interim     303.510(b).
     payments--reimbursement.
     Non-        303.510(c).
     reduction of benefits.
                 303.510(a).
     Nonsubstitution of funds.
PEDIATRICIANS & OTHER PHYSICIANS:
     Qualified   303.13(c)(6).
     personnel.
PENDENCY:
                 303.706.
     Enforcement action--Public
     attention.
     Status of   303.430(e)(1).
     child during pendency of a
     due process hearing request.
PERIODIC REVIEW (Individualized    303.342(b).
 Family Service Plan (IFSP)).
PERMISSIVE USE OF FUNDS BY LEAD
 AGENCY:
     At risk     303.501(e).
     infants or toddlers
     (strengthen statewide
     system).
     Continue    303.501(d).
     Early Intervention services
     in lieu of FAPE.
     Expand and  303.501(b).
     improve on services.
     For direct  303.501(a).
     services.
     Provide     303.501(c).
     FAPE (See also ``Use of
     Funds'').
PERSONALLY IDENTIFIABLE
 INFORMATION (A-C):
                 303.401(a).
     Confidentiality.
        [cir] Applicability and    303.401(c).
         timeframe of procedures.
        [cir] Consent prior to     303.414(a).
         disclosure or use.
        [cir] Definitions of       303.403(a), (c).
         ``destruction'' and
         ``participating agency''.
        [cir] Destruction of       303.416(a).
         information.
        [cir] Disclosure of        303.401(d)(1).
         information.
        [cir] Notice to parents..  303.404.
        [cir] Safeguards.........  303.415.
        [cir] Secretary ensures    303.402.
         protection of.
PERSONALLY IDENTIFIABLE
 INFORMATION (D-Z):
     Data        303.701(c)(3).
     collection--Construction
     (Nationwide database not
     authorized).
     Definition  303.29.
     Finality    303.446(c).
     of hearing decision--
     Findings of fact & decisions
     (to public).
     Hearing     303.445(d).
     decisions--Part B (to
     public).
     Parental    303.420(a)(5).
     consent--Exchange of.
     Public      303.702(b)(3).
     reporting and privacy.
     Transition  303.209(b)(2).
     to preschool--State policy
     (Parents may object to
     disclosure).
PERSONNEL (Shortage of):
     Personnel   303.119(d).
     standards--Policy to address.
PERSONNEL STANDARDS:
     Policies    303.119(a).
     and procedures relating to.
     Qualified   303.31.
     personnel (definition).
                 303.119(b).
     Qualification standards.
     Policy to   303.119(d).
     address shortage of
     personnel.
     Use of      303.119(c).
     paraprofessionals and
     assistants.
PHYSICAL DEVELOPMENT, including
 vision and hearing:
                 303.21(a)(1)(ii).
     Developmental delays in.
     Early       303.13(a)(4)(i).
     Intervention Services
     (Definition).
     Evaluation  303.321(b)(3).
     of child's level of
     functioning in.
     In          303.21(a)(1)(ii).
     definition of ``Infants and
     toddlers with disabilities''.
     In          303.344(a).
     Individualized Family
     Service Plan (IFSP) content
     (Information about child's
     status).
PHYSICAL THERAPY:
     Definition  303.13(b)(9).
     Physical    303.13(c)(7).
     therapists.
PHYSICIANS:
     Early       303.13(c)(6).
     intervention services
     (Qualified personnel--
     Pediatricians and other).
     Health      303.16(b)(2).
     services (Consultation by).
     Medical     303.13(b)(5).
     services (Definition).

[[Page 270]]

 
     Public      303.301(a)(1)(ii).
     awareness program
     (Dissemination to all
     primary referral sources).
     Referral    303.303(c)(2).
     procedures--Primary referral
     sources.
POLICIES (AND PROCEDURES) [P&P]
 (A-D):
    
     Confidentiality:
        [cir] Enforcement (To      303.417.
         ensure requirements are
         met).
        [cir] Consent prior to     303.414(c).
         disclosure--P&P to be
         used when parent refuses
         consent.
        [cir] Notice to parents--  303.404(b).
         summary of P&P regarding
         disclosure.
        [cir] Option to inform     303.401(e).
         parent about intended
         disclosure.
        [cir] Safeguards--         303.415(c).
         Training regarding State
         P&P.
     Due
     process--Part B:
        [cir] 30 or 45 day         303.440(c).
         timeline for resolution
         (Specify in P&P).
        [cir] Timelines and        303.447(a).
         convenience of hearings.
POLICIES (AND PROCEDURES) [P&P]
 (E-Q):
     Early       303.126.
     Intervention services in
     natural environments.
     Financial   303.511(a).
     responsibility and methods
     of ensuring services--
     Delivery of services in a
     timely manner.
     Personnel   303.119.
     standards.
     Policies    303.520.
     related to use of insurance
     for services.
     Public      303.208.
     participation P&P.
POLICIES (AND PROCEDURES) [P&P]
 (R-Z):
     Referral    303.206.
     policies for specific
     children.
     State       303.200.
     application and assurances.
     State       303.102.
     conformity with IDEA-Part C.
     Statewide   303.203(b).
     system and description of
     services.
     System of   303.521(a).
     payments and fees--State's
     policies to specify
     functions subject to fees.
                 303.227.
     Traditionally underserved
     groups.
     Transition  303.209(a)(1).
     to preschool, etc..
     Use of      303.500.
     funds--Payor of last resort.
POLICIES RELATED TO USE OF PUBLIC  303.520.
 OR PRIVATE INSURANCE OR PUBLIC
 BENEFITS TO PAY FOR PART C
 SERVICES.
POSITIVE EFFORTS TO EMPLOY AND     303.105.
 ADVANCE QUALIFIED INDIVIDUALS
 WITH DISABILITIES.
POST-REFERRAL PROCEDURES:
     Types of    303.300(c).
     post-referral procedures.
     See also
     ``screening'' (Sec.
     303.320), ``evaluation and
     assessment'' (Sec.
     303.321), ``IFSP
     development'' (Sec.  Sec.
     303.342-303.345).
PRELITERACY, LANGUAGE, & NUMERACY
 SKILLS:
     Infant or   303.21(c)(1).
     toddler with a disability.
                 303.344(d)(4).
     Individualized Family
     Service Plan (IFSP)--
     Educational component.
     State       303.211(b)(2).
     option--Services to children
     ages three and older.
PRENATAL DRUG EXPOSURE:
     At-risk     303.5.
     infant or toddler.
     Referral    303.303(b)(2).
     of specific at-risk children.
PRE-REFERRAL PROCEDURES:
     Types of    303.300(a).
     pre-referral procedures.
     See also
     ``public awareness'' (Sec.
     303.301), ``child find''
     (Sec.   303.302).
PRIMARY REFERRAL SOURCE(S):
     Child       303.302(a)(2)(ii).
     find--Participation by.
                 303.118.
     Comprehensive System of
     Personnel Development
     (CSPD)--Training of.
     Definition  303.303(c).
     Public
     awareness program
        [cir] Component of a       303.116(b).
         statewide system.
        [cir] Dissemination of     303.301(a)(1)(ii).
         information to sources.
     Referral    303.303(a)(1).
     procedures.
     Screening   303.320(b).
     procedures (Definition of).
PRIOR WRITTEN NOTICE:

[[Page 271]]

 
     See Notice
     (To parents; Family) (P-Z).
PRIVATE INSURANCE:
     See
     ``Insurance''.
PROCEDURAL SAFEGUARDS (A-C):
                 303.435.
     Appointment of an impartial
     hearing officer.
     Child's     303.430(e).
     status during proceedings.
     Civil       303.448.
     action--Part B.
     Civil       303.438.
     action--Part C.
                 303.401.
     Confidentiality and
     opportunity to examine
     records.
        [cir] Additional
         requirements (see Sec.
         Sec.   303.402-303.417).
        [cir] See also
         ``Confidentiality''.
     Consent     303.7.
     (Definition).
        [cir] See also
         ``Consent''.
                 303.437.
     Convenience of proceedings &
     timelines.
PROCEDURAL SAFEGUARDS (D-N):
     Due         303.430(d).
     process procedures.
        [cir] Part B procedures..  303.440-303.449.
        [cir] Part C procedures..  303.435-303.438.
                 303.521(b)(4)(ii).
     Implementation of (Functions
     not subject to fees &
     carried out at public
     expense).
     Lead        303.400.
     agency responsibility for.
     Mediation.  303.431.
     Native      303.421(c).
     language (Prior written
     notice).
        [cir] See ``Native
         Language''.
                 303.113.
     Nondiscriminatory evaluation
     and assessment procedures.
        [cir] No single procedure  303.321(b).
         used as sole criterion.
PROCEDURAL SAFEGUARDS (O-Z):
                 303.401(b)(2).
     Opportunity to examine
     records (i.e., to inspect &
     review records).
     Parental    303.420.
     consent and ability to
     decline service.
        [cir] See also
         ``Consent''.
     Parental    303.436.
     rights in due process
     hearings.
        [cir] See also ``Due
         Process Rights--Part
         B.''
     Pendency    303.430(e).
     (Status of child).
     Prior       303.421.
     written notice.
     Procedural  303.421(b)(3).
     safeguards notice.
     State       303.430.
     dispute resolution options.
     Surrogate   303.422.
     parents.
     System of   303.521(e).
     payments.
PROTECTION & ADVOCACY AGENCIES:
     State       303.432(a)(2).
     complaint procedures.
PROVISION OF SERVICES BEFORE       303.345.
 EVALUATIONS AND ASSESSMENTS
 COMPLETED.
PSYCHOLOGICAL SERVICES:
     Early       303.13(b)(10).
     Intervention services
     (Definition).
                 303.13(c)(8).
     Psychologists (Qualified
     personnel).
PUBLIC AGENCY:
                 303.401(e)(1).
     Confidentiality--Option to
     inform parent about intended
     disclosure.
     Definition  303.30.
     IFSP Team-- 303.343(a)(1)(iv).
     Service coordinator
     designated by public agency.
     Impartial   303.443(c)(3).
     hearing officer (Public
     agency--List of hearing
     officers).
     Parent      303.27(b)(2).
     (Definition).
     Prior       303.421(c)(2).
     written notice--Native
     language.
     State
     complaint procedures:
        [cir] Filing a complaint.  303.434(b)(1).
     Surrogate   303.422(a)(2).
     parents.
PUBLIC HEARINGS:
     Public      303.208(b)(1).
     participation policies and
     procedures.
     See
     ``Public Participation''.
PUBLIC AWARENESS PROGRAM:
     Component   303.116.
     of statewide system.
     Public      303.301(b).
     awareness program--
     Information for parents.
PUBLIC INSURANCE:

[[Page 272]]

 
     See
     ``Insurance''.
PUBLIC PARTICIPATION.............  303.208.
                 303.208(a).
     Requirements for State
     applications.
                 303.208(b).
     Requirements for State
     policies and procedures.
PURPOSE OF EARLY INTERVENTION      303.1.
 PROGRAM.
QUALIFIED PERSONNEL:
     All         303.321(a)(2).
     evaluations and assessments
     of child and family
     conducted by qualified
     personnel.
     Definition  303.31.
     Early       303.13(a)(7), (b)(3), (c), (d).
     Intervention Services
     (Definition).
                 303.321(a)(2).
     Evaluations and assessments
     of child and family--All
     conducted by qualified
     personnel.
     Informed    303.321(a)(3)(ii).
     clinical opinion.
     Procedures  303.321(c)(1), (c)(2).
     for assessment of child and
     family.
RECORDS:
     Evaluation  303.321(b)(5).
     of child--Review of records.
     Civil       303.448(c)(1).
     action--Part B (records of
     administrative proceedings).
                 303.401-303.417.
     Confidentiality.
     Consent     303.7(b).
     (Definition)--Lists records
     to be released.
     Records     303.321(a)(3)(i).
     used to establish
     eligibility (without
     conducting an evaluation).
                 303.343(a)(2)(iii).
     Individualized Family
     Service Plan (IFSP) Team
     (Making pertinent records
     available at the meeting).
     Parents     303.405(a).
     right to inspect and review.
     References  303.3(b)(2).
     in applicable regulations.
     Reports     303.224(b).
     and records (Assurance--
     Application requirement).
REFERRAL PROCEDURES..............  303.303.
REFERRALS:
     Child       303.302(a)(2).
     find--System for making
     referrals to lead agencies
     or Early Intervention
     service providers.
     Permissive  303.501(e)(2)-(3).
     use of funds--At risk
     children.
REFERRAL SOURCES:
     See
     ``Primary Referral
     Sources''.
REGISTERED DIETICIANS:
     Qualified   303.13(c)(9).
     Personnel.
REHABILITATION (As part of Early   303.13(b)(1)((ii)(D), (b)(2)(iii),
 Intervention services).            (b)(15)(ii)-(b)(15)(iii),
                                    (b)(17)(ii)).
REIMBURSEMENT:
     Financial   303.511(a).
     responsibility & methods of
     ensuring services.
     Payor of    303.510(b).
     last resort (Interim
     payments--Reimbursement).
     Proceeds    303.520(d).
     from public and private
     insurance.
                 303.122.
     Reimbursement procedures
     (Component of statewide
     system).
REPORTS (A-P):
     Annual
     report of children served:
        [cir] Certification......  303.723.
        [cir] Other                303.724(b), (d).
         responsibilities of lead
         agency.
        [cir] Report requirement.  303.721.
     Council--   303.604(c).
     Annual report to Governor
     and Secretary.
     Data        303.722(a).
     reporting.
     Data        303.720.
     requirements--general.
     Payments    303.731(e).
     to Indians.
REPORTS (R-Z):
     Reports     303.224.
     and records (Assurance--
     Application requirement).
     Reports--   303.720, 303.721, 303.722, 303.723,
     Program information.           303.724.
     State
     monitoring & enforcement:
        [cir] Enforcement--        303.704(d).
         Secretary's Report to
         Congress.
        [cir] Lead agency--Annual  303.700(a)(4).
         report on performance of
         State.
        [cir] Public reporting     303.702(b).
         and privacy.

[[Page 273]]

 
        [cir] Secretary's review   303.703(a)-(b).
         & determination.
        [cir] State performance    303.701(c)(1)-(c)(2).
         plans & data collection.
        [cir] State use of         303.702(b).
         targets and reporting
         (Public reporting &
         privacy).
RESOLUTION OF DISPUTES:
     See
     ``Disputes-Dispute
     Resolution''.
RESPIRATORY DISTRESS:
     At risk     303.5.
     infant or toddler
     (Definition).
ROUTINE MEDICAL SERVICES:
     Not         303.16(c)(3).
     covered.
RURAL (AREAS, CHILDREN,
 FAMILIES):
     Assurance   303.227(a).
     regarding traditionally
     underserved groups (Rural
     families, etc.).
                 303.118(b)(1).
     Comprehensive System of
     Personnel Development (CSPD)
     (Training personnel to work
     in).
     Purpose of  303.1(d).
     Early Intervention program.
STATE CHILDREN'S HEALTH INSURANCE  303.302(c)(1)(ii)(K).
 PROGRAM (CHIP).
SCHOOL READINESS:
     Infant or   303.21(c)(1).
     toddler with a disability.
                 303.344(d)(4).
     Individualized Family
     Service Plan) IFSP.
     State       303.211(a)(2).
     option--Serve age three to
     five.
SCREENING PROCEDURES.............  303.320.
SEA:
     See
     ``State educational agency''.
SECRETARY (of Education):
     Definition  303.33.
SECRETARY OF THE INTERIOR:
     Eligible    303.2.
     recipients of an award.
     Indian--    303.19(c).
     Indian tribe (Definition--
     Construction clause).
     Payments    303.731.
     to Indians.
     State       303.732(d)(1).
     allotments (Definitions
     ``Aggregate amount'').
SENSORY IMPAIRMENTS:
     Infant or   303.21(a)(2)(ii).
     toddler with a disability
     (Diagnosed condition).
SERVICE COORDINATION (Services):
     Definition  303.13(b)(11), 303.34.
     Functions   303.521(b)(3).
     not subject to fees.
                 303.114.
     Individualized Family
     Service Plans (IFSP) (Early
     Intervention system
     component).
     Early       303.13(b)(11).
     Intervention Services.
     Term        303.34(c).
     ``case management'' not
     precluded.
     Service     303.344(g)(2).
     coordinator--IFSP content
     (``Profession'' includes
     ``service coordination'').
     Specific    303.34(b).
     Service Coordination
     Services.
SERVICE COORDINATOR:
                 303.34(a).
     Entitlement to.
     Named in    303.344(g)(1).
     Individualized Family
     Service Plan (IFSP).
        [cir] In interim IFSP....  303.345(b)(1).
     On          303.343(a)(1)(iv).
     Individualized Family
     Service Plan (IFSP) Team.
SERVICE PROVIDER(S):
     General     303.12(b).
     role of.
     See         303.13(c).
     ``Qualified personnel''.
SEVERE ATTACHMENT DISORDERS:
                 303.21(a)(2)(ii).
     ``Diagnosed physical or
     mental condition''.
SHORTAGE OF PERSONNEL (Policy to   303.119(d).
 address).
SIGN LANGUAGE AND CUED LANGUAGE
 SERVICES:
     Definition  303.13(b)(12).
SLIDING FEE SCALES:..............
     Definition  303.13(a)(3).
     of ``Early Intervention
     services''.
     System of   303.500(b), 303.521(a)(1).
     payments.
SOCIAL OR EMOTIONAL DEVELOPMENT:
                 303.21(a)(1)(iv).
     Developmental delays in.
     Early       303.13(a)(4)(iv).
     Intervention Services
     (Definition).
     Evaluation  303.321(b)(3).
     of child's level of
     functioning in.
     In          303.21(a)(1)(iv).
     definition of ``Infants and
     toddlers with disabilities''.
     In          303.344(a).
     Individualized Family
     Service Plan (IFSP) content
     (Information about child's
     status).

[[Page 274]]

 
SOCIAL SECURITY ACT:
     Title V--   303.302(c)(1)(ii)(B).
     Maternal and Child Health.
     Title XVI:
        [cir] Supplemental         303.302(c)(1)(ii)(F).
         Security Income (SSI).
     Title XIX:
        [cir] EPSDT (Early         303.302(c)(1)(ii)(C).
         Periodic Screening,
         Diagnosis, and
         Treatment).
        [cir] Medicaid...........  303.510, 303.520.
SOCIAL WORK SERVICES (Definition)  303.13(b)(13).
     Social      303.13(c)(10).
     workers.
SPECIAL INSTRUCTION (Definition).  303.13(b)(14).
     Special     303.13(c)(11).
     educators.
SPEECH-LANGUAGE PATHOLOGY:
     Definition  303.13(b)(15).
     Speech and  303.13(c)(12).
     language pathologists.
SSI (Supplemental Security
 Income):
     Child find  303.302(c)(1)(ii)(F).
     (Coordination).
     See
     ``Social Security Act''.
STATE (Definition)...............  303.35.
     Special     303.732(d)(3).
     definition -State
     allocations.
STATE ADVISORY COUNCIL ON EARLY
 EDUCATION AND CARE.
                 303.118(b)(4).
     Comprehensive system of
     personnel development (CSPD)
     (Coordination).
                 303.210(b).
     Participation of State lead
     agency.
STATE AGENCIES:
     Child find  303.302(c)(1)(i).
     (Coordination).
     ICC         303.601(a)(5)(i).
     (Composition of Council).
                 303.511(b)(2).
     Interagency agreements.
STATE APPLICATION:
     Amendments  303.208(a).
     to (public participation).
     Conditions  303.200.
     of assistance.
     Components  303.110-303.126.
     of a statewide system.
     Council     303.604(a)(4).
     function (Advise-assist lead
     agency with).
     General     303.201-303.212.
     requirements.
     Public      303.208.
     participation.
        [cir] Reviewing public     303.208(a).
         comments received.
STATE APPROVED OR RECOGNIZED       303.31.
 CERTIFICATION (Qualified
 Personnel).
STATE COMPLAINT PROCEDURES:
     Adoption    303.432.
     of.
        [cir] (See also Sec.
         Sec.   303.432-303.434)
     Filing a    303.434.
     complaint.
     Lead        303.430(c).
     agency must adopt.
     Minimum     303.433.
     State complaint procedures.
        [cir] Time extension;      303.433(b).
         final decision;
         implementation.
        [cir] Time limit (60       303.433(a).
         days).
     Remedies    303.432(b).
     for denial of appropriate
     services.
     State       303.430(a), (c).
     dispute resolution options.
     State       303.433(c).
     complaints & due process
     hearing procedures.
STATE DEFINITION OF ``INABILITY
 TO PAY'':
     Private     303.520(c).
     insurance.
     System of   303.521(a)(3), (4)(ii).
     payments.
STATE EDUCATIONAL AGENCY (SEA):
     Applicable  303.3(b)(1).
     regulations (SEA means the
     lead agency).
                 303.401(d).
     Confidentiality procedures--
     Disclosure of information.
     Council--   303.601(a)(6)(i).
     Composition.
     Council--   303.604(b), 303.605(a).
     Functions.
     Definition  303.36.
     Free        303.15(b).
     Appropriate Public Education
     (FAPE) (Definition)--
     Standards of the SEA.
     State       303.211(a)(1).
     option--Services for
     children 3 and older.
     Transition  303.209(a)(3)(i)(A)-(a)(3)(i)(B),
     to preschool.                  (a)(3)(ii), (b)(2)(i)-(b)(2)(ii).
STATE ELIGIBILITY:
     Conditions  303.101.
     of assistance.

[[Page 275]]

 
STATE INTERAGENCY COORDINATING
 COUNCIL (Council):
     Advising &  303.604(a).
     assisting the lead agency.
     Advising &  303.604(b).
     assisting on transition.
     Annual      303.604(c).
     report to Governor &
     Secretary.
     Authorized  303.605.
     activities by the Council.
                 303.601.
     Composition.
     Conflict    303.601(d).
     of interest.
                 303.600.
     Establishment.
     Functions   303.604.
     of Council--Required duties.
     Meetings..  303.602.
     Use of      303.603.
     funds by the Council.
STATE MONITORING and ENFORCEMENT.  303.700.
STATE OPTION--EARLY INTERVENTION   303.211.
 SERVICES TO CHILDREN AGES THREE
 and OLDER.
STATE PERFORMANCE PLANS--DATA      303.701.
 COLLECTION.
STATE USE OF TARGETS AND           303.702.
 REPORTING.
STATEWIDE SYSTEM (of Early
 Intervention services):
     Assurances  303.101(a).
     regarding Early Intervention
     services and a statewide
     system.
                 303.114.
     Individualized Family
     Service Plans (IFSP)
     (Component of).
     Minimum     303.110.
     components of a statewide
     system (See also Sec.
     303.111-303.126).
     Required    303.300.
     pre-referral, referral, and
     post-referral components.
     Statewide   303.203.
     system & description of
     services.
SUBSTANCE ABUSE (Illegal)........  303.5, 303.303(b)(2).
SYSTEM OF PAYMENTS AND FEES:
     See
     ``Fees.''
SUPPLEMENTAL SECURITY INCOME
 (SSI):
     Child
     find--Coordination (see
     303.302(c)(1)(ii)(F)).
     See
     ``Social Security Act.''
SURGERY (Non-covered health        303.16(c)(1)(i).
 service).
SURGICALLY IMPLANTED DEVICE......  303.13(b)(1)(i),
                                    303.16(c)(1)(iii)(A),
                                    (c)(1)(iii)(B).
SURROGATE PARENT(S):
     Assignment  303.422(b)(1).
     by lead agency.
     30 day      303.422(g).
     timeline.
     Criteria    303.422(d).
     for selecting.
     In          303.27(a)(5).
     definition of ``parent''.
     Non-        303.422(e).
     employee requirement.
     Rights or   303.422(f).
     responsibilities of.
     When a      303.422(a)(1)-(a)(3).
     surrogate parent is needed.
SYSTEM OF PAYMENTS:
     Copy to     303.520(a)(4), 303.520(b)(1)(iii).
     parents.
     Family      303.521(d).
     fees.
     Funds       303.520(d).
     received under a State's
     system of payments.
     In          303.13(a)(3).
     definition of ``Early
     Intervention services''.
     Policies    303.520(a)(4), 303.520(b)(1)(ii)-
     related to use of insurance.   (b)(1)(iii).
     Procedural  303.521(e).
     safeguards.
     Statewide   303.203(b).
     system and description of
     services.
     System of   303.521(a), (d).
     payments and fees.
     See also
     ``Fees;'' ``Co-payments; Co-
     pays.''
TECHNICAL ASSISTANCE (TA):
     Assistive   303.13(b)(1)(ii)(E)-(b)(1)(ii)(F).
     technology service.
     Lead        303.120(a)(2)(iii).
     agency role in monitoring,
     etc..
     Minimum     303.433(b)(2)(i).
     State Complaint procedures
     (Lead agency use of TA).
     Payments    303.731(f).
     to Indians (Not to be used
     for TA).
     State       303.700(a)(3).
     monitoring and enforcement.
        [cir] Enforcement--Needs   303.704(a)(1)(iii)-(a)(1)(iv)).
         assistance.
TIMELINES (A-O):
     Child       303.302(a)(2)(i).
     find--General.

[[Page 276]]

 
                 303.405(a).
     Confidentiality--Access
     rights.
     Department  303.231(b)(3), 303.233(b),
     hearing procedures on State    303.234(d), (e), (g), (k), 303.236.
     eligibility.
     Due
     process procedures--Part B
     (see ``Timelines--Due
     Process (Part B)'')
                 303.704(d).
     Enforcement--Secretary
     report to Congress w/in 30
     days of taking enforcement
     action.
     Evaluation  303.310.
     and Assessment & initial
     Individualized Family
     Service Plan (IFSP) meeting.
        [cir] Exceptional          303.310(b)(1).
         circumstances.
TIMELINES (PA-PU):
     Part C due
     process hearings; parental
     rights:
        [cir] Decision not later   303.437(b).
         than 30 days after
         receipt of complaint.
        [cir] Prohibit             303.436(b)(3).
         information not
         disclosed (at least five
         days before hearing).
     Payments    303.731(e)(1)(3).
     to Indians--reports.
     Primary     303.303(a)(2)(i).
     referral sources.
     Public      303.702(b)(1)(i)(A).
     reporting and privacy (State
     performance reports on
     targets).
     Public      303.208.
     participation (Application,
     etc.).
        [cir] See also ``Public
         Participation''.
TIMELINES (R-Z):
     Report to   303.702(b)(2).
     Secretary on State
     performance.
     State       303.433(a).
     complaint procedures (Time
     limit of 60 days).
                 303.209(c).
     Transition--Conference to
     discuss services.
                 303.209(b).
     Transition--LEA notification.
     Transition  303.209(d).
     plan.
        [cir] Transition           303.211(b)(6).
         timelines for child
         receiving services under
         section 303.211.
TIMELINES-DUE PROCESS (PART B) (A-
 Q):
                 303.442(c).
     Adjustments to 30-day
     resolution period.
     Agreement   303.442(e).
     review period (w/in three
     business days of executing a
     settlement agreement).
     Civil       303.448(b).
     action (90 days from date of
     decision).
     Hearing     303.447(a).
     decision (30 or 45 days
     after expiration of 30-day
     period or adjustments to
     that period in Sec.
     303.442(b) or (c)).
     Hearing
     rights:
        [cir] Additional           303.444(b).
         disclosure (At least
         five business days
         before hearing).
        [cir] Prohibit new         303.444(a)(3).
         evidence (Not disclosed
         at least five business
         days before hearing).
     Lead        303.441(e).
     agency response to complaint
     (within ten days of
     receiving complaint).
     Other       303.441(f).
     party response (within ten
     days of receiving complaint).
TIMELINES-DUE PROCESS (PART B)
 (RE):
     Resolution  303.442(a).
     meeting (w/in 15 days).
        [cir] If no meeting in 15  303.442(b)(5).
         days, parent may seek
         intervention--hearing
         officer.
     Resolution
     period:
        [cir] If lead agency not   303.442(b)(1).
         resolved complaint w/in
         30 days, hearing may
         occur.
        [cir] If no parent         303.442(b)(4).
         participation in 30
         days, complaint may be
         dismissed.
     Review      303.447(b).
     decision (30 days after
     request for review).
TIMELINES--DUE PROCESS (PART B)
 (S-Z):
    
     Sufficiency of complaint:
        [cir] Amended complaint    303.441(d)(3)(ii).
         (Hearing officer
         permits--Not later than
         five days before
         hearing).
        [cir] Complaint            303.441(d)(1).
         sufficient--unless party
         notifies hearing officer
         w/in 15 days.
        [cir] Hearing officer      303.441(d)(2).
         determination (within
         five days of notice).

[[Page 277]]

 
     Timelines-- 303.447(a)-(c).
     convenience of hearings and
     reviews and exceptions to
     timelines.
     Timeline    303.443(e).
     for requesting a hearing
     (two years).
        [cir] Exception to         303.443(f).
         timeline.
TRACHEOSTOMY CARE (see Health      303.16(b)(1).
 services).
TRADITIONALLY UNDERSERVED GROUPS.  303.227.
     Purpose of  303.1(d).
     Early Intervention program
     (``Historically
     underrepresented
     populations'').
        [cir] See also
         ``Homeless,'' ``Low
         Income,'' ``Minority,''
         & ``Rural'' (children &/
         or families), and ``Ward
         of the State''.
     Scope of    303.302(b)(1)(ii).
     child find regarding
     selected groups.
     State       303.227.
     policies and practices.
TRAINING:
                 303.118.
     Comprehensive System of
     Personnel Development (CSPD).
     In
     definition of ``Early
     Intervention services'' (see
     Sec.   303.13(b)(1)(ii)(E)
     (specific to AT services),
     (2)(iv) (specific to
     audiology services), (10)
     (specific to psychological
     services).
     Personnel   300.119.
     standards.
TRANSITION TO PRESCHOOL & OTHER
 PROGRAMS:
                 303.209(a).
     Application requirements.
     Conference  303.209(c).
     to discuss services.
     Council     303.604(b).
     functions--Advising &
     assisting on transition.
     Family      303.209(b).
     involvement; notification of
     local educational agency
     (LEA).
                 303.344(h).
     Individualized Family
     Service Plan (IFSP) content--
     Transition from Part C.
                 303.209(a)(3)(i)-(ii).
     Interagency agreement.
     Policies    303.209(a)(1).
     and procedures regarding.
     Program     303.209(d).
     options & transition plan.
     Service     303.34(b)(10).
     coordination services
     (Facilitating development of
     transition plan).
     Transition  303.209(d)(2).
     plan (Establish not fewer
     than 90 days, not more than
     nine months).
TRANSPORTATION & RELATED COSTS...  303.13(b)(16).
TRAUMA DUE TO EXPOSURE TO FAMILY   303.211(b)(7).
 VIOLENCE.
TRIBE (TRIBAL ORGANIZATION):
     Child       303.302(c)(1)(i).
     find--Coordination (tribes).
     Council--   303.601(c).
     Composition.
     Indian;     303.19.
     Indian tribe (Definition).
     Payments    303.731(a)(1), (2), (b), (c), (d),
     to Indians).                   (e).
TUBE FEEDING (Health service)....  303.16(b)(1).
UNDERREPRESENTED POPULATIONS.....  303.1(d).
     See also
     ``Traditionally underserved
     groups.''
USE OF FUNDS:
     Council     303.603.
     (Use of funds by).
                 303.205.
     Description of use of funds
     (Application requirement).
     Payments    303.731(d).
     to Indians (Use of funds).
     Payor of    303.510.
     last resort.
     Permissive  303.501.
     use of funds by lead agency.
     See
     ``Permissive use of funds by
     lead agency.''
     States      303.521(c).
     with FAPE mandates or that
     use Part B funds.
     See also
     ``Funds'' ``Funds--Part B,''
     ``Funds Part C,'' and
     ``Permissive use of funds by
     lead agency.''
USE OF FUNDS AND PAYOR OF LAST     300.500.
 RESORT.
VISION SERVICES:
     Early       303.13(b)(17).
     Intervention services
     (Definition).
VISUAL IMPAIRMENTS (or
 BLINDNESS):
     Special     303.13(c)(11).
     educators including teachers
     of children with visual
     impairments.
VISION SPECIALISTS...............  303.13(c)(13).
WARD OF THE STATE:
     Assurances  303.101(a)(1)(iii).
     regarding Early Intervention
     services.
     Child       303.302(b)(1)(ii).
     find--Scope.

[[Page 278]]

 
     Definition  303.37.
        [cir] Exception (If child  303.37(b).
         has a foster parent
         under ``Parent'' Sec.
         303.27).
     Parent      303.27(a)(3).
     (Definition) ``Guardian''
     (but not State, if child is
     a ward of State).
     Surrogate   303.422(a)(3), (b)(2).
     parents.
                 303.227(a).
     Traditionally underserved
     groups.
``WELL-BABY'' CARE and
 IMMUNIZATIONS:
     Non-        303.16(c)(3).
     covered medical services.
WITHHOLDING:
     State       303.700(a)(3).
     monitoring and enforcement.
                 303.705.
     Withholding funds.
        [cir] Nature of            303.705(c).
         withholding.
        [cir] Withholding until    303.705(c)(2)
         rectified.
 



PART 304_SERVICE OBLIGATIONS UNDER SPECIAL EDUCATION_PERSONNEL
DEVELOPMENT TO IMPROVE SERVICES AND RESULTS FOR CHILDREN WITH 
DISABILITIES--Table of Contents



                            Subpart A_General

Sec.
304.1 Purpose.
304.3 Definitions.

            Subpart B_Conditions That Must Be Met by Grantee

304.21 Allowable costs.
304.22 Requirements for grantees in disbursing scholarships.
304.23 Assurances that must be provided by grantee.

            Subpart C_Conditions That Must Be Met by Scholar

304.30 Requirements for scholar.
304.31 Requirements for obtaining an exception or deferral to 
          performance or repayment under an agreement.

    Authority: 20 U.S.C. 1462(h), unless otherwise noted.

    Source: 71 FR 32398, June 5, 2006, unless otherwise noted.



                            Subpart A_General



Sec.  304.1  Purpose.

    Individuals who receive scholarship assistance from projects funded 
under the Special Education--Personnel Development to Improve Services 
and Results for Children with Disabilities program are required to 
complete a service obligation, or repay all or part of the costs of such 
assistance, in accordance with section 662(h) of the Act and the 
regulations of this part.

(Authority: 20 U.S.C. 1462(h))



Sec.  304.3  Definitions.

    The following definitions apply to this program:
    (a) Academic year means--
    (1) A full-time course of study--
    (i) Taken for a period totaling at least nine months; or
    (ii) Taken for the equivalent of at least two semesters, two 
trimesters, or three quarters; or
    (2) For a part-time scholar, the accumulation of periods of part-
time courses of study that is equivalent to an ``academic year'' under 
paragraph (a)(1) of this definition.
    (b) Act means the Individuals with Disabilities Education Act, as 
amended, 20 U.S.C. 1400 et seq.
    (c) Early intervention services means early intervention services as 
defined in section 632(4) of the Act and includes early intervention 
services to infants and toddlers with disabilities, and as applicable, 
to infants and toddlers at risk for disabilities under sections 632(1) 
and 632(5)(b) of the Act.
    (d) Full-time, for purposes of determining whether an individual is 
employed full-time in accordance with Sec.  304.30 means a full-time 
position as defined by the individual's employer or by the agencies 
served by the individual.
    (e) Related services means related services as defined in section 
602(26) of the Act.
    (f) Repayment means monetary reimbursement of scholarship assistance 
in lieu of completion of a service obligation.

[[Page 279]]

    (g) Scholar means an individual who is pursuing a degree, license, 
endorsement, or certification related to special education, related 
services, or early intervention services and who receives scholarship 
assistance under section 662 of the Act.
    (h) Scholarship means financial assistance to a scholar for training 
under the program and includes all disbursements or credits for tuition, 
fees, stipends, books, and travel in conjunction with training 
assignments.
    (i) Service obligation means a scholar's employment obligation, as 
described in section 662(h) of the Act and Sec.  304.30.
    (j) Special education means special education as defined in section 
602(29) of the Act.

(Authority: 20 U.S.C. 1462(h))



            Subpart B_Conditions That Must be Met by Grantee



Sec.  304.21  Allowable costs.

    In addition to the allowable costs established in the Education 
Department General Administrative Regulations in 34 CFR 75.530 through 
75.562, the following items are allowable expenditures by projects 
funded under the program:
    (a) Cost of attendance, as defined in Title IV of the Higher 
Education Act of 1965, as amended, 20 U.S.C. 1087ll (HEA), including the 
following:
    (1) Tuition and fees.
    (2) An allowance for books, supplies, transportation, and 
miscellaneous personal expenses.
    (3) An allowance for room and board.
    (b) Stipends.
    (c) Travel in conjunction with training assignments.

(Authority: 20 U.S.C. 1462(h))



Sec.  304.22  Requirements for grantees in disbursing scholarships.

    Before disbursement of scholarship assistance to an individual, a 
grantee must--
    (a) Ensure that the scholar--
    (1) Is a citizen or national of the United States;
    (2) Is a permanent resident of--
    (i) Puerto Rico, the United States Virgin Islands, Guam, American 
Samoa, or the Commonwealth of the Northern Mariana Islands; or
    (ii) The Republic of the Marshall Islands, the Federated States of 
Micronesia, or the Republic of Palau during the period in which these 
entities are eligible to receive an award under the Personnel 
Development to Improve Services and Results for Children with 
Disabilities program; or
    (3) Provides evidence from the U.S. Department of Homeland Security 
that the individual is--
    (i) A lawful permanent resident of the United States; or
    (ii) In the United States for other than a temporary purpose with 
the intention of becoming a citizen or permanent resident;
    (b) Limit the cost of attendance portion of the scholarship 
assistance (as discussed in Sec.  304.21(a)) to the amount by which the 
individual's cost of attendance at the institution exceeds the amount of 
grant assistance the scholar is to receive for the same academic year 
under title IV of the HEA; and
    (c) Obtain a Certification of Eligibility for Federal Assistance 
from each scholar, as prescribed in 34 CFR 75.60, 75.61, and 75.62.

(Authority: 20 U.S.C. 1462(h))



Sec.  304.23  Assurances that must be provided by grantee.

    Before receiving an award, a grantee that intends to grant 
scholarships under the program must include in its application an 
assurance that the following requirements will be satisfied:
    (a) Requirement for agreement. Prior to granting a scholarship, the 
grantee will require each scholar to enter into a written agreement in 
which the scholar agrees to the terms and conditions set forth in Sec.  
304.30. This agreement must explain the Secretary's authority to grant 
deferrals and exceptions to the service obligation pursuant to Sec.  
304.31 and include the current Department address for purposes of the 
scholar's compliance with Sec.  304.30(i), or any other purpose under 
this part.
    (b) Standards for satisfactory progress. The grantee must establish, 
notify scholars of, and apply reasonable standards for measuring whether 
a scholar is maintaining satisfactory

[[Page 280]]

progress in the scholar's course of study.
    (c) Exit certification. (1) At the time of exit from the program, 
the grantee must provide the following information to the scholar:
    (i) The number of years the scholar needs to work to satisfy the 
work requirements in Sec.  304.30(d);
    (ii) The total amount of scholarship assistance received subject to 
Sec.  304.30;
    (iii) The time period, consistent with Sec.  304.30(f)(1), during 
which the scholar must satisfy the work requirements; and
    (iv) As applicable, all other obligations of the scholar under Sec.  
304.30.
    (2) Upon receipt of this information from the grantee, the scholar 
must provide written certification to the grantee that the information 
is correct.
    (d) Information. The grantee must forward the information and 
written certification required in paragraph (c) of this section to the 
Secretary, as well as any other information that is necessary to carry 
out the Secretary's functions under section 662 of the Act and this 
part.
    (e) Notification to the Secretary. If the grantee is aware that the 
scholar has chosen not to fulfill or will be unable to fulfill the 
obligation under Sec.  304.30(d), the grantee must notify the Secretary 
when the scholar exits the program.

(Approved by the Office of Management and Budget under control number 
1820-0622)

(Authority: 20 U.S.C. 1462(h))



            Subpart C_Conditions That Must Be Met by Scholar



Sec.  304.30  Requirements for scholar.

    Individuals who receive scholarship assistance from grantees funded 
under section 662 of the Act must--
    (a) Training. Receive the training at the educational institution or 
agency designated in the scholarship;
    (b) Educational allowances. Not accept payment of educational 
allowances from any other entity if that allowance conflicts with the 
scholar's obligation under section 662 of the Act and this part;
    (c) Satisfactory progress. Maintain satisfactory progress toward the 
degree, certificate, endorsement, or license as determined by the 
grantee;
    (d) Service obligation. Upon exiting the training program under 
paragraph (a) of this section, subsequently maintain employment--
    (1) On a full-time or full-time equivalent basis; and
    (2) For a period of at least two years for every academic year for 
which assistance was received;
    (e) Eligible employment. In order to meet the requirements of 
paragraph (d) of this section for any project funded under section 662 
of the Act, be employed in a position in which--
    (1) At least 51 percent of the infants, toddlers, and children to 
whom the individual provides services are receiving special education, 
related services, or early intervention services from the individual;
    (2) The individual spends at least 51 percent of his or her time 
providing special education, related services, or early intervention 
services to infants, toddlers, and children with disabilities; or
    (3) If the position involves supervision (including in the capacity 
of a principal), teaching at the postsecondary level, research, policy, 
technical assistance, program development, or administration, the 
individual spends at least 51 percent of his or her time performing work 
related to the training for which a scholarship was received under 
section 662 of the Act.
    (f) Time period. Meet the service obligation under paragraph (d) of 
this section as follows:
    (1) A scholar must complete the service obligation within the period 
ending not more than the sum of the number of years required in 
paragraph (d)(2) of this section, as appropriate, plus five additional 
years, from the date the scholar completes the training for which the 
scholarship assistance was awarded.
    (2) A scholar may begin eligible employment subsequent to the 
completion of one academic year of the training for which the 
scholarship assistance was received that otherwise meets the 
requirements of paragraph (1);
    (g) Part-time scholars. If the scholar is pursuing coursework on a 
part-time basis, meet the service obligation in

[[Page 281]]

this section based on the accumulated academic years of training for 
which the scholarship is received;
    (h) Information upon exit. Provide the grantee all requested 
information necessary for the grantee to meet the exit certification 
requirements under Sec.  304.23(c);
    (i) Information after exit. Within 60 days after exiting the 
program, and as necessary thereafter for any changes, provide the 
Department, via U.S. mail, all information that the Secretary needs to 
monitor the scholar's service obligation under this section, including 
social security number, address, employment setting, and employment 
status;
    (j) Repayment. If not fulfilling the requirements in this section, 
subject to the provisions in Sec.  304.31 regarding an exception or 
deferral, repay any scholarship received, plus interest, in an amount 
proportional to the service obligation not completed as follows:
    (1) The Secretary charges the scholar interest on the unpaid balance 
owed in accordance with the Debt Collection Act of 1982, as amended, 31 
U.S.C. 3717.
    (2)(i) Interest on the unpaid balance accrues from the date the 
scholar is determined to have entered repayment status under paragraph 
(4) of this section.
    (ii) Any accrued interest is capitalized at the time the scholar's 
repayment schedule is established.
    (iii) No interest is charged for the period of time during which 
repayment has been deferred under Sec.  304.31.
    (3) Under the authority of the Debt Collection Act of 1982, as 
amended, the Secretary may impose reasonable collection costs.
    (4) A scholar enters repayment status on the first day of the first 
calendar month after the earliest of the following dates, as applicable:
    (i) The date the scholar informs the grantee or the Secretary that 
the scholar does not plan to fulfill the service obligation under the 
agreement.
    (ii) Any date when the scholar's failure to begin or maintain 
employment makes it impossible for that individual to complete the 
service obligation within the number of years required in Sec.  
304.30(f).
    (iii) Any date on which the scholar discontinues enrollment in the 
course of study under Sec.  304.30(a).
    (5) The scholar must make payments to the Secretary that cover 
principal, interest, and collection costs according to a schedule 
established by the Secretary.
    (6) Any amount of the scholarship that has not been repaid pursuant 
to paragraphs (j)(1) through (j)(5) of this section will constitute a 
debt owed to the United States that may be collected by the Secretary in 
accordance with 34 CFR part 30.

(Approved by the Office of Management and Budget under control number 
1820-0622)

(Authority: 20 U.S.C. 1462(h))



Sec.  304.31  Requirements for obtaining an exception or deferral
to performance or repayment under an agreement.

    (a) Based upon sufficient evidence to substantiate the grounds, the 
Secretary may grant an exception to the repayment requirement in Sec.  
304.30(j), in whole or part, if the scholar--
    (1) Is unable to continue the course of study in Sec.  304.30 or 
perform the service obligation because of a permanent disability; or
    (2) Has died.
    (b) Based upon sufficient evidence to substantiate the grounds, the 
Secretary may grant a deferral of the repayment requirement in Sec.  
304.30(j) during the time the scholar--
    (1) Is engaging in a full-time course of study at an institution of 
higher education;
    (2) Is serving on active duty as a member of the armed services of 
the United States;
    (3) Is serving as a volunteer under the Peace Corps Act; or
    (4) Is serving as a full-time volunteer under title I of the 
Domestic Volunteer Service Act of 1973.

(Authority: 20 U.S.C. 1462(h))

                           PART 350 [RESERVED]

                           PART 356 [RESERVED]

                           PART 359 [RESERVED]

[[Page 282]]



PART 361_STATE VOCATIONAL REHABILITATION SERVICES PROGRAM
--Table of Contents



                            Subpart A_General

Sec.
361.1 Purpose.
361.2 Eligibility for a grant.
361.3 Authorized activities.
361.4 Applicable regulations.
361.5 Applicable definitions.

       Subpart B_State Plan and Other Requirements for Vocational 
                         Rehabilitation Services

361.10 Submission, approval, and disapproval of the State plan.
361.11 Withholding of funds.

                             Administration

361.12 Methods of administration.
361.13 State agency for administration.
361.14 Substitute State agency.
361.15 Local administration.
361.16 Establishment of an independent commission or a State 
          Rehabilitation Council.
361.17 Requirements for a State Rehabilitation Council.
361.18 Comprehensive system of personnel development.
361.19 Affirmative action for individuals with disabilities.
361.20 Public participation requirements.
361.21 Consultations regarding the administration of the vocational 
          rehabilitation services portion of the Unified or Combined 
          State Plan.
361.22 Coordination with education officials.
361.23 Requirements related to the statewide workforce development 
          system.
361.24 Cooperation and coordination with other entities.
361.25 Statewideness.
361.26 Waiver of statewideness.
361.27 Shared funding and administration of joint programs.
361.28 Third-party cooperative arrangements involving funds from other 
          public agencies.
361.29 Statewide assessment; annual estimates; annual State goals and 
          priorities; strategies; and progress reports.
361.30 Services to American Indians.
361.31 Cooperative agreements with private nonprofit organizations.
361.32 Provision of training and services for employers.
361.33 [Reserved]
361.34 Supported employment State plan supplement.
361.35 Innovation and expansion activities.
361.36 Ability to serve all eligible individuals; order of selection for 
          services.
361.37 Information and referral programs.
361.38 Protection, use, and release of personal information.
361.39 State-imposed requirements.
361.40 Reports; Evaluation standards and performance indicators.

                     Provision and Scope of Services

361.41 Processing referrals and applications.
361.42 Assessment for determining eligibility and priority for services.
361.43 Procedures for ineligibility determination.
361.44 Closure without eligibility determination.
361.45 Development of the individualized plan for employment.
361.46 Content of the individualized plan for employment.
361.47 Record of services.
361.48 Scope of vocational rehabilitation services for individuals with 
          disabilities.
361.49 Scope of vocational rehabilitation services for groups of 
          individuals with disabilities.
361.50 Written policies governing the provision of services for 
          individuals with disabilities.
361.51 Standards for facilities and providers of services.
361.52 Informed choice.
361.53 Comparable services and benefits.
361.54 Participation of individuals in cost of services based on 
          financial need.
361.55 Semi-annual and annual review of individuals in extended 
          employment and other employment under special certificate 
          provisions of the Fair Labor Standards Act.
361.56 Requirements for closing the record of services of an individual 
          who has achieved an employment outcome.
361.57 Review of determinations made by designated State unit personnel.

     Subpart C_Financing of State Vocational Rehabilitation Programs

361.60 Matching requirements.
361.61 Limitation on use of funds for construction expenditures.
361.62 Maintenance of effort requirements.
361.63 Program income.
361.64 Obligation of Federal funds.
361.65 Allotment and payment of Federal funds for vocational 
          rehabilitation services.

    Subpart D_Unified and Combined State Plans Under Title I of the 
                Workforce Innovation and Opportunity Act

361.100 What are the purposes of the Unified and Combined State Plans?
361.105 What are the general requirements for the Unified State Plan?

[[Page 283]]

361.110 What are the program-specific requirements in the Unified State 
          Plan for the adult, dislocated worker, and youth programs 
          authorized under Workforce Innovation and Opportunity Act 
          title I?
361.115 What are the program-specific requirements in the Unified State 
          Plan for the Adult Education and Family Literacy Act program 
          authorized under Workforce Innovation and Opportunity Act 
          title II?
361.120 What are the program-specific requirements in the Unified State 
          Plan for the Employment Service program authorized under the 
          Wagner-Peyser Act, as amended by Workforce Innovation and 
          Opportunity Act title III?
361.125 What are the program-specific requirements in the Unified State 
          Plan for the State Vocational Rehabilitation program 
          authorized under title I of the Rehabilitation Act of 1973, as 
          amended by Workforce Innovation and Opportunity Act title IV?
361.130 What is the development, submission, and approval process of the 
          Unified State Plan?
361.135 What are the requirements for modification of the Unified State 
          Plan?
361.140 What are the general requirements for submitting a Combined 
          State Plan?
361.143 What is the development, submission, and approval process of the 
          Combined State Plan?
361.145 What are the requirements for modifications of the Combined 
          State Plan?

  Subpart E_Performance Accountability Under Title I of the Workforce 
                     Innovation and Opportunity Act

361.150 What definitions apply to Workforce Innovation and Opportunity 
          Act performance accountability provisions?
361.155 What are the primary indicators of performance under the 
          Workforce Innovation and Opportunity Act?
361.160 What information is required for State performance reports?
361.165 May a State establish additional indicators of performance?
361.170 How are State levels of performance for primary indicators 
          established?
361.175 What responsibility do States have to use quarterly wage record 
          information for performance accountability?
361.180 When is a State subject to a financial sanction under the 
          Workforce Innovation and Opportunity Act?
361.185 When are sanctions applied for a State's failure to submit an 
          annual performance report?
361.190 When are sanctions applied for failure to achieve adjusted 
          levels of performance?
361.195 What should States expect when a sanction is applied to the 
          Governor's Reserve Allotment?
361.200 What other administrative actions will be applied to States' 
          performance requirements?
361.205 What performance indicators apply to local areas and what 
          information must be included in local area performance 
          reports?
361.210 How are local performance levels established?
361.215 Under what circumstances are local areas eligible for State 
          Incentive Grants?
361.220 Under what circumstances may a corrective action or sanction be 
          applied to local areas for poor performance?
361.225 Under what circumstances may local areas appeal a reorganization 
          plan?
361.230 What information is required for the eligible training provider 
          performance reports?
361.235 What are the reporting requirements for individual records for 
          core Workforce Innovation and Opportunity Act (WIOA) title I 
          programs; the Wagner-Peyser Act Employment Service program, as 
          amended by WIOA title III; and the Vocational Rehabilitation 
          program authorized under title I of the Rehabilitation Act of 
          1973, as amended by WIOA title IV?
361.240 What are the requirements for data validation of State annual 
          performance reports?

 Subpart F_Description of the One-Stop Delivery System Under Title I of 
              the Workforce Innovation and Opportunity Act

361.300 What is the one-stop delivery system?
361.305 What is a comprehensive one-stop center and what must be 
          provided there?
361.310 What is an affiliated site and what must be provided there?
361.315 Can a stand-alone Wagner-Peyser Act Employment Service office be 
          designated as an affiliated one-stop site?
361.320 Are there any requirements for networks of eligible one-stop 
          partners or specialized centers?
361.400 Who are the required one-stop partners?
361.405 Is Temporary Assistance for Needy Families a required one-stop 
          partner?
361.410 What other entities may serve as one-stop partners?
361.415 What entity serves as the one-stop partner for a particular 
          program in the local area?
361.420 What are the roles and responsibilities of the required one-stop 
          partners?
361.425 What are the applicable career services that must be provided 
          through the one-stop delivery system by required one-stop 
          partners?
361.430 What are career services?

[[Page 284]]

361.435 What are the business services provided through the one-stop 
          delivery system, and how are they provided?
361.440 When may a fee be charged for the business services in this 
          subpart?
361.500 What is the Memorandum of Understanding for the one-stop 
          delivery system and what must be included in the Memorandum of 
          Understanding?
361.505 Is there a single Memorandum of Understanding for the local 
          area, or must there be different Memoranda of Understanding 
          between the Local Workforce Development Board and each 
          partner?
361.510 How must the Memorandum of Understanding be negotiated?
361.600 Who may operate one-stop centers?
361.605 How is the one-stop operator selected?
361.610 When is the sole-source selection of one-stop operators 
          appropriate, and how is it conducted?
361.615 May an entity currently serving as one-stop operator compete to 
          be a one-stop operator under the procurement requirements of 
          this subpart?
361.620 What is the one-stop operator's role?
361.625 Can a one-stop operator also be a service provider?
361.630 Can State merit staff still work in a one-stop center where the 
          operator is not a governmental entity?
361.635 What is the compliance date of the provisions of this subpart?
361.700 What are the one-stop infrastructure costs?
361.705 What guidance must the Governor issue regarding one-stop 
          infrastructure funding?
361.710 How are infrastructure costs funded?
361.715 How are one-stop infrastructure costs funded in the local 
          funding mechanism?
361.720 What funds are used to pay for infrastructure costs in the local 
          one-stop infrastructure funding mechanism?
361.725 What happens if consensus on infrastructure funding is not 
          reached at the local level between the Local Workforce 
          Development Board, chief elected officials, and one-stop 
          partners?
361.730 What is the State one-stop infrastructure funding mechanism?
361.731 What are the steps to determine the amount to be paid under the 
          State one-stop infrastructure funding mechanism?
361.735 How are infrastructure cost budgets for the one-stop centers in 
          a local area determined in the State one-stop infrastructure 
          funding mechanism?
361.736 How does the Governor establish a cost allocation methodology 
          used to determine the one-stop partner programs' proportionate 
          shares of infrastructure costs under the State one-stop 
          infrastructure funding mechanism?
361.737 How are one-stop partner programs' proportionate shares of 
          infrastructure costs determined under the State one-stop 
          infrastructure funding mechanism?
361.738 How are statewide caps on the contributions for one-stop 
          infrastructure funding determined in the State one-stop 
          infrastructure funding mechanism?
361.740 What funds are used to pay for infrastructure costs in the State 
          one-stop infrastructure funding mechanism?
361.745 What factors does the State Workforce Development Board use to 
          develop the formula described in Workforce Innovation and 
          Opportunity Act, which is used by the Governor to determine 
          the appropriate one-stop infrastructure budget for each local 
          area operating under the State infrastructure funding 
          mechanism, if no reasonably implementable locally negotiated 
          budget exists?
361.750 When and how can a one-stop partner appeal a one-stop 
          infrastructure amount designated by the State under the State 
          infrastructure funding mechanism?
361.755 What are the required elements regarding infrastructure funding 
          that must be included in the one-stop Memorandum of 
          Understanding?
361.760 How do one-stop partners jointly fund other shared costs under 
          the Memorandum of Understanding?
361.800 How are one-stop centers and one-stop delivery systems certified 
          for effectiveness, physical and programmatic accessibility, 
          and continuous improvement?
361.900 What is the common identifier to be used by each one-stop 
          delivery system?

    Authority: Section 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c); Pub. L. 111-256, 124 Stat. 2643; unless 
otherwise noted.

    Source: 81 FR 55741, Aug. 19, 2016, unless otherwise noted.



                            Subpart A_General



Sec.  361.1  Purpose.

    Under the State Vocational Rehabilitation Services Program, the 
Secretary provides grants to assist States in operating statewide 
comprehensive, coordinated, effective, efficient, and accountable 
vocational rehabilitation programs, each of which is--
    (a) An integral part of a statewide workforce development system; 
and
    (b) Designed to assess, plan, develop, and provide vocational 
rehabilitation

[[Page 285]]

services for individuals with disabilities, consistent with their unique 
strengths, resources, priorities, concerns, abilities, capabilities, 
interests, and informed choice so that they may prepare for and engage 
in competitive integrated employment and achieve economic self-
sufficiency.

(Authority: Sections 12(c) and 100(a) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 720(a))



Sec.  361.2  Eligibility for a grant.

    Any State that submits to the Secretary a vocational rehabilitation 
services portion of the Unified or Combined State Plan that meets the 
requirements of section 101(a) of the Act and this part is eligible for 
a grant under this program.

(Authority: Section 101(a) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 721(a))



Sec.  361.3  Authorized activities.

    The Secretary makes payments to a State to assist in--
    (a) The costs of providing vocational rehabilitation services under 
the vocational rehabilitation services portion of the Unified or 
Combined State Plan; and
    (b) Administrative costs under the vocational rehabilitation 
services portion of the Unified or Combined State Plan, including one-
stop infrastructure costs.

(Authority: Sections 12(c) and 111(a)(1) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 731(a)(1))



Sec.  361.4  Applicable regulations.

    The following regulations apply to this program:
    (a) The Education Department General Administrative Regulations 
(EDGAR) as follows:
    (1) 34 CFR part 76 (State-Administered Programs).
    (2) 34 CFR part 77 (Definitions that Apply to Department 
Regulations).
    (3) 34 CFR part 79 (Intergovernmental Review of Department of 
Education Programs and Activities).
    (4) 34 CFR part 81 (General Education Provisions Act--Enforcement).
    (5) 34 CFR part 82 (New Restrictions on Lobbying).
    (b) The regulations in this part 361.
    (c) 2 CFR part 190 (OMB Guidelines to Agencies on Governmentwide 
Debarment and Suspension (Nonprocurement)) as adopted in 2 CFR part 
3485.
    (d) 2 CFR part 200 (Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards) as adopted in 2 
CFR part 3474, except the requirements to accept third-party in-kind 
contributions to meet cost-sharing or matching requirements, as 
otherwise authorized under 2 CFR 200.306(b).

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))



Sec.  361.5  Applicable definitions.

    The following definitions apply to this part:
    (a) Definitions in EDGAR 77.1.
    (b) Definitions in 2 CFR part 200, subpart A.
    (c) The following definitions:
    (1) Act means the Rehabilitation Act of 1973, as amended (29 U.S.C. 
701 et seq.).
    (2) Administrative costs under the vocational rehabilitation 
services portion of the Unified or Combined State Plan means 
expenditures incurred in the performance of administrative functions 
under the vocational rehabilitation program carried out under this part, 
including expenses related to program planning, development, monitoring, 
and evaluation, including, but not limited to, expenses for--
    (i) Quality assurance;
    (ii) Budgeting, accounting, financial management, information 
systems, and related data processing;
    (iii) Providing information about the program to the public;
    (iv) Technical assistance and support services to other State 
agencies, private nonprofit organizations, and businesses and 
industries, except for technical assistance and support services 
described in Sec.  361.49(a)(4);
    (v) The State Rehabilitation Council and other advisory committees;
    (vi) Professional organization membership dues for designated State 
unit employees;
    (vii) The removal of architectural barriers in State vocational 
rehabilitation agency offices and State-operated rehabilitation 
facilities;

[[Page 286]]

    (viii) Operating and maintaining designated State unit facilities, 
equipment, and grounds, as well as the infrastructure of the one-stop 
system;
    (ix) Supplies;
    (x) Administration of the comprehensive system of personnel 
development described in Sec.  361.18, including personnel 
administration, administration of affirmative action plans, and training 
and staff development;
    (xi) Administrative salaries, including clerical and other support 
staff salaries, in support of these administrative functions;
    (xii) Travel costs related to carrying out the program, other than 
travel costs related to the provision of services;
    (xiii) Costs incurred in conducting reviews of determinations made 
by personnel of the designated State unit, including costs associated 
with mediation and impartial due process hearings under Sec.  361.57; 
and
    (xiv) Legal expenses required in the administration of the program.

(Authority: Sections 7(1) and 12(c) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 705(1) and 709(c))

    (3) Applicant means an individual who submits an application for 
vocational rehabilitation services in accordance with Sec.  
361.41(b)(2).

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))

    (4) Appropriate modes of communication means specialized aids and 
supports that enable an individual with a disability to comprehend and 
respond to information that is being communicated. Appropriate modes of 
communication include, but are not limited to, the use of interpreters, 
open and closed captioned videos, specialized telecommunications 
services and audio recordings, Brailled and large print materials, 
materials in electronic formats, augmentative communication devices, 
graphic presentations, and simple language materials.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))

    (5) Assessment for determining eligibility and vocational 
rehabilitation needs means, as appropriate in each case--
    (i)(A) A review of existing data--
    (1) To determine if an individual is eligible for vocational 
rehabilitation services; and
    (2) To assign priority for an order of selection described in Sec.  
361.36 in the States that use an order of selection; and
    (B) To the extent necessary, the provision of appropriate assessment 
activities to obtain necessary additional data to make the eligibility 
determination and assignment;
    (ii) To the extent additional data are necessary to make a 
determination of the employment outcomes and the nature and scope of 
vocational rehabilitation services to be included in the individualized 
plan for employment of an eligible individual, a comprehensive 
assessment to determine the unique strengths, resources, priorities, 
concerns, abilities, capabilities, interests, and informed choice, 
including the need for supported employment, of the eligible individual. 
This comprehensive assessment--
    (A) Is limited to information that is necessary to identify the 
rehabilitation needs of the individual and to develop the individualized 
plan for employment of the eligible individual;
    (B) Uses as a primary source of information, to the maximum extent 
possible and appropriate and in accordance with confidentiality 
requirements--
    (1) Existing information obtained for the purposes of determining 
the eligibility of the individual and assigning priority for an order of 
selection described in Sec.  361.36 for the individual; and
    (2) Information that can be provided by the individual and, if 
appropriate, by the family of the individual;
    (C) May include, to the degree needed to make such a determination, 
an assessment of the personality, interests, interpersonal skills, 
intelligence and related functional capacities, educational 
achievements, work experience, vocational aptitudes, personal and social 
adjustments, and employment opportunities of the individual and the 
medical, psychiatric, psychological, and other pertinent vocational, 
educational, cultural, social, recreational, and environmental factors 
that affect the employment and rehabilitation needs of the individual;

[[Page 287]]

    (D) May include, to the degree needed, an appraisal of the patterns 
of work behavior of the individual and services needed for the 
individual to acquire occupational skills and to develop work attitudes, 
work habits, work tolerance, and social and behavior patterns necessary 
for successful job performance, including the use of work in real job 
situations to assess and develop the capacities of the individual to 
perform adequately in a work environment; and
    (E) To the maximum extent possible, relies on information obtained 
from experiences in integrated employment settings in the community and 
in other integrated community settings;
    (iii) Referral, for the provision of rehabilitation technology 
services to the individual, to assess and develop the capacities of the 
individual to perform in a work environment; and
    (iv) An exploration of the individual's abilities, capabilities, and 
capacity to perform in work situations, which must be assessed 
periodically during trial work experiences, including experiences in 
which the individual is provided appropriate supports and training.

(Authority: Sections 7(2) and 12(c) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 705(2) and 709(c))

    (6) Assistive technology terms--(i) Assistive technology has the 
meaning given such term in section 3 of the Assistive Technology Act of 
1998 (29 U.S.C. 3002).
    (ii) Assistive technology device has the meaning given such term in 
section 3 of the Assistive Technology Act of 1998, except that the 
reference in such section to the term individuals with disabilities will 
be deemed to mean more than one individual with a disability as defined 
in paragraph (20)(A) of the Act.
    (iii) Assistive technology service has the meaning given such term 
in section 3 of the Assistive Technology Act of 1998, except that the 
reference in such section to the term--
    (A) Individual with a disability will be deemed to mean an 
individual with a disability, as defined in paragraph (20)(A) of the 
Act; and
    (B) Individuals with disabilities will be deemed to mean more than 
one such individual.

(Authority: Sections 7(3) and 12(c) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 705(3) and 709(c))

    (7) Community rehabilitation program--(i) Community rehabilitation 
program means a program that provides directly or facilitates the 
provision of one or more of the following vocational rehabilitation 
services to individuals with disabilities to enable those individuals to 
maximize their opportunities for employment, including career 
advancement:
    (A) Medical, psychiatric, psychological, social, and vocational 
services that are provided under one management.
    (B) Testing, fitting, or training in the use of prosthetic and 
orthotic devices.
    (C) Recreational therapy.
    (D) Physical and occupational therapy.
    (E) Speech, language, and hearing therapy.
    (F) Psychiatric, psychological, and social services, including 
positive behavior management.
    (G) Assessment for determining eligibility and vocational 
rehabilitation needs.
    (H) Rehabilitation technology.
    (I) Job development, placement, and retention services.
    (J) Evaluation or control of specific disabilities.
    (K) Orientation and mobility services for individuals who are blind.
    (L) Extended employment.
    (M) Psychosocial rehabilitation services.
    (N) Supported employment services and extended services.
    (O) Customized employment.
    (P) Services to family members if necessary to enable the applicant 
or eligible individual to achieve an employment outcome.
    (Q) Personal assistance services.
    (R) Services similar to the services described in paragraphs 
(c)(7)(i)(A) through (Q) of this section.
    (ii) For the purposes of this definition, program means an agency, 
organization, or institution, or unit of an agency, organization, or 
institution, that provides directly or facilitates the

[[Page 288]]

provision of vocational rehabilitation services as one of its major 
functions.

(Authority: Section 7(4) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 705(4))

    (8) Comparable services and benefits--(i) Comparable services and 
benefits means services and benefits, including accommodations and 
auxiliary aids and services, that are--
    (A) Provided or paid for, in whole or in part, by other Federal, 
State, or local public agencies, by health insurance, or by employee 
benefits;
    (B) Available to the individual at the time needed to ensure the 
progress of the individual toward achieving the employment outcome in 
the individual's individualized plan for employment in accordance with 
Sec.  361.53; and
    (C) Commensurate to the services that the individual would otherwise 
receive from the designated State vocational rehabilitation agency.
    (ii) For the purposes of this definition, comparable services and 
benefits do not include awards and scholarships based on merit.

(Authority: Sections 12(c) and 101(a)(8) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 721(a)(8))

    (9) Competitive integrated employment means work that--
    (i) Is performed on a full-time or part-time basis (including self-
employment) and for which an individual is compensated at a rate that-
    (A) Is not less than the higher of the rate specified in section 
6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)) or 
the rate required under the applicable State or local minimum wage law 
for the place of employment;
    (B) Is not less than the customary rate paid by the employer for the 
same or similar work performed by other employees who are not 
individuals with disabilities and who are similarly situated in similar 
occupations by the same employer and who have similar training, 
experience, and skills; and
    (C) In the case of an individual who is self-employed, yields an 
income that is comparable to the income received by other individuals 
who are not individuals with disabilities and who are self-employed in 
similar occupations or on similar tasks and who have similar training, 
experience, and skills; and
    (D) Is eligible for the level of benefits provided to other 
employees; and
    (ii) Is at a location--
    (A) Typically found in the community; and
    (B) Where the employee with a disability interacts for the purpose 
of performing the duties of the position with other employees within the 
particular work unit and the entire work site, and, as appropriate to 
the work performed, other persons (e.g., customers and vendors), who are 
not individuals with disabilities (not including supervisory personnel 
or individuals who are providing services to such employee) to the same 
extent that employees who are not individuals with disabilities and who 
are in comparable positions interact with these persons; and
    (iii) Presents, as appropriate, opportunities for advancement that 
are similar to those for other employees who are not individuals with 
disabilities and who have similar positions.

(Authority: Sections 7(5) and 12(c) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 705(5) and 709(c))

    (10) Construction of a facility for a public or nonprofit community 
rehabilitation program means--
    (i) The acquisition of land in connection with the construction of a 
new building for a community rehabilitation program;
    (ii) The construction of new buildings;
    (iii) The acquisition of existing buildings;
    (iv) The expansion, remodeling, alteration, or renovation of 
existing buildings;
    (v) Architect's fees, site surveys, and soil investigation, if 
necessary, in connection with the acquisition of land or existing 
buildings, or the construction, expansion, remodeling, or alteration of 
community rehabilitation facilities;
    (vi) The acquisition of initial fixed or movable equipment of any 
new, newly acquired, newly expanded, newly remodeled, newly altered, or 
newly renovated buildings that are to be used for community 
rehabilitation program purposes; and

[[Page 289]]

    (vii) Other direct expenditures appropriate to the construction 
project, except costs of off-site improvements.

(Authority: Sections 7(6) and 12(c) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 705(6) and 709(c))

    (11) Customized employment means competitive integrated employment, 
for an individual with a significant disability, that is--
    (i) Based on an individualized determination of the unique 
strengths, needs, and interests of the individual with a significant 
disability;
    (ii) Designed to meet the specific abilities of the individual with 
a significant disability and the business needs of the employer; and
    (iii) Carried out through flexible strategies, such as--
    (A) Job exploration by the individual; and
    (B) Working with an employer to facilitate placement, including--
    (1) Customizing a job description based on current employer needs or 
on previously unidentified and unmet employer needs;
    (2) Developing a set of job duties, a work schedule and job 
arrangement, and specifics of supervision (including performance 
evaluation and review), and determining a job location;
    (3) Using a professional representative chosen by the individual, or 
if elected self-representation, to work with an employer to facilitate 
placement; and
    (4) Providing services and supports at the job location.

(Authority: Section 7(7) and 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 705(7) and 709(c))

    (12) Designated State agency or State agency means the sole State 
agency, designated, in accordance with Sec.  361.13(a), to administer, 
or supervise the local administration of, the vocational rehabilitation 
services portion of the Unified or Combined State Plan. The term 
includes the State agency for individuals who are blind, if designated 
as the sole State agency with respect to that part of the Unified or 
Combined State Plan relating to the vocational rehabilitation of 
individuals who are blind.

(Authority: Sections 7(8)(A) and 101(a)(2)(A) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 705(8)(A) and 721(a)(2)(A))

    (13) Designated State unit or State unit means either--
    (i) The State vocational rehabilitation bureau, division, or other 
organizational unit that is primarily concerned with vocational 
rehabilitation or vocational and other rehabilitation of individuals 
with disabilities and that is responsible for the administration of the 
vocational rehabilitation program of the State agency, as required under 
Sec.  361.13(b); or
    (ii) The State agency that is primarily concerned with vocational 
rehabilitation or vocational and other rehabilitation of individuals 
with disabilities.

(Authority: Sections 7(8)(B) and 101(a)(2)(B) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 705(8)(B) and 721(a)(2)(B))

    (14) Eligible individual means an applicant for vocational 
rehabilitation services who meets the eligibility requirements of Sec.  
361.42(a).

(Authority: Sections 7(20)(A) and 102(a)(1) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 705(20)(A) and 722(a)(1))

    (15) Employment outcome means, with respect to an individual, 
entering, advancing in, or retaining full-time or, if appropriate, part-
time competitive integrated employment, as defined in paragraph (c)(9) 
of this section (including customized employment, self-employment, 
telecommuting, or business ownership), or supported employment as 
defined in paragraph (c)(53) of this section, that is consistent with an 
individual's unique strengths, resources, priorities, concerns, 
abilities, capabilities, interests, and informed choice.

    Note to paragraph (c)(15): A designated State unit may continue 
services to individuals with uncompensated employment goals on their 
approved individualized plans for employment prior to September 19, 2016 
until June 30, 2017, unless a longer period of time

[[Page 290]]

is required based on the needs of the individual with the disability, as 
documented in the individual's service record.

(Authority: Sections 7(11), 12(c), 100(a)(2), and 102(b)(4)(A) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(11), 709(c), 
720(a)(2), and 722(b)(4)(A))

    (16) Establishment, development, or improvement of a public or 
nonprofit community rehabilitation program means--
    (i) The establishment of a facility for a public or nonprofit 
community rehabilitation program, as defined in paragraph (c)(17) of 
this section, to provide vocational rehabilitation services to 
applicants or eligible individuals;
    (ii) Staffing, if necessary to establish, develop, or improve a 
public or nonprofit community rehabilitation program for the purpose of 
providing vocational rehabilitation services to applicants or eligible 
individuals, for a maximum period of four years, with Federal financial 
participation available at the applicable matching rate for the 
following levels of staffing costs:
    (A) 100 percent of staffing costs for the first year;
    (B) 75 percent of staffing costs for the second year;
    (C) 60 percent of staffing costs for the third year; and
    (D) 45 percent of staffing costs for the fourth year; and
    (iii) Other expenditures and activities related to the 
establishment, development, or improvement of a public or nonprofit 
community rehabilitation program that are necessary to make the program 
functional or increase its effectiveness in providing vocational 
rehabilitation services to applicants or eligible individuals, but are 
not ongoing operating expenses of the program.

(Authority: Sections 7(12) and 12(c) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 705(12) and 709(c))

    (17) Establishment of a facility for a public or nonprofit community 
rehabilitation program means--
    (i) The acquisition of an existing building and, if necessary, the 
land in connection with the acquisition, if the building has been 
completed in all respects for at least one year prior to the date of 
acquisition and the Federal share of the cost of acquisition is not more 
than $300,000;
    (ii) The remodeling or alteration of an existing building, provided 
the estimated cost of remodeling or alteration does not exceed the 
appraised value of the existing building;
    (iii) The expansion of an existing building, provided that--
    (A) The existing building is complete in all respects;
    (B) The total size in square footage of the expanded building, 
notwithstanding the number of expansions, is not greater than twice the 
size of the existing building;
    (C) The expansion is joined structurally to the existing building 
and does not constitute a separate building; and
    (D) The costs of the expansion do not exceed the appraised value of 
the existing building;
    (iv) Architect's fees, site survey, and soil investigation, if 
necessary in connection with the acquisition, remodeling, alteration, or 
expansion of an existing building; and
    (v) The acquisition of fixed or movable equipment, including the 
costs of installation of the equipment, if necessary to establish, 
develop, or improve a community rehabilitation program.

(Authority: Sections 7(12) and 12(c) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 705(12) and 709(c))

    (18) Extended employment means work in a non-integrated or sheltered 
setting for a public or private nonprofit agency or organization that 
provides compensation in accordance with the Fair Labor Standards Act.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))

    (19) Extended services means ongoing support services and other 
appropriate services that are--
    (i) Needed to support and maintain an individual with a most 
significant disability including a youth with a most significant 
disability, in supported employment;
    (ii) Organized or made available, singly or in combination, in such 
a way as to assist an eligible individual in maintaining supported 
employment;
    (iii) Based on the needs of an eligible individual, as specified in 
an individualized plan for employment;

[[Page 291]]

    (iv) Provided by a State agency, a private nonprofit organization, 
employer, or any other appropriate resource, after an individual has 
made the transition from support from the designated State unit; and
    (v) Provided to a youth with a most significant disability by the 
designated State unit in accordance with requirements set forth in this 
part and part 363 for a period not to exceed four years, or at such time 
that a youth reaches age 25 and no longer meets the definition of a 
youth with a disability under paragraph (c)(58) of this section, 
whichever occurs first. The designated State unit may not provide 
extended services to an individual with a most significant disability 
who is not a youth with a most significant disability.

(Authority: Sections 7(13), 12(c), and 604(b) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 705(13), 709(c), and 795i(b))

    (20) Extreme medical risk means a probability of substantially 
increasing functional impairment or death if medical services, including 
mental health services, are not provided expeditiously.

(Authority: Sections 12(c) and 101(a)(8)(A)(i)(III) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c) and 
721(a)(8)(A)(i)(III))

    (21) Fair hearing board means a committee, body, or group of persons 
established by a State prior to January 1, 1985, that--
    (i) Is authorized under State law to review determinations made by 
personnel of the designated State unit that affect the provision of 
vocational rehabilitation services; and
    (ii) Carries out the responsibilities of the impartial hearing 
officer in accordance with the requirements in Sec.  361.57(j).

(Authority: Sections 12(c) and 102(c)(6) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 722(c)(6))

    (22) Family member, for purposes of receiving vocational 
rehabilitation services in accordance with Sec.  361.48(b)(9), means an 
individual--
    (i) Who either--
    (A) Is a relative or guardian of an applicant or eligible 
individual; or
    (B) Lives in the same household as an applicant or eligible 
individual;
    (ii) Who has a substantial interest in the well-being of that 
individual; and
    (iii) Whose receipt of vocational rehabilitation services is 
necessary to enable the applicant or eligible individual to achieve an 
employment outcome.

(Authority: Sections 12(c) and 103(a)(19) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 723(a)(19))

    (23) Governor means a chief executive officer of a State.

(Authority: Section 7(15) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 705(15))

    (24) Impartial hearing officer--(i) Impartial hearing officer means 
an individual who--
    (A) Is not an employee of a public agency (other than an 
administrative law judge, hearing examiner, or employee of an 
institution of higher education);
    (B) Is not a member of the State Rehabilitation Council for the 
designated State unit;
    (C) Has not been involved previously in the vocational 
rehabilitation of the applicant or recipient of services;
    (D) Has knowledge of the delivery of vocational rehabilitation 
services, the vocational rehabilitation services portion of the Unified 
or Combined State Plan, and the Federal and State regulations governing 
the provision of services;
    (E) Has received training with respect to the performance of 
official duties; and
    (F) Has no personal, professional, or financial interest that could 
affect the objectivity of the individual.
    (ii) An individual is not considered to be an employee of a public 
agency for the purposes of this definition solely because the individual 
is paid by the agency to serve as a hearing officer.

(Authority: Sections 7(16) and 12(c) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 705(16) and 709(c))

    (25) Indian; American Indian; Indian American; Indian Tribe--(i) In 
general. The terms ``Indian'', ``American Indian'', and ``Indian 
American'' mean an individual who is a member of an Indian tribe and 
include a Native and a

[[Page 292]]

descendant of a Native, as such terms are defined in subsections (b) and 
(r) of section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 
1602).
    (ii) Indian tribe. The term ``Indian tribe'' means any Federal or 
State Indian tribe, band, rancheria, pueblo, colony, or community, 
including any Alaska native village or regional village corporation (as 
defined in or established pursuant to the Alaska Native Claims 
Settlement Act) and a tribal organization (as defined in section 4(l) of 
the Indian Self-Determination and Education Assistance Act (25 U.S.C. 
450(b)(l)).

(Authority: Section 7(19) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 705(19))

    (26) Individual who is blind means a person who is blind within the 
meaning of applicable State law.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))

    (27) Individual with a disability, except as provided in paragraph 
(c)(28) of this section, means an individual--
    (i) Who has a physical or mental impairment;
    (ii) Whose impairment constitutes or results in a substantial 
impediment to employment; and
    (iii) Who can benefit in terms of an employment outcome from the 
provision of vocational rehabilitation services.

(Authority: Section 7(20)(A) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 705(20)(A))

    (28) Individual with a disability, for purposes of Sec. Sec.  
361.5(c)(13), 361.13(a), 361.13(b)(1), 361.17(a), (b), (c), and (j), 
361.18(b), 361.19, 361.20, 361.23(b)(2), 361.29(a) and (d)(8), and 
361.51(b), means an individual--
    (i) Who has a physical or mental impairment that substantially 
limits one or more major life activities;
    (ii) Who has a record of such an impairment; or
    (iii) Who is regarded as having such an impairment.

(Authority: Section 7(20)(B) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 705(20)(B))

    (29) Individual with a most significant disability means an 
individual with a significant disability who meets the designated State 
unit's criteria for an individual with a most significant disability. 
These criteria must be consistent with the requirements in Sec.  
361.36(d)(1) and (2).

(Authority: Sections 7(21)(E) and 101(a)(5)(C) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 705(21)(E) and 721(a)(5)(C))

    (30) Individual with a significant disability means an individual 
with a disability--
    (i) Who has a severe physical or mental impairment that seriously 
limits one or more functional capacities (such as mobility, 
communication, self-care, self-direction, interpersonal skills, work 
tolerance, or work skills) in terms of an employment outcome;
    (ii) Whose vocational rehabilitation can be expected to require 
multiple vocational rehabilitation services over an extended period of 
time; and
    (iii) Who has one or more physical or mental disabilities resulting 
from amputation, arthritis, autism, blindness, burn injury, cancer, 
cerebral palsy, cystic fibrosis, deafness, head injury, heart disease, 
hemiplegia, hemophilia, respiratory or pulmonary dysfunction, mental 
illness, multiple sclerosis, muscular dystrophy, musculo-skeletal 
disorders, neurological disorders (including stroke and epilepsy), 
spinal cord conditions (including paraplegia and quadriplegia), sickle 
cell anemia, intellectual disability, specific learning disability, end-
stage renal disease, or another disability or combination of 
disabilities determined on the basis of an assessment for determining 
eligibility and vocational rehabilitation needs to cause comparable 
substantial functional limitation.
    (31) Individual's representative means any representative chosen by 
an applicant or eligible individual, as appropriate, including a parent, 
guardian, other family member, or advocate, unless a representative has 
been appointed by a court to represent the individual, in which case the 
court-appointed representative is the individual's representative.

(Authority: Sections 7(22) and 12(c) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 705(22) and 709(c))

    (32) Integrated setting means--

[[Page 293]]

    (i) With respect to the provision of services, a setting typically 
found in the community in which applicants or eligible individuals 
interact with non-disabled individuals other than non-disabled 
individuals who are providing services to those applicants or eligible 
individuals; and
    (ii) With respect to an employment outcome, means a setting--
    (A) Typically found in the community; and
    (B) Where the employee with a disability interacts, for the purpose 
of performing the duties of the position, with other employees within 
the particular work unit and the entire work site, and, as appropriate 
to the work performed, other persons (e.g., customers and vendors) who 
are not individuals with disabilities (not including supervisory 
personnel or individuals who are providing services to such employee) to 
the same extent that employees who are not individuals with disabilities 
and who are in comparable positions interact with these persons.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))

    (33) Local workforce development board means a local board, as 
defined in section 3 of the Workforce Innovation and Opportunity Act.

(Authority: Section 7(25) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 705(25))

    (34) Maintenance means monetary support provided to an individual 
for expenses, such as food, shelter, and clothing, that are in excess of 
the normal expenses of the individual and that are necessitated by the 
individual's participation in an assessment for determining eligibility 
and vocational rehabilitation needs or the individual's receipt of 
vocational rehabilitation services under an individualized plan for 
employment.

(Authority: Sections 12(c) and 103(a)(7) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 723(a)(7))

    (i) Examples: The following are examples of expenses that would meet 
the definition of maintenance. The examples are illustrative, do not 
address all possible circumstances, and are not intended to substitute 
for individual counselor judgment.

    Example 1: The cost of a uniform or other suitable clothing that is 
required for an individual's job placement or job-seeking activities.
    Example 2: The cost of short-term shelter that is required in order 
for an individual to participate in assessment activities or vocational 
training at a site that is not within commuting distance of an 
individual's home.
    Example 3: The initial one-time costs, such as a security deposit or 
charges for the initiation of utilities, that are required in order for 
an individual to relocate for a job placement.

    (ii) [Reserved]
    (35) Mediation means the act or process of using an independent 
third party to act as a mediator, intermediary, or conciliator to assist 
persons or parties in settling differences or disputes prior to pursuing 
formal administrative or other legal remedies. Mediation under the 
program must be conducted in accordance with the requirements in Sec.  
361.57(d) by a qualified and impartial mediator as defined in Sec.  
361.5(c)(43).

(Authority: Sections 12(c) and 102(c)(4) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 722(c)(4))

    (36) Nonprofit, with respect to a community rehabilitation program, 
means a community rehabilitation program carried out by a corporation or 
association, no part of the net earnings of which inures, or may 
lawfully inure, to the benefit of any private shareholder or individual 
and the income of which is exempt from taxation under section 501(c)(3) 
of the Internal Revenue Code of 1986.

(Authority: Section 7(26) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 705(26))

    (37) Ongoing support services, as used in the definition of 
supported employment, means services that--
    (i) Are needed to support and maintain an individual with a most 
significant disability, including a youth with a most significant 
disability, in supported employment;
    (ii) Are identified based on a determination by the designated State 
unit of the individual's need as specified in an individualized plan for 
employment;

[[Page 294]]

    (iii) Are furnished by the designated State unit from the time of 
job placement until transition to extended services, unless post-
employment services are provided following transition, and thereafter by 
one or more extended services providers throughout the individual's term 
of employment in a particular job placement;
    (iv) Include an assessment of employment stability and provision of 
specific services or the coordination of services at or away from the 
worksite that are needed to maintain stability based on--
    (A) At a minimum, twice-monthly monitoring at the worksite of each 
individual in supported employment; or
    (B) If under specific circumstances, especially at the request of 
the individual, the individualized plan for employment provides for off-
site monitoring, twice monthly meetings with the individual;
    (v) Consist of--
    (A) Any particularized assessment supplementary to the comprehensive 
assessment of rehabilitation needs described in paragraph (c)(5)(ii) of 
this section;
    (B) The provision of skilled job trainers who accompany the 
individual for intensive job skill training at the work site;
    (C) Job development and training;
    (D) Social skills training;
    (E) Regular observation or supervision of the individual;
    (F) Follow-up services including regular contact with the employers, 
the individuals, the parents, family members, guardians, advocates or 
authorized representatives of the individuals, and other suitable 
professional and informed advisors, in order to reinforce and stabilize 
the job placement;
    (G) Facilitation of natural supports at the worksite;
    (H) Any other service identified in the scope of vocational 
rehabilitation services for individuals, described in Sec.  361.48(b); 
or
    (I) Any service similar to the foregoing services.

(Authority: Sections 7(27) and 12(c) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 705(27) and 709(c))

    (38) Personal assistance services means a range of services, 
including, among other things, training in managing, supervising, and 
directing personal assistance services, provided by one or more persons, 
that are--
    (i) Designed to assist an individual with a disability to perform 
daily living activities on or off the job that the individual would 
typically perform without assistance if the individual did not have a 
disability;
    (ii) Designed to increase the individual's control in life and 
ability to perform everyday activities on or off the job;
    (iii) Necessary to the achievement of an employment outcome; and
    (iv) Provided only while the individual is receiving other 
vocational rehabilitation services. The services may include training in 
managing, supervising, and directing personal assistance services.

(Authority: Sections 7(28), 12(c), 102(b)(4)(B)(i)(I)(bb), and 103(a)(9) 
of the Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(28), 
709(c), 722(b)(4)(B)(i)(I)(bb), and 723(a)(9))

    (39) Physical and mental restoration services means--
    (i) Corrective surgery or therapeutic treatment that is likely, 
within a reasonable period of time, to correct or modify substantially a 
stable or slowly progressive physical or mental impairment that 
constitutes a substantial impediment to employment;
    (ii) Diagnosis of and treatment for mental or emotional disorders by 
qualified personnel in accordance with State licensure laws;
    (iii) Dentistry;
    (iv) Nursing services;
    (v) Necessary hospitalization (either inpatient or outpatient care) 
in connection with surgery or treatment and clinic services;
    (vi) Drugs and supplies;
    (vii) Prosthetic and orthotic devices;
    (viii) Eyeglasses and visual services, including visual training, 
and the examination and services necessary for the prescription and 
provision of eyeglasses, contact lenses, microscopic lenses, telescopic 
lenses, and other special visual aids prescribed by personnel who are 
qualified in accordance with State licensure laws;
    (ix) Podiatry;
    (x) Physical therapy;
    (xi) Occupational therapy;

[[Page 295]]

    (xii) Speech or hearing therapy;
    (xiii) Mental health services;
    (xiv) Treatment of either acute or chronic medical complications and 
emergencies that are associated with or arise out of the provision of 
physical and mental restoration services, or that are inherent in the 
condition under treatment;
    (xv) Special services for the treatment of individuals with end-
stage renal disease, including transplantation, dialysis, artificial 
kidneys, and supplies; and
    (xvi) Other medical or medically related rehabilitation services.

(Authority: Sections 12(c) and 103(a)(6) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 723(a)(6))

    (40) Physical or mental impairment means--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
neurological, musculo-skeletal, special sense organs, respiratory 
(including speech organs), cardiovascular, reproductive, digestive, 
genitourinary, hemic and lymphatic, skin, and endocrine; or
    (ii) Any mental or psychological disorder such as intellectual 
disability, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities.
    (41) Post-employment services means one or more of the services 
identified in Sec.  361.48(b) that are provided subsequent to the 
achievement of an employment outcome and that are necessary for an 
individual to maintain, regain, or advance in employment, consistent 
with the individual's unique strengths, resources, priorities, concerns, 
abilities, capabilities, interests, and informed choice.

(Authority: Sections 12(c) and 103(a)(20) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 723(a)(20))

    Note to paragraph (c)(41): Post-employment services are intended to 
ensure that the employment outcome remains consistent with the 
individual's unique strengths, resources, priorities, concerns, 
abilities, capabilities, interests, and informed choice. These services 
are available to meet rehabilitation needs that do not require a complex 
and comprehensive provision of services and, thus, should be limited in 
scope and duration. If more comprehensive services are required, then a 
new rehabilitation effort should be considered. Post-employment services 
are to be provided under an amended individualized plan for employment; 
thus, a re-determination of eligibility is not required. The provision 
of post-employment services is subject to the same requirements in this 
part as the provision of any other vocational rehabilitation service. 
Post-employment services are available to assist an individual to 
maintain employment, e.g., the individual's employment is jeopardized 
because of conflicts with supervisors or co-workers, and the individual 
needs mental health services and counseling to maintain the employment, 
or the individual requires assistive technology to maintain the 
employment; to regain employment, e.g., the individual's job is 
eliminated through reorganization and new placement services are needed; 
and to advance in employment, e.g., the employment is no longer 
consistent with the individual's unique strengths, resources, 
priorities, concerns, abilities, capabilities, interests, and informed 
choice.

    (42) Pre-employment transition services means the required 
activities and authorized activities specified in Sec.  361.48(a)(2) and 
(3).

(Authority: Sections 7(30) and 113(b) and (c) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 705(30) and 733(b) and (c))

    (43) Qualified and impartial mediator--(i) Qualified and impartial 
mediator means an individual who--
    (A) Is not an employee of a public agency (other than an 
administrative law judge, hearing examiner, employee of a State office 
of mediators, or employee of an institution of higher education);
    (B) Is not a member of the State Rehabilitation Council for the 
designated State unit;
    (C) Has not been involved previously in the vocational 
rehabilitation of the applicant or recipient of services;
    (D) Is knowledgeable of the vocational rehabilitation program and 
the applicable Federal and State laws, regulations, and policies 
governing the provision of vocational rehabilitation services;
    (E) Has been trained in effective mediation techniques consistent 
with any State-approved or -recognized certification, licensing, 
registration, or other requirements; and
    (F) Has no personal, professional, or financial interest that could 
affect the

[[Page 296]]

individual's objectivity during the mediation proceedings.
    (ii) An individual is not considered to be an employee of the 
designated State agency or designated State unit for the purposes of 
this definition solely because the individual is paid by the designated 
State agency or designated State unit to serve as a mediator.

(Authority: Sections 12(c) and 102(c)(4) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 722(c)(4))

    (44) Rehabilitation engineering means the systematic application of 
engineering sciences to design, develop, adapt, test, evaluate, apply, 
and distribute technological solutions to problems confronted by 
individuals with disabilities in functional areas, such as mobility, 
communications, hearing, vision, and cognition, and in activities 
associated with employment, independent living, education, and 
integration into the community.

(Authority: Sections 7(32) and (12(c) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 705(32) and 709(c))

    (45) Rehabilitation technology means the systematic application of 
technologies, engineering methodologies, or scientific principles to 
meet the needs of, and address the barriers confronted by, individuals 
with disabilities in areas that include education, rehabilitation, 
employment, transportation, independent living, and recreation. The term 
includes rehabilitation engineering, assistive technology devices, and 
assistive technology services.

(Authority: Section 7(32) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 705(32))

    (46) Reservation means a Federal or State Indian reservation, a 
public domain Indian allotment, a former Indian reservation in Oklahoma, 
and land held by incorporated Native groups, regional corporations, and 
village corporations under the provisions of the Alaska Native Claims 
Settlement Act (43 U.S.C. 1601 et seq.); or a defined area of land 
recognized by a State or the Federal Government where there is a 
concentration of tribal members and on which the tribal government is 
providing structured activities and services.

(Authority: Section 121(e) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 741(e))

    (47) Sole local agency means a unit or combination of units of 
general local government or one or more Indian tribes that has the sole 
responsibility under an agreement with, and the supervision of, the 
State agency to conduct a local or tribal vocational rehabilitation 
program, in accordance with the vocational rehabilitation services 
portion of the Unified or Combined State Plan.

(Authority: Section 7(24) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 705(24))

    (48) State means any of the 50 States, the District of Columbia, the 
Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, 
American Samoa, and the Commonwealth of the Northern Mariana Islands.

(Authority: Section 7(34) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 705(34))

    (49) State workforce development board means a State workforce 
development board, as defined in section 3 of the Workforce Innovation 
and Opportunity Act (29 U.S.C. 3102).

(Authority: Section 7(35) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 705(35))

    (50) Statewide workforce development system means a workforce 
development system, as defined in section 3 of the Workforce Innovation 
and Opportunity Act (29 U.S.C. 3102).

(Authority: Section 7(36) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 705(36))

    (51) Student with a disability--(i) Student with a disability means, 
in general, an individual with a disability in a secondary, 
postsecondary, or other recognized education program who--
    (A)(1) Is not younger than the earliest age for the provision of 
transition services under section 614(d)(1)(A)(i)(VIII) of the 
Individuals with Disabilities Education Act (20 U.S.C. 
1414(d)(1)(A)(i)(VIII)); or
    (2) If the State involved elects to use a lower minimum age for 
receipt of

[[Page 297]]

pre-employment transition services under this Act, is not younger than 
that minimum age; and
    (B)(1) Is not older than 21 years of age; or
    (2) If the State law for the State provides for a higher maximum age 
for receipt of services under the Individuals with Disabilities 
Education Act (20 U.S.C. 1400 et seq.), is not older than that maximum 
age; and
    (C)(1) Is eligible for, and receiving, special education or related 
services under Part B of the Individuals with Disabilities Education Act 
(20 U.S.C. 1411 et seq.); or
    (2) Is a student who is an individual with a disability, for 
purposes of section 504.
    (ii) Students with disabilities means more than one student with a 
disability.

(Authority: Sections 7(37) and 12(c) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 705(37) and 709(c))

    (52) Substantial impediment to employment means that a physical or 
mental impairment (in light of attendant medical, psychological, 
vocational, educational, communication, and other related factors) 
hinders an individual from preparing for, entering into, engaging in, 
advancing in, or retaining employment consistent with the individual's 
abilities and capabilities.

(Authority: Sections 7(20)(A) and 12(c) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 705(20)(A) and 709(c))

    (53) Supported employment--(i) Supported employment means 
competitive integrated employment, including customized employment, or 
employment in an integrated work setting in which an individual with a 
most significant disability, including a youth with a most significant 
disability, is working on a short-term basis toward competitive 
integrated employment that is individualized, and customized, consistent 
with the unique strengths, abilities, interests, and informed choice of 
the individual, including with ongoing support services for individuals 
with the most significant disabilities--
    (A) For whom competitive integrated employment has not historically 
occurred, or for whom competitive integrated employment has been 
interrupted or intermittent as a result of a significant disability; and
    (B) Who, because of the nature and severity of their disabilities, 
need intensive supported employment services and extended services after 
the transition from support provided by the designated State unit, in 
order to perform this work.
    (ii) For purposes of this part, an individual with a most 
significant disability, whose supported employment in an integrated 
setting does not satisfy the criteria of competitive integrated 
employment, as defined in paragraph (c)(9) of this section is considered 
to be working on a short-term basis toward competitive integrated 
employment so long as the individual can reasonably anticipate achieving 
competitive integrated employment--
    (A) Within six months of achieving a supported employment outcome; 
or
    (B) In limited circumstances, within a period not to exceed 12 
months from the achievement of the supported employment outcome, if a 
longer period is necessary based on the needs of the individual, and the 
individual has demonstrated progress toward competitive earnings based 
on information contained in the service record.

(Authority: Sections 7(38), 12(c), and 602 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 705(38), 709(c), and 795g)

    (54) Supported employment services means ongoing support services, 
including customized employment, and other appropriate services needed 
to support and maintain an individual with a most significant 
disability, including a youth with a most significant disability, in 
supported employment that are--
    (i) Organized and made available, singly or in combination, in such 
a way as to assist an eligible individual to achieve competitive 
integrated employment;
    (ii) Based on a determination of the needs of an eligible 
individual, as specified in an individualized plan for employment;
    (iii) Provided by the designated State unit for a period of time not 
to exceed 24 months, unless under special circumstances the eligible 
individual and the rehabilitation counselor jointly

[[Page 298]]

agree to extend the time to achieve the employment outcome identified in 
the individualized plan for employment; and
    (iv) Following transition, as post-employment services that are 
unavailable from an extended services provider and that are necessary to 
maintain or regain the job placement or advance in employment.

(Authority: Sections 7(39), 12(c), and 103(a)(16) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 705(39), 709(c), and 723(a)(16))

    (55) Transition services means a coordinated set of activities for a 
student or youth with a disability--
    (i) Designed within an outcome-oriented process that promotes 
movement from school to post-school activities, including postsecondary 
education, vocational training, competitive integrated employment, 
supported employment, continuing and adult education, adult services, 
independent living, or community participation;
    (ii) Based upon the individual student's or youth's needs, taking 
into account the student's or youth's preferences and interests;
    (iii) That includes instruction, community experiences, the 
development of employment and other post-school adult living objectives, 
and, if appropriate, acquisition of daily living skills and functional 
vocational evaluation;
    (iv) That promotes or facilitates the achievement of the employment 
outcome identified in the student's or youth's individualized plan for 
employment; and
    (v) That includes outreach to and engagement of the parents, or, as 
appropriate, the representative of such a student or youth with a 
disability.

(Authority: Sections 12(c) and 103(a)(15) and (b)(7) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c) and 723(a)(15) 
and (b)(7))

    (56) Transportation means travel and related expenses that are 
necessary to enable an applicant or eligible individual to participate 
in a vocational rehabilitation service, including expenses for training 
in the use of public transportation vehicles and systems.

(Authority: Sections 12(c) and 103(a)(8) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 723(a)(8))

    (i) Examples. The following are examples of expenses that would meet 
the definition of transportation. The examples are purely illustrative, 
do not address all possible circumstances, and are not intended as 
substitutes for individual counselor judgment.

    Example 1: Travel and related expenses for a personal care attendant 
or aide if the services of that person are necessary to enable the 
applicant or eligible individual to travel to participate in any 
vocational rehabilitation service.
    Example 2: The purchase and repair of vehicles, including vans, but 
not the modification of these vehicles, as modification would be 
considered a rehabilitation technology service.
    Example 3: Relocation expenses incurred by an eligible individual in 
connection with a job placement that is a significant distance from the 
eligible individual's current residence.

    (ii) [Reserved]
    (57) Vocational rehabilitation services--(i) If provided to an 
individual, means those services listed in Sec.  361.48; and
    (ii) If provided for the benefit of groups of individuals, means 
those services listed in Sec.  361.49.

(Authority: Sections 7(40) and 103 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 705(40) and 723)

    (58) Youth with a disability--(i) Youth with a disability means an 
individual with a disability who is not--
    (A) Younger than 14 years of age; and
    (B) Older than 24 years of age.
    (ii) Youth with disabilities means more than one youth with a 
disability.

(Authority: Section 7(42) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 705(42))

[81 FR 55741, Aug. 19, 2016, as amended at 82 FR 31913, July 11, 2017]

[[Page 299]]



       Subpart B_State Plan and Other Requirements for Vocational 
                         Rehabilitation Services



Sec.  361.10  Submission, approval, and disapproval of the State plan.

    (a) Purpose. (1) To be eligible to receive funds under this part for 
a fiscal year, a State must submit, and have approved, a vocational 
rehabilitation services portion of a Unified or Combined State Plan in 
accordance with section 102 or 103 of the Workforce Innovation and 
Opportunity Act.
    (2) The vocational rehabilitation services portion of the Unified or 
Combined State Plan must satisfy all requirements set forth in this 
part.
    (b) Separate part relating to the vocational rehabilitation of 
individuals who are blind. If a separate State agency administers or 
supervises the administration of a separate part of the vocational 
rehabilitation services portion of the Unified or Combined State Plan 
relating to the vocational rehabilitation of individuals who are blind, 
that part of the vocational rehabilitation services portion of the 
Unified or Combined State Plan must separately conform to all applicable 
requirements under this part.
    (c) Public participation. Prior to the adoption of any substantive 
policies or procedures specific to the provision of vocational 
rehabilitation services under the vocational rehabilitation services 
portion of the Unified or Combined State Plan, including making any 
substantive amendment to those policies and procedures, the designated 
State agency must conduct public meetings throughout the State, in 
accordance with the requirements of Sec.  361.20.
    (d) Submission, approval, disapproval, and duration. All 
requirements regarding the submission, approval, disapproval, and 
duration of the vocational rehabilitation services portion of the 
Unified or Combined State Plan are governed by regulations set forth in 
subpart D of this part.
    (e) Submission of policies and procedures. The State is not required 
to submit policies, procedures, or descriptions required under this part 
that have been previously submitted to the Secretary and that 
demonstrate that the State meets the requirements of this part, 
including any policies, procedures, or descriptions submitted under this 
part that are in effect on July 22, 2014.
    (f) Due process. If the Secretary disapproves the vocational 
rehabilitation services portion of the Unified or Combined State Plan, 
the Secretary will follow these procedures:
    (1) Informal resolution. Prior to disapproving the vocational 
rehabilitation services portion of the Unified or Combined State Plan, 
the Secretary attempts to resolve disputes informally with State 
officials.
    (2) Notice. If, after reasonable effort has been made to resolve the 
dispute, no resolution has been reached, the Secretary provides notice 
to the State agency of the intention to disapprove the vocational 
rehabilitation services portion of the Unified or Combined State Plan 
and of the opportunity for a hearing.
    (3) State plan hearing. If the State agency 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 in accordance with the provisions 
of 34 CFR part 81, subpart A.
    (4) Initial decision. The hearing officer issues an initial decision 
in accordance with 34 CFR 81.41.
    (5) Petition for review of an initial decision. The State agency may 
seek the Secretary's review of the initial decision in accordance with 
34 CFR part 81.
    (6) Review by the Secretary. The Secretary reviews the initial 
decision in accordance with 34 CFR 81.43.
    (7) Final decision of the Department. The final decision of the 
Department is made in accordance with 34 CFR 81.44.
    (8) Judicial review. A State may appeal the Secretary's decision to 
disapprove the vocational rehabilitation services portion of the Unified 
or Combined State Plan by filing a petition for review with the United 
States Court of Appeals for the circuit in

[[Page 300]]

which the State is located, in accordance with section 107(d) of the 
Act.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Sections 101(a) and (b) and 107(d) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 721(a) and (b) and 727(d); and 20 U.S.C. 
1231g(a))

[81 FR 55741, Aug. 19, 2016, as amended at 81 FR 55779, Aug. 19, 2016]



Sec.  361.11  Withholding of funds.

    (a) Basis for withholding. The Secretary may withhold or limit 
payments under section 111 or 603(a) of the Act, as provided by section 
107(c) of the Act, if the Secretary determines that--
    (1) The vocational rehabilitation services portion of the Unified or 
Combined State Plan, including the supported employment supplement, has 
been so changed that it no longer conforms with the requirements of this 
part or part 363; or
    (2) In the administration of the vocational rehabilitation services 
portion of the Unified or Combined State Plan there is a failure to 
comply substantially with any provision of such plan or with an 
evaluation standard or performance indicator established under section 
106 of the Act.
    (b) Informal resolution. Prior to withholding or limiting payments 
in accordance with this section, the Secretary attempts to resolve 
disputed issues informally with State officials.
    (c) Notice. If, after reasonable effort has been made to resolve the 
dispute, no resolution has been reached, the Secretary provides notice 
to the State agency of the intention to withhold or limit payments and 
of the opportunity for a hearing.
    (d) Withholding hearing. If the State agency 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 in accordance with the provisions 
of 34 CFR part 81, subpart A.
    (e) Initial decision. The hearing officer issues an initial decision 
in accordance with 34 CFR 81.41.
    (f) Petition for review of an initial decision. The State agency may 
seek the Secretary's review of the initial decision in accordance with 
34 CFR 81.42.
    (g) Review by the Secretary. The Secretary reviews the initial 
decision in accordance with 34 CFR 81.43.
    (h) Final decision of the Department. The final decision of the 
Department is made in accordance with 34 CFR 81.44.
    (i) Judicial review. A State may appeal the Secretary's decision to 
withhold or limit payments by filing a petition for review with the 
United States Court of Appeals for the circuit in which the State is 
located, in accordance with section 107(d) of the Act.

(Authority: Sections 12(c), 101(b), and 107(c) and (d) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 721(b) and 
727(c) and (d))

                             Administration



Sec.  361.12  Methods of administration.

    The vocational rehabilitation services portion of the Unified or 
Combined State Plan must assure that the State agency, and the 
designated State unit if applicable, employs methods of administration 
found necessary by the Secretary for the proper and efficient 
administration of the plan and for carrying out all functions for which 
the State is responsible under the plan and this part. These methods 
must include procedures to ensure accurate data collection and financial 
accountability.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Sections 12(c) and 101(a)(6) and (a)(10)(A) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c) and 721(a)(6) 
and (a)(10)(A))



Sec.  361.13  State agency for administration.

    (a) Designation of State agency. The vocational rehabilitation 
services portion of the Unified or Combined State Plan must designate a 
State agency as the sole State agency to administer the vocational 
rehabilitation services portion of the Unified or Combined State Plan, 
or to supervise its administration in a political subdivision of the 
State by a sole local agency, in accordance with the following 
requirements:
    (1) General. Except as provided in paragraphs (a)(2) and (3) of this 
section, the vocational rehabilitation services

[[Page 301]]

portion of the Unified or Combined State Plan must provide that the 
designated State agency is one of the following types of agencies:
    (i) A State agency that is primarily concerned with vocational 
rehabilitation or vocational and other rehabilitation of individuals 
with disabilities; or
    (ii) A State agency that includes a vocational rehabilitation unit 
as provided in paragraph (b) of this section.
    (2) American Samoa. In the case of American Samoa, the vocational 
rehabilitation services portion of the Unified or Combined State Plan 
must designate the Governor.
    (3) Designated State agency for individuals who are blind. If a 
State commission or other agency that provides assistance or services to 
individuals who are blind is authorized under State law to provide 
vocational rehabilitation services to individuals who are blind, and 
this commission or agency is primarily concerned with vocational 
rehabilitation or includes a vocational rehabilitation unit as provided 
in paragraph (b) of this section, the vocational rehabilitation services 
portion of the Unified or Combined State Plan may designate that agency 
as the sole State agency to administer the part of the plan under which 
vocational rehabilitation services are provided for individuals who are 
blind or to supervise its administration in a political subdivision of 
the State by a sole local agency.
    (b) Designation of State unit--(1) General. If the designated State 
agency is not of the type specified in paragraph (a)(1)(i) of this 
section or if the designated State agency specified in paragraph (a)(3) 
of this section is not primarily concerned with vocational 
rehabilitation or vocational and other rehabilitation of individuals 
with disabilities, the vocational rehabilitation services portion of the 
Unified or Combined State Plan must assure that the agency (or each 
agency if two agencies are designated) includes a vocational 
rehabilitation bureau, division, or unit that--
    (i) Is primarily concerned with vocational rehabilitation or 
vocational and other rehabilitation of individuals with disabilities and 
is responsible for the administration of the State agency's vocational 
rehabilitation program under the vocational rehabilitation services 
portion of the Unified or Combined State Plan;
    (ii) Has a full-time director who is responsible for the day-to-day 
operations of the vocational rehabilitation program;
    (iii) Has a staff, at least 90 percent of whom are employed full 
time on the rehabilitation work of the organizational unit;
    (iv) Is located at an organizational level and has an organizational 
status within the State agency comparable to that of other major 
organizational units of the agency; and
    (v) Has the sole authority and responsibility described within the 
designated State agency in paragraph (a) of this section to expend funds 
made available under the Act in a manner that is consistent with the 
purpose of the Act.
    (2) In the case of a State that has not designated a separate State 
agency for individuals who are blind, as provided for in paragraph 
(a)(3) of this section, the State may assign responsibility for the part 
of the vocational rehabilitation services portion of the Unified or 
Combined State Plan under which vocational rehabilitation services are 
provided to individuals who are blind to one organizational unit of the 
designated State agency and may assign responsibility for the rest of 
the plan to another organizational unit of the designated State agency, 
with the provisions of paragraph (b)(1) of this section applying 
separately to each of these units.
    (c) Responsibility for administration--(1) Required activities. At a 
minimum, the following activities are the responsibility of the 
designated State unit or the sole local agency under the supervision of 
the State unit:
    (i) All decisions affecting eligibility for vocational 
rehabilitation services, the nature and scope of available services, and 
the provision of these services.
    (ii) The determination to close the record of services of an 
individual who has achieved an employment outcome in accordance with 
Sec.  361.56.
    (iii) Policy formulation and implementation.

[[Page 302]]

    (iv) The allocation and expenditure of vocational rehabilitation 
funds.
    (v) Participation as a partner in the one-stop service delivery 
system established under title I of the Workforce Innovation and 
Opportunity Act, in accordance with 20 CFR part 678.
    (2) Non-delegable responsibility. The responsibility for the 
functions described in paragraph (c)(1) of this section may not be 
delegated to any other agency or individual.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Section 101(a)(2) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 721(a)(2))



Sec.  361.14  Substitute State agency.

    (a) General provisions. (1) If the Secretary has withheld all 
funding from a State under Sec.  361.11, the State may designate another 
agency to substitute for the designated State agency in carrying out the 
State's program of vocational rehabilitation services.
    (2) Any public or nonprofit private organization or agency within 
the State or any political subdivision of the State is eligible to be a 
substitute agency.
    (3) The substitute agency must submit a vocational rehabilitation 
services portion of the Unified or Combined State Plan that meets the 
requirements of this part.
    (4) The Secretary makes no grant to a substitute agency until the 
Secretary approves its plan.
    (b) Substitute agency matching share. The Secretary does not make 
any payment to a substitute agency unless it has provided assurances 
that it will contribute the same matching share as the State would have 
been required to contribute if the State agency were carrying out the 
vocational rehabilitation program.

(Authority: Section 107(c)(3) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 727(c)(3))



Sec.  361.15  Local administration.

    (a) If the vocational rehabilitation services portion of the Unified 
or Combined State Plan provides for the administration of the plan by a 
local agency, the designated State agency must--
    (1) Ensure that each local agency is under the supervision of the 
designated State unit and is the sole local agency as defined in Sec.  
361.5(c)(47) that is responsible for the administration of the program 
within the political subdivision that it serves; and
    (2) Develop methods that each local agency will use to administer 
the vocational rehabilitation program, in accordance with the vocational 
rehabilitation services portion of the Unified or Combined State Plan.
    (b) A separate local agency serving individuals who are blind may 
administer that part of the plan relating to vocational rehabilitation 
of individuals who are blind, under the supervision of the designated 
State unit for individuals who are blind.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Sections 7(24) and 101(a)(2)(A) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 705(24) and 721(a)(2)(A))



Sec.  361.16  Establishment of an independent commission or a State
Rehabilitation Council.

    (a) General requirement. Except as provided in paragraph (b) of this 
section, the vocational rehabilitation services portion of the Unified 
or Combined State Plan must contain one of the following two assurances:
    (1) An assurance that the designated State agency is an independent 
State commission that--
    (i) Is responsible under State law for operating, or overseeing the 
operation of, the vocational rehabilitation program in the State and is 
primarily concerned with vocational rehabilitation or vocational and 
other rehabilitation services, in accordance with Sec.  361.13(a)(1)(i);
    (ii) Is consumer-controlled by persons who--
    (A) Are individuals with physical or mental impairments that 
substantially limit major life activities; and
    (B) Represent individuals with a broad range of disabilities, unless 
the designated State unit under the direction of the commission is the 
State agency for individuals who are blind;

[[Page 303]]

    (iii) Includes family members, advocates, or other representatives 
of individuals with mental impairments; and
    (iv) Conducts the functions identified in Sec.  361.17(h)(4).
    (2) An assurance that--
    (i) The State has established a State Rehabilitation Council 
(Council) that meets the requirements of Sec.  361.17;
    (ii) The designated State unit, in accordance with Sec.  361.29, 
jointly develops, agrees to, and reviews annually State goals and 
priorities and jointly submits to the Secretary annual reports of 
progress with the Council;
    (iii) The designated State unit regularly consults with the Council 
regarding the development, implementation, and revision of State 
policies and procedures of general applicability pertaining to the 
provision of vocational rehabilitation services;
    (iv) The designated State unit transmits to the Council--
    (A) All plans, reports, and other information required under this 
part to be submitted to the Secretary;
    (B) All policies and information on all practices and procedures of 
general applicability provided to or used by rehabilitation personnel 
providing vocational rehabilitation services under this part; and
    (C) Copies of due process hearing decisions issued under this part 
and transmitted in a manner to ensure that the identity of the 
participants in the hearings is kept confidential; and
    (v) The vocational rehabilitation services portion of the Unified or 
Combined State Plan, and any revision to the vocational rehabilitation 
services portion of the Unified or Combined State Plan, includes a 
summary of input provided by the Council, including recommendations from 
the annual report of the Council, the review and analysis of consumer 
satisfaction described in Sec.  361.17(h)(4), and other reports prepared 
by the Council, and the designated State unit's response to the input 
and recommendations, including its reasons for rejecting any input or 
recommendation of the Council.
    (b) Exception for separate State agency for individuals who are 
blind. In the case of a State that designates a separate State agency 
under Sec.  361.13(a)(3) to administer the part of the vocational 
rehabilitation services portion of the Unified or Combined State Plan 
under which vocational rehabilitation services are provided to 
individuals who are blind, the State must either establish a separate 
State Rehabilitation Council for each agency that does not meet the 
requirements in paragraph (a)(1) of this section or establish one State 
Rehabilitation Council for both agencies if neither agency meets the 
requirements of paragraph (a)(1) of this section.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Sections 101(a)(21) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 721(a)(21))



Sec.  361.17  Requirements for a State Rehabilitation Council.

    If the State has established a Council under Sec.  361.16(a)(2) or 
(b), the Council must meet the following requirements:
    (a) Appointment. (1) The members of the Council must be appointed by 
the Governor or, in the case of a State that, under State law, vests 
authority for the administration of the activities carried out under 
this part in an entity other than the Governor (such as one or more 
houses of the State legislature or an independent board), the chief 
officer of that entity.
    (2) The appointing authority must select members of the Council 
after soliciting recommendations from representatives of organizations 
representing a broad range of individuals with disabilities and 
organizations interested in individuals with disabilities. In selecting 
members, the appointing authority must consider, to the greatest extent 
practicable, the extent to which minority populations are represented on 
the Council.
    (b) Composition--(1) General. Except as provided in paragraph (b)(3) 
of this section, the Council must be composed of at least 15 members, 
including--
    (i) At least one representative of the Statewide Independent Living 
Council, who must be the chairperson or other designee of the Statewide 
Independent Living Council;
    (ii) At least one representative of a parent training and 
information center established pursuant to section 682(a) of the 
Individuals with Disabilities Education Act;

[[Page 304]]

    (iii) At least one representative of the Client Assistance Program 
established under part 370 of this chapter, who must be the director of 
or other individual recommended by the Client Assistance Program;
    (iv) At least one qualified vocational rehabilitation counselor with 
knowledge of and experience with vocational rehabilitation programs who 
serves as an ex officio, nonvoting member of the Council if employed by 
the designated State agency;
    (v) At least one representative of community rehabilitation program 
service providers;
    (vi) Four representatives of business, industry, and labor;
    (vii) Representatives of disability groups that include a cross 
section of--
    (A) Individuals with physical, cognitive, sensory, and mental 
disabilities; and
    (B) Representatives of individuals with disabilities who have 
difficulty representing themselves or are unable due to their 
disabilities to represent themselves;
    (viii) Current or former applicants for, or recipients of, 
vocational rehabilitation services;
    (ix) In a State in which one or more projects are funded under 
section 121 of the Act (American Indian Vocational Rehabilitation 
Services), at least one representative of the directors of the projects 
in such State;
    (x) At least one representative of the State educational agency 
responsible for the public education of students with disabilities who 
are eligible to receive services under this part and part B of the 
Individuals with Disabilities Education Act;
    (xi) At least one representative of the State workforce development 
board; and
    (xii) The director of the designated State unit as an ex officio, 
nonvoting member of the Council.
    (2) Employees of the designated State agency. Employees of the 
designated State agency may serve only as nonvoting members of the 
Council. This provision does not apply to the representative appointed 
pursuant to paragraph (b)(1)(iii) of this section.
    (3) Composition of a separate Council for a separate State agency 
for individuals who are blind. Except as provided in paragraph (b)(4) of 
this section, if the State establishes a separate Council for a separate 
State agency for individuals who are blind, that Council must--
    (i) Conform with all of the composition requirements for a Council 
under paragraph (b)(1) of this section, except the requirements in 
paragraph (b)(1)(vii), unless the exception in paragraph (b)(4) of this 
section applies; and
    (ii) Include--
    (A) At least one representative of a disability advocacy group 
representing individuals who are blind; and
    (B) At least one representative of an individual who is blind, has 
multiple disabilities, and has difficulty representing himself or 
herself or is unable due to disabilities to represent himself or 
herself.
    (4) Exception. If State law in effect on October 29, 1992 requires a 
separate Council under paragraph (b)(3) of this section to have fewer 
than 15 members, the separate Council is in compliance with the 
composition requirements in paragraphs (b)(1)(vi) and (viii) of this 
section if it includes at least one representative who meets the 
requirements for each of those paragraphs.
    (c) Majority. (1) A majority of the Council members must be 
individuals with disabilities who meet the requirements of Sec.  
361.5(c)(28) and are not employed by the designated State unit.
    (2) In the case of a separate Council established under Sec.  
361.16(b), a majority of the Council members must be individuals who are 
blind and are not employed by the designated State unit.
    (d) Chairperson. (1) The chairperson must be selected by the members 
of the Council from among the voting members of the Council, subject to 
the veto power of the Governor; or
    (2) In States in which the Governor does not have veto power 
pursuant to State law, the appointing authority described in paragraph 
(a)(1) of this section must designate a member of the Council to serve 
as the chairperson of the Council or must require the Council to 
designate a member to serve as chairperson.
    (e) Terms of appointment. (1) Each member of the Council must be 
appointed for a term of no more than

[[Page 305]]

three years, and each member of the Council, other than a representative 
identified in paragraph (b)(1)(iii) or (ix) of this section, may serve 
for no more than two consecutive full terms.
    (2) A member appointed to fill a vacancy occurring prior to the end 
of the term for which the predecessor was appointed must be appointed 
for the remainder of the predecessor's term.
    (3) The terms of service of the members initially appointed must be, 
as specified by the appointing authority as described in paragraph 
(a)(1) of this section, for varied numbers of years to ensure that terms 
expire on a staggered basis.
    (f) Vacancies. (1) A vacancy in the membership of the Council must 
be filled in the same manner as the original appointment, except the 
appointing authority as described in paragraph (a)(1) of this section 
may delegate the authority to fill that vacancy to the remaining members 
of the Council after making the original appointment.
    (2) No vacancy affects the power of the remaining members to execute 
the duties of the Council.
    (g) Conflict of interest. No member of the Council may cast a vote 
on any matter that would provide direct financial benefit to the member 
or the member's organization or otherwise give the appearance of a 
conflict of interest under State law.
    (h) Functions. The Council must, after consulting with the State 
workforce development board--
    (1) Review, analyze, and advise the designated State unit regarding 
the performance of the State unit's responsibilities under this part, 
particularly responsibilities related to--
    (i) Eligibility, including order of selection;
    (ii) The extent, scope, and effectiveness of services provided; and
    (iii) Functions performed by State agencies that affect or 
potentially affect the ability of individuals with disabilities in 
achieving employment outcomes under this part;
    (2) In partnership with the designated State unit--
    (i) Develop, agree to, and review State goals and priorities in 
accordance with Sec.  361.29(c); and
    (ii) Evaluate the effectiveness of the vocational rehabilitation 
program and submit reports of progress to the Secretary in accordance 
with Sec.  361.29(e);
    (3) Advise the designated State agency and the designated State unit 
regarding activities carried out under this part and assist in the 
preparation of the vocational rehabilitation services portion of the 
Unified or Combined State Plan and amendments to the plan, applications, 
reports, needs assessments, and evaluations required by this part;
    (4) To the extent feasible, conduct a review and analysis of the 
effectiveness of, and consumer satisfaction with--
    (i) The functions performed by the designated State agency;
    (ii) The vocational rehabilitation services provided by State 
agencies and other public and private entities responsible for providing 
vocational rehabilitation services to individuals with disabilities 
under the Act; and
    (iii) The employment outcomes achieved by eligible individuals 
receiving services under this part, including the availability of health 
and other employment benefits in connection with those employment 
outcomes;
    (5) Prepare and submit to the Governor and to the Secretary no later 
than 90 days after the end of the Federal fiscal year an annual report 
on the status of vocational rehabilitation programs operated within the 
State and make the report available to the public through appropriate 
modes of communication;
    (6) To avoid duplication of efforts and enhance the number of 
individuals served, coordinate activities with the activities of other 
councils within the State, including the Statewide Independent Living 
Council established under chapter 1, title VII of the Act, the advisory 
panel established under section 612(a)(21) of the Individuals with 
Disabilities Education Act, the State Developmental Disabilities 
Planning Council described in section 124 of the Developmental 
Disabilities Assistance and Bill of Rights Act, the State mental health 
planning council established under section 1914(a) of the Public Health 
Service Act, and the State workforce development board, and with the 
activities of entities carrying out

[[Page 306]]

programs under the Assistive Technology Act of 1998;
    (7) Provide for coordination and the establishment of working 
relationships between the designated State agency and the Statewide 
Independent Living Council and centers for independent living within the 
State; and
    (8) Perform other comparable functions, consistent with the purpose 
of this part, as the Council determines to be appropriate, that are 
comparable to the other functions performed by the Council.
    (i) Resources. (1) The Council, in conjunction with the designated 
State unit, must prepare a plan for the provision of resources, 
including staff and other personnel, that may be necessary and 
sufficient for the Council to carry out its functions under this part.
    (2) The resource plan must, to the maximum extent possible, rely on 
the use of resources in existence during the period of implementation of 
the plan.
    (3) Any disagreements between the designated State unit and the 
Council regarding the amount of resources necessary to carry out the 
functions of the Council must be resolved by the Governor, consistent 
with paragraphs (i)(1) and (2) of this section.
    (4) The Council must, consistent with State law, supervise and 
evaluate the staff and personnel that are necessary to carry out its 
functions.
    (5) Those staff and personnel that are assisting the Council in 
carrying out its functions may not be assigned duties by the designated 
State unit or any other agency or office of the State that would create 
a conflict of interest.
    (j) Meetings. The Council must--
    (1) Convene at least four meetings a year in locations determined by 
the Council to be necessary to conduct Council business. The meetings 
must be publicly announced, open, and accessible to the general public, 
including individuals with disabilities, unless there is a valid reason 
for an executive session; and
    (2) Conduct forums or hearings, as appropriate, that are publicly 
announced, open, and accessible to the public, including individuals 
with disabilities.
    (k) Compensation. Funds appropriated under title I of the Act, 
except funds to carry out sections 112 and 121 of the Act, may be used 
to compensate and reimburse the expenses of Council members in 
accordance with section 105(g) of the Act.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Section 105 of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 725)



Sec.  361.18  Comprehensive system of personnel development.

    The vocational rehabilitation services portion of the Unified or 
Combined State Plan must describe the procedures and activities the 
State agency will undertake to establish and maintain a comprehensive 
system of personnel development designed to ensure an adequate supply of 
qualified rehabilitation personnel, including professionals and 
paraprofessionals, for the designated State unit. If the State agency 
has a State Rehabilitation Council, this description must, at a minimum, 
specify that the Council has an opportunity to review and comment on the 
development of plans, policies, and procedures necessary to meet the 
requirements of paragraphs (b) through (d) of this section. This 
description must also conform with the following requirements:
    (a) Personnel and personnel development data system. The vocational 
rehabilitation services portion of the Unified or Combined State Plan 
must describe the development and maintenance of a system by the State 
agency for collecting and analyzing on an annual basis data on qualified 
personnel needs and personnel development, in accordance with the 
following requirements:
    (1) Data on qualified personnel needs must include--
    (i) The number of personnel who are employed by the State agency in 
the provision of vocational rehabilitation services in relation to the 
number of individuals served, broken down by personnel category;
    (ii) The number of personnel currently needed by the State agency to 
provide vocational rehabilitation services, broken down by personnel 
category; and

[[Page 307]]

    (iii) Projections of the number of personnel, broken down by 
personnel category, who will be needed by the State agency to provide 
vocational rehabilitation services in the State in five years based on 
projections of the number of individuals to be served, including 
individuals with significant disabilities, the number of personnel 
expected to retire or leave the field, and other relevant factors.
    (2) Data on personnel development must include--
    (i) A list of the institutions of higher education in the State that 
are preparing vocational rehabilitation professionals, by type of 
program;
    (ii) The number of students enrolled at each of those institutions, 
broken down by type of program; and
    (iii) The number of students who graduated during the prior year 
from each of those institutions with certification or licensure, or with 
the credentials for certification or licensure, broken down by the 
personnel category for which they have received, or have the credentials 
to receive, certification or licensure.
    (b) Plan for recruitment, preparation, and retention of qualified 
personnel. The vocational rehabilitation services portion of the Unified 
or Combined State Plan must describe the development, updating, and 
implementation of a plan to address the current and projected needs for 
personnel who are qualified in accordance with paragraph (c) of this 
section. The plan must identify the personnel needs based on the data 
collection and analysis system described in paragraph (a) of this 
section and must provide for the coordination and facilitation of 
efforts between the designated State unit and institutions of higher 
education and professional associations to recruit, prepare, and retain 
personnel who are qualified in accordance with paragraph (c) of this 
section, including personnel from minority backgrounds and personnel who 
are individuals with disabilities.
    (c) Personnel standards. (1) The vocational rehabilitation services 
portion of the Unified or Combined State Plan must include the State 
agency's policies and describe--
    (i) Standards that are consistent with any national or State-
approved or recognized certification, licensing, or registration 
requirements, or, in the absence of these requirements, other comparable 
requirements (including State personnel requirements) that apply to the 
profession or discipline in which that category of personnel is 
providing vocational rehabilitation services; and
    (ii) The establishment and maintenance of education and experience 
requirements, to ensure that the personnel have a 21st-century 
understanding of the evolving labor force and the needs of individuals 
with disabilities, including requirements for--
    (A)(1) Attainment of a baccalaureate degree in a field of study 
reasonably related to vocational rehabilitation, to indicate a level of 
competency and skill demonstrating basic preparation in a field of study 
such as vocational rehabilitation counseling, social work, psychology, 
disability studies, business administration, human resources, special 
education, supported employment, customized employment, economics, or 
another field that reasonably prepares individuals to work with 
consumers and employers; and
    (2) Demonstrated paid or unpaid experience, for not less than one 
year, consisting of--
    (i) Direct work with individuals with disabilities in a setting such 
as an independent living center;
    (ii) Direct service or advocacy activities that provide such 
individual with experience and skills in working with individuals with 
disabilities; or
    (iii) Direct experience in competitive integrated employment 
environments as an employer, as a small business owner or operator, or 
in self-employment, or other experience in human resources or 
recruitment, or experience in supervising employees, training, or other 
activities; or
    (B) Attainment of a master's or doctoral degree in a field of study 
such as vocational rehabilitation counseling, law, social work, 
psychology, disability studies, business administration, human 
resources, special education, management, public administration, or 
another field that reasonably provides competence in the employment 
sector,

[[Page 308]]

in a disability field, or in both business-related and rehabilitation-
related fields; and
    (2) As used in this section--
    (i) Profession or discipline means a specific occupational category, 
including any paraprofessional occupational category, that--
    (A) Provides rehabilitation services to individuals with 
disabilities;
    (B) Has been established or designated by the State unit; and
    (C) Has a specified scope of responsibility.
    (ii) Ensuring that personnel have a 21st-century understanding of 
the evolving labor force and the needs of individuals with disabilities 
means that personnel have specialized training and experience that 
enables them to work effectively with individuals with disabilities to 
assist them to achieve competitive integrated employment and with 
employers who hire such individuals. Relevant personnel skills include, 
but are not limited to--
    (A) Understanding the functional limitations of various disabilities 
and the vocational implications of functional limitations on employment, 
especially with regard to individuals whose disabilities may require 
specialized services or groups of individuals with disabilities who 
comprise an increasing proportion of the State VR caseloads, such as 
individuals with traumatic brain injury, post-traumatic stress syndrome, 
mental illnesses, autism, blindness or deaf-blindness;
    (B) Vocational assessment tools and strategies and the 
interpretation of vocational assessment results, including, when 
appropriate, situational and work-based assessments and analysis of 
transferrable work skills;
    (C) Counseling and guidance skills, including individual and group 
counseling and career guidance;
    (D) Effective use of practices leading to competitive integrated 
employment, such as supported employment, customized employment, 
internships, apprenticeships, paid work experiences, etc.;
    (E) Case management and employment services planning, including 
familiarity and use of the broad range of disability, employment, and 
social services programs in the state and local area, such as 
independent living programs, Social Security work incentives, and the 
Social Security Administration`s Ticket-to-Work program;
    (F) Caseload management, including familiarity with effective 
caseload management practices and the use of any available automated or 
information technology resources;
    (G) In-depth knowledge of labor market trends, occupational 
requirements, and other labor market information that provides 
information about employers, business practices, and employer personnel 
needs, such as data provided by the Bureau of Labor Statistics and the 
Department of Labor's O*NET occupational system;
    (H) The use of labor market information for vocational 
rehabilitation counseling, vocational planning, and the provision of 
information to consumers for the purposes of making informed choices, 
business engagement and business relationships, and job development and 
job placement;
    (I) The use of labor market information to support building and 
maintaining relationships with employers and to inform delivery of job 
development and job placement activities that respond to today's labor 
market;
    (J) Understanding the effective utilization of rehabilitation 
technology and job accommodations;
    (K) Training in understanding the provisions of the Americans with 
Disabilities Act and other employment discrimination and employment-
related laws;
    (L) Advocacy skills to modify attitudinal and environmental barriers 
to employment for individuals with disabilities, including those with 
the most significant disabilities;
    (M) Skills to address cultural diversity among consumers, 
particularly affecting workplace settings, including racial and ethnic 
diversity and generational differences; and
    (N) Understanding confidentiality and ethical standards and 
practices, especially related to new challenges in use of social media, 
new partnerships, and data sharing.
    (d) Staff development. (1) The vocational rehabilitation services 
portion of the Unified or Combined State Plan

[[Page 309]]

must include the State agency's policies and describe the procedures and 
activities the State agency will undertake to ensure that all personnel 
employed by the State unit receive appropriate and adequate training, 
including a description of--
    (i) A system of staff development for rehabilitation professionals 
and paraprofessionals within the State unit, particularly with respect 
to assessment, vocational counseling, job placement, and rehabilitation 
technology, including training implemented in coordination with entities 
carrying out State programs under section 4 of the Assistive Technology 
Act of 1998 (29 U.S.C. 3003);
    (ii) Procedures for acquiring and disseminating to rehabilitation 
professionals and paraprofessionals within the designated State unit 
significant knowledge from research and other sources; and
    (iii) Policies and procedures relating to the establishment and 
maintenance of standards to ensure that personnel, including 
rehabilitation professionals and paraprofessionals, needed within the 
designated State unit to carry out this part are appropriately and 
adequately prepared and trained.
    (2) The specific training areas for staff development must be based 
on the needs of each State unit and may include, but are not limited 
to--
    (i) Training regarding the Workforce Innovation and Opportunity Act 
and the amendments it made to the Rehabilitation Act of 1973;
    (ii) Training with respect to the requirements of the Americans with 
Disabilities Act, the Individuals with Disabilities Education Act, and 
Social Security work incentive programs, including programs under the 
Ticket to Work and Work Incentives Improvement Act of 1999, training to 
facilitate informed choice under this program, and training to improve 
the provision of services to culturally diverse populations; and
    (iii) Activities related to--
    (A) Recruitment and retention of qualified rehabilitation personnel;
    (B) Succession planning; and
    (C) Leadership development and capacity building.
    (e) Personnel to address individual communication needs. The 
vocational rehabilitation services portion of the Unified or Combined 
State Plan must describe how the designated State unit includes among 
its personnel, or obtains the services of--
    (1) Individuals able to communicate in the native languages of 
applicants, recipients of services, and eligible individuals who have 
limited English proficiency; and
    (2) Individuals able to communicate with applicants, recipients of 
services, and eligible individuals in appropriate modes of 
communication.
    (f) Coordination with personnel development under the Individuals 
with Disabilities Education Act. The vocational rehabilitation services 
portion of the Unified or Combined State Plan must describe the 
procedures and activities the State agency will undertake to coordinate 
its comprehensive system of personnel development under the Act with 
personnel development under the Individuals with Disabilities Education 
Act.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Sections 12(c) and 101(a)(7) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 721(a)(7))



Sec.  361.19  Affirmative action for individuals with disabilities.

    The vocational rehabilitation services portion of the Unified or 
Combined State Plan must assure that the State agency takes affirmative 
action to employ and advance in employment qualified individuals with 
disabilities covered under and on the same terms and conditions as 
stated in section 503 of the Act.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Section 101(a)(6)(B) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 721(a)(6)(B))



Sec.  361.20  Public participation requirements.

    (a) Conduct of public meetings. (1) The vocational rehabilitation 
services portion of the Unified or Combined State Plan must assure that 
prior to the adoption of any substantive policies or

[[Page 310]]

procedures governing the provision of vocational rehabilitation services 
under the Unified or Combined State Plan, the designated State agency 
conducts public meetings throughout the State to provide the public, 
including individuals with disabilities, an opportunity to comment on 
the policies or procedures.
    (2) For purposes of this section, substantive changes to the 
policies or procedures governing the provision of vocational 
rehabilitation services that would require the conduct of public 
meetings are those that directly impact the nature and scope of the 
services provided to individuals with disabilities, or the manner in 
which individuals interact with the designated State agency or in 
matters related to the delivery of vocational rehabilitation services. 
Examples of substantive changes include, but are not limited to--
    (i) Any changes to policies or procedures that fundamentally alter 
the rights and responsibilities of individuals with disabilities in the 
vocational rehabilitation process;
    (ii) Organizational changes to the designated State agency or unit 
that would likely affect the manner in which services are delivered;
    (iii) Any changes that affect the nature and scope of vocational 
rehabilitation services provided by the designated State agency or unit;
    (iv) Changes in formal or informal dispute procedures;
    (v) The adoption or amendment of policies instituting an order of 
selection; and
    (vi) Changes to policies and procedures regarding the financial 
participation of eligible individuals.
    (3) Non-substantive, e.g., administrative changes that would not 
require the need for public hearings include:
    (i) Internal procedures that do not directly affect individuals 
receiving vocational rehabilitation services, such as payment processing 
or personnel procedures;
    (ii) Changes to the case management system that only affect 
vocational rehabilitation personnel;
    (iii) Changes in indirect cost allocations, internal fiscal review 
procedures, or routine reporting requirements;
    (iv) Minor revisions to vocational rehabilitation procedures or 
policies to correct production errors, such as typographical and 
grammatical mistakes; and
    (v) Changes to contract procedures that do not affect the delivery 
of vocational rehabilitation services.
    (b) Notice requirements. The vocational rehabilitation services 
portion of the Unified or Combined State Plan must assure that the 
designated State agency, prior to conducting the public meetings, 
provides appropriate and sufficient notice throughout the State of the 
meetings in accordance with--
    (1) State law governing public meetings; or
    (2) In the absence of State law governing public meetings, 
procedures developed by the designated State agency in consultation with 
the State Rehabilitation Council.
    (c) Summary of input of the State Rehabilitation Council. The 
vocational rehabilitation services portion of the Unified or Combined 
State Plan must provide a summary of the input of the State 
Rehabilitation Council, if the State agency has a Council, into the 
vocational rehabilitation services portion of the Unified or Combined 
State Plan and any amendment to that portion of the plan, in accordance 
with Sec.  361.16(a)(2)(v).
    (d) Special consultation requirements. The vocational rehabilitation 
services portion of the Unified or Combined State Plan must assure that 
the State agency actively consults with the director of the Client 
Assistance Program, the State Rehabilitation Council, if the State 
agency has a Council, and, as appropriate, Indian tribes, tribal 
organizations, and native Hawaiian organizations on its policies and 
procedures governing the provision of vocational rehabilitation services 
under the vocational rehabilitation services portion of the Unified or 
Combined State Plan.
    (e) Appropriate modes of communication. The State unit must provide 
to the public, through appropriate modes of communication, notices of 
the public meetings, any materials furnished prior to or during the 
public meetings,

[[Page 311]]

and the policies and procedures governing the provision of vocational 
rehabilitation services under the vocational rehabilitation services 
portion of the Unified or Combined State Plan.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Sections 12(c), 101(a)(16)(A), and 105(c)(3) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 721(a)(16)(A), 
and 725(c)(3))



Sec.  361.21  Consultations regarding the administration of the
vocational rehabilitation services portion of the Unified or Combined
State plan.

    The vocational rehabilitation services portion of the Unified or 
Combined State Plan must assure that, in connection with matters of 
general policy arising in the administration of the vocational 
rehabilitation services portion of the Unified or Combined State Plan, 
the designated State agency takes into account the views of--
    (a) Individuals and groups of individuals who are recipients of 
vocational rehabilitation services or, as appropriate, the individuals' 
representatives;
    (b) Personnel working in programs that provide vocational 
rehabilitation services to individuals with disabilities;
    (c) Providers of vocational rehabilitation services to individuals 
with disabilities;
    (d) The director of the Client Assistance Program; and
    (e) The State Rehabilitation Council, if the State has a Council.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Sections 101(a)(16)(B) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 721(a)(16)(B))



Sec.  361.22  Coordination with education officials.

    (a) Plans, policies, and procedures. (1) The vocational 
rehabilitation services portion of the Unified or Combined State Plan 
must contain plans, policies, and procedures for coordination between 
the designated State agency and education officials responsible for the 
public education of students with disabilities that are designed to 
facilitate the transition of students with disabilities from the receipt 
of educational services, including pre-employment transition services, 
in school to the receipt of vocational rehabilitation services under the 
responsibility of the designated State agency.
    (2) These plans, policies, and procedures in paragraph (a)(1) of 
this section must provide for the development and approval of an 
individualized plan for employment in accordance with Sec.  361.45 as 
early as possible during the transition planning process and not later 
than the time a student with a disability determined to be eligible for 
vocational rehabilitation services leaves the school setting or, if the 
designated State unit is operating under an order of selection, before 
each eligible student with a disability able to be served under the 
order leaves the school setting.
    (b) Formal interagency agreement. The vocational rehabilitation 
services portion of the Unified or Combined State Plan must include 
information on a formal interagency agreement with the State educational 
agency that, at a minimum, provides for--
    (1) Consultation and technical assistance, which may be provided 
using alternative means for meeting participation (such as video 
conferences and conference calls), to assist educational agencies in 
planning for the transition of students with disabilities from school to 
post-school activities, including pre-employment transition services and 
other vocational rehabilitation services;
    (2) Transition planning by personnel of the designated State agency 
and educational agency personnel for students with disabilities that 
facilitates the development and implementation of their individualized 
education programs (IEPs) under section 614(d) of the Individuals with 
Disabilities Education Act;
    (3) The roles and responsibilities, including financial 
responsibilities, of each agency, including provisions for determining 
State lead agencies and qualified personnel responsible for transition 
services and pre-employment transition services;
    (4) Procedures for outreach to and identification of students with 
disabilities who are in need of transition services and pre-employment 
transition

[[Page 312]]

services. Outreach to these students should occur as early as possible 
during the transition planning process and must include, at a minimum, a 
description of the purpose of the vocational rehabilitation program, 
eligibility requirements, application procedures, and scope of services 
that may be provided to eligible individuals;
    (5) Coordination necessary to satisfy documentation requirements set 
forth in 34 CFR part 397 with regard to students and youth with 
disabilities who are seeking subminimum wage employment; and
    (6) Assurance that, in accordance with 34 CFR 397.31, neither the 
State educational agency nor the local educational agency will enter 
into a contract or other arrangement with an entity, as defined in 34 
CFR 397.5(d), for the purpose of operating a program under which a youth 
with a disability is engaged in work compensated at a subminimum wage.
    (c) Construction. Nothing in this part will be construed to reduce 
the obligation under the Individuals with Disabilities Education Act (20 
U.S.C. 1400 et seq.) of a local educational agency or any other agency 
to provide or pay for any transition services that are also considered 
special education or related services and that are necessary for 
ensuring a free appropriate public education to children with 
disabilities within the State involved.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Sections 12(c), 101(a)(11)(D), 101(c), and 511 of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 721(a)(11)(D), 
721(c), and 794g)



Sec.  361.23  Requirements related to the statewide workforce development
system.

    As a required partner in the one-stop service delivery system (which 
is part of the statewide workforce development system under title I of 
the Workforce Innovation and Opportunity Act), the designated State unit 
must satisfy all requirements set forth in regulations in subpart F of 
this part.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Section 101(a)(11)(A) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 721(a)(11)(A); Section 121(b)(1)(B)(iv) of the 
Workforce Innovation and Opportunity Act; 29 U.S.C. 3151)

[81 FR 57779, Aug. 19, 2016]



Sec.  361.24  Cooperation and coordination with other entities.

    (a) Interagency cooperation. The vocational rehabilitation services 
portion of the Unified or Combined State Plan must describe the 
designated State agency's cooperation with and use of the services and 
facilities of Federal, State, and local agencies and programs, including 
the State programs carried out under section 4 of the Assistive 
Technology Act of 1998 (29 U.S.C. 3003), programs carried out by the 
Under Secretary for Rural Development of the Department of Agriculture, 
noneducational agencies serving out-of-school youth, and State use 
contracting programs, to the extent that such Federal, State, and local 
agencies and programs are not carrying out activities through the 
statewide workforce development system.
    (b) Coordination with the Statewide Independent Living Council and 
independent living centers. The vocational rehabilitation services 
portion of the Unified or Combined State Plan must assure that the 
designated State unit, the Statewide Independent Living Council 
established under title VII, chapter 1, part B of the Act, and the 
independent living centers established under title VII, Chapter 1, Part 
C of the Act have developed working relationships and coordinate their 
activities.
    (c) Coordination with Employers. The vocational rehabilitation 
services portion of the Unified or Combined State Plan must describe how 
the designated State unit will work with employers to identify 
competitive integrated employment opportunities and career exploration 
opportunities, in order to facilitate the provision of--
    (1) Vocational rehabilitation services; and

[[Page 313]]

    (2) Transition services for youth with disabilities and students 
with disabilities, such as pre-employment transition services.
    (d) Cooperative agreement with recipients of grants for services to 
American Indians--(1) General. In applicable cases, the vocational 
rehabilitation services portion of the Unified or Combined State Plan 
must assure that the designated State agency has entered into a formal 
cooperative agreement with each grant recipient in the State that 
receives funds under part C of the Act (American Indian Vocational 
Rehabilitation Services).
    (2) Contents of formal cooperative agreement. The agreement required 
under paragraph (d)(1) of this section must describe strategies for 
collaboration and coordination in providing vocational rehabilitation 
services to American Indians who are individuals with disabilities, 
including--
    (i) Strategies for interagency referral and information sharing that 
will assist in eligibility determinations and the development of 
individualized plans for employment;
    (ii) Procedures for ensuring that American Indians who are 
individuals with disabilities and are living on or near a reservation or 
tribal service area are provided vocational rehabilitation services;
    (iii) Strategies for the provision of transition planning by 
personnel of the designated State unit, the State educational agency, 
and the recipient of funds under part C of the Act, that will facilitate 
the development and approval of the individualized plan for employment 
under Sec.  361.45; and
    (iv) Provisions for sharing resources in cooperative studies and 
assessments, joint training activities, and other collaborative 
activities designed to improve the provision of services to American 
Indians who are individuals with disabilities.
    (e) Reciprocal referral services between two designated State units 
in the same State. If there is a separate designated State unit for 
individuals who are blind, the two designated State units must establish 
reciprocal referral services, use each other's services and facilities 
to the extent feasible, jointly plan activities to improve services in 
the State for individuals with multiple impairments, including visual 
impairments, and otherwise cooperate to provide more effective services, 
including, if appropriate, entering into a written cooperative 
agreement.
    (f) Cooperative agreement regarding individuals eligible for home 
and community-based waiver programs. The vocational rehabilitation 
services portion of the Unified or Combined State Plan must include an 
assurance that the designated State unit has entered into a formal 
cooperative agreement with the State agency responsible for 
administering the State Medicaid plan under title XIX of the Social 
Security Act (42 U.S.C. 1396 et seq.) and the State agency with primary 
responsibility for providing services and supports for individuals with 
intellectual disabilities and individuals with developmental 
disabilities, with respect to the delivery of vocational rehabilitation 
services, including extended services, for individuals with the most 
significant disabilities who have been determined to be eligible for 
home and community-based services under a Medicaid waiver, Medicaid 
State plan amendment, or other authority related to a State Medicaid 
program.
    (g) Interagency cooperation. The vocational rehabilitation services 
portion of the Unified or Combined State Plan shall describe how the 
designated State agency will collaborate with the State agency 
responsible for administering the State Medicaid plan under title XIX of 
the Social Security Act (42 U.S.C. 1396 et seq.), the State agency 
responsible for providing services for individuals with developmental 
disabilities, and the State agency responsible for providing mental 
health services, to develop opportunities for community-based employment 
in integrated settings, to the greatest extent practicable.
    (h) Coordination with assistive technology programs. The vocational 
rehabilitation services portion of the Unified or Combined State Plan 
must include an assurance that the designated State unit, and the lead 
agency and implementing entity (if any) designated by the Governor of 
the State under section 4 of the Assistive Technology Act of 1998 (29 
U.S.C. 3003), have developed

[[Page 314]]

working relationships and will enter into agreements for the 
coordination of their activities, including the referral of individuals 
with disabilities to programs and activities described in that section.
    (i) Coordination with ticket to work and self-sufficiency program. 
The vocational rehabilitation services portion of the Unified or 
Combined State Plan must include an assurance that the designated State 
unit will coordinate activities with any other State agency that is 
functioning as an employment network under the Ticket to Work and Self-
Sufficiency Program established under section 1148 of the Social 
Security Act (42 U.S.C. 1320b-19).

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Sections 12(c) and 101(a)(11) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 721(a)(11))



Sec.  361.25  Statewideness.

    The vocational rehabilitation services portion of the Unified or 
Combined State Plan must assure that services provided under the 
vocational rehabilitation services portion of the Unified or Combined 
State Plan will be available in all political subdivisions of the State, 
unless a waiver of statewideness is requested and approved in accordance 
with Sec.  361.26.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Section 101(a)(4) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 721(a)(4))



Sec.  361.26  Waiver of statewideness.

    (a) Availability. The State unit may provide services in one or more 
political subdivisions of the State that increase services or expand the 
scope of services that are available statewide under the vocational 
rehabilitation services portion of the Unified or Combined State Plan 
if--
    (1) The non-Federal share of the cost of these services is met from 
funds provided by a local public agency, including funds contributed to 
a local public agency by a private agency, organization, or individual;
    (2) The services are likely to promote the vocational rehabilitation 
of substantially larger numbers of individuals with disabilities or of 
individuals with disabilities with particular types of impairments; and
    (3) For purposes other than those specified in Sec.  361.60(b)(3)(i) 
and consistent with the requirements in Sec.  361.60(b)(3)(ii), the 
State includes in its vocational rehabilitation services portion of the 
Unified or Combined State Plan, and the Secretary approves, a waiver of 
the statewideness requirement, in accordance with the requirements of 
paragraph (b) of this section.
    (b) Request for waiver. The request for a waiver of statewideness 
must--
    (1) Identify the types of services to be provided;
    (2) Contain a written assurance from the local public agency that it 
will make available to the State unit the non-Federal share of funds;
    (3) Contain a written assurance that State unit approval will be 
obtained for each proposed service before it is put into effect; and
    (4) Contain a written assurance that all other requirements of the 
vocational rehabilitation services portion of the Unified or Combined 
State Plan, including a State's order of selection requirements, will 
apply to all services approved under the waiver.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Section 101(a)(4) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 721(a)(4))



Sec.  361.27  Shared funding and administration of joint programs.

    (a) If the vocational rehabilitation services portion of the Unified 
or Combined State Plan provides for the designated State agency to share 
funding and administrative responsibility with another State agency or 
local public agency to carry out a joint program to provide services to 
individuals with disabilities, the State must submit to the Secretary 
for approval a plan that describes its shared funding and administrative 
arrangement.
    (b) The plan under paragraph (a) of this section must include--
    (1) A description of the nature and scope of the joint program;

[[Page 315]]

    (2) The services to be provided under the joint program;
    (3) The respective roles of each participating agency in the 
administration and provision of services; and
    (4) The share of the costs to be assumed by each agency.
    (c) If a proposed joint program does not comply with the 
statewideness requirement in Sec.  361.25, the State unit must obtain a 
waiver of statewideness, in accordance with Sec.  361.26.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Section 101(a)(2)(A) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 721(a)(2)(A))



Sec.  361.28  Third-party cooperative arrangements involving funds 
from other public agencies.

    (a) The designated State unit may enter into a third-party 
cooperative arrangement for providing or contracting for the provision 
of vocational rehabilitation services with another State agency or a 
local public agency that is providing part or all of the non-Federal 
share in accordance with paragraph (c) of this section, if the 
designated State unit ensures that--
    (1) The services provided by the cooperating agency are not the 
customary or typical services provided by that agency but are new 
services that have a vocational rehabilitation focus or existing 
services that have been modified, adapted, expanded, or reconfigured to 
have a vocational rehabilitation focus;
    (2) The services provided by the cooperating agency are only 
available to applicants for, or recipients of, services from the 
designated State unit;
    (3) Program expenditures and staff providing services under the 
cooperative arrangement are under the administrative supervision of the 
designated State unit; and
    (4) All requirements of the vocational rehabilitation services 
portion of the Unified or Combined State Plan, including a State's order 
of selection, will apply to all services provided under the cooperative 
arrangement.
    (b) If a third party cooperative arrangement does not comply with 
the statewideness requirement in Sec.  361.25, the State unit must 
obtain a waiver of statewideness, in accordance with Sec.  361.26.
    (c) The cooperating agency's contribution toward the non-Federal 
share required under the arrangement, as set forth in paragraph (a) of 
this section, may be made through:
    (1) Cash transfers to the designated State unit;
    (2) Certified personnel expenditures for the time cooperating agency 
staff spent providing direct vocational rehabilitation services pursuant 
to a third-party cooperative arrangement that meets the requirements of 
this section. Certified personnel expenditures may include the allocable 
portion of staff salary and fringe benefits based upon the amount of 
time cooperating agency staff directly spent providing services under 
the arrangement; and
    (3) other direct expenditures incurred by the cooperating agency for 
the sole purpose of providing services under this section pursuant to a 
third-party cooperative arrangement that--
    (i) Meets the requirements of this section;
    (ii) Are verifiable as being incurred under the third-party 
cooperative arrangement; and
    (iii) Do not meet the definition of third-party in-kind 
contributions under 2 CFR 200.96.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))



Sec.  361.29  Statewide assessment; annual estimates; annual State
goals and priorities; strategies; and progress reports.

    (a) Comprehensive statewide assessment. (1) The vocational 
rehabilitation services portion of the Unified or Combined State Plan 
must include--
    (i) The results of a comprehensive, statewide assessment, jointly 
conducted by the designated State unit and the State Rehabilitation 
Council (if the State unit has a Council) every three years. Results of 
the assessment are to be included in the vocational rehabilitation 
portion of the Unified or Combined State Plan, submitted in accordance 
with the requirements of Sec.  361.10(a) and the joint regulations of

[[Page 316]]

this part. The comprehensive needs assessment must describe the 
rehabilitation needs of individuals with disabilities residing within 
the State, particularly the vocational rehabilitation services needs 
of--
    (A) Individuals with the most significant disabilities, including 
their need for supported employment services;
    (B) Individuals with disabilities who are minorities and individuals 
with disabilities who have been unserved or underserved by the 
vocational rehabilitation program carried out under this part;
    (C) Individuals with disabilities served through other components of 
the statewide workforce development system as identified by those 
individuals and personnel assisting those individuals through the 
components of the system; and
    (D) Youth with disabilities, and students with disabilities, 
including
    (1) Their need for pre-employment transition services or other 
transition services; and
    (2) An assessment of the needs of individuals with disabilities for 
transition services and pre-employment transition services, and the 
extent to which such services provided under this part are coordinated 
with transition services provided under the Individuals with 
Disabilities Education Act (20 U.S.C. 1400 et seq.) in order to meet the 
needs of individuals with disabilities.
    (ii) An assessment of the need to establish, develop, or improve 
community rehabilitation programs within the State.
    (2) The vocational rehabilitation services portion of the Unified or 
Combined State Plan must assure that the State will submit to the 
Secretary a report containing information regarding updates to the 
assessments under paragraph (a) of this section for any year in which 
the State updates the assessments at such time and in such manner as the 
Secretary determines appropriate.
    (b) Annual estimates. The vocational rehabilitation services portion 
of the Unified or Combined State Plan must include, and must assure that 
the State will submit a report to the Secretary (at such time and in 
such manner determined appropriate by the Secretary) that includes, 
State estimates of--
    (1) The number of individuals in the State who are eligible for 
services under this part;
    (2) The number of eligible individuals who will receive services 
provided with funds provided under this part and under part Sec.  363, 
including, if the designated State agency uses an order of selection in 
accordance with Sec.  361.36, estimates of the number of individuals to 
be served under each priority category within the order;
    (3) The number of individuals who are eligible for services under 
paragraph (b)(1) of this section, but are not receiving such services 
due to an order of selection; and
    (4) The costs of the services described in paragraph (b)(2) of this 
section, including, if the designated State agency uses an order of 
selection, the service costs for each priority category within the 
order.
    (c) Goals and priorities--(1) In general. The vocational 
rehabilitation services portion of the Unified or Combined State Plan 
must identify the goals and priorities of the State in carrying out the 
program.
    (2) Council. The goals and priorities must be jointly developed, 
agreed to, reviewed annually, and, as necessary, revised by the 
designated State unit and the State Rehabilitation Council, if the State 
unit has a Council.
    (3) Submission. The vocational rehabilitation services portion of 
the Unified or Combined State Plan must assure that the State will 
submit to the Secretary a report containing information regarding 
revisions in the goals and priorities for any year in which the State 
revises the goals and priorities at such time and in such manner as 
determined appropriate by the Secretary.
    (4) Basis for goals and priorities. The State goals and priorities 
must be based on an analysis of--
    (i) The comprehensive statewide assessment described in paragraph 
(a) of this section, including any updates to the assessment;
    (ii) The performance of the State on the standards and indicators 
established under section 106 of the Act; and
    (iii) Other available information on the operation and the 
effectiveness of

[[Page 317]]

the vocational rehabilitation program carried out in the State, 
including any reports received from the State Rehabilitation Council 
under Sec.  361.17(h) and the findings and recommendations from 
monitoring activities conducted under section 107 of the Act.
    (5) Service and outcome goals for categories in order of selection. 
If the designated State agency uses an order of selection in accordance 
with Sec.  361.36, the vocational rehabilitation services portion of the 
Unified or Combined State Plan must identify the State's service and 
outcome goals and the time within which these goals may be achieved for 
individuals in each priority category within the order.
    (d) Strategies. The vocational rehabilitation services portion of 
the Unified or Combined State Plan must describe the strategies the 
State will use to address the needs identified in the assessment 
conducted under paragraph (a) of this section and achieve the goals and 
priorities identified in paragraph (c) of this section, including--
    (1) The methods to be used to expand and improve services to 
individuals with disabilities, including how a broad range of assistive 
technology services and assistive technology devices will be provided to 
those individuals at each stage of the rehabilitation process and how 
those services and devices will be provided to individuals with 
disabilities on a statewide basis;
    (2) The methods to be used to improve and expand vocational 
rehabilitation services for students with disabilities, including the 
coordination of services designed to facilitate the transition of such 
students from the receipt of educational services in school to 
postsecondary life, including the receipt of vocational rehabilitation 
services under the Act, postsecondary education, employment, and pre-
employment transition services;
    (3) Strategies developed and implemented by the State to address the 
needs of students and youth with disabilities identified in the 
assessments described in paragraph (a) of this section and strategies to 
achieve the goals and priorities identified by the State to improve and 
expand vocational rehabilitation services for students and youth with 
disabilities on a statewide basis;
    (4) Strategies to provide pre-employment transition services;
    (5) Outreach procedures to identify and serve individuals with 
disabilities who are minorities and individuals with disabilities who 
have been unserved or underserved by the vocational rehabilitation 
program;
    (6) As applicable, the plan of the State for establishing, 
developing, or improving community rehabilitation programs;
    (7) Strategies to improve the performance of the State with respect 
to the evaluation standards and performance indicators established 
pursuant to section 106 of the Act and section 116 of Workforce 
Innovation and Opportunity Act; and
    (8) Strategies for assisting other components of the statewide 
workforce development system in assisting individuals with disabilities.
    (e) Evaluation and reports of progress. (1) The vocational 
rehabilitation services portion of the Unified or Combined State Plan 
must include--
    (i) The results of an evaluation of the effectiveness of the 
vocational rehabilitation program; and
    (ii) A joint report by the designated State unit and the State 
Rehabilitation Council, if the State unit has a Council, to the 
Secretary on the progress made in improving the effectiveness of the 
program from the previous year. This evaluation and joint report must 
include--
    (A) An evaluation of the extent to which the goals and priorities 
identified in paragraph (c) of this section were achieved;
    (B) A description of the strategies that contributed to the 
achievement of the goals and priorities;
    (C) To the extent to which the goals and priorities were not 
achieved, a description of the factors that impeded that achievement; 
and
    (D) An assessment of the performance of the State on the standards 
and indicators established pursuant to section 106 of the Act.
    (2) The vocational rehabilitation services portion of the Unified or 
Combined State Plan must assure that the designated State unit and the 
State

[[Page 318]]

Rehabilitation Council, if the State unit has a Council, will jointly 
submit to the Secretary a report that contains the information described 
in paragraph (e)(1) of this section at such time and in such manner the 
Secretary determines appropriate.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Section 101(a)(15) and (25) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 721(a)(15) and (25))



Sec.  361.30  Services to American Indians.

    The vocational rehabilitation services portion of the Unified or 
Combined State Plan must assure that the designated State agency 
provides vocational rehabilitation services to American Indians who are 
individuals with disabilities residing in the State to the same extent 
as the designated State agency provides vocational rehabilitation 
services to other significant populations of individuals with 
disabilities residing in the State.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Sections 101(a)(13) and 121(b)(3) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 721(a)(13) and 741(b)(3))



Sec.  361.31  Cooperative agreements with private nonprofit organizations.

    The vocational rehabilitation services portion of the Unified or 
Combined State Plan must describe the manner in which cooperative 
agreements with private nonprofit vocational rehabilitation service 
providers will be established.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Section 101(a)(24)(B) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 721(a)(24)(B))



Sec.  361.32  Provision of training and services for employers.

    The designated State unit may expend payments received under this 
part to educate and provide services to employers who have hired or are 
interested in hiring individuals with disabilities under the vocational 
rehabilitation program, including--
    (a) Providing training and technical assistance to employers 
regarding the employment of individuals with disabilities, including 
disability awareness, and the requirements of the Americans with 
Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) and other employment-
related laws;
    (b) Working with employers to--
    (1) Provide opportunities for work-based learning experiences 
(including internships, short-term employment, apprenticeships, and 
fellowships);
    (2) Provide opportunities for pre-employment transition services, in 
accordance with the requirements under Sec.  361.48(a);
    (3) Recruit qualified applicants who are individuals with 
disabilities;
    (4) Train employees who are individuals with disabilities; and
    (5) Promote awareness of disability-related obstacles to continued 
employment.
    (c) Providing consultation, technical assistance, and support to 
employers on workplace accommodations, assistive technology, and 
facilities and workplace access through collaboration with community 
partners and employers, across States and nationally, to enable the 
employers to recruit, job match, hire, and retain qualified individuals 
with disabilities who are recipients of vocational rehabilitation 
services under this part, or who are applicants for such services; and
    (d) Assisting employers with utilizing available financial support 
for hiring or accommodating individuals with disabilities.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Section 109 of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 728A)



Sec.  361.33  [Reserved]



Sec.  361.34  Supported employment State plan supplement.

    (a) The vocational rehabilitation services portion of the Unified or 
Combined State Plan must assure that the State has an acceptable plan 
under part 363 of this chapter that provides for the use of funds under 
that part to supplement funds under this part for the cost of services 
leading to supported employment.
    (b) The supported employment plan, including any needed revisions, 
must

[[Page 319]]

be submitted as a supplement to the vocational rehabilitation services 
portion of the Unified or Combined State Plan submitted under this part.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Sections 101(a)(22) and 606 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 721(a)(22) and 795k)



Sec.  361.35  Innovation and expansion activities.

    (a) The vocational rehabilitation services portion of the Unified or 
Combined State Plan must assure that the State will reserve and use a 
portion of the funds allotted to the State under section 110 of the 
Act--
    (1) For the development and implementation of innovative approaches 
to expand and improve the provision of vocational rehabilitation 
services to individuals with disabilities, particularly individuals with 
the most significant disabilities, including transition services for 
students and youth with disabilities and pre-employment transition 
services for students with disabilities, consistent with the findings of 
the comprehensive statewide assessment of the rehabilitation needs of 
individuals with disabilities under Sec.  361.29(a) and the State's 
goals and priorities under Sec.  361.29(c);
    (2) To support the funding of the State Rehabilitation Council, if 
the State has a Council, consistent with the resource plan identified in 
Sec.  361.17(i); and
    (3) To support the funding of the Statewide Independent Living 
Council, consistent with the Statewide Independent Living Council 
resource plan prepared under Section 705(e)(1) of the Act.
    (b) The vocational rehabilitation services portion of the Unified or 
Combined State Plan must--
    (1) Describe how the reserved funds will be used; and
    (2) Include a report describing how the reserved funds were used.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Sections 12(c) and 101(a)(18) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 721(a) (18))



Sec.  361.36  Ability to serve all eligible individuals; order of 
selection for services.

    (a) General provisions--(1) The designated State unit either must be 
able to provide the full range of services listed in section 103(a) of 
the Act and Sec.  361.48, as appropriate, to all eligible individuals 
or, in the event that vocational rehabilitation services cannot be 
provided to all eligible individuals in the State who apply for the 
services, include in the vocational rehabilitation services portion of 
the Unified or Combined State Plan the order to be followed in selecting 
eligible individuals to be provided vocational rehabilitation services.
    (2) The ability of the designated State unit to provide the full 
range of vocational rehabilitation services to all eligible individuals 
must be supported by a determination that satisfies the requirements of 
paragraph (b) or (c) of this section and a determination that, on the 
basis of the designated State unit's projected fiscal and personnel 
resources and its assessment of the rehabilitation needs of individuals 
with significant disabilities within the State, it can--
    (i) Continue to provide services to all individuals currently 
receiving services;
    (ii) Provide assessment services to all individuals expected to 
apply for services in the next fiscal year;
    (iii) Provide services to all individuals who are expected to be 
determined eligible in the next fiscal year; and
    (iv) Meet all program requirements.
    (3) If the designated State unit is unable to provide the full range 
of vocational rehabilitation services to all eligible individuals in the 
State who apply for the services, the vocational rehabilitation services 
portion of the Unified or Combined State Plan must--
    (i) Show the order to be followed in selecting eligible individuals 
to be provided vocational rehabilitation services;
    (ii) Provide a justification for the order of selection;
    (iii) Identify service and outcome goals and the time within which 
the goals may be achieved for individuals in each priority category 
within the order, as required under Sec.  361.29(c)(5);

[[Page 320]]

    (iv) Assure that--
    (A) In accordance with criteria established by the State for the 
order of selection, individuals with the most significant disabilities 
will be selected first for the provision of vocational rehabilitation 
services; and
    (B) Individuals who do not meet the order of selection criteria will 
have access to services provided through the information and referral 
system established under Sec.  361.37; and
    (v) State whether the designated State unit will elect to serve, in 
its discretion, eligible individuals (whether or not the individuals are 
receiving vocational rehabilitation services under the order of 
selection) who require specific services or equipment to maintain 
employment, notwithstanding the assurance provided pursuant to paragraph 
(3)(iv)(A) of this section.
    (b) Basis for assurance that services can be provided to all 
eligible individuals. (1) For a designated State unit that determined, 
for the current fiscal year and the preceding fiscal year, that it is 
able to provide the full range of services, as appropriate, to all 
eligible individuals, the State unit, during the current fiscal and 
preceding fiscal year, must have in fact--
    (i) Provided assessment services to all applicants and the full 
range of services, as appropriate, to all eligible individuals;
    (ii) Made referral forms widely available throughout the State;
    (iii) Conducted outreach efforts to identify and serve individuals 
with disabilities who have been unserved or underserved by the 
vocational rehabilitation system; and
    (iv) Not delayed, through waiting lists or other means, 
determinations of eligibility, the development of individualized plans 
for employment for individuals determined eligible for vocational 
rehabilitation services, or the provision of services for eligible 
individuals for whom individualized plans for employment have been 
developed.
    (2) For a designated State unit that was unable to provide the full 
range of services to all eligible individuals during the current or 
preceding fiscal year or that has not met the requirements in paragraph 
(b)(1) of this section, the determination that the designated State unit 
is able to provide the full range of vocational rehabilitation services 
to all eligible individuals in the next fiscal year must be based on--
    (i) A demonstration that circumstances have changed that will allow 
the designated State unit to meet the requirements of paragraph (a)(2) 
of this section in the next fiscal year, including--
    (A) An estimate of the number of and projected costs of serving, in 
the next fiscal year, individuals with existing individualized plans for 
employment;
    (B) The projected number of individuals with disabilities who will 
apply for services and will be determined eligible in the next fiscal 
year and the projected costs of serving those individuals;
    (C) The projected costs of administering the program in the next 
fiscal year, including, but not limited to, costs of staff salaries and 
benefits, outreach activities, and required statewide studies; and
    (D) The projected revenues and projected number of qualified 
personnel for the program in the next fiscal year.
    (ii) Comparable data, as relevant, for the current or preceding 
fiscal year, or for both years, of the costs listed in paragraphs 
(b)(2)(i)(A) through (C) of this section and the resources identified in 
paragraph (b)(2)(i)(D) of this section and an explanation of any 
projected increases or decreases in these costs and resources; and
    (iii) A determination that the projected revenues and the projected 
number of qualified personnel for the program in the next fiscal year 
are adequate to cover the costs identified in paragraphs (b)(2)(i)(A) 
through (C) of this section to ensure the provision of the full range of 
services, as appropriate, to all eligible individuals.
    (c) Determining need for establishing and implementing an order of 
selection. (1) The designated State unit must determine, prior to the 
beginning of each fiscal year, whether to establish and implement an 
order of selection.
    (2) If the designated State unit determines that it does not need to 
establish an order of selection, it must reevaluate this determination 
whenever changed circumstances during the

[[Page 321]]

course of a fiscal year, such as a decrease in its fiscal or personnel 
resources or an increase in its program costs, indicate that it may no 
longer be able to provide the full range of services, as appropriate, to 
all eligible individuals, as described in paragraph (a)(2) of this 
section.
    (3) If a designated State unit establishes an order of selection, 
but determines that it does not need to implement that order at the 
beginning of the fiscal year, it must continue to meet the requirements 
of paragraph (a)(2) of this section, or it must implement the order of 
selection by closing one or more priority categories.
    (d) Establishing an order of selection--(1) Basis for order of 
selection. An order of selection must be based on a refinement of the 
three criteria in the definition of individual with a significant 
disability in section 7(21)(A) of the Act and Sec.  361.5(c)(30).
    (2) Factors that cannot be used in determining order of selection of 
eligible individuals. An order of selection may not be based on any 
other factors, including--
    (i) Any duration of residency requirement, provided the individual 
is present in the State;
    (ii) Type of disability;
    (iii) Age, sex, race, color, or national origin;
    (iv) Source of referral;
    (v) Type of expected employment outcome;
    (vi) The need for specific services except those services provided 
in accordance with 361.36(a)(3)(v), or anticipated cost of services 
required by an individual; or
    (vii) The income level of an individual or an individual's family.
    (e) Administrative requirements. In administering the order of 
selection, the designated State unit must--
    (1) Implement the order of selection on a statewide basis;
    (2) Notify all eligible individuals of the priority categories in a 
State's order of selection, their assignment to a particular category, 
and their right to appeal their category assignment;
    (3) Continue to provide services to any recipient who has begun to 
receive services irrespective of the severity of the individual's 
disability as follows--
    (i) The designated State unit must continue to provide pre-
employment transition services to students with disabilities who were 
receiving such services prior to being determined eligible for 
vocational rehabilitation services; and
    (ii) The designated State unit must continue to provide to an 
eligible individual all needed services listed on the individualized 
plan for employment if the individual had begun receiving such services 
prior to the effective date of the State's order of selection; and
    (4) Ensure that its funding arrangements for providing services 
under the vocational rehabilitation services portion of the Unified or 
Combined State Plan, including third-party arrangements and awards under 
the establishment authority, are consistent with the order of selection. 
If any funding arrangements are inconsistent with the order of 
selection, the designated State unit must renegotiate these funding 
arrangements so that they are consistent with the order of selection.
    (f) State Rehabilitation Council. The designated State unit must 
consult with the State Rehabilitation Council, if the State unit has a 
Council, regarding the--
    (1) Need to establish an order of selection, including any 
reevaluation of the need under paragraph (c)(2) of this section;
    (2) Priority categories of the particular order of selection;
    (3) Criteria for determining individuals with the most significant 
disabilities; and
    (4) Administration of the order of selection.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Sections 12(d); 101(a)(5); 101(a)(12); 101(a)(15)(A), (B) 
and (C); 101(a)(21)(A)(ii); and 504(a) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(d), 721(a)(5), 721(a)(12), 
721(a)(15)(A), (B) and (C); 721(a)(21)(A)(ii), and 794(a))



Sec.  361.37  Information and referral programs.

    (a) General provisions. The vocational rehabilitation services 
portion of the Unified or Combined State Plan must assure that--

[[Page 322]]

    (1) The designated State agency will implement an information and 
referral system adequate to ensure that individuals with disabilities, 
including eligible individuals who do not meet the agency's order of 
selection criteria for receiving vocational rehabilitation services if 
the agency is operating on an order of selection, are provided accurate 
vocational rehabilitation information and guidance (which may include 
counseling and referral for job placement) using appropriate modes of 
communication to assist them in preparing for, securing, retaining, 
advancing in, or regaining employment; and
    (2) The designated State agency will refer individuals with 
disabilities to other appropriate Federal and State programs, including 
other components of the statewide workforce development system.
    (b) The designated State unit must refer to appropriate programs and 
service providers best suited to address the specific rehabilitation, 
independent living and employment needs of an individual with a 
disability who makes an informed choice not to pursue an employment 
outcome under the vocational rehabilitation program, as defined in Sec.  
361.5(c)(15). Before making the referral required by this paragraph, the 
State unit must--
    (1) Consistent with Sec.  361.42(a)(4)(i), explain to the individual 
that the purpose of the vocational rehabilitation program is to assist 
individuals to achieve an employment outcome as defined in Sec.  
361.5(c)(15);
    (2) Consistent with Sec.  361.52, provide the individual with 
information concerning the availability of employment options, and of 
vocational rehabilitation services, to assist the individual to achieve 
an appropriate employment outcome;
    (3) Inform the individual that services under the vocational 
rehabilitation program can be provided to eligible individuals in an 
extended employment setting if necessary for purposes of training or 
otherwise preparing for employment in an integrated setting;
    (4) Inform the individual that, if he or she initially chooses not 
to pursue an employment outcome as defined in Sec.  361.5(c)(15), he or 
she can seek services from the designated State unit at a later date if, 
at that time, he or she chooses to pursue an employment outcome; and
    (5) Refer the individual, as appropriate, to the Social Security 
Administration in order to obtain information concerning the ability of 
individuals with disabilities to work while receiving benefits from the 
Social Security Administration.
    (c) Criteria for appropriate referrals. In making the referrals 
identified in paragraph (a)(2) of this section, the designated State 
unit must--
    (1) Refer the individual to Federal or State programs, including 
programs carried out by other components of the statewide workforce 
development system, best suited to address the specific employment needs 
of an individual with a disability; and
    (2) Provide the individual who is being referred--
    (i) A notice of the referral by the designated State agency to the 
agency carrying out the program;
    (ii) Information identifying a specific point of contact within the 
agency to which the individual is being referred; and
    (iii) Information and advice regarding the most suitable services to 
assist the individual to prepare for, secure, retain, or regain 
employment.
    (d) Order of selection. In providing the information and referral 
services under this section to eligible individuals who are not in the 
priority category or categories to receive vocational rehabilitation 
services under the State's order of selection, the State unit must 
identify, as part of its reporting under section 101(a)(10) of the Act 
and Sec.  361.40, the number of eligible individuals who did not meet 
the agency's order of selection criteria for receiving vocational 
rehabilitation services and did receive information and referral 
services under this section.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Sections 7(11), 12(c), 101(a)(5)(E), 101(a)(10)(C)(ii), and 
101(a)(20) of the Rehabilitation Act of 1973, as amended; 29 U.S.C. 
705(11), 709(c), 721(a)(5)(E), 721(a)(10)(C)(ii), and 721(a)(20))

[[Page 323]]



Sec.  361.38  Protection, use, and release of personal information.

    (a) General provisions. (1) The State agency and the State unit must 
adopt and implement written policies and procedures to safeguard the 
confidentiality of all personal information, including photographs and 
lists of names. These policies and procedures must ensure that--
    (i) Specific safeguards are established to protect current and 
stored personal information, including a requirement that data only be 
released when governed by a written agreement between the designated 
State unit and receiving entity under paragraphs (d) and (e)(1) of this 
section, which addresses the requirements in this section;
    (ii) All applicants and recipients of services and, as appropriate, 
those individuals' representatives, service providers, cooperating 
agencies, and interested persons are informed through appropriate modes 
of communication of the confidentiality of personal information and the 
conditions for accessing and releasing this information;
    (iii) All applicants and recipients of services or their 
representatives are informed about the State unit's need to collect 
personal information and the policies governing its use, including--
    (A) Identification of the authority under which information is 
collected;
    (B) Explanation of the principal purposes for which the State unit 
intends to use or release the information;
    (C) Explanation of whether providing requested information to the 
State unit is mandatory or voluntary and the effects of not providing 
requested information;
    (D) Identification of those situations in which the State unit 
requires or does not require informed written consent of the individual 
before information may be released; and
    (E) Identification of other agencies to which information is 
routinely released;
    (iv) An explanation of State policies and procedures affecting 
personal information will be provided to each individual in that 
individual's native language or through the appropriate mode of 
communication; and
    (v) These policies and procedures provide no fewer protections for 
individuals than State laws and regulations.
    (2) The State unit may establish reasonable fees to cover 
extraordinary costs of duplicating records or making extensive searches 
and must establish policies and procedures governing access to records.
    (b) State program use. All personal information in the possession of 
the State agency or the designated State unit must be used only for the 
purposes directly connected with the administration of the vocational 
rehabilitation program. Information containing identifiable personal 
information may not be shared with advisory or other bodies that do not 
have official responsibility for administration of the program. In the 
administration of the program, the State unit may obtain personal 
information from service providers and cooperating agencies under 
assurances that the information may not be further divulged, except as 
provided under paragraphs (c), (d), and (e) of this section.
    (c) Release to applicants and recipients of services. (1) Except as 
provided in paragraphs (c)(2) and (3) of this section, if requested in 
writing by an applicant or recipient of services, the State unit must 
make all requested information in that individual's record of services 
accessible to and must release the information to the individual or the 
individual's representative in a timely manner.
    (2) Medical, psychological, or other information that the State unit 
determines may be harmful to the individual may not be released directly 
to the individual, but must be provided to the individual through a 
third party chosen by the individual, which may include, among others, 
an advocate, a family member, or a qualified medical or mental health 
professional, unless a representative has been appointed by a court to 
represent the individual, in which case the information must be released 
to the court-appointed representative.
    (3) If personal information has been obtained from another agency or 
organization, it may be released only by, or under the conditions 
established by, the other agency or organization.

[[Page 324]]

    (4) An applicant or recipient of services who believes that 
information in the individual's record of services is inaccurate or 
misleading may request that the designated State unit amend the 
information. If the information is not amended, the request for an 
amendment must be documented in the record of services, consistent with 
Sec.  361.47(a)(12).
    (d) Release for audit, evaluation, and research. Personal 
information may be released to an organization, agency, or individual 
engaged in audit, evaluation, or research only for purposes directly 
connected with the administration of the vocational rehabilitation 
program or for purposes that would significantly improve the quality of 
life for applicants and recipients of services and only if, in 
accordance with a written agreement, the organization, agency, or 
individual assures that--
    (1) The information will be used only for the purposes for which it 
is being provided;
    (2) The information will be released only to persons officially 
connected with the audit, evaluation, or research;
    (3) The information will not be released to the involved individual;
    (4) The information will be managed in a manner to safeguard 
confidentiality; and
    (5) The final product will not reveal any personal identifying 
information without the informed written consent of the involved 
individual or the individual's representative.
    (e) Release to other programs or authorities. (1) Upon receiving the 
informed written consent of the individual or, if appropriate, the 
individual's representative, the State unit may release personal 
information to another agency or organization, in accordance with a 
written agreement, for its program purposes only to the extent that the 
information may be released to the involved individual or the 
individual's representative and only to the extent that the other agency 
or organization demonstrates that the information requested is necessary 
for its program.
    (2) Medical or psychological information that the State unit 
determines may be harmful to the individual may be released if the other 
agency or organization assures the State unit that the information will 
be used only for the purpose for which it is being provided and will not 
be further released to the individual.
    (3) The State unit must release personal information if required by 
Federal law or regulations.
    (4) The State unit must release personal information in response to 
investigations in connection with law enforcement, fraud, or abuse, 
unless expressly prohibited by Federal or State laws or regulations, and 
in response to an order issued by a judge, magistrate, or other 
authorized judicial officer.
    (5) The State unit also may release personal information in order to 
protect the individual or others if the individual poses a threat to his 
or her safety or to the safety of others.

(Authority: Sections 12(c) and 101(a)(6)(A) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 721(a)(6)(A))



Sec.  361.39  State-imposed requirements.

    The designated State unit must, upon request, identify those 
regulations and policies relating to the administration or operation of 
its vocational rehabilitation program that are State-imposed, including 
any regulations or policy based on State interpretation of any Federal 
law, regulation, or guideline.

(Authority: Section 17 of the Rehabilitation Act of 1973, as amended; 29 
U.S.C. 714)



Sec.  361.40  Reports; Evaluation standards and performance indicators.

    (a) Reports. (1) The vocational rehabilitation services portion of 
the Unified or Combined State Plan must assure that the designated State 
agency will submit reports, including reports required under sections 
13, 14, and 101(a)(10) of the Act--
    (i) In the form and level of detail and at the time required by the 
Secretary regarding applicants for and eligible individuals receiving 
services, including students receiving pre-employment transition 
services in accordance with Sec.  361.48(a); and
    (ii) In a manner that provides a complete count (other than the 
information obtained through sampling consistent with section 
101(a)(10)(E) of the

[[Page 325]]

Act) of the applicants and eligible individuals to--
    (A) Permit the greatest possible cross-classification of data; and
    (B) Protect the confidentiality of the identity of each individual.
    (2) The designated State agency must comply with any requirements 
necessary to ensure the accuracy and verification of those reports.
    (b) Evaluation standards and performance indicators--(1) Standards 
and indicators. The evaluation standards and performance indicators for 
the vocational rehabilitation program carried out under this part are 
subject to the performance accountability provisions described in 
section 116(b) of the Workforce Innovation and Opportunity Act and 
implemented in regulations set forth in subpart E of this part.
    (2) Compliance. A State's compliance with common performance 
measures and any necessary corrective actions will be determined in 
accordance with regulations set forth in subpart E of this part.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Sections 12(c), 101(a)(10)(A) and (F), and 106 of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c),721(a)(10)(A) 
and (F), and 726)

[81 FR 55741, Aug. 19, 2016, as amended at 81 FR 55780, Aug. 19, 2016]

                     Provision and Scope of Services



Sec.  361.41  Processing referrals and applications.

    (a) Referrals. The designated State unit must establish and 
implement standards for the prompt and equitable handling of referrals 
of individuals for vocational rehabilitation services, including 
referrals of individuals made through the one-stop service delivery 
systems under section 121 of the Workforce Innovation and Opportunity 
Act. The standards must include timelines for making good faith efforts 
to inform these individuals of application requirements and to gather 
information necessary to initiate an assessment for determining 
eligibility and priority for services.
    (b) Applications. (1) Once an individual has submitted an 
application for vocational rehabilitation services, including 
applications made through common intake procedures in one-stop centers 
under section 121 of the Workforce Innovation and Opportunity Act, an 
eligibility determination must be made within 60 days, unless--
    (i) Exceptional and unforeseen circumstances beyond the control of 
the designated State unit preclude making an eligibility determination 
within 60 days and the designated State unit and the individual agree to 
a specific extension of time; or
    (ii) An exploration of the individual's abilities, capabilities, and 
capacity to perform in work situations is carried out in accordance with 
Sec.  361.42(e).
    (2) An individual is considered to have submitted an application 
when the individual or the individual's representative, as appropriate--
    (i)(A) Has completed and signed an agency application form;
    (B) Has completed a common intake application form in a one-stop 
center requesting vocational rehabilitation services; or
    (C) Has otherwise requested services from the designated State unit;
    (ii) Has provided to the designated State unit information necessary 
to initiate an assessment to determine eligibility and priority for 
services; and
    (iii) Is available to complete the assessment process.
    (3) The designated State unit must ensure that its application forms 
are widely available throughout the State, particularly in the one-stop 
centers under section 121 of the Workforce Innovation and Opportunity 
Act.

(Authority: Sections 12(c), 101(a)(6)(A), and 102(a)(6) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 721(a)(6)(A), 
and 722(a)(6))



Sec.  361.42  Assessment for determining eligibility and 
priority for services.

    In order to determine whether an individual is eligible for 
vocational rehabilitation services and the individual's priority under 
an order of selection for services (if the State is operating under an 
order of selection), the designated State unit must conduct an 
assessment for determining eligibility and priority for services. The 
assessment must be

[[Page 326]]

conducted in the most integrated setting possible, consistent with the 
individual's needs and informed choice, and in accordance with the 
following provisions:
    (a) Eligibility requirements--(1) Basic requirements. The designated 
State unit's determination of an applicant's eligibility for vocational 
rehabilitation services must be based only on the following 
requirements:
    (i) A determination by qualified personnel that the applicant has a 
physical or mental impairment;
    (ii) A determination by qualified personnel that the applicant's 
physical or mental impairment constitutes or results in a substantial 
impediment to employment for the applicant; and
    (iii) A determination by a qualified vocational rehabilitation 
counselor employed by the designated State unit that the applicant 
requires vocational rehabilitation services to prepare for, secure, 
retain, advance in, or regain employment that is consistent with the 
individual's unique strengths, resources, priorities, concerns, 
abilities, capabilities, interest, and informed choice. For purposes of 
an assessment for determining eligibility and vocational rehabilitation 
needs under this part, an individual is presumed to have a goal of an 
employment outcome.
    (2) Presumption of benefit. The designated State unit must presume 
that an applicant who meets the eligibility requirements in paragraphs 
(a)(1)(i) and (ii) of this section can benefit in terms of an employment 
outcome.
    (3) Presumption of eligibility for Social Security recipients and 
beneficiaries. (i) Any applicant who has been determined eligible for 
Social Security benefits under title II or title XVI of the Social 
Security Act is--
    (A) Presumed eligible for vocational rehabilitation services under 
paragraphs (a)(1) and (2) of this section; and
    (B) Considered an individual with a significant disability as 
defined in Sec.  361.5(c)(29).
    (ii) If an applicant for vocational rehabilitation services asserts 
that he or she is eligible for Social Security benefits under title II 
or title XVI of the Social Security Act (and, therefore, is presumed 
eligible for vocational rehabilitation services under paragraph 
(a)(3)(i)(A) of this section), but is unable to provide appropriate 
evidence, such as an award letter, to support that assertion, the State 
unit must verify the applicant's eligibility under title II or title XVI 
of the Social Security Act by contacting the Social Security 
Administration. This verification must be made within a reasonable 
period of time that enables the State unit to determine the applicant's 
eligibility for vocational rehabilitation services within 60 days of the 
individual submitting an application for services in accordance with 
Sec.  361.41(b)(2).
    (4) Achievement of an employment outcome. Any eligible individual, 
including an individual whose eligibility for vocational rehabilitation 
services is based on the individual being eligible for Social Security 
benefits under title II or title XVI of the Social Security Act, must 
intend to achieve an employment outcome that is consistent with the 
applicant's unique strengths, resources, priorities, concerns, 
abilities, capabilities, interests, and informed choice.
    (i) The State unit is responsible for informing individuals, through 
its application process for vocational rehabilitation services, that 
individuals who receive services under the program must intend to 
achieve an employment outcome.
    (ii) The applicant's completion of the application process for 
vocational rehabilitation services is sufficient evidence of the 
individual's intent to achieve an employment outcome, and no additional 
demonstration on the part of the applicant is required for purposes of 
satisfying paragraph (a)(4) of this section.
    (5) Interpretation. Nothing in this section, including paragraph 
(a)(3)(i), is to be construed to create an entitlement to any vocational 
rehabilitation service.
    (b) Interim determination of eligibility. (1) The designated State 
unit may initiate the provision of vocational rehabilitation services 
for an applicant on the basis of an interim determination of eligibility 
prior to the 60-day period described in Sec.  361.41(b)(2).
    (2) If a State chooses to make interim determinations of 
eligibility, the designated State unit must--

[[Page 327]]

    (i) Establish criteria and conditions for making those 
determinations;
    (ii) Develop and implement procedures for making the determinations; 
and
    (iii) Determine the scope of services that may be provided pending 
the final determination of eligibility.
    (3) If a State elects to use an interim eligibility determination, 
the designated State unit must make a final determination of eligibility 
within 60 days of the individual submitting an application for services 
in accordance with Sec.  361.41(b)(2).
    (c) Prohibited factors. (1) The vocational rehabilitation services 
portion of the Unified or Combined State Plan must assure that the State 
unit will not impose, as part of determining eligibility under this 
section, a duration of residence requirement that excludes from services 
any applicant who is present in the State. The designated State unit may 
not require the applicant to demonstrate a presence in the State through 
the production of any documentation that under State or local law, or 
practical circumstances, results in a de facto duration of residence 
requirement.
    (2) In making a determination of eligibility under this section, the 
designated State unit also must ensure that--
    (i) No applicant or group of applicants is excluded or found 
ineligible solely on the basis of the type of disability; and
    (ii) The eligibility requirements are applied without regard to 
the--
    (A) Age, sex, race, color, or national origin of the applicant;
    (B) Type of expected employment outcome;
    (C) Source of referral for vocational rehabilitation services;
    (D) Particular service needs or anticipated cost of services 
required by an applicant or the income level of an applicant or 
applicant's family;
    (E) Applicants' employment history or current employment status; and
    (F) Applicants' educational status or current educational 
credential.
    (d) Review and assessment of data for eligibility determination. 
Except as provided in paragraph (e) of this section, the designated 
State unit--
    (1) Must base its determination of each of the basic eligibility 
requirements in paragraph (a) of this section on--
    (i) A review and assessment of existing data, including counselor 
observations, education records, information provided by the individual 
or the individual's family, particularly information used by education 
officials, and determinations made by officials of other agencies; and
    (ii) To the extent existing data do not describe the current 
functioning of the individual or are unavailable, insufficient, or 
inappropriate to make an eligibility determination, an assessment of 
additional data resulting from the provision of vocational 
rehabilitation services, including trial work experiences, assistive 
technology devices and services, personal assistance services, and any 
other support services that are necessary to determine whether an 
individual is eligible; and
    (2) Must base its presumption under paragraph (a)(3)(i) of this 
section that an applicant who has been determined eligible for Social 
Security benefits under title II or title XVI of the Social Security Act 
satisfies each of the basic eligibility requirements in paragraph (a) of 
this section on determinations made by the Social Security 
Administration.
    (e) Trial work experiences for individuals with significant 
disabilities. (1) Prior to any determination that an individual with a 
disability is unable to benefit from vocational rehabilitation services 
in terms of an employment outcome because of the severity of that 
individual's disability or that the individual is ineligible for 
vocational rehabilitation services, the designated State unit must 
conduct an exploration of the individual's abilities, capabilities, and 
capacity to perform in realistic work situations.
    (2)(i) The designated State unit must develop a written plan to 
assess periodically the individual's abilities, capabilities, and 
capacity to perform in competitive integrated work situations through 
the use of trial work experiences, which must be provided in competitive 
integrated employment settings to the maximum extent possible, 
consistent with the informed choice

[[Page 328]]

and rehabilitation needs of the individual.
    (ii) Trial work experiences include supported employment, on-the-job 
training, and other experiences using realistic integrated work 
settings.
    (iii) Trial work experiences must be of sufficient variety and over 
a sufficient period of time for the designated State unit to determine 
that--
    (A) There is sufficient evidence to conclude that the individual can 
benefit from the provision of vocational rehabilitation services in 
terms of an employment outcome; or
    (B) There is clear and convincing evidence that due to the severity 
of the individual's disability, the individual is incapable of 
benefitting from the provision of vocational rehabilitation services in 
terms of an employment outcome; and
    (iv) The designated State unit must provide appropriate supports, 
including, but not limited to, assistive technology devices and services 
and personal assistance services, to accommodate the rehabilitation 
needs of the individual during the trial work experiences.
    (f) Data for determination of priority for services under an order 
of selection. If the designated State unit is operating under an order 
of selection for services, as provided in Sec.  361.36, the State unit 
must base its priority assignments on--
    (1) A review of the data that was developed under paragraphs (d) and 
(e) of this section to make the eligibility determination; and
    (2) An assessment of additional data, to the extent necessary.

(Authority: Sections 7(2), 12(c), 101(a)(12), 102(a), 103(a)(1), 
103(a)(9), 103(a)(10), and 103(a)(14) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 705(2), 709(c), 721(a)(12), 722(a), 723(a)(1), 
723(a)(9), 723(a)(10), and 723(a)(14))

    Note to Sec.  361.42: Clear and convincing evidence means that the 
designated State unit has a high degree of certainty before it can 
conclude that an individual is incapable of benefiting from services in 
terms of an employment outcome. The clear and convincing standard 
constitutes the highest standard used in our civil system of law and is 
to be individually applied on a case-by-case basis. The term clear means 
unequivocal. For example, the use of an intelligence test result alone 
would not constitute clear and convincing evidence. Clear and convincing 
evidence might include a description of assessments, including 
situational assessments and supported employment assessments, from 
service providers who have concluded that they would be unable to meet 
the individual's needs due to the severity of the individual's 
disability. The demonstration of ``clear and convincing evidence'' must 
include, if appropriate, a functional assessment of skill development 
activities, with any necessary supports (including assistive 
technology), in real life settings. (S. Rep. No. 357, 102d Cong., 2d. 
Sess. 37-38 (1992))



Sec.  361.43  Procedures for ineligibility determination.

    If the State unit determines that an applicant is ineligible for 
vocational rehabilitation services or determines that an individual 
receiving services under an individualized plan for employment is no 
longer eligible for services, the State unit must--
    (a) Make the determination only after providing an opportunity for 
full consultation with the individual or, as appropriate, with the 
individual's representative;
    (b) Inform the individual in writing, supplemented as necessary by 
other appropriate modes of communication consistent with the informed 
choice of the individual, of the ineligibility determination, including 
the reasons for that determination, the requirements under this section, 
and the means by which the individual may express and seek remedy for 
any dissatisfaction, including the procedures for review of State unit 
personnel determinations in accordance with Sec.  361.57;
    (c) Provide the individual with a description of services available 
from a client assistance program established under 34 CFR part 370 and 
information on how to contact that program;
    (d) Refer the individual--
    (1) To other programs that are part of the one-stop service delivery 
system under the Workforce Innovation and Opportunity Act that can 
address the individual's training or employment-related needs; or
    (2) To Federal, State, or local programs or service providers, 
including,

[[Page 329]]

as appropriate, independent living programs and extended employment 
providers, best suited to meet their rehabilitation needs, if the 
ineligibility determination is based on a finding that the individual 
has chosen not to pursue, or is incapable of achieving, an employment 
outcome as defined in Sec.  361.5(c)(15).
    (e) Review within 12 months and annually thereafter if requested by 
the individual or, if appropriate, by the individual's representative 
any ineligibility determination that is based on a finding that the 
individual is incapable of achieving an employment outcome. This review 
need not be conducted in situations in which the individual has refused 
it, the individual is no longer present in the State, the individual's 
whereabouts are unknown, or the individual's medical condition is 
rapidly progressive or terminal.

(Authority: Sections 12(c) and 102(a)(5) and (c) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 722(a)(5)and (c))



Sec.  361.44  Closure without eligibility determination.

    The designated State unit may not close an applicant's record of 
services prior to making an eligibility determination unless the 
applicant declines to participate in, or is unavailable to complete, an 
assessment for determining eligibility and priority for services, and 
the State unit has made a reasonable number of attempts to contact the 
applicant or, if appropriate, the applicant's representative to 
encourage the applicant's participation.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))



Sec.  361.45  Development of the individualized plan for employment.

    (a) General requirements. The vocational rehabilitation services 
portion of the Unified or Combined State Plan must assure that--
    (1) An individualized plan for employment meeting the requirements 
of this section and Sec.  361.46 is developed and implemented in a 
timely manner for each individual determined to be eligible for 
vocational rehabilitation services or, if the designated State unit is 
operating under an order of selection in accordance with Sec.  361.36, 
for each eligible individual to whom the State unit is able to provide 
services; and
    (2) Services will be provided in accordance with the provisions of 
the individualized plan for employment.
    (b) Purpose. (1) The designated State unit must conduct an 
assessment for determining vocational rehabilitation needs, if 
appropriate, for each eligible individual or, if the State is operating 
under an order of selection, for each eligible individual to whom the 
State is able to provide services. The purpose of this assessment is to 
determine the employment outcome, and the nature and scope of vocational 
rehabilitation services to be included in the individualized plan for 
employment.
    (2) The individualized plan for employment must be designed to 
achieve a specific employment outcome, as defined in Sec.  361.5(c)(15), 
that is selected by the individual consistent with the individual's 
unique strengths, resources, priorities, concerns, abilities, 
capabilities, interests, and informed choice.
    (c) Required information. The State unit must provide the following 
information to each eligible individual or, as appropriate, the 
individual's representative, in writing and, if appropriate, in the 
native language or mode of communication of the individual or the 
individual's representative:
    (1) Options for developing an individualized plan for employment. 
Information on the available options for developing the individualized 
plan for employment, including the option that an eligible individual 
or, as appropriate, the individual's representative may develop all or 
part of the individualized plan for employment--
    (i) Without assistance from the State unit or other entity; or
    (ii) With assistance from--
    (A) A qualified vocational rehabilitation counselor employed by the 
State unit;
    (B) A qualified vocational rehabilitation counselor who is not 
employed by the State unit;
    (C) A disability advocacy organization; or
    (D) Resources other than those in paragraph (c)(1)(ii)(A) through 
(C) of this section.

[[Page 330]]

    (2) Additional information. Additional information to assist the 
eligible individual or, as appropriate, the individual's representative 
in developing the individualized plan for employment, including--
    (i) Information describing the full range of components that must be 
included in an individualized plan for employment;
    (ii) As appropriate to each eligible individual--
    (A) An explanation of agency guidelines and criteria for determining 
an eligible individual's financial commitments under an individualized 
plan for employment;
    (B) Information on the availability of assistance in completing 
State unit forms required as part of the individualized plan for 
employment; and
    (C) Additional information that the eligible individual requests or 
the State unit determines to be necessary to the development of the 
individualized plan for employment;
    (iii) A description of the rights and remedies available to the 
individual, including, if appropriate, recourse to the processes 
described in Sec.  361.57; and
    (iv) A description of the availability of a client assistance 
program established under part 370 of this chapter and information on 
how to contact the client assistance program.
    (3) Individuals entitled to benefits under title II or XVI of the 
Social Security Act. For individuals entitled to benefits under title II 
or XVI of the Social Security Act on the basis of a disability or 
blindness, the State unit must provide to the individual general 
information on additional supports and assistance for individuals with 
disabilities desiring to enter the workforce, including assistance with 
benefits planning.
    (d) Mandatory procedures. The designated State unit must ensure 
that--
    (1) The individualized plan for employment is a written document 
prepared on forms provided by the State unit;
    (2) The individualized plan for employment is developed and 
implemented in a manner that gives eligible individuals the opportunity 
to exercise informed choice, consistent with Sec.  361.52, in 
selecting--
    (i) The employment outcome, including the employment setting;
    (ii) The specific vocational rehabilitation services needed to 
achieve the employment outcome, including the settings in which services 
will be provided;
    (iii) The entity or entities that will provide the vocational 
rehabilitation services; and
    (iv) The methods available for procuring the services;
    (3) The individualized plan for employment is--
    (i) Agreed to and signed by the eligible individual or, as 
appropriate, the individual's representative; and
    (ii) Approved and signed by a qualified vocational rehabilitation 
counselor employed by the designated State unit;
    (4) A copy of the individualized plan for employment and a copy of 
any amendments to the individualized plan for employment are provided to 
the eligible individual or, as appropriate, to the individual's 
representative, in writing and, if appropriate, in the native language 
or mode of communication of the individual or, as appropriate, the 
individual's representative;
    (5) The individualized plan for employment is reviewed at least 
annually by a qualified vocational rehabilitation counselor and the 
eligible individual or, as appropriate, the individual's representative 
to assess the eligible individual's progress in achieving the identified 
employment outcome;
    (6) The individualized plan for employment is amended, as necessary, 
by the individual or, as appropriate, the individual's representative, 
in collaboration with a representative of the State unit or a qualified 
vocational rehabilitation counselor (to the extent determined to be 
appropriate by the individual), if there are substantive changes in the 
employment outcome, the vocational rehabilitation services to be 
provided, or the providers of the vocational rehabilitation services;
    (7) Amendments to the individualized plan for employment do not take 
effect until agreed to and signed by the eligible individual or, as 
appropriate, the individual's representative and by a qualified 
vocational rehabilitation

[[Page 331]]

counselor employed by the designated State unit;
    (8) The individualized plan for employment is amended, as necessary, 
to include the postemployment services and service providers that are 
necessary for the individual to maintain, advance in or regain 
employment, consistent with the individual's unique strengths, 
resources, priorities, concerns, abilities, capabilities, interests, and 
informed choice; and
    (9) An individualized plan for employment for a student with a 
disability is developed--
    (i) In consideration of the student's individualized education 
program or 504 services, as applicable; and
    (ii) In accordance with the plans, policies, procedures, and terms 
of the interagency agreement required under Sec.  361.22.
    (e) Standards for developing the individualized plan for employment. 
The individualized plan for employment must be developed as soon as 
possible, but not later than 90 days after the date of determination of 
eligibility, unless the State unit and the eligible individual agree to 
the extension of that deadline to a specific date by which the 
individualized plan for employment must be completed.
    (f) Data for preparing the individualized plan for employment. (1) 
Preparation without comprehensive assessment. To the extent possible, 
the employment outcome and the nature and scope of rehabilitation 
services to be included in the individual's individualized plan for 
employment must be determined based on the data used for the assessment 
of eligibility and priority for services under Sec.  361.42.
    (2) Preparation based on comprehensive assessment.
    (i) If additional data are necessary to determine the employment 
outcome and the nature and scope of services to be included in the 
individualized plan for employment of an eligible individual, the State 
unit must conduct a comprehensive assessment of the unique strengths, 
resources, priorities, concerns, abilities, capabilities, interests, and 
informed choice, including the need for supported employment services, 
of the eligible individual, in the most integrated setting possible, 
consistent with the informed choice of the individual in accordance with 
the provisions of Sec.  361.5(c)(5)(ii).
    (ii) In preparing the comprehensive assessment, the State unit must 
use, to the maximum extent possible and appropriate and in accordance 
with confidentiality requirements, existing information that is current 
as of the date of the development of the individualized plan for 
employment, including information--
    (A) Available from other programs and providers, particularly 
information used by education officials and the Social Security 
Administration;
    (B) Provided by the individual and the individual's family; and
    (C) Obtained under the assessment for determining the individual's 
eligibility and vocational rehabilitation needs.

(Authority: Sections 7(2)(B), 101(a)(9), 102(b), and 103(a)(1) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(2)(B), 721(a)(9), 
722(b), and 723(a)(1))



Sec.  361.46  Content of the individualized plan for employment.

    (a) Mandatory components. Regardless of the approach in Sec.  
361.45(c)(1) that an eligible individual selects for purposes of 
developing the individualized plan for employment, each individualized 
plan for employment must--
    (1) Include a description of the specific employment outcome, as 
defined in Sec.  361.5(c)(15), that is chosen by the eligible individual 
and is consistent with the individual's unique strengths, resources, 
priorities, concerns, abilities, capabilities, career interests, and 
informed choice consistent with the general goal of competitive 
integrated employment (except that in the case of an eligible individual 
who is a student or a youth with a disability, the description may be a 
description of the individual's projected post-school employment 
outcome);
    (2) Include a description under Sec.  361.48 of--
    (i) These specific rehabilitation services needed to achieve the 
employment outcome, including, as appropriate, the provision of 
assistive technology devices, assistive technology services,

[[Page 332]]

and personal assistance services, including training in the management 
of those services; and
    (ii) In the case of a plan for an eligible individual that is a 
student or youth with a disability, the specific transition services and 
supports needed to achieve the individual's employment outcome or 
projected post-school employment outcome.
    (3) Provide for services in the most integrated setting that is 
appropriate for the services involved and is consistent with the 
informed choice of the eligible individual;
    (4) Include timelines for the achievement of the employment outcome 
and for the initiation of services;
    (5) Include a description of the entity or entities chosen by the 
eligible individual or, as appropriate, the individual's representative 
that will provide the vocational rehabilitation services and the methods 
used to procure those services;
    (6) Include a description of the criteria that will be used to 
evaluate progress toward achievement of the employment outcome; and
    (7) Include the terms and conditions of the individualized plan for 
employment, including, as appropriate, information describing--
    (i) The responsibilities of the designated State unit;
    (ii) The responsibilities of the eligible individual, including--
    (A) The responsibilities the individual will assume in relation to 
achieving the employment outcome;
    (B) If applicable, the extent of the individual's participation in 
paying for the cost of services; and
    (C) The responsibility of the individual with regard to applying for 
and securing comparable services and benefits as described in Sec.  
361.53; and
    (iii) The responsibilities of other entities as the result of 
arrangements made pursuant to the comparable services or benefits 
requirements in Sec.  361.53.
    (b) Supported employment requirements. An individualized plan for 
employment for an individual with a most significant disability for whom 
an employment outcome in a supported employment setting has been 
determined to be appropriate must--
    (1) Specify the supported employment services to be provided by the 
designated State unit;
    (2) Specify the expected extended services needed, which may include 
natural supports;
    (3) Identify the source of extended services or, to the extent that 
it is not possible to identify the source of extended services at the 
time the individualized plan for employment is developed, include a 
description of the basis for concluding that there is a reasonable 
expectation that those sources will become available;
    (4) Provide for periodic monitoring to ensure that the individual is 
making satisfactory progress toward meeting the weekly work requirement 
established in the individualized plan for employment by the time of 
transition to extended services;
    (5) Provide for the coordination of services provided under an 
individualized plan for employment with services provided under other 
individualized plans established under other Federal or State programs;
    (6) To the extent that job skills training is provided, identify 
that the training will be provided on site; and
    (7) Include placement in an integrated setting for the maximum 
number of hours possible based on the unique strengths, resources, 
priorities, concerns, abilities, capabilities, interests, and informed 
choice of individuals with the most significant disabilities.
    (c) Post-employment services. The individualized plan for employment 
for each individual must contain, as determined to be necessary, 
statements concerning--
    (1) The expected need for post-employment services prior to closing 
the record of services of an individual who has achieved an employment 
outcome;
    (2) A description of the terms and conditions for the provision of 
any post-employment services; and
    (3) If appropriate, a statement of how post-employment services will 
be provided or arranged through other entities as the result of 
arrangements made pursuant to the comparable services or benefits 
requirements in Sec.  361.53.
    (d) Coordination of services for students with disabilities. The 
individualized plan for employment for a student with a

[[Page 333]]

disability must be coordinated with the individualized education program 
or 504 services, as applicable, for that individual in terms of the 
goals, objectives, and services identified in the education program.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Sections 101(a)(8), 101(a)(9), and 102(b)(4) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 721(a)(8), 721(a)(9), 
and 722(b)(4))



Sec.  361.47  Record of services.

    (a) The designated State unit must maintain for each applicant and 
eligible individual a record of services that includes, to the extent 
pertinent, the following documentation:
    (1) If an applicant has been determined to be an eligible 
individual, documentation supporting that determination in accordance 
with the requirements under Sec.  361.42.
    (2) If an applicant or eligible individual receiving services under 
an individualized plan for employment has been determined to be 
ineligible, documentation supporting that determination in accordance 
with the requirements under Sec.  361.43.
    (3) Documentation that describes the justification for closing an 
applicant's or eligible individual's record of services if that closure 
is based on reasons other than ineligibility, including, as appropriate, 
documentation indicating that the State unit has satisfied the 
requirements in Sec.  361.44.
    (4) If an individual has been determined to be an individual with a 
significant disability or an individual with a most significant 
disability, documentation supporting that determination.
    (5) If an individual with a significant disability requires an 
exploration of abilities, capabilities, and capacity to perform in 
realistic work situations through the use of trial work experiences to 
determine whether the individual is an eligible individual, 
documentation supporting the need for, and the plan relating to, that 
exploration and documentation regarding the periodic assessments carried 
out during the trial work experiences in accordance with the 
requirements under Sec.  361.42(e).
    (6) The individualized plan for employment, and any amendments to 
the individualized plan for employment, consistent with the requirements 
under Sec.  361.46.
    (7) Documentation describing the extent to which the applicant or 
eligible individual exercised informed choice regarding the provision of 
assessment services and the extent to which the eligible individual 
exercised informed choice in the development of the individualized plan 
for employment with respect to the selection of the specific employment 
outcome, the specific vocational rehabilitation services needed to 
achieve the employment outcome, the entity to provide the services, the 
employment setting, the settings in which the services will be provided, 
and the methods to procure the services.
    (8) In the event that an individual's individualized plan for 
employment provides for vocational rehabilitation services in a non-
integrated setting, a justification to support the need for the non-
integrated setting.
    (9) In the event that an individual obtains competitive employment, 
verification that the individual is compensated at or above the minimum 
wage and that the individual's wage and level of benefits are not less 
than that customarily paid by the employer for the same or similar work 
performed by non-disabled individuals in accordance with Sec.  
361.5(c)(9)(i).
    (10) In the event an individual achieves an employment outcome in 
which the individual is compensated in accordance with section 14(c) of 
the Fair Labor Standards Act or the designated State unit closes the 
record of services of an individual in extended employment on the basis 
that the individual is unable to achieve an employment outcome 
consistent with Sec.  361.5(c)(15) or that an eligible individual 
through informed choice chooses to remain in extended employment, 
documentation of the results of the semi-annual and annual reviews 
required under Sec.  361.55, of the individual's input into those 
reviews, and of the individual's or, if appropriate, the individual's 
representative's acknowledgment that those reviews were conducted.

[[Page 334]]

    (11) Documentation concerning any action or decision resulting from 
a request by an individual under Sec.  361.57 for a review of 
determinations made by designated State unit personnel.
    (12) In the event that an applicant or eligible individual requests 
under Sec.  361.38(c)(4) that documentation in the record of services be 
amended and the documentation is not amended, documentation of the 
request.
    (13) In the event an individual is referred to another program 
through the State unit's information and referral system under Sec.  
361.37, including other components of the statewide workforce 
development system, documentation on the nature and scope of services 
provided by the designated State unit to the individual and on the 
referral itself, consistent with the requirements of Sec.  361.37.
    (14) In the event an individual's record of service is closed under 
Sec.  361.56, documentation that demonstrates the services provided 
under the individual's individualized plan for employment contributed to 
the achievement of the employment outcome.
    (15) In the event an individual's record of service is closed under 
Sec.  361.56, documentation verifying that the provisions of Sec.  
361.56 have been satisfied.
    (b) The State unit, in consultation with the State Rehabilitation 
Council if the State has a Council, must determine the type of 
documentation that the State unit must maintain for each applicant and 
eligible individual in order to meet the requirements in paragraph (a) 
of this section.

(Authority: Sections 12(c), 101(a)(6), (9), (14), and (20) and 102(a), 
(b), and (d) of the Rehabilitation Act of 1973, as amended; 29 U.S.C. 
709(c), 721(a)(6), (9), (14), and (20), and 722(a), (b), and (d))



Sec.  361.48  Scope of vocational rehabilitation services for 
individuals with disabilities.

    (a) Pre-employment transition services. Each State must ensure that 
the designated State unit, in collaboration with the local educational 
agencies involved, provide, or arrange for the provision of, pre-
employment transition services for all students with disabilities, as 
defined in Sec.  361.5(c)(51), in need of such services, without regard 
to the type of disability, from Federal funds reserved in accordance 
with Sec.  361.65, and any funds made available from State, local, or 
private funding sources. Funds reserved and made available may be used 
for the required, authorized, and pre-employment transition coordination 
activities under paragraphs (2), (3) and (4) of this section.
    (1) Availability of services. Pre-employment transition services 
must be made available Statewide to all students with disabilities, 
regardless of whether the student has applied or been determined 
eligible for vocational rehabilitation services.
    (2) Required activities. The designated State unit must provide the 
following pre-employment transition services:
    (i) Job exploration counseling;
    (ii) Work-based learning experiences, which may include in-school or 
after school opportunities, or experience outside the traditional school 
setting (including internships), that is provided in an integrated 
environment in the community to the maximum extent possible;
    (iii) Counseling on opportunities for enrollment in comprehensive 
transition or postsecondary educational programs at institutions of 
higher education;
    (iv) Workplace readiness training to develop social skills and 
independent living; and
    (v) Instruction in self-advocacy (including instruction in person-
centered planning), which may include peer mentoring (including peer 
mentoring from individuals with disabilities working in competitive 
integrated employment).
    (3) Authorized activities. Funds available and remaining after the 
provision of the required activities described in paragraph (a)(2) of 
this section may be used to improve the transition of students with 
disabilities from school to postsecondary education or an employment 
outcome by--
    (i) Implementing effective strategies to increase the likelihood of 
independent living and inclusion in communities and competitive 
integrated workplaces;
    (ii) Developing and improving strategies for individuals with 
intellectual

[[Page 335]]

disabilities and individuals with significant disabilities to live 
independently; participate in postsecondary education experiences; and 
obtain, advance in and retain competitive integrated employment;
    (iii) Providing instruction to vocational rehabilitation counselors, 
school transition personnel, and other persons supporting students with 
disabilities;
    (iv) Disseminating information about innovative, effective, and 
efficient approaches to achieve the goals of this section;
    (v) Coordinating activities with transition services provided by 
local educational agencies under the Individuals with Disabilities 
Education Act (20 U.S.C. 1400 et seq.);
    (vi) Applying evidence-based findings to improve policy, procedure, 
practice, and the preparation of personnel, in order to better achieve 
the goals of this section;
    (vii) Developing model transition demonstration projects;
    (viii) Establishing or supporting multistate or regional 
partnerships involving States, local educational agencies, designated 
State units, developmental disability agencies, private businesses, or 
other participants to achieve the goals of this section; and
    (ix) Disseminating information and strategies to improve the 
transition to postsecondary activities of individuals who are members of 
traditionally unserved and underserved populations.
    (4) Pre-employment transition coordination. Each local office of a 
designated State unit must carry out responsibilities consisting of--
    (i) Attending individualized education program meetings for students 
with disabilities, when invited;
    (ii) Working with the local workforce development boards, one-stop 
centers, and employers to develop work opportunities for students with 
disabilities, including internships, summer employment and other 
employment opportunities available throughout the school year, and 
apprenticeships;
    (iii) Working with schools, including those carrying out activities 
under section 614(d) of the IDEA, to coordinate and ensure the provision 
of pre-employment transition services under this section;
    (iv) When invited, attending person-centered planning meetings for 
individuals receiving services under title XIX of the Social Security 
Act (42 U.S.C. 1396 et seq.); and
    (b) Services for individuals who have applied for or been determined 
eligible for vocational rehabilitation services. As appropriate to the 
vocational rehabilitation needs of each individual and consistent with 
each individual's individualized plan for employment, the designated 
State unit must ensure that the following vocational rehabilitation 
services are available to assist the individual with a disability in 
preparing for, securing, retaining, advancing in or regaining an 
employment outcome that is consistent with the individual's unique 
strengths, resources, priorities, concerns, abilities, capabilities, 
interests, and informed choice:
    (1) Assessment for determining eligibility and priority for services 
by qualified personnel, including, if appropriate, an assessment by 
personnel skilled in rehabilitation technology, in accordance with Sec.  
361.42.
    (2) Assessment for determining vocational rehabilitation needs by 
qualified personnel, including, if appropriate, an assessment by 
personnel skilled in rehabilitation technology, in accordance with Sec.  
361.45.
    (3) Vocational rehabilitation counseling and guidance, including 
information and support services to assist an individual in exercising 
informed choice in accordance with Sec.  361.52.
    (4) Referral and other services necessary to assist applicants and 
eligible individuals to secure needed services from other agencies, 
including other components of the statewide workforce development 
system, in accordance with Sec. Sec.  361.23, 361.24, and 361.37, and to 
advise those individuals about client assistance programs established 
under 34 CFR part 370.
    (5) In accordance with the definition in Sec.  361.5(c)(39), 
physical and mental restoration services, to the extent that financial 
support is not readily available from a source other than the designated 
State unit (such as through health insurance or a comparable service or 
benefit as defined in Sec.  361.5(c)(10)).

[[Page 336]]

    (6) Vocational and other training services, including personal and 
vocational adjustment training, advanced training in, but not limited 
to, a field of science, technology, engineering, mathematics (including 
computer science), medicine, law, or business); books, tools, and other 
training materials, except that no training or training services in an 
institution of higher education (universities, colleges, community or 
junior colleges, vocational schools, technical institutes, or hospital 
schools of nursing or any other postsecondary education institution) may 
be paid for with funds under this part unless maximum efforts have been 
made by the State unit and the individual to secure grant assistance in 
whole or in part from other sources to pay for that training.
    (7) Maintenance, in accordance with the definition of that term in 
Sec.  361.5(c)(34).
    (8) Transportation in connection with the provision of any 
vocational rehabilitation service and in accordance with the definition 
of that term in Sec.  361.5(c)(57).
    (9) Vocational rehabilitation services to family members, as defined 
in Sec.  361.5(c)(23), of an applicant or eligible individual if 
necessary to enable the applicant or eligible individual to achieve an 
employment outcome.
    (10) Interpreter services, including sign language and oral 
interpreter services, for individuals who are deaf or hard of hearing 
and tactile interpreting services for individuals who are deaf-blind 
provided by qualified personnel.
    (11) Reader services, rehabilitation teaching services, and 
orientation and mobility services for individuals who are blind.
    (12) Job-related services, including job search and placement 
assistance, job retention services, follow-up services, and follow-along 
services.
    (13) Supported employment services in accordance with the definition 
of that term in Sec.  361.5(c)(54).
    (14) Personal assistance services in accordance with the definition 
of that term in Sec.  361.5(c)(39).
    (15) Post-employment services in accordance with the definition of 
that term in Sec.  361.5(c)(42).
    (16) Occupational licenses, tools, equipment, initial stocks, and 
supplies.
    (17) Rehabilitation technology in accordance with the definition of 
that term in Sec.  361.5(c)(45), including vehicular modification, 
telecommunications, sensory, and other technological aids and devices.
    (18) Transition services for students and youth with disabilities, 
that facilitate the transition from school to postsecondary life, such 
as achievement of an employment outcome in competitive integrated 
employment, or pre-employment transition services for students.
    (19) Technical assistance and other consultation services to conduct 
market analyses, develop business plans, and otherwise provide 
resources, to the extent those resources are authorized to be provided 
through the statewide workforce development system, to eligible 
individuals who are pursuing self-employment or telecommuting or 
establishing a small business operation as an employment outcome.
    (20) Customized employment in accordance with the definition of that 
term in Sec.  361.5(c)(11).
    (21) Other goods and services determined necessary for the 
individual with a disability to achieve an employment outcome.

(Authority: Sections 7(37), 12(c), 103(a), and 113 of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 705(37), 709(c), 723(a), and 733)



Sec.  361.49  Scope of vocational rehabilitation services for
groups of individuals with disabilities.

    (a) The designated State unit may provide for the following 
vocational rehabilitation services for the benefit of groups of 
individuals with disabilities:
    (1) The establishment, development, or improvement of a public or 
other nonprofit community rehabilitation program that is used to provide 
vocational rehabilitation services that promote integration into the 
community and prepare individuals with disabilities for competitive 
integrated employment, including supported employment and customized 
employment, and under special circumstances, the construction of a 
facility for a public or nonprofit community rehabilitation

[[Page 337]]

program as defined in Sec. Sec.  361.5(c)(10), 361.5(c)(16) and 
361.5(c)(17). Examples of special circumstances include the destruction 
by natural disaster of the only available center serving an area or a 
State determination that construction is necessary in a rural area 
because no other public agencies or private nonprofit organizations are 
currently able to provide vocational rehabilitation services to 
individuals.
    (2) Telecommunications systems that have the potential for 
substantially improving vocational rehabilitation service delivery 
methods and developing appropriate programming to meet the particular 
needs of individuals with disabilities, including telephone, television, 
video description services, satellite, tactile-vibratory devices, and 
similar systems, as appropriate.
    (3) Special services to provide nonvisual access to information for 
individuals who are blind, including the use of telecommunications, 
Braille, sound recordings, or other appropriate media; captioned 
television, films, or video cassettes for individuals who are deaf or 
hard of hearing; tactile materials for individuals who are deaf-blind; 
and other special services that provide information through tactile, 
vibratory, auditory, and visual media.
    (4) Technical assistance to businesses that are seeking to employ 
individuals with disabilities.
    (5) In the case of any small business enterprise operated by 
individuals with significant disabilities under the supervision of the 
designated State unit, including enterprises established under the 
Randolph-Sheppard program, management services and supervision provided 
by the State unit along with the acquisition by the State unit of 
vending facilities or other equipment, initial stocks and supplies, and 
initial operating expenses, in accordance with the following 
requirements:
    (i) Management services and supervision includes inspection, quality 
control, consultation, accounting, regulating, in-service training, and 
related services provided on a systematic basis to support and improve 
small business enterprises operated by individuals with significant 
disabilities. Management services and supervision may be provided 
throughout the operation of the small business enterprise.
    (ii) Initial stocks and supplies includes those items necessary to 
the establishment of a new business enterprise during the initial 
establishment period, which may not exceed six months.
    (iii) Costs of establishing a small business enterprise may include 
operational costs during the initial establishment period, which may not 
exceed six months.
    (iv) If the designated State unit provides for these services, it 
must ensure that only individuals with significant disabilities will be 
selected to participate in this supervised program.
    (v) If the designated State unit provides for these services and 
chooses to set aside funds from the proceeds of the operation of the 
small business enterprises, the State unit must maintain a description 
of the methods used in setting aside funds and the purposes for which 
funds are set aside. Funds may be used only for small business 
enterprises purposes, and benefits that are provided to operators from 
set-aside funds must be provided on an equitable basis.
    (6) Consultation and technical assistance services to assist State 
educational agencies and local educational agencies in planning for the 
transition of students and youth with disabilities from school to 
postsecondary life, including employment.
    (7) Transition services to youth with disabilities and students with 
disabilities who may not have yet applied or been determined eligible 
for vocational rehabilitation services, for which a vocational 
rehabilitation counselor works in concert with educational agencies, 
providers of job training programs, providers of services under the 
Medicaid program under title XIX of the Social Security Act (42 U.S.C. 
1396 et seq.), entities designated by the State to provide services for 
individuals with developmental disabilities, centers for independent 
living (as defined in section 702 of the Act), housing and 
transportation authorities, workforce development systems, and 
businesses and employers. These specific transition services are to 
benefit a group of students with disabilities or

[[Page 338]]

youth with disabilities and are not individualized services directly 
related to an individualized plan for employment goal. Services may 
include, but are not limited to, group tours of universities and 
vocational training programs, employer or business site visits to learn 
about career opportunities, career fairs coordinated with workforce 
development and employers to facilitate mock interviews and resume 
writing, and other general services applicable to groups of students 
with disabilities and youth with disabilities.
    (8) The establishment, development, or improvement of assistive 
technology demonstration, loan, reutilization, or financing programs in 
coordination with activities authorized under the Assistive Technology 
Act of 1998 (29 U.S.C. 3001 et seq.) to promote access to assistive 
technology for individuals with disabilities and employers.
    (9) Support (including, as appropriate, tuition) for advanced 
training in a field of science, technology, engineering, or mathematics 
(including computer science), medicine, law, or business, provided after 
an individual eligible to receive services under this title 
demonstrates--
    (i) Such eligibility;
    (ii) Previous completion of a bachelor's degree program at an 
institution of higher education or scheduled completion of such a degree 
program prior to matriculating in the program for which the individual 
proposes to use the support; and
    (iii) Acceptance by a program at an institution of higher education 
in the United States that confers a master's degree in a field of 
science, technology, engineering, or mathematics (including computer 
science), a juris doctor degree, a master of business administration 
degree, or a doctor of medicine degree, except that--
    (A) No training provided at an institution of higher education may 
be paid for with funds under this program unless maximum efforts have 
been made by the designated State unit to secure grant assistance, in 
whole or in part, from other sources to pay for such training; and
    (B) Nothing in this paragraph prevents any designated State unit 
from providing similar support to individuals with disabilities within 
the State who are eligible to receive support under this title and who 
are not served under this section.
    (b) If the designated State unit provides for vocational 
rehabilitation services for groups of individuals, it must--
    (1) Develop and maintain written policies covering the nature and 
scope of each of the vocational rehabilitation services it provides and 
the criteria under which each service is provided; and
    (2) Maintain information to ensure the proper and efficient 
administration of those services in the form and detail and at the time 
required by the Secretary, including the types of services provided, the 
costs of those services, and, to the extent feasible, estimates of the 
numbers of individuals benefiting from those services.

(Authority: Sections 12(c), 101(a)(6)(A), and 103(b) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 721(a)(6), and 
723(b))



Sec.  361.50  Written policies governing the provision of
services for individuals with disabilities.

    (a) Policies. The State unit must develop and maintain written 
policies covering the nature and scope of each of the vocational 
rehabilitation services specified in Sec.  361.48 and the criteria under 
which each service is provided. The policies must ensure that the 
provision of services is based on the rehabilitation needs of each 
individual as identified in that individual's individualized plan for 
employment and is consistent with the individual's informed choice. The 
written policies may not establish any arbitrary limits on the nature 
and scope of vocational rehabilitation services to be provided to the 
individual to achieve an employment outcome. The policies must be 
developed in accordance with the following provisions:
    (b) Out-of-State services. (1) The State unit may establish a 
preference for in-State services, provided that the preference does not 
effectively deny an individual a necessary service. If the individual 
chooses an out-of-State service at a higher cost than an in-State 
service, if either service would meet

[[Page 339]]

the individual's rehabilitation needs, the designated State unit is not 
responsible for those costs in excess of the cost of the in-State 
service.
    (2) The State unit may not establish policies that effectively 
prohibit the provision of out-of-State services.
    (c) Payment for services. (1) The State unit must establish and 
maintain written policies to govern the rates of payment for all 
purchased vocational rehabilitation services.
    (2) The State unit may establish a fee schedule designed to ensure a 
reasonable cost to the program for each service, if the schedule is--
    (i) Not so low as to effectively deny an individual a necessary 
service; and
    (ii) Not absolute and permits exceptions so that individual needs 
can be addressed.
    (3) The State unit may not place absolute dollar limits on specific 
service categories or on the total services provided to an individual.
    (d) Duration of services. (1) The State unit may establish 
reasonable time periods for the provision of services provided that the 
time periods are--
    (i) Not so short as to effectively deny an individual a necessary 
service; and
    (ii) Not absolute and permit exceptions so that individual needs can 
be addressed.
    (2) The State unit may not establish absolute time limits on the 
provision of specific services or on the provision of services to an 
individual. The duration of each service needed by an individual must be 
determined on an individual basis and reflected in that individual's 
individualized plan for employment.
    (e) Authorization of services. The State unit must establish 
policies related to the timely authorization of services, including any 
conditions under which verbal authorization can be given.

(Authority: Sections 12(c) and 101(a)(6) of the Rehabilitation Act of 
1973, as amended and 29 U.S.C. 709(c) and 721(a)(6))



Sec.  361.51  Standards for facilities and providers of services.

    (a) Accessibility of facilities. The vocational rehabilitation 
services portion of the Unified or Combined State Plan must assure that 
any facility used in connection with the delivery of vocational 
rehabilitation services under this part meets program accessibility 
requirements consistent with the requirements, as applicable, of the 
Architectural Barriers Act of 1968, the Americans with Disabilities Act 
of 1990, section 504 of the Act, and the regulations implementing these 
laws.
    (b) Affirmative action. The vocational rehabilitation services 
portion of the Unified or Combined State Plan must assure that community 
rehabilitation programs that receive assistance under part B of title I 
of the Act take affirmative action to employ and advance in employment 
qualified individuals with disabilities covered under and on the same 
terms and conditions as in section 503 of the Act.
    (c) Special communication needs personnel. The designated State unit 
must ensure that providers of vocational rehabilitation services are 
able to communicate--
    (1) In the native language of applicants and eligible individuals 
who have limited English proficiency; and
    (2) By using appropriate modes of communication used by applicants 
and eligible individuals.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Sections 12(c) and 101(a)(6)(B) and (C) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c) and 
721(a)(6)(B) and (C))



Sec.  361.52  Informed choice.

    (a) General provision. The vocational rehabilitation services 
portion of the Unified or Combined State Plan must assure that 
applicants and recipients of services or, as appropriate, their 
representatives are provided information and support services to assist 
applicants and recipients of services in exercising informed choice 
throughout the rehabilitation process consistent with the provisions of 
section 102(d) of the Act and the requirements of this section.
    (b) Written policies and procedures. The designated State unit, in 
consultation with its State Rehabilitation Council, if it has a Council, 
must develop and implement written policies and procedures that enable 
an applicant or recipient of services to exercise informed

[[Page 340]]

choice throughout the vocational rehabilitation process. These policies 
and procedures must provide for--
    (1) Informing each applicant and recipient of services (including 
students with disabilities who are making the transition from programs 
under the responsibility of an educational agency to programs under the 
responsibility of the designated State unit and including youth with 
disabilities), through appropriate modes of communication, about the 
availability of and opportunities to exercise informed choice, including 
the availability of support services for individuals with cognitive or 
other disabilities who require assistance in exercising informed choice 
throughout the vocational rehabilitation process;
    (2) Assisting applicants and recipients of services in exercising 
informed choice in decisions related to the provision of assessment 
services;
    (3) Developing and implementing flexible procurement policies and 
methods that facilitate the provision of vocational rehabilitation 
services and that afford recipients of services meaningful choices among 
the methods used to procure vocational rehabilitation services;
    (4) Assisting eligible individuals or, as appropriate, the 
individuals' representatives, in acquiring information that enables them 
to exercise informed choice in the development of their individualized 
plans for employment with respect to the selection of the--
    (i) Employment outcome;
    (ii) Specific vocational rehabilitation services needed to achieve 
the employment outcome;
    (iii) Entity that will provide the services;
    (iv) Employment setting and the settings in which the services will 
be provided; and
    (v) Methods available for procuring the services; and
    (5) Ensuring that the availability and scope of informed choice is 
consistent with the obligations of the designated State agency under 
this part.
    (c) Information and assistance in the selection of vocational 
rehabilitation services and service providers. In assisting an applicant 
and eligible individual in exercising informed choice during the 
assessment for determining eligibility and vocational rehabilitation 
needs and during development of the individualized plan for employment, 
the designated State unit must provide the individual or the 
individual's representative, or assist the individual or the 
individual's representative in acquiring, information necessary to make 
an informed choice about the specific vocational rehabilitation 
services, including the providers of those services, that are needed to 
achieve the individual's employment outcome. This information must 
include, at a minimum, information relating to the--
    (1) Cost, accessibility, and duration of potential services;
    (2) Consumer satisfaction with those services to the extent that 
information relating to consumer satisfaction is available;
    (3) Qualifications of potential service providers;
    (4) Types of services offered by the potential providers;
    (5) Degree to which services are provided in integrated settings; 
and
    (6) Outcomes achieved by individuals working with service providers, 
to the extent that such information is available.
    (d) Methods or sources of information. In providing or assisting the 
individual or the individual's representative in acquiring the 
information required under paragraph (c) of this section, the State unit 
may use, but is not limited to, the following methods or sources of 
information:
    (1) Lists of services and service providers.
    (2) Periodic consumer satisfaction surveys and reports.
    (3) Referrals to other consumers, consumer groups, or disability 
advisory councils qualified to discuss the services or service 
providers.
    (4) Relevant accreditation, certification, or other information 
relating to the qualifications of service providers.

[[Page 341]]

    (5) Opportunities for individuals to visit or experience various 
work and service provider settings.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Sections 12(c), 101(a)(19), 102(b)(2)(B), and 102(d) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 721(a)(19), 
722(b)(2)(B), and 722(d))



Sec.  361.53  Comparable services and benefits.

    (a) Determination of availability. The vocational rehabilitation 
services portion of the Unified or Combined State Plan must assure that 
prior to providing an accommodation or auxiliary aid or service or any 
vocational rehabilitation services, except those services listed in 
paragraph (b) of this section, to an eligible individual or to members 
of the individual's family, the State unit must determine whether 
comparable services and benefits, as defined in Sec.  361.5(c)(8), exist 
under any other program and whether those services and benefits are 
available to the individual unless such a determination would interrupt 
or delay--
    (1) The progress of the individual toward achieving the employment 
outcome identified in the individualized plan for employment;
    (2) An immediate job placement; or
    (3) The provision of vocational rehabilitation services to any 
individual who is determined to be at extreme medical risk, based on 
medical evidence provided by an appropriate qualified medical 
professional.
    (b) Exempt services. The following vocational rehabilitation 
services described in Sec.  361.48(b) are exempt from a determination of 
the availability of comparable services and benefits under paragraph (a) 
of this section:
    (1) Assessment for determining eligibility and vocational 
rehabilitation needs.
    (2) Counseling and guidance, including information and support 
services to assist an individual in exercising informed choice.
    (3) Referral and other services to secure needed services from other 
agencies, including other components of the statewide workforce 
development system, if those services are not available under this part.
    (4) Job-related services, including job search and placement 
assistance, job retention services, follow-up services, and follow-along 
services.
    (5) Rehabilitation technology, including telecommunications, 
sensory, and other technological aids and devices.
    (6) Post-employment services consisting of the services listed under 
paragraphs (b)(1) through (5) of this section.
    (c) Provision of services. (1) If comparable services or benefits 
exist under any other program and are available to the individual at the 
time needed to ensure the progress of the individual toward achieving 
the employment outcome in the individual's individualized plan for 
employment, the designated State unit must use those comparable services 
or benefits to meet, in whole or part, the costs of the vocational 
rehabilitation services.
    (2) If comparable services or benefits exist under any other 
program, but are not available to the individual at the time needed to 
ensure the progress of the individual toward achieving the employment 
outcome specified in the individualized plan for employment, the 
designated State unit must provide vocational rehabilitation services 
until those comparable services and benefits become available.
    (d) Interagency coordination. (1) The vocational rehabilitation 
services portion of the Unified or Combined State Plan must assure that 
the Governor, in consultation with the entity in the State responsible 
for the vocational rehabilitation program and other appropriate 
agencies, will ensure that an interagency agreement or other mechanism 
for interagency coordination takes effect between the designated State 
vocational rehabilitation unit and any appropriate public entity, 
including the State entity responsible for administering the State 
Medicaid program, a public institution of higher education, and a 
component of the statewide workforce development system, to ensure the 
provision of vocational rehabilitation services, and, if appropriate, 
accommodations or auxiliary aids and services, (other than those 
services listed in paragraph (b) of this section) that are included in 
the individualized plan for employment of

[[Page 342]]

an eligible individual, including the provision of those vocational 
rehabilitation services (including, if appropriate, accommodations or 
auxiliary aids and services) during the pendency of any interagency 
dispute in accordance with the provisions of paragraph (d)(3)(iii) of 
this section.
    (2) The Governor may meet the requirements of paragraph (d)(1) of 
this section through--
    (i) A State statute or regulation;
    (ii) A signed agreement between the respective officials of the 
public entities that clearly identifies the responsibilities of each 
public entity for the provision of the services; or
    (iii) Another appropriate mechanism as determined by the designated 
State vocational rehabilitation unit.
    (3) The interagency agreement or other mechanism for interagency 
coordination must include the following:
    (i) Agency financial responsibility. An identification of, or 
description of a method for defining, the financial responsibility of 
the designated State unit and other public entities for the provision of 
vocational rehabilitation services, and, if appropriate, accommodations 
or auxiliary aids and services other than those listed in paragraph (b) 
of this section and a provision stating the financial responsibility of 
the public entity for providing those services.
    (ii) Conditions, terms, and procedures of reimbursement. Information 
specifying the conditions, terms, and procedures under which the 
designated State unit must be reimbursed by the other public entities 
for providing vocational rehabilitation services, and accommodations or 
auxiliary aids and services based on the terms of the interagency 
agreement or other mechanism for interagency coordination.
    (iii) Interagency disputes. Information specifying procedures for 
resolving interagency disputes under the interagency agreement or other 
mechanism for interagency coordination, including procedures under which 
the designated State unit may initiate proceedings to secure 
reimbursement from other public entities or otherwise implement the 
provisions of the agreement or mechanism.
    (iv) Procedures for coordination of services. Information specifying 
policies and procedures for public entities to determine and identify 
interagency coordination responsibilities of each public entity to 
promote the coordination and timely delivery of vocational 
rehabilitation services, and accommodations or auxiliary aids and 
services, other than those listed in paragraph (b) of this section.
    (e) Responsibilities under other law. (1) If a public entity (other 
than the designated State unit) is obligated under Federal law (such as 
the Americans with Disabilities Act, section 504 of the Act, or section 
188 of the Workforce Innovation and Opportunity Act) or State law, or 
assigned responsibility under State policy or an interagency agreement 
established under this section, to provide or pay for any services 
considered to be vocational rehabilitation services (e.g., interpreter 
services under Sec.  361.48(j)), and, if appropriate, accommodations or 
auxiliary aids and services other than those services listed in 
paragraph (b) of this section, the public entity must fulfill that 
obligation or responsibility through--
    (i) The terms of the interagency agreement or other requirements of 
this section;
    (ii) Providing or paying for the service directly or by contract; or
    (iii) Other arrangement.
    (2) If a public entity other than the designated State unit fails to 
provide or pay for vocational rehabilitation services, and, if 
appropriate, accommodations or auxiliary aids and services for an 
eligible individual as established under this section, the designated 
State unit must provide or pay for those services to the individual and 
may claim reimbursement for the services from the public entity that 
failed to provide or pay for those services. The public entity must 
reimburse the designated State unit pursuant to the terms of the 
interagency agreement or other mechanism described in paragraph (d) of 
this section in accordance with the procedures established in the

[[Page 343]]

agreement or mechanism pursuant to paragraph (d)(3)(ii) of this section.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Sections 12(c) and 101(a)(8) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 721(a)(8))



Sec.  361.54  Participation of individuals in cost of services
based on financial need.

    (a) No Federal requirement. There is no Federal requirement that the 
financial need of individuals be considered in the provision of 
vocational rehabilitation services.
    (b) State unit requirements. (1) The State unit may choose to 
consider the financial need of eligible individuals or individuals who 
are receiving services through trial work experiences under Sec.  
361.42(e) for purposes of determining the extent of their participation 
in the costs of vocational rehabilitation services, other than those 
services identified in paragraph (b)(3) of this section.
    (2) If the State unit chooses to consider financial need--
    (i) It must maintain written policies--
    (A) Explaining the method for determining the financial need of an 
eligible individual; and
    (B) Specifying the types of vocational rehabilitation services for 
which the unit has established a financial needs test;
    (ii) The policies must be applied uniformly to all individuals in 
similar circumstances;
    (iii) The policies may require different levels of need for 
different geographic regions in the State, but must be applied uniformly 
to all individuals within each geographic region; and
    (iv) The policies must ensure that the level of an individual's 
participation in the cost of vocational rehabilitation services is--
    (A) Reasonable;
    (B) Based on the individual's financial need, including 
consideration of any disability-related expenses paid by the individual; 
and
    (C) Not so high as to effectively deny the individual a necessary 
service.
    (3) The designated State unit may not apply a financial needs test, 
or require the financial participation of the individual--
    (i) As a condition for furnishing the following vocational 
rehabilitation services:
    (A) Assessment for determining eligibility and priority for services 
under Sec.  361.48(b)(1), except those non-assessment services that are 
provided to an individual with a significant disability during either an 
exploration of the individual's abilities, capabilities, and capacity to 
perform in work situations through the use of trial work experiences 
under Sec.  361.42(e).
    (B) Assessment for determining vocational rehabilitation needs under 
Sec.  361.48(b)(2).
    (C) Vocational rehabilitation counseling and guidance under Sec.  
361.48(b)(3).
    (D) Referral and other services under Sec.  361.48(b)(4).
    (E) Job-related services under Sec.  361.48(b)(12).
    (F) Personal assistance services under Sec.  361.48(b)(14).
    (G) Any auxiliary aid or service (e.g., interpreter services under 
Sec.  361.48(b)(10), reader services under Sec.  361.48(b)(11)) that an 
individual with a disability requires under section 504 of the Act (29 
U.S.C. 794) or the Americans with Disabilities Act (42 U.S.C. 12101, et 
seq.), or regulations implementing those laws, in order for the 
individual to participate in the vocational rehabilitation program as 
authorized under this part; or
    (ii) As a condition for furnishing any vocational rehabilitation 
service if the individual in need of the service has been determined 
eligible for Social Security benefits under titles II or XVI of the 
Social Security Act.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))



Sec.  361.55  Semi-annual and annual review of individuals in
extended employment and other employment under special certificate
provisions of the Fair Labor Standards Act.

    (a) The vocational rehabilitation services portion of the Unified or 
Combined State Plan must assure that the designated State unit conducts 
a semi-annual review and reevaluation for the first two years of such 
employment and annually thereafter, in accordance

[[Page 344]]

with the requirements in paragraph (b) of this section for an individual 
with a disability served under this part--
    (1) Who has a record of service, as described in Sec.  361.47, as 
either an applicant or eligible individual under the vocational 
rehabilitation program; and
    (2)(i) Who has achieved employment in which the individual is 
compensated in accordance with section 14(c) of the Fair Labor Standards 
Act; or
    (ii) Who is in extended employment, including those individuals 
whose record of service is closed while the individual is in extended 
employment on the basis that the individual is unable to achieve an 
employment outcome consistent with Sec.  361.5(c)(15) or that the 
individual made an informed choice to remain in extended employment.
    (b) For each individual with a disability who meets the criteria in 
paragraph (a) of this section, the designated State unit must--
    (1) Semi-annually review and reevaluate the status of each 
individual for two years after the individual's record of services is 
closed (and annually thereafter) to determine the interests, priorities, 
and needs of the individual with respect to competitive integrated 
employment or training for competitive integrated employment;
    (2) Enable the individual or, if appropriate, the individual's 
representative to provide input into the review and reevaluation and 
must document that input in the record of services, consistent with 
Sec.  361.47(a)(10), with the individual's or, as appropriate, the 
individual's representative's signed acknowledgment that the review and 
reevaluation have been conducted; and
    (3) Make maximum efforts, including identifying and providing 
vocational rehabilitation services, reasonable accommodations, and other 
necessary support services, to assist the individual in engaging in 
competitive integrated employment as defined in Sec.  361.5(c)(9).

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Sections 12(c) and 101(a)(14) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 721(a)(14))



Sec.  361.56  Requirements for closing the record of services of
an individual who has achieved an employment outcome.

    The record of services of an individual who has achieved an 
employment outcome may be closed only if all of the following 
requirements are met:
    (a) Employment outcome achieved. The individual has achieved the 
employment outcome that is described in the individual's individualized 
plan for employment in accordance with Sec.  361.46(a)(1) and is 
consistent with the individual's unique strengths, resources, 
priorities, concerns, abilities, capabilities, interests, and informed 
choice.
    (b) Employment outcome maintained. The individual has maintained the 
employment outcome for an appropriate period of time, but not less than 
90 days, necessary to ensure the stability of the employment outcome, 
and the individual no longer needs vocational rehabilitation services.
    (c) Satisfactory outcome. At the end of the appropriate period under 
paragraph (b) of this section, the individual and the qualified 
rehabilitation counselor employed by the designated State unit consider 
the employment outcome to be satisfactory and agree that the individual 
is performing well in the employment.
    (d) Post-employment services. The individual is informed through 
appropriate modes of communication of the availability of post-
employment services.

(Authority: Sections 12(c), 101(a)(6), and 106(a)(2) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 721(a)(6), and 
726(a)(2))



Sec.  361.57  Review of determinations made by designated State
unit personnel.

    (a) Procedures. The designated State unit must develop and implement 
procedures to ensure that an applicant or recipient of services who is 
dissatisfied with any determination made by personnel of the designated 
State unit that affects the provision of vocational rehabilitation 
services may request, or, if appropriate, may request through the 
individual's representative, a timely review of that determination. The 
procedures must be in accordance with

[[Page 345]]

paragraphs (b) through (k) of this section:
    (b) General requirements. (1) Notification. Procedures established 
by the State unit under this section must provide an applicant or 
recipient or, as appropriate, the individual's representative notice 
of--
    (i) The right to obtain review of State unit determinations that 
affect the provision of vocational rehabilitation services through an 
impartial due process hearing under paragraph (e) of this section;
    (ii) The right to pursue mediation under paragraph (d) of this 
section with respect to determinations made by designated State unit 
personnel that affect the provision of vocational rehabilitation 
services to an applicant or recipient;
    (iii) The names and addresses of individuals with whom requests for 
mediation or due process hearings may be filed;
    (iv) The manner in which a mediator or impartial hearing officer may 
be selected consistent with the requirements of paragraphs (d) and (f) 
of this section; and
    (v) The availability of the client assistance program, established 
under 34 CFR part 370, to assist the applicant or recipient during 
mediation sessions or impartial due process hearings.
    (2) Timing. Notice described in paragraph (b)(1) of this section 
must be provided in writing--
    (i) At the time the individual applies for vocational rehabilitation 
services under this part;
    (ii) At the time the individual is assigned to a category in the 
State's order of selection, if the State has established an order of 
selection under Sec.  361.36;
    (iii) At the time the individualized plan for employment is 
developed; and
    (iv) Whenever vocational rehabilitation services for an individual 
are reduced, suspended, or terminated.
    (3) Evidence and representation. Procedures established under this 
section must--
    (i) Provide an applicant or recipient or, as appropriate, the 
individual's representative with an opportunity to submit during 
mediation sessions or due process hearings evidence and other 
information that supports the applicant's or recipient's position; and
    (ii) Allow an applicant or recipient to be represented during 
mediation sessions or due process hearings by counsel or other advocate 
selected by the applicant or recipient.
    (4) Impact on provision of services. The State unit may not 
institute a suspension, reduction, or termination of vocational 
rehabilitation services being provided to an applicant or recipient, 
including evaluation and assessment services and individualized plan for 
employment development, pending a resolution through mediation, pending 
a decision by a hearing officer or reviewing official, or pending 
informal resolution under this section unless--
    (i) The individual or, in appropriate cases, the individual's 
representative requests a suspension, reduction, or termination of 
services; or
    (ii) The State agency has evidence that the services have been 
obtained through misrepresentation, fraud, collusion, or criminal 
conduct on the part of the individual or the individual's 
representative.
    (5) Ineligibility. Applicants who are found ineligible for 
vocational rehabilitation services and previously eligible individuals 
who are determined to be no longer eligible for vocational 
rehabilitation services pursuant to Sec.  361.43 are permitted to 
challenge the determinations of ineligibility under the procedures 
described in this section.
    (c) Informal dispute resolution. The State unit may develop an 
informal process for resolving a request for review without conducting 
mediation or a formal hearing. A State's informal process must not be 
used to deny the right of an applicant or recipient to a hearing under 
paragraph (e) of this section or any other right provided under this 
part, including the right to pursue mediation under paragraph (d) of 
this section. If informal resolution under this paragraph or mediation 
under paragraph (d) of this section is not successful in resolving the 
dispute within the time period established under paragraph (e)(1) of 
this section, a formal hearing must be conducted within that same time 
period, unless the parties agree to a specific extension of time.

[[Page 346]]

    (d) Mediation. (1) The State must establish and implement 
procedures, as required under paragraph (b)(1)(ii) of this section, to 
allow an applicant or recipient and the State unit to resolve disputes 
involving State unit determinations that affect the provision of 
vocational rehabilitation services through a mediation process that must 
be made available, at a minimum, whenever an applicant or recipient or, 
as appropriate, the individual's representative requests an impartial 
due process hearing under this section.
    (2) Mediation procedures established by the State unit under 
paragraph (d) of this section must ensure that--
    (i) Participation in the mediation process is voluntary on the part 
of the applicant or recipient, as appropriate, and on the part of the 
State unit;
    (ii) Use of the mediation process is not used to deny or delay the 
applicant's or recipient's right to pursue resolution of the dispute 
through an impartial hearing held within the time period specified in 
paragraph (e)(1) of this section or any other rights provided under this 
part. At any point during the mediation process, either party or the 
mediator may elect to terminate the mediation. In the event mediation is 
terminated, either party may pursue resolution through an impartial 
hearing;
    (iii) The mediation process is conducted by a qualified and 
impartial mediator, as defined in Sec.  361.5(c)(43), who must be 
selected from a list of qualified and impartial mediators maintained by 
the State--
    (A) On a random basis;
    (B) By agreement between the director of the designated State unit 
and the applicant or recipient or, as appropriate, the recipient's 
representative; or
    (C) In accordance with a procedure established in the State for 
assigning mediators, provided this procedure ensures the neutrality of 
the mediator assigned; and
    (iv) Mediation sessions are scheduled and conducted in a timely 
manner and are held in a location and manner that is convenient to the 
parties to the dispute.
    (3) Discussions that occur during the mediation process must be kept 
confidential and may not be used as evidence in any subsequent due 
process hearings or civil proceedings, and the parties to the mediation 
process may be required to sign a confidentiality pledge prior to the 
commencement of the process.
    (4) An agreement reached by the parties to the dispute in the 
mediation process must be described in a written mediation agreement 
that is developed by the parties with the assistance of the qualified 
and impartial mediator and signed by both parties. Copies of the 
agreement must be sent to both parties.
    (5) The costs of the mediation process must be paid by the State. 
The State is not required to pay for any costs related to the 
representation of an applicant or recipient authorized under paragraph 
(b)(3)(ii) of this section.
    (e) Impartial due process hearings. The State unit must establish 
and implement formal review procedures, as required under paragraph 
(b)(1)(i) of this section, that provide that--
    (1) Hearing conducted by an impartial hearing officer, selected in 
accordance with paragraph (f) of this section, must be held within 60 
days of an applicant's or recipient 's request for review of a 
determination made by personnel of the State unit that affects the 
provision of vocational rehabilitation services to the individual, 
unless informal resolution or a mediation agreement is achieved prior to 
the 60th day or the parties agree to a specific extension of time;
    (2) In addition to the rights described in paragraph (b)(3) of this 
section, the applicant or recipient or, if appropriate, the individual's 
representative must be given the opportunity to present witnesses during 
the hearing and to examine all witnesses and other relevant sources of 
information and evidence;
    (3) The impartial hearing officer must--
    (i) Make a decision based on the provisions of the approved 
vocational rehabilitation services portion of the Unified or Combined 
State Plan, the Act, Federal vocational rehabilitation regulations, and 
State regulations and policies that are consistent with Federal 
requirements; and

[[Page 347]]

    (ii) Provide to the individual or, if appropriate, the individual's 
representative and to the State unit a full written report of the 
findings and grounds for the decision within 30 days of the completion 
of the hearing; and
    (4) The hearing officer's decision is final, except that a party may 
request an impartial review under paragraph (g)(1) of this section if 
the State has established procedures for that review, and a party 
involved in a hearing may bring a civil action under paragraph (i) of 
this section.
    (f) Selection of impartial hearing officers. The impartial hearing 
officer for a particular case must be selected--
    (1) From a list of qualified impartial hearing officers maintained 
by the State unit. Impartial hearing officers included on the list must 
be--
    (i) Identified by the State unit if the State unit is an independent 
commission; or
    (ii) Jointly identified by the State unit and the State 
Rehabilitation Council if the State has a Council; and
    (2)(i) On a random basis; or
    (ii) By agreement between the director of the designated State unit 
and the applicant or recipient or, as appropriate, the individual's 
representative.
    (g) Administrative review of hearing officer's decision. The State 
may establish procedures to enable a party who is dissatisfied with the 
decision of the impartial hearing officer to seek an impartial 
administrative review of the decision under paragraph (e)(3) of this 
section in accordance with the following requirements:
    (1) A request for administrative review under paragraph (g) of this 
section must be made within 20 days of the mailing of the impartial 
hearing officer's decision.
    (2) Administrative review of the hearing officer's decision must be 
conducted by--
    (i) The chief official of the designated State agency if the State 
has established both a designated State agency and a designated State 
unit under Sec.  361.13(b); or
    (ii) An official from the office of the Governor.
    (3) The reviewing official described in paragraph (g)(2)(i) of this 
section--
    (i) Provides both parties with an opportunity to submit additional 
evidence and information relevant to a final decision concerning the 
matter under review;
    (ii) May not overturn or modify the hearing officer's decision, or 
any part of that decision, that supports the position of the applicant 
or recipient unless the reviewing official concludes, based on clear and 
convincing evidence, that the decision of the impartial hearing officer 
is clearly erroneous on the basis of being contrary to the approved 
vocational rehabilitation services portion of the Unified or Combined 
State Plan, the Act, Federal vocational rehabilitation regulations, or 
State regulations and policies that are consistent with Federal 
requirements;
    (iii) Makes an independent, final decision following a review of the 
entire hearing record and provides the decision in writing, including a 
full report of the findings and the statutory, regulatory, or policy 
grounds for the decision, to the applicant or recipient or, as 
appropriate, the individual's representative and to the State unit 
within 30 days of the request for administrative review under paragraph 
(g)(1) of this section; and
    (iv) May not delegate the responsibility for making the final 
decision under paragraph (g) of this section to any officer or employee 
of the designated State unit.
    (4) The reviewing official's decision under paragraph (g) of this 
section is final unless either party brings a civil action under 
paragraph (i) of this section.
    (h) Implementation of final decisions. If a party brings a civil 
action under paragraph (h) of this section to challenge the final 
decision of a hearing officer under paragraph (e) of this section or to 
challenge the final decision of a State reviewing official under 
paragraph (g) of this section, the final decision of the hearing officer 
or State reviewing official must be implemented pending review by the 
court.
    (i) Civil action. (1) Any party who disagrees with the findings and 
decision of an impartial hearing officer under paragraph (e) of this 
section in a State that has not established administrative review 
procedures under paragraph (g)

[[Page 348]]

of this section and any party who disagrees with the findings and 
decision under paragraph (g)(3)(iii) of this section have a right to 
bring a civil action with respect to the matter in dispute. The action 
may be brought in any State court of competent jurisdiction or in a 
district court of the United States of competent jurisdiction without 
regard to the amount in controversy.
    (2) In any action brought under paragraph (i) of this section, the 
court--
    (i) Receives the records related to the impartial due process 
hearing and the records related to the administrative review process, if 
applicable;
    (ii) Hears additional evidence at the request of a party; and
    (iii) Basing its decision on the preponderance of the evidence, 
grants the relief that the court determines to be appropriate.
    (j) State fair hearing board. A fair hearing board as defined in 
Sec.  361.5(c)(21) is authorized to carry out the responsibilities of 
the impartial hearing officer under paragraph (e) of this section in 
accordance with the following criteria:
    (1) The fair hearing board may conduct due process hearings either 
collectively or by assigning responsibility for conducting the hearing 
to one or more members of the fair hearing board.
    (2) The final decision issued by the fair hearing board following a 
hearing under paragraph (j)(1) of this section must be made collectively 
by, or by a majority vote of, the fair hearing board.
    (3) The provisions of paragraphs (b)(1), (2), and (3) of this 
section that relate to due process hearings and of paragraphs (e), (f), 
(g), and (h) of this section do not apply to fair hearing boards under 
this paragraph (j).
    (k) Data collection. (1) The director of the designated State unit 
must collect and submit, at a minimum, the following data to the 
Secretary for inclusion each year in the annual report to Congress under 
section 13 of the Act:
    (i) A copy of the standards used by State reviewing officials for 
reviewing decisions made by impartial hearing officers under this 
section.
    (ii) The number of mediations held, including the number of 
mediation agreements reached.
    (iii) The number of hearings and reviews sought from impartial 
hearing officers and State reviewing officials, including the type of 
complaints and the issues involved.
    (iv) The number of hearing officer decisions that were not reviewed 
by administrative reviewing officials.
    (v) The number of hearing decisions that were reviewed by State 
reviewing officials and, based on these reviews, the number of hearing 
decisions that were--
    (A) Sustained in favor of an applicant or recipient;
    (B) Sustained in favor of the designated State unit;
    (C) Reversed in whole or in part in favor of the applicant or 
recipient; and
    (D) Reversed in whole or in part in favor of the State unit.
    (2) The State unit director also must collect and submit to the 
Secretary copies of all final decisions issued by impartial hearing 
officers under paragraph (e) of this section and by State review 
officials under paragraph (g) of this section.
    (3) The confidentiality of records of applicants and recipients 
maintained by the State unit may not preclude the access of the 
Secretary to those records for the purposes described in this section.

(Authority: Sections 12(c) and 102(c) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 722(c))



     Subpart C_Financing of State Vocational Rehabilitation Programs



Sec.  361.60  Matching requirements.

    (a) Federal share--(1) General. Except as provided in paragraph 
(a)(2) of this section, the Federal share for expenditures made by the 
State under the vocational rehabilitation services portion of the 
Unified or Combined State Plan, including expenditures for the provision 
of vocational rehabilitation services and the administration of the 
vocational rehabilitation services portion of the Unified or Combined 
State Plan, is 78.7 percent.

[[Page 349]]

    (2) Construction projects. The Federal share for expenditures made 
for the construction of a facility for community rehabilitation program 
purposes may not be more than 50 percent of the total cost of the 
project.
    (b) Non-Federal share--(1) General. Except as provided in paragraph 
(b)(2) and (b)(3) of this section, expenditures made under the 
vocational rehabilitation services portion of the Unified or Combined 
State Plan to meet the non-Federal share under this section must be 
consistent with the provisions of 2 CFR 200.306(b).
    (2) Third party in-kind contributions. Third party in-kind 
contributions specified in 2 CFR 200.306(b) may not be used to meet the 
non-Federal share under this section.
    (3) Contributions by private entities. Expenditures made from those 
cash contributions provided by private organizations, agencies, or 
individuals and that are deposited in the State agency's account or, if 
applicable, sole local agency's account, in accordance with State law 
prior to their expenditure and that are earmarked, under a condition 
imposed by the contributor, may be used as part of the non-Federal share 
under this section if the funds are earmarked for--
    (i) Meeting in whole or in part the State's share for establishing a 
community rehabilitation program or constructing a particular facility 
for community rehabilitation program purposes;
    (ii) Particular geographic areas within the State for any purpose 
under the vocational rehabilitation services portion of the Unified or 
Combined State Plan, other than those described in paragraph (b)(3)(i) 
of this section, in accordance with the following criteria:
    (A) Before funds that are earmarked for a particular geographic area 
may be used as part of the non-Federal share, the State must notify the 
Secretary that the State cannot provide the full non-Federal share 
without using these funds.
    (B) Funds that are earmarked for a particular geographic area may be 
used as part of the non-Federal share without requesting a waiver of 
statewideness under Sec.  361.26.
    (C) Except as provided in paragraph (b)(3)(i) of this section, all 
Federal funds must be used on a statewide basis consistent with Sec.  
361.25, unless a waiver of statewideness is obtained under Sec.  361.26; 
and
    (iii) Any other purpose under the vocational rehabilitation services 
portion of the Unified or Combined State Plan, provided the expenditures 
do not benefit in any way the donor, employee, officer, or agent, any 
member of his or her immediate family, his or her partner, an individual 
with whom the donor has a close personal relationship, or an individual, 
entity, or organization with whom the donor shares a financial or other 
interest. The Secretary does not consider a donor's receipt from the 
State unit of a subaward or contract with funds allotted under this part 
to be a benefit for the purposes of this paragraph if the subaward or 
contract is awarded under the State's regular competitive procedures.

(Authority: Sections 7(14), 12(c), 101(a)(3), 101(a)(4), and 104 of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(14), 709(c), 
721(a)(3), 721(a)(4), and 724))

    Example for paragraph (b)(3): Contributions may be earmarked in 
accordance with Sec.  361.60(b)(3)(iii) for providing particular 
services (e.g., rehabilitation technology services); serving individuals 
with certain types of disabilities (e.g., individuals who are blind), 
consistent with the State's order of selection, if applicable; providing 
services to special groups that State or Federal law permits to be 
targeted for services (e.g., students with disabilities who are 
receiving special education services), consistent with the State's order 
of selection, if applicable; or carrying out particular types of 
administrative activities permissible under State law. Contributions 
also may be restricted to particular geographic areas to increase 
services or expand the scope of services that are available statewide 
under the vocational rehabilitation services portion of the Unified or 
Combined State Plan in accordance with the requirements in Sec.  
361.60(b)(3)(ii).



Sec.  361.61  Limitation on use of funds for construction expenditures.

    No more than 10 percent of a State's allotment for any fiscal year 
under section 110 of the Act may be spent on the

[[Page 350]]

construction of facilities for community rehabilitation program 
purposes.

(Authority: Section 101(a)(17)(A) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 721(a)(17)(A))



Sec.  361.62  Maintenance of effort requirements.

    (a) General requirements. The Secretary reduces the amount otherwise 
payable to a State for any fiscal year by the amount by which the total 
expenditures from non-Federal sources under the vocational 
rehabilitation services portion of the Unified or Combined State Plan 
for any previous fiscal year were less than the total of those 
expenditures for the fiscal year two years prior to that previous fiscal 
year.
    (b) Specific requirements for construction of facilities. If the 
State provides for the construction of a facility for community 
rehabilitation program purposes, the amount of the State's share of 
expenditures for vocational rehabilitation services under the plan, 
other than for the construction of a facility for community 
rehabilitation program purposes or the establishment of a facility for 
community rehabilitation purposes, must be at least equal to the 
expenditures for those services for the second prior fiscal year.
    (c) Separate State agency for vocational rehabilitation services for 
individuals who are blind. If there is a separate part of the vocational 
rehabilitation services portion of the Unified or Combined State Plan 
administered by a separate State agency to provide vocational 
rehabilitation services for individuals who are blind--
    (1) Satisfaction of the maintenance of effort requirements under 
paragraphs (a) and (b) of this section is determined based on the total 
amount of a State's non-Federal expenditures under both parts of the 
vocational rehabilitation services portion of the Unified or Combined 
State Plan; and
    (2) If a State fails to meet any maintenance of effort requirement, 
the Secretary reduces the amount otherwise payable to the State for a 
fiscal year under each part of the plan in direct proportion to the 
amount by which non-Federal expenditures under each part of the plan in 
any previous fiscal year were less than they were for that part of the 
plan for the fiscal year 2 years prior to that previous fiscal year.
    (d) Waiver or modification. (1) The Secretary may waive or modify 
the maintenance of effort requirement in paragraph (a) of this section 
if the Secretary determines that a waiver or modification is necessary 
to permit the State to respond to exceptional or uncontrollable 
circumstances, such as a major natural disaster or a serious economic 
downturn, that--
    (i) Cause significant unanticipated expenditures or reductions in 
revenue that result in a general reduction of programs within the State; 
or
    (ii) Require the State to make substantial expenditures in the 
vocational rehabilitation program for long-term purposes due to the one-
time costs associated with the construction of a facility for community 
rehabilitation program purposes, the establishment of a facility for 
community rehabilitation program purposes, or the acquisition of 
equipment.
    (2) The Secretary may waive or modify the maintenance of effort 
requirement in paragraph (b) of this section or the 10 percent allotment 
limitation in Sec.  361.61 if the Secretary determines that a waiver or 
modification is necessary to permit the State to respond to exceptional 
or uncontrollable circumstances, such as a major natural disaster, that 
result in significant destruction of existing facilities and require the 
State to make substantial expenditures for the construction of a 
facility for community rehabilitation program purposes or the 
establishment of a facility for community rehabilitation program 
purposes in order to provide vocational rehabilitation services.
    (3) A written request for waiver or modification, including 
supporting justification, must be submitted to the Secretary for 
consideration as soon as the State has determined that it has failed to 
satisfy its maintenance of effort requirement due to an exceptional or 
uncontrollable circumstance, as described in paragraphs (d)(1) and (2) 
of this section.

(Authority: Sections 101(a)(17) and 111(a)(2) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 721(a)(17) and 731(a)(2))

[[Page 351]]



Sec.  361.63  Program income.

    (a) Definition. For purposes of this section, program income means 
gross income received by the State that is directly generated by a 
supported activity under this part or earned as a result of the Federal 
award during the period of performance, as defined in 2 CFR 200.80.
    (b) Sources. Sources of program income include, but are not limited 
to: Payments from the Social Security Administration for assisting 
Social Security beneficiaries and recipients to achieve employment 
outcomes; payments received from workers' compensation funds; payments 
received by the State agency from insurers, consumers, or others for 
services to defray part or all of the costs of services provided to 
particular individuals; and income generated by a State-operated 
community rehabilitation program for activities authorized under this 
part.
    (c) Use of program income. (1) Except as provided in paragraph 
(c)(2) of this section, program income, whenever earned, must be used 
for the provision of vocational rehabilitation services and the 
administration of the vocational rehabilitation services portion of the 
Unified or Combined State Plan. Program income--
    (i) Is considered earned in the fiscal year in which it is received; 
and
    (ii) Must be disbursed during the period of performance of the 
award.
    (2) Payments provided to a State from the Social Security 
Administration for assisting Social Security beneficiaries and 
recipients to achieve employment outcomes may also be used to carry out 
programs under part B of title I of the Act (client assistance), title 
VI of the Act (supported employment), and title VII of the Act 
(independent living).
    (3)(i) The State must use program income to supplement Federal funds 
that support program activities that are subject to this part. See, for 
example, 2 CFR 200.307(e)(2).
    (ii) Notwithstanding 2 CFR 200.305(a) and to the extent that program 
income funds are available, a State must disburse those funds (including 
repayments to a revolving fund), rebates, refunds, contract settlements, 
audit recoveries, and interest earned on such funds before requesting 
additional funds from the Department.
    (4) Program income cannot be used to meet the non-Federal share 
requirement under Sec.  361.60.

(Authority: Sections 12(c) and 108 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 728; 2 CFR part 200)



Sec.  361.64  Obligation of Federal funds.

    (a) Except as provided in paragraph (b) of this section, any Federal 
award funds, including reallotted funds, that are appropriated for a 
fiscal year to carry out a program under this part that are not 
obligated by the State by the beginning of the succeeding fiscal year 
remain available for obligation by the State during that succeeding 
fiscal year.
    (b) Federal funds appropriated for a fiscal year remain available 
for obligation in the succeeding fiscal year only to the extent that the 
State met the matching requirement for those Federal funds by 
obligating, in accordance with 34 CFR 76.707, the non-Federal share in 
the fiscal year for which the funds were appropriated.

(Authority: Section 19 of the Rehabilitation Act of 1973, as amended; 29 
U.S.C. 716)



Sec.  361.65  Allotment and payment of Federal funds for vocational
rehabilitation services.

    (a) Allotment. (1) The allotment of Federal funds for vocational 
rehabilitation services for each State is computed in accordance with 
the requirements of section 110 of the Act, and payments are made to the 
State on a quarterly basis, unless some other period is established by 
the Secretary.
    (2) If the vocational rehabilitation services portion of the Unified 
or Combined State Plan designates one State agency to administer, or 
supervise the administration of, the part of the plan under which 
vocational rehabilitation services are provided for individuals who are 
blind and another State agency to administer the rest of the plan, the 
division of the State's allotment is a matter for State determination.
    (3) Reservation for pre-employment transition services. (i) Pursuant 
to section 110(d) of the Act, the State must reserve at least 15 percent 
of the

[[Page 352]]

State's allotment, received in accordance with section 110(a) of the Act 
for the provision of pre-employment transition services, as described in 
Sec.  361.48(a) of this part.
    (ii) The funds reserved in accordance with paragraph (a)(3)(i) of 
this section--
    (A) Must only be used for pre-employment transition services 
specified in Sec.  361.48(a); and
    (B) Must not be used to pay for administrative costs, (as defined in 
Sec.  361.5(c)(2)) associated with the provision of such services or any 
other vocational rehabilitation services.
    (b) Reallotment. (1) The Secretary determines not later than 45 days 
before the end of a fiscal year which States, if any, will not use their 
full allotment.
    (2) As soon as possible, but not later than the end of the fiscal 
year, the Secretary reallots these funds to other States that can use 
those additional funds during the period of performance of the award, 
provided the State can meet the matching requirement by obligating the 
non-Federal share of any reallotted funds in the fiscal year for which 
the funds were appropriated.
    (3) In the event more funds are requested by agencies than are 
available, the Secretary will determine the process for allocating funds 
available for reallotment.
    (4) Funds reallotted to another State are considered to be an 
increase in the recipient State's allotment for the fiscal year for 
which the funds were appropriated.

(Authority: Sections 12(c), 110, and 111 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c), 730, and 731)



    Subpart D_Unified and Combined State Plans Under Title I of the 
                Workforce Innovation and Opportunity Act

    Authority: Secs. 102, 103, and 503, Pub. L. 113-128, 128 Stat. 1425 
(Jul. 22, 2014).

    Source: 81 FR 56022, Aug. 19, 2016, unless otherwise noted.



Sec.  361.100  What are the purposes of the Unified and Combined
State Plans?

    (a) The Unified and Combined State Plans provide the framework for 
States to outline a strategic vision of, and goals for, how their 
workforce development systems will achieve the purposes of the Workforce 
Innovation and Opportunity Act (WIOA).
    (b) The Unified and Combined State Plans serve as 4-year action 
plans to develop, align, and integrate the State's systems and provide a 
platform to achieve the State's vision and strategic and operational 
goals. A Unified or Combined State Plan is intended to:
    (1) Align, in strategic coordination, the six core programs required 
in the Unified State Plan pursuant to Sec.  361.105(b), and additional 
Combined State Plan partner programs that may be part of the Combined 
State Plan pursuant to Sec.  361.140;
    (2) Direct investments in economic, education, and workforce 
training programs to focus on providing relevant education and training 
to ensure that individuals, including youth and individuals with 
barriers to employment, have the skills to compete in the job market and 
that employers have a ready supply of skilled workers;
    (3) Apply strategies for job-driven training consistently across 
Federal programs; and
    (4) Enable economic, education, and workforce partners to build a 
skilled workforce through innovation in, and alignment of, employment, 
training, and education programs.



Sec.  361.105  What are the general requirements for the
Unified State Plan?

    (a) The Unified State Plan must be submitted in accordance with 
Sec.  361.130 and WIOA sec. 102(c), as explained in joint planning 
guidelines issued by the Secretaries of Labor and Education.
    (b) The Governor of each State must submit, at a minimum, in 
accordance with Sec.  361.130, a Unified State Plan to the Secretary of 
Labor to be eligible to receive funding for the workforce development 
system's six core programs:
    (1) The adult, dislocated worker, and youth programs authorized 
under subtitle B of title I of WIOA and administered by the U.S. 
Department of Labor (DOL);

[[Page 353]]

    (2) The Adult Education and Family Literacy Act (AEFLA) program 
authorized under title II of WIOA and administered by the U.S. 
Department of Education (ED);
    (3) The Employment Service program authorized under the Wagner-
Peyser Act of 1933, as amended by WIOA title III and administered by 
DOL; and
    (4) The Vocational Rehabilitation program authorized under title I 
of the Rehabilitation Act of 1973, as amended by title IV of WIOA and 
administered by ED.
    (c) The Unified State Plan must outline the State's 4-year strategy 
for the core programs described in paragraph (b) of this section and 
meet the requirements of sec. 102(b) of WIOA, as explained in the joint 
planning guidelines issued by the Secretaries of Labor and Education.
    (d) The Unified State Plan must include strategic and operational 
planning elements to facilitate the development of an aligned, 
coordinated, and comprehensive workforce development system. The Unified 
State Plan must include:
    (1) Strategic planning elements that describe the State's strategic 
vision and goals for preparing an educated and skilled workforce under 
sec. 102(b)(1) of WIOA. The strategic planning elements must be informed 
by and include an analysis of the State's economic conditions and 
employer and workforce needs, including education and skill needs.
    (2) Strategies for aligning the core programs and Combined State 
Plan partner programs as described in Sec.  361.140(d), as well as other 
resources available to the State, to achieve the strategic vision and 
goals in accordance with sec. 102(b)(1)(E) of WIOA.
    (3) Operational planning elements in accordance with sec. 102(b)(2) 
of WIOA that support the strategies for aligning the core programs and 
other resources available to the State to achieve the State's vision and 
goals and a description of how the State Workforce Development Board 
(WDB) will implement its functions, in accordance with sec. 101(d) of 
WIOA. Operational planning elements must include:
    (i) A description of how the State strategy will be implemented by 
each core program's lead State agency;
    (ii) State operating systems, including data systems, and policies 
that will support the implementation of the State's strategy identified 
in paragraph (d)(1) of this section;
    (iii) Program-specific requirements for the core programs required 
by WIOA sec. 102(b)(2)(D);
    (iv) Assurances required by sec. 102(b)(2)(E) of WIOA, including an 
assurance that the lead State agencies responsible for the 
administration of the core programs reviewed and commented on the 
appropriate operational planning of the Unified State Plan and approved 
the elements as serving the needs of the population served by such 
programs, and other assurances deemed necessary by the Secretaries of 
Labor and Education under sec. 102(b)(2)(E)(x) of WIOA;
    (v) A description of joint planning and coordination across core 
programs, required one-stop partner programs, and other programs and 
activities in the Unified State Plan; and
    (vi) Any additional operational planning requirements imposed by the 
Secretary of Labor or the Secretary of Education under sec. 
102(b)(2)(C)(viii) of WIOA.
    (e) All of the requirements in this subpart that apply to States 
also apply to outlying areas.



Sec.  361.110  What are the program-specific requirements in the
Unified State Plan for the adult, dislocated worker, and youth 
programs authorized under Workforce Innovation and Opportunity 
Act title I?

    The program-specific requirements for the adult, dislocated worker, 
and youth programs that must be included in the Unified State Plan are 
described in sec. 102(b)(2)(D) of WIOA. Additional planning requirements 
may be explained in joint planning guidelines issued by the Secretaries 
of Labor and Education.

[[Page 354]]



Sec.  361.115  What are the program-specific requirements in the
Unified State Plan for the Adult Education and Family Literacy Act
program authorized under Workforce Innovation and Opportunity
Act title II?

    The program-specific requirements for the AEFLA program in title II 
that must be included in the Unified State Plan are described in secs. 
102(b)(2)(C) and 102(b)(2)(D)(ii) of WIOA.
    (a) With regard to the description required in sec. 
102(b)(2)(D)(ii)(I) of WIOA pertaining to content standards, the Unified 
State Plan must describe how the eligible agency will, by July 1, 2016, 
align its content standards for adult education with State-adopted 
challenging academic content standards under the Elementary and 
Secondary Education Act of 1965, as amended.
    (b) With regard to the description required in sec. 102(b)(2)(C)(iv) 
of WIOA pertaining to the methods and factors the State will use to 
distribute funds under the core programs, for title II of WIOA, the 
Unified State Plan must include--
    (1) How the eligible agency will award multi-year grants on a 
competitive basis to eligible providers in the State; and
    (2) How the eligible agency will provide direct and equitable access 
to funds using the same grant or contract announcement and application 
procedure.



Sec.  361.120  What are the program-specific requirements in the
Unified State Plan for the Employment Service program authorized
under the Wagner-Peyser Act, as amended by Workforce Innovation 
and Opportunity Act title III?

    The Employment Service program authorized under the Wagner-Peyser 
Act of 1933, as amended by WIOA title III, is subject to requirements in 
sec. 102(b) of WIOA, including any additional requirements imposed by 
the Secretary of Labor under secs. 102(b)(2)(C)(viii) and 
102(b)(2)(D)(iv) of WIOA, as explained in joint planning guidelines 
issued by the Secretaries of Labor and Education.



Sec.  361.125  What are the program-specific requirements in the
Unified State Plan for the State Vocational Rehabilitation program 
authorized under title I of the Rehabilitation Act of 1973, as
amended by Workforce Innovation and Opportunity Act title IV?

    The program specific-requirements for the vocational rehabilitation 
services portion of the Unified or Combined State Plan are set forth in 
sec. 101(a) of the Rehabilitation Act of 1973, as amended. All 
submission requirements for the vocational rehabilitation services 
portion of the Unified or Combined State Plan are in addition to the 
jointly developed strategic and operational content requirements 
prescribed by sec. 102(b) of WIOA.



Sec.  361.130  What is the development, submission, and approval
process of the Unified State Plan?

    (a) The Unified State Plan described in Sec.  361.105 must be 
submitted in accordance with WIOA sec. 102(c), as explained in joint 
planning guidelines issued jointly by the Secretaries of Labor and 
Education.
    (b) A State must submit its Unified State Plan to the Secretary of 
Labor pursuant to a process identified by the Secretary.
    (1) The initial Unified State Plan must be submitted no later than 
120 days prior to the commencement of the second full program year of 
WIOA.
    (2) Subsequent Unified State Plans must be submitted no later than 
120 days prior to the end of the 4-year period covered by a preceding 
Unified State Plan.
    (3) For purposes of paragraph (b) of this section, ``program year'' 
means July 1 through June 30 of any year.
    (c) The Unified State Plan must be developed with the assistance of 
the State WDB, as required by 20 CFR 679.130(a) and WIOA sec. 101(d), 
and must be developed in coordination with administrators with optimum 
policy-making authority for the core programs and required one-stop 
partners.
    (d) The State must provide an opportunity for public comment on and 
input into the development of the Unified State Plan prior to its 
submission.
    (1) The opportunity for public comment must include an opportunity 
for

[[Page 355]]

comment by representatives of Local WDBs and chief elected officials, 
businesses, representatives of labor organizations, community-based 
organizations, adult education providers, institutions of higher 
education, other stakeholders with an interest in the services provided 
by the six core programs, and the general public, including individuals 
with disabilities.
    (2) Consistent with the ``Sunshine Provision'' of WIOA in sec. 
101(g), the State WDB must make information regarding the Unified State 
Plan available to the public through electronic means and regularly 
occurring open meetings in accordance with State law. The Unified State 
Plan must describe the State's process and timeline for ensuring a 
meaningful opportunity for public comment.
    (e) Upon receipt of the Unified State Plan from the State, the 
Secretary of Labor will ensure that the entire Unified State Plan is 
submitted to the Secretary of Education pursuant to a process developed 
by the Secretaries.
    (f) The Unified State Plan is subject to the approval of both the 
Secretary of Labor and the Secretary of Education.
    (g) Before the Secretaries of Labor and Education approve the 
Unified State Plan, the vocational rehabilitation services portion of 
the Unified State Plan described in WIOA sec. 102(b)(2)(D)(iii) must be 
approved by the Commissioner of the Rehabilitation Services 
Administration.
    (h) The Secretaries of Labor and Education will review and approve 
the Unified State Plan within 90 days of receipt by the Secretary of 
Labor, unless the Secretary of Labor or the Secretary of Education 
determines in writing within that period that:
    (1) The plan is inconsistent with a core program's requirements;
    (2) The Unified State Plan is inconsistent with any requirement of 
sec. 102 of WIOA; or
    (3) The plan is incomplete or otherwise insufficient to determine 
whether it is consistent with a core program's requirements or other 
requirements of WIOA.
    (i) If neither the Secretary of Labor nor the Secretary of Education 
makes the written determination described in paragraph (h) of this 
section within 90 days of the receipt by the Secretaries, the Unified 
State Plan will be considered approved.



Sec.  361.135  What are the requirements for modification of the
Unified State Plan?

    (a) In addition to the required modification review set forth in 
paragraph (b) of this section, a Governor may submit a modification of 
its Unified State Plan at any time during the 4-year period of the plan.
    (b) Modifications are required, at a minimum:
    (1) At the end of the first 2-year period of any 4-year State Plan, 
wherein the State WDB must review the Unified State Plan, and the 
Governor must submit modifications to the plan to reflect changes in 
labor market and economic conditions or other factors affecting the 
implementation of the Unified State Plan;
    (2) When changes in Federal or State law or policy substantially 
affect the strategies, goals, and priorities upon which the Unified 
State Plan is based;
    (3) When there are changes in the statewide vision, strategies, 
policies, State negotiated levels of performance as described in Sec.  
361.170(b), the methodology used to determine local allocation of funds, 
reorganizations that change the working relationship with system 
employees, changes in organizational responsibilities, changes to the 
membership structure of the State WDB or alternative entity, and similar 
substantial changes to the State's workforce development system.
    (c) Modifications to the Unified State Plan are subject to the same 
public review and comment requirements in Sec.  361.130(d) that apply to 
the development of the original Unified State Plan.
    (d) Unified State Plan modifications must be approved by the 
Secretaries of Labor and Education, based on the approval standards 
applicable to the original Unified State Plan under Sec.  361.130. This 
approval must come after the approval of the Commissioner of the 
Rehabilitation Services Administration for modification of any portion 
of the plan described in sec. 102(b)(2)(D)(iii) of WIOA.

[[Page 356]]



Sec.  361.140  What are the general requirements for submitting
a Combined State Plan?

    (a) A State may choose to develop and submit a 4-year Combined State 
Plan in lieu of the Unified State Plan described in Sec. Sec.  361.105 
through 361.125.
    (b) A State that submits a Combined State Plan covering an activity 
or program described in paragraph (d) of this section that is, in 
accordance with WIOA sec. 103(c), approved or deemed complete under the 
law relating to the program will not be required to submit any other 
plan or application in order to receive Federal funds to carry out the 
core programs or the program or activities described under paragraph (d) 
of this section that are covered by the Combined State Plan.
    (c) If a State develops a Combined State Plan, it must be submitted 
in accordance with the process described in Sec.  361.143.
    (d) If a State chooses to submit a Combined State Plan, the plan 
must include the six core programs and one or more of the Combined State 
Plan partner programs and activities described in sec. 103(a)(2) of 
WIOA. The Combined State Plan partner programs and activities that may 
be included in the Combined State Plan are:
    (1) Career and technical education programs authorized under the 
Carl D. Perkins Career and Technical Education Act of 2006 (20 U.S.C. 
2301 et seq.);
    (2) Temporary Assistance for Needy Families or TANF, authorized 
under part A of title IV of the Social Security Act (42 U.S.C. 601 et 
seq.);
    (3) Employment and training programs authorized under sec. 6(d)(4) 
of the Food and Nutrition Act of 2008 (7 U.S.C. 2015(d)(4));
    (4) Work programs authorized under sec. 6(o) of the Food and 
Nutrition Act of 2008 (7 U.S.C. 2015(o));
    (5) Trade adjustment assistance activities under chapter 2 of title 
II of the Trade Act of 1974 (19 U.S.C. 2271 et seq.);
    (6) Services for veterans authorized under chapter 41 of title 38 
United States Code;
    (7) Programs authorized under State unemployment compensation laws 
(in accordance with applicable Federal law);
    (8) Senior Community Service Employment Programs under title V of 
the Older Americans Act of 1965 (42 U.S.C. 3056 et seq.);
    (9) Employment and training activities carried out by the Department 
of Housing and Urban Development (HUD);
    (10) Employment and training activities carried out under the 
Community Services Block Grant Act (42 U.S.C. 9901 et seq.); and
    (11) Reintegration of offenders programs authorized under sec. 212 
of the Second Chance Act of 2007 (42 U.S.C. 17532).
    (e) A Combined State Plan must contain:
    (1) For the core programs, the information required by sec. 102(b) 
of WIOA and Sec. Sec.  361.105 through 361.125, as explained in the 
joint planning guidelines issued by the Secretaries;
    (2) For the Combined State Plan partner programs and activities, 
except as described in paragraph (h) of this section, the information 
required by the law authorizing and governing that program to be 
submitted to the appropriate Secretary, any other applicable legal 
requirements, and any common planning requirements described in sec. 
102(b) of WIOA, as explained in the joint planning guidelines issued by 
the Secretaries;
    (3) A description of the methods used for joint planning and 
coordination among the core programs, and with the required one-stop 
partner programs and other programs and activities included in the State 
Plan; and
    (4) An assurance that all of the entities responsible for planning 
or administering the programs described in the Combined State Plan have 
had a meaningful opportunity to review and comment on all portions of 
the plan.
    (f) Each Combined State Plan partner program included in the 
Combined State Plan remains subject to the applicable program-specific 
requirements of the Federal law and regulations, and any other 
applicable legal or program requirements, governing the implementation 
and operation of that program.

[[Page 357]]

    (g) For purposes of Sec. Sec.  361.140 through 361.145 the term 
``appropriate Secretary'' means the head of the Federal agency who 
exercises either plan or application approval authority for the program 
or activity under the Federal law authorizing the program or activity 
or, if there are no planning or application requirements, who exercises 
administrative authority over the program or activity under that Federal 
law.
    (h) States that include employment and training activities carried 
out under the Community Services Block Grant (CSBG) Act (42 U.S.C. 9901 
et seq.) under a Combined State Plan would submit all other required 
elements of a complete CSBG State Plan directly to the Federal agency 
that administers the program, according to the requirements of Federal 
law and regulations.
    (i) States that submit employment and training activities carried 
out by HUD under a Combined State Plan would submit any other required 
planning documents for HUD programs directly to HUD, according to the 
requirements of Federal law and regulations.



Sec.  361.143  What is the development, submission, and approval
process of the Combined State Plan?

    (a) For purposes of Sec.  361.140(a), if a State chooses to develop 
a Combined State Plan it must submit the Combined State Plan in 
accordance with the requirements described below and sec. 103 of WIOA, 
as explained in the joint planning guidelines issued by the Secretaries 
of Labor and Education.
    (b) The Combined State Plan must be developed with the assistance of 
the State WDB, as required by 20 CFR 679.130(a) and WIOA sec. 101(d), 
and must be developed in coordination with administrators with optimum 
policy-making authority for the core programs and required one-stop 
partners.
    (c) The State must provide an opportunity for public comment on and 
input into the development of the Combined State Plan prior to its 
submission.
    (1) The opportunity for public comment for the portions of the 
Combined State Plan that cover the core programs must include an 
opportunity for comment by representatives of Local WDBs and chief 
elected officials, businesses, representatives of labor organizations, 
community-based organizations, adult education providers, institutions 
of higher education, other stakeholders with an interest in the services 
provided by the six core programs, and the general public, including 
individuals with disabilities.
    (2) Consistent with the ``Sunshine Provision'' of WIOA in sec. 
101(g), the State WDB must make information regarding the Combined State 
Plan available to the public through electronic means and regularly 
occurring open meetings in accordance with State law. The Combined State 
Plan must describe the State's process and timeline for ensuring a 
meaningful opportunity for public comment on the portions of the plan 
covering core programs.
    (3) The portions of the plan that cover the Combined State Plan 
partner programs are subject to any public comment requirements 
applicable to those programs.
    (d) The State must submit to the Secretaries of Labor and Education 
and to the Secretary of the agency with responsibility for approving the 
program's plan or deeming it complete under the law governing the 
program, as part of its Combined State Plan, any plan, application, 
form, or any other similar document that is required as a condition for 
the approval of Federal funding under the applicable program or 
activity. Such submission must occur in accordance with a process 
identified by the relevant Secretaries in paragraph (a) of this section.
    (e) The Combined State Plan will be approved or disapproved in 
accordance with the requirements of sec. 103(c) of WIOA.
    (1) The portion of the Combined State Plan covering programs 
administered by the Departments of Labor and Education must be reviewed, 
and approved or disapproved, by the appropriate Secretary within 90 days 
beginning on the day the Combined State Plan is received by the 
appropriate Secretary from the State, consistent

[[Page 358]]

with paragraph (f) of this section. Before the Secretaries of Labor and 
Education approve the Combined State Plan, the vocational rehabilitation 
services portion of the Combined State Plan described in WIOA sec. 
102(b)(2)(D)(iii) must be approved by the Commissioner of the 
Rehabilitation Services Administration.
    (2) If an appropriate Secretary other than the Secretary of Labor or 
the Secretary of Education has authority to approve or deem complete a 
portion of the Combined State Plan for a program or activity described 
in Sec.  361.140(d), that portion of the Combined State Plan must be 
reviewed, and approved, disapproved, or deemed complete, by the 
appropriate Secretary within 120 days beginning on the day the Combined 
State Plan is received by the appropriate Secretary from the State 
consistent with paragraph (f) of this section.
    (f) The appropriate Secretaries will review and approve or deem 
complete the Combined State Plan within 90 or 120 days, as appropriate, 
as described in paragraph (e) of this section, unless the Secretaries of 
Labor and Education or appropriate Secretary have determined in writing 
within that period that:
    (1) The Combined State Plan is inconsistent with the requirements of 
the six core programs or the Federal laws authorizing or applicable to 
the program or activity involved, including the criteria for approval of 
a plan or application, or deeming the plan complete, if any, under such 
law;
    (2) The portion of the Combined State Plan describing the six core 
programs or the program or activity described in paragraph (a) of this 
section involved does not satisfy the criteria as provided in sec. 102 
or 103 of WIOA, as applicable; or
    (3) The Combined State Plan is incomplete, or otherwise insufficient 
to determine whether it is consistent with a core program's 
requirements, other requirements of WIOA, or the Federal laws 
authorizing, or applicable to, the program or activity described in 
Sec.  361.140(d), including the criteria for approval of a plan or 
application, if any, under such law.
    (g) If the Secretary of Labor, the Secretary of Education, or the 
appropriate Secretary does not make the written determination described 
in paragraph (f) of this section within the relevant period of time 
after submission of the Combined State Plan, that portion of the 
Combined State Plan over which the Secretary has jurisdiction will be 
considered approved.
    (h) The Secretaries of Labor and Education's written determination 
of approval or disapproval regarding the portion of the plan for the six 
core programs may be separate from the written determination of 
approval, disapproval, or completeness of the program-specific 
requirements of Combined State Plan partner programs and activities 
described in Sec.  361.140(d) and included in the Combined State Plan.
    (i) Special rule. In paragraphs (f)(1) and (3) of this section, the 
term ``criteria for approval of a plan or application,'' with respect to 
a State or a core program or a program under the Carl D. Perkins Career 
and Technical Education Act of 2006 (20 U.S.C. 2301 et seq.), includes a 
requirement for agreement between the State and the appropriate 
Secretaries regarding State performance measures or State performance 
accountability measures, as the case may be, including levels of 
performance.



Sec.  361.145  What are the requirements for modifications of the
Combined State Plan?

    (a) For the core program portions of the Combined State Plan, 
modifications are required, at a minimum:
    (1) By the end of the first 2-year period of any 4-year State Plan. 
The State WDB must review the Combined State Plan, and the Governor must 
submit modifications to the Combined State Plan to reflect changes in 
labor market and economic conditions or other factors affecting the 
implementation of the Combined State Plan;
    (2) When changes in Federal or State law or policy substantially 
affect the strategies, goals, and priorities upon which the Combined 
State Plan is based;
    (3) When there are changes in the statewide vision, strategies, 
policies, State negotiated levels of performance

[[Page 359]]

as described in Sec.  361.170(b), the methodology used to determine 
local allocation of funds, reorganizations that change the working 
relationship with system employees, changes in organizational 
responsibilities, changes to the membership structure of the State WDB 
or alternative entity, and similar substantial changes to the State's 
workforce development system.
    (b) In addition to the required modification review described in 
paragraph (a)(1) of this section, a State may submit a modification of 
its Combined State Plan at any time during the 4-year period of the 
plan.
    (c) For any Combined State Plan partner programs and activities 
described in Sec.  361.140(d) that are included in a State's Combined 
State Plan, the State--
    (1) May decide if the modification requirements under WIOA sec. 
102(c)(3) that apply to the core programs will apply to the Combined 
State Plan partner programs, as long as consistent with any other 
modification requirements for the programs, or may comply with the 
requirements applicable to only the particular program or activity; and
    (2) Must submit, in accordance with the procedure described in Sec.  
361.143, any modification, amendment, or revision required by the 
Federal law authorizing, or applicable to, the Combined State Plan 
partner program or activity.
    (i) If the underlying programmatic requirements change (e.g., the 
authorizing statute is reauthorized) for Federal laws authorizing such 
programs, a State must either modify its Combined State Plan or submit a 
separate plan to the appropriate Federal agency in accordance with the 
new Federal law authorizing the Combined State Plan partner program or 
activity and other legal requirements applicable to such program or 
activity.
    (ii) If the modification, amendment, or revision affects the 
administration of only that particular Combined State Plan partner 
program and has no impact on the Combined State Plan as a whole or the 
integration and administration of the core and other Combined State Plan 
partner programs at the State level, modifications must be submitted for 
approval to only the appropriate Secretary, based on the approval 
standards applicable to the original Combined State Plan under Sec.  
361.143, if the State elects, or in accordance with the procedures and 
requirements applicable to the particular Combined State Plan partner 
program.
    (3) A State also may amend its Combined State Plan to add a Combined 
State Plan partner program or activity described in Sec.  361.140(d).
    (d) Modifications of the Combined State Plan are subject to the same 
public review and comment requirements that apply to the development of 
the original Combined State Plan as described in Sec.  361.143(c) except 
that, if the modification, amendment, or revision affects the 
administration of a particular Combined State Plan partner program and 
has no impact on the Combined State Plan as a whole or the integration 
and administration of the core and other Combined State Plan partner 
programs at the State level, a State may comply instead with the 
procedures and requirements applicable to the particular Combined State 
Plan partner program.
    (e) Modifications for the core program portions of the Combined 
State Plan must be approved by the Secretaries of Labor and Education, 
based on the approval standards applicable to the original Combined 
State Plan under Sec.  361.143. This approval must come after the 
approval of the Commissioner of the Rehabilitation Services 
Administration for modification of any portion of the Combined State 
Plan described in sec. 102(b)(2)(D)(iii) of WIOA.



  Subpart E_Performance Accountability Under Title I of the Workforce 
                     Innovation and Opportunity Act

    Authority: Secs. 116, 189, and 503 of Pub. L. 113-128, 128 Stat. 
1425 (Jul. 22, 2014).

    Source: 81 FR 56026, Aug. 19, 2016, unless otherwise noted.

[[Page 360]]



Sec.  361.150  What definitions apply to Workforce Innovation and
Opportunity Act performance accountability provisions?

    (a) Participant. A reportable individual who has received services 
other than the services described in paragraph (a)(3) of this section, 
after satisfying all applicable programmatic requirements for the 
provision of services, such as eligibility determination.
    (1) For the Vocational Rehabilitation (VR) program, a participant is 
a reportable individual who has an approved and signed Individualized 
Plan for Employment (IPE) and has begun to receive services.
    (2) For the Workforce Innovation and Opportunity Act (WIOA) title I 
youth program, a participant is a reportable individual who has 
satisfied all applicable program requirements for the provision of 
services, including eligibility determination, an objective assessment, 
and development of an individual service strategy, and received 1 of the 
14 WIOA youth program elements identified in sec. 129(c)(2) of WIOA.
    (3) The following individuals are not participants:
    (i) Individuals in an Adult Education and Family Literacy Act 
(AEFLA) program who have not completed at least 12 contact hours;
    (ii) Individuals who only use the self-service system.
    (A) Subject to paragraph (a)(3)(ii)(B) of this section, self-service 
occurs when individuals independently access any workforce development 
system program's information and activities in either a physical 
location, such as a one-stop center resource room or partner agency, or 
remotely via the use of electronic technologies.
    (B) Self-service does not uniformly apply to all virtually accessed 
services. For example, virtually accessed services that provide a level 
of support beyond independent job or information seeking on the part of 
an individual would not qualify as self-service.
    (iii) Individuals who receive information-only services or 
activities, which provide readily available information that does not 
require an assessment by a staff member of the individual's skills, 
education, or career objectives.
    (4) Programs must include participants in their performance 
calculations.
    (b) Reportable individual. An individual who has taken action that 
demonstrates an intent to use program services and who meets specific 
reporting criteria of the program, including:
    (1) Individuals who provide identifying information;
    (2) Individuals who only use the self-service system; or
    (3) Individuals who only receive information-only services or 
activities.
    (c) Exit. As defined for the purpose of performance calculations, 
exit is the point after which a participant who has received services 
through any program meets the following criteria:
    (1) For the adult, dislocated worker, and youth programs authorized 
under WIOA title I, the AEFLA program authorized under WIOA title II, 
and the Employment Service program authorized under the Wagner-Peyser 
Act, as amended by WIOA title III, exit date is the last date of 
service.
    (i) The last day of service cannot be determined until at least 90 
days have elapsed since the participant last received services; services 
do not include self-service, information-only services or activities, or 
follow-up services. This also requires that there are no plans to 
provide the participant with future services.
    (ii) [Reserved].
    (2)(i) For the VR program authorized under title I of the 
Rehabilitation Act of 1973, as amended by WIOA title IV (VR program):
    (A) The participant's record of service is closed in accordance with 
Sec.  361.56 because the participant has achieved an employment outcome; 
or
    (B) The participant's service record is closed because the 
individual has not achieved an employment outcome or the individual has 
been determined ineligible after receiving services in accordance with 
Sec.  361.43.
    (ii) Notwithstanding any other provision of this section, a 
participant will not be considered as meeting the definition of exit 
from the VR program if the participant's service record is closed 
because the participant has

[[Page 361]]

achieved a supported employment outcome in an integrated setting but not 
in competitive integrated employment.
    (3)(i) A State may implement a common exit policy for all or some of 
the core programs in WIOA title I and the Employment Service program 
authorized under the Wagner-Peyser Act, as amended by WIOA title III, 
and any additional required partner program(s) listed in sec. 
121(b)(1)(B) of WIOA that is under the authority of the U.S. Department 
of Labor (DOL).
    (ii) If a State chooses to implement a common exit policy, the 
policy must require that a participant is exited only when all of the 
criteria in paragraph (c)(1) of this section are met for the WIOA title 
I core programs and the Employment Service program authorized under the 
Wagner-Peyser Act, as amended by WIOA title III, as well as any 
additional required partner programs listed in sec. 121(b)(1)(B) of WIOA 
under the authority of DOL to which the common exit policy applies in 
which the participant is enrolled.
    (d) State. For purposes of this part, other than in regard to 
sanctions or the statistical adjustment model, all references to 
``State'' include the outlying areas of American Samoa, Guam, 
Commonwealth of the Northern Mariana Islands, the U.S. Virgin Islands, 
and, as applicable, the Republic of Palau.



Sec.  361.155  What are the primary indicators of performance under
the Workforce Innovation and Opportunity Act?

    (a) All States submitting either a Unified or Combined State Plan 
under Sec. Sec.  361.130 and 361.143, must propose expected levels of 
performance for each of the primary indicators of performance for the 
adult, dislocated worker, and youth programs authorized under WIOA title 
I; the AEFLA program authorized under WIOA title II; the Employment 
Service program authorized under the Wagner-Peyser Act, as amended by 
WIOA title III; and the VR program authorized under title I of the 
Rehabilitation Act of 1973, as amended by WIOA title IV.
    (1) Primary indicators of performance. The six primary indicators of 
performance for the adult and dislocated worker programs, the AEFLA 
program, and the VR program are:
    (i) The percentage of participants who are in unsubsidized 
employment during the second quarter after exit from the program;
    (ii) The percentage of participants who are in unsubsidized 
employment during the fourth quarter after exit from the program;
    (iii) Median earnings of participants who are in unsubsidized 
employment during the second quarter after exit from the program;
    (iv)(A) The percentage of those participants enrolled in an 
education or training program (excluding those in on-the-job training 
[OJT] and customized training) who attained a recognized postsecondary 
credential or a secondary school diploma, or its recognized equivalent, 
during participation in or within 1 year after exit from the program.
    (B) A participant who has attained a secondary school diploma or its 
recognized equivalent is included in the percentage of participants who 
have attained a secondary school diploma or recognized equivalent only 
if the participant also is employed or is enrolled in an education or 
training program leading to a recognized postsecondary credential within 
1 year after exit from the program;
    (v) The percentage of participants who, during a program year, are 
in an education or training program that leads to a recognized 
postsecondary credential or employment and who are achieving measurable 
skill gains, defined as documented academic, technical, occupational, or 
other forms of progress, towards such a credential or employment. 
Depending upon the type of education or training program, documented 
progress is defined as one of the following:
    (A) Documented achievement of at least one educational functioning 
level of a participant who is receiving instruction below the 
postsecondary education level;
    (B) Documented attainment of a secondary school diploma or its 
recognized equivalent;
    (C) Secondary or postsecondary transcript or report card for a 
sufficient number of credit hours that shows a

[[Page 362]]

participant is meeting the State unit's academic standards;
    (D) Satisfactory or better progress report, towards established 
milestones, such as completion of OJT or completion of 1 year of an 
apprenticeship program or similar milestones, from an employer or 
training provider who is providing training; or
    (E) Successful passage of an exam that is required for a particular 
occupation or progress in attaining technical or occupational skills as 
evidenced by trade-related benchmarks such as knowledge-based exams.
    (vi) Effectiveness in serving employers.
    (2) Participants. For purposes of the primary indicators of 
performance in paragraph (a)(1) of this section, ``participant'' will 
have the meaning given to it in Sec.  361.150(a), except that--
    (i) For purposes of determining program performance levels under 
indicators set forth in paragraphs (a)(1)(i) through (iv) and (vi) of 
this section, a ``participant'' does not include a participant who 
received services under sec. 225 of WIOA and exits such program while 
still in a correctional institution as defined in sec. 225(e)(1) of 
WIOA; and
    (ii) The Secretaries of Labor and Education may, as needed and 
consistent with the Paperwork Reduction Act (PRA), make further 
determinations as to the participants to be included in calculating 
program performance levels for purposes of any of the performance 
indicators set forth in paragraph (a)(1) of this section.
    (b) The primary indicators in paragraphs (a)(1)(i) through (iii) and 
(vi) of this section apply to the Employment Service program authorized 
under the Wagner-Peyser Act, as amended by WIOA title III.
    (c) For the youth program authorized under WIOA title I, the primary 
indicators are:
    (1) Percentage of participants who are in education or training 
activities, or in unsubsidized employment, during the second quarter 
after exit from the program;
    (2) Percentage of participants in education or training activities, 
or in unsubsidized employment, during the fourth quarter after exit from 
the program;
    (3) Median earnings of participants who are in unsubsidized 
employment during the second quarter after exit from the program;
    (4) The percentage of those participants enrolled in an education or 
training program (excluding those in OJT and customized training) who 
obtained a recognized postsecondary credential or a secondary school 
diploma, or its recognized equivalent, during participation in or within 
1 year after exit from the program, except that a participant who has 
attained a secondary school diploma or its recognized equivalent is 
included as having attained a secondary school diploma or recognized 
equivalent only if the participant is also employed or is enrolled in an 
education or training program leading to a recognized postsecondary 
credential within 1 year from program exit;
    (5) The percentage of participants who during a program year, are in 
an education or training program that leads to a recognized 
postsecondary credential or employment and who are achieving measurable 
skill gains, defined as documented academic, technical, occupational or 
other forms of progress towards such a credential or employment. 
Depending upon the type of education or training program, documented 
progress is defined as one of the following:
    (i) Documented achievement of at least one educational functioning 
level of a participant who is receiving instruction below the 
postsecondary education level;
    (ii) Documented attainment of a secondary school diploma or its 
recognized equivalent;
    (iii) Secondary or postsecondary transcript or report card for a 
sufficient number of credit hours that shows a participant is achieving 
the State unit's academic standards;
    (iv) Satisfactory or better progress report, towards established 
milestones, such as completion of OJT or completion of 1 year of an 
apprenticeship program or similar milestones, from an employer or 
training provider who is providing training; or

[[Page 363]]

    (v) Successful passage of an exam that is required for a particular 
occupation or progress in attaining technical or occupational skills as 
evidenced by trade-related benchmarks such as knowledge-based exams.
    (6) Effectiveness in serving employers.



Sec.  361.160  What information is required for State performance reports?

    (a) The State performance report required by sec. 116(d)(2) of WIOA 
must be submitted annually using a template the Departments of Labor and 
Education will disseminate, and must provide, at a minimum, information 
on the actual performance levels achieved consistent with Sec.  361.175 
with respect to:
    (1) The total number of participants served, and the total number of 
participants who exited each of the core programs identified in sec. 
116(b)(3)(A)(ii) of WIOA, including disaggregated counts of those who 
participated in and exited a core program, by:
    (i) Individuals with barriers to employment as defined in WIOA sec. 
3(24); and
    (ii) Co-enrollment in any of the programs in WIOA sec. 
116(b)(3)(A)(ii).
    (2) Information on the performance levels achieved for the primary 
indicators of performance for all of the core programs identified in 
Sec.  361.155 including disaggregated levels for:
    (i) Individuals with barriers to employment as defined in WIOA sec. 
3(24);
    (ii) Age;
    (iii) Sex; and
    (iv) Race and ethnicity.
    (3) The total number of participants who received career services 
and the total number of participants who exited from career services for 
the most recent program year and the 3 preceding program years, and the 
total number of participants who received training services and the 
total number of participants who exited from training services for the 
most recent program year and the 3 preceding program years, as 
applicable to the program;
    (4) Information on the performance levels achieved for the primary 
indicators of performance consistent with Sec.  361.155 for career 
services and training services for the most recent program year and the 
3 preceding program years, as applicable to the program;
    (5) The percentage of participants in a program who attained 
unsubsidized employment related to the training received (often referred 
to as training-related employment) through WIOA title I, subtitle B 
programs;
    (6) The amount of funds spent on career services and the amount of 
funds spent on training services for the most recent program year and 
the 3 preceding program years, as applicable to the program;
    (7) The average cost per participant for those participants who 
received career services and training services, respectively, during the 
most recent program year and the 3 preceding program years, as 
applicable to the program;
    (8) The percentage of a State's annual allotment under WIOA sec. 
132(b) that the State spent on administrative costs; and
    (9) Information that facilitates comparisons of programs with 
programs in other States.
    (10) For WIOA title I programs, a State performance narrative, 
which, for States in which a local area is implementing a pay-for-
performance contracting strategy, at a minimum provides:
    (i) A description of pay-for-performance contract strategies being 
used for programs;
    (ii) The performance of service providers entering into contracts 
for such strategies, measured against the levels of performance 
specified in the contracts for such strategies; and
    (iii) An evaluation of the design of the programs and performance 
strategies and, when available, the satisfaction of employers and 
participants who received services under such strategies.
    (b) The disaggregation of data for the State performance report must 
be done in compliance with WIOA sec. 116(d)(6)(C).
    (c) The State performance reports must include a mechanism of 
electronic access to the State's local area and eligible training 
provider (ETP) performance reports.
    (d) States must comply with these requirements from sec. 116 of WIOA 
as explained in joint guidance issued by

[[Page 364]]

the Departments of Labor and Education, which may include information on 
reportable individuals as determined by the Secretaries of Labor and 
Education.



Sec.  361.165  May a State establish additional indicators of performance?

    States may identify additional indicators of performance for the six 
core programs. If a State does so, these indicators must be included in 
the Unified or Combined State Plan.



Sec.  361.170  How are State levels of performance for primary
indicators established?

    (a) A State must submit in the State Plan expected levels of 
performance on the primary indicators of performance for each core 
program as required by sec. 116(b)(3)(A)(iii) of WIOA as explained in 
joint guidance issued by the Secretaries of Labor and Education.
    (1) The initial State Plan submitted under WIOA must contain 
expected levels of performance for the first 2 years of the State Plan.
    (2) States must submit expected levels of performance for the third 
and fourth year of the State Plan before the third program year 
consistent with Sec. Sec.  361.135 and 361.145.
    (b) States must reach agreement on levels of performance with the 
Secretaries of Labor and Education for each indicator for each core 
program. These are the negotiated levels of performance. The negotiated 
levels must be based on the following factors:
    (1) How the negotiated levels of performance compare with State 
levels of performance established for other States;
    (2) The application of an objective statistical model established by 
the Secretaries of Labor and Education, subject to paragraph (d) of this 
section;
    (3) How the negotiated levels promote continuous improvement in 
performance based on the primary indicators and ensure optimal return on 
investment of Federal funds; and
    (4) The extent to which the negotiated levels assist the State in 
meeting the performance goals established by the Secretaries of Labor 
and Education for the core programs in accordance with the Government 
Performance and Results Act of 1993, as amended.
    (c) An objective statistical adjustment model will be developed and 
disseminated by the Secretaries of Labor and Education. The model will 
be based on:
    (1) Differences among States in actual economic conditions, 
including but not limited to unemployment rates and job losses or gains 
in particular industries; and
    (2) The characteristics of participants, including but not limited 
to:
    (i) Indicators of poor work history;
    (ii) Lack of work experience;
    (iii) Lack of educational or occupational skills attainment;
    (iv) Dislocation from high-wage and high-benefit employment;
    (v) Low levels of literacy;
    (vi) Low levels of English proficiency;
    (vii) Disability status;
    (viii) Homelessness;
    (ix) Ex-offender status; and
    (x) Welfare dependency.
    (d) The objective statistical adjustment model developed under 
paragraph (c) of this section will be:
    (1) Applied to the core programs' primary indicators upon 
availability of data which are necessary to populate the model and apply 
the model to the local core programs;
    (2) Subject to paragraph (d)(1) of this section, used before the 
beginning of a program year in order to reach agreement on State 
negotiated levels for the upcoming program year; and
    (3) Subject to paragraph (d)(1) of this section, used to revise 
negotiated levels at the end of a program year based on actual economic 
conditions and characteristics of participants served, consistent with 
sec. 116(b)(3)(A)(vii) of WIOA.
    (e) The negotiated levels revised at the end of the program year, 
based on the statistical adjustment model, are the adjusted levels of 
performance.
    (f) States must comply with these requirements from sec. 116 of WIOA 
as explained in joint guidance issued by the Departments of Labor and 
Education.

[[Page 365]]



Sec.  361.175  What responsibility do States have to use quarterly
wage record information for performance accountability?

    (a)(1) States must, consistent with State laws, use quarterly wage 
record information in measuring a State's performance on the primary 
indicators of performance outlined in Sec.  361.155 and a local area's 
performance on the primary indicators of performance identified in Sec.  
361.205.
    (2) The use of social security numbers from participants and such 
other information as is necessary to measure the progress of those 
participants through quarterly wage record information is authorized.
    (3) To the extent that quarterly wage records are not available for 
a participant, States may use other information as is necessary to 
measure the progress of those participants through methods other than 
quarterly wage record information.
    (b) ``Quarterly wage record information'' means intrastate and 
interstate wages paid to an individual, the social security number (or 
numbers, if more than one) of the individual, and the name, address, 
State, and the Federal employer identification number of the employer 
paying the wages to the individual.
    (c) The Governor may designate a State agency (or appropriate State 
entity) to assist in carrying out the performance reporting requirements 
for WIOA core programs and ETPs. The Governor or such agency (or 
appropriate State entity) is responsible for:
    (1) Facilitating data matches;
    (2) Data quality reliability; and
    (3) Protection against disaggregation that would violate applicable 
privacy standards.



Sec.  361.180  When is a State subject to a financial sanction under
the Workforce Innovation and Opportunity Act?

    A State will be subject to financial sanction under WIOA sec. 116(f) 
if it fails to:
    (a) Submit the State annual performance report required under WIOA 
sec. 116(d)(2); or
    (b) Meet adjusted levels of performance for the primary indicators 
of performance in accordance with sec. 116(f) of WIOA.



Sec.  361.185  When are sanctions applied for a State's failure to
submit an annual performance report?

    (a) Sanctions will be applied when a State fails to submit the State 
annual performance report required under sec. 116(d)(2) of WIOA. A State 
fails to report if the State either:
    (1) Does not submit a State annual performance report by the date 
for timely submission set in performance reporting guidance; or
    (2) Submits a State annual performance report by the date for timely 
submission, but the report is incomplete.
    (b) Sanctions will not be applied if the reporting failure is due to 
exceptional circumstances outside of the State's control. Exceptional 
circumstances may include, but are not limited to:
    (1) Natural disasters;
    (2) Unexpected personnel transitions; and
    (3) Unexpected technology related issues.
    (c) In the event that a State may not be able to submit a complete 
and accurate performance report by the deadline for timely reporting:
    (1) The State must notify the Secretary of Labor or Secretary of 
Education as soon as possible, but no later than 30 days prior to the 
established deadline for submission, of a potential impact on the 
State's ability to submit its State annual performance report in order 
to not be considered failing to report.
    (2) In circumstances where unexpected events occur less than 30 days 
before the established deadline for submission of the State annual 
performance reports, the Secretaries of Labor and Education will review 
requests for extending the reporting deadline in accordance with the 
Departments of Labor and Education's procedures that will be established 
in guidance.



Sec.  361.190  When are sanctions applied for failure to achieve
adjusted levels of performance?

    (a) States' negotiated levels of performance will be adjusted 
through the application of the statistical adjustment model established 
under Sec.  361.170

[[Page 366]]

to account for actual economic conditions experienced during a program 
year and characteristics of participants, annually at the close of each 
program year.
    (b) Any State that fails to meet adjusted levels of performance for 
the primary indicators of performance outlined in Sec.  361.155 for any 
year will receive technical assistance, including assistance in the 
development of a performance improvement plan provided by the Secretary 
of Labor or Secretary of Education.
    (c) Whether a State has failed to meet adjusted levels of 
performance will be determined using the following three criteria:
    (1) The overall State program score, which is expressed as the 
percent achieved, compares the actual results achieved by a core program 
on the primary indicators of performance to the adjusted levels of 
performance for that core program. The average of the percentages 
achieved of the adjusted level of performance for each of the primary 
indicators by a core program will constitute the overall State program 
score.
    (2) However, until all indicators for the core program have at least 
2 years of complete data, the overall State program score will be based 
on a comparison of the actual results achieved to the adjusted level of 
performance for each of the primary indicators that have at least 2 
years of complete data for that program;
    (3) The overall State indicator score, which is expressed as the 
percent achieved, compares the actual results achieved on a primary 
indicator of performance by all core programs in a State to the adjusted 
levels of performance for that primary indicator. The average of the 
percentages achieved of the adjusted level of performance by all of the 
core programs on that indicator will constitute the overall State 
indicator score.
    (4) However, until all indicators for the State have at least 2 
years of complete data, the overall State indicator score will be based 
on a comparison of the actual results achieved to the adjusted level of 
performance for each of the primary indicators that have at least 2 
years of complete data in a State.
    (5) The individual indicator score, which is expressed as the 
percent achieved, compares the actual results achieved by each core 
program on each of the individual primary indicators to the adjusted 
levels of performance for each of the program's primary indicators of 
performance.
    (d) A performance failure occurs when:
    (1) Any overall State program score or overall State indicator score 
falls below 90 percent for the program year; or
    (2) Any of the States' individual indicator scores fall below 50 
percent for the program year.
    (e) Sanctions based on performance failure will be applied to States 
if, for 2 consecutive years, the State fails to meet:
    (1) 90 percent of the overall State program score for the same core 
program;
    (2) 90 percent of the overall State indicator score for the same 
primary indicator; or
    (3) 50 percent of the same indicator score for the same program.



Sec.  361.195  What should States expect when a sanction is applied
to the Governor's Reserve Allotment?

    (a) The Secretaries of Labor and Education will reduce the 
Governor's Reserve Allotment by five percent of the maximum available 
amount for the immediately succeeding program year if:
    (1) The State fails to submit the State annual performance reports 
as required under WIOA sec. 116(d)(2), as defined in Sec.  361.185;
    (2) The State fails to meet State adjusted levels of performance for 
the same primary performance indicator(s) under either Sec.  
361.190(d)(1) for the second consecutive year as defined in Sec.  
361.190; or
    (3) The State's score on the same indicator for the same program 
falls below 50 percent under Sec.  361.190(d)(2) for the second 
consecutive year as defined in Sec.  361.190.
    (b) If the State fails under paragraphs (a)(1) and either (a)(2) or 
(3) of this section in the same program year, the Secretaries of Labor 
and Education

[[Page 367]]

will reduce the Governor's Reserve Allotment by 10 percent of the 
maximum available amount for the immediately succeeding program year.
    (c) If a State's Governor's Reserve Allotment is reduced:
    (1) The reduced amount will not be returned to the State in the 
event that the State later improves performance or submits its annual 
performance report; and
    (2) The Governor's Reserve will continue to be set at the reduced 
level in each subsequent year until the Secretary of Labor or the 
Secretary of Education, depending on which program is impacted, 
determines that the State met the State adjusted levels of performance 
for the applicable primary performance indicators and has submitted all 
of the required performance reports.
    (d) A State may request review of a sanction the Secretary of Labor 
imposes in accordance with the provisions of 20 CFR 683.800.



Sec.  361.200  What other administrative actions will be applied to
States' performance requirements?

    (a) In addition to sanctions for failure to report or failure to 
meet adjusted levels of performance, States will be subject to 
administrative actions in the case of poor performance.
    (b) States' performance achievement on the individual primary 
indicators will be assessed in addition to the overall State program 
score and overall State indicator score. Based on this assessment, as 
clarified and explained in guidance, for performance on any individual 
primary indicator, the Secretary of Labor or the Secretary of Education 
will require the State to establish a performance risk plan to address 
continuous improvement on the individual primary indicator.



Sec.  361.205  What performance indicators apply to local areas and
what information must be included in local area performance reports?

    (a) Each local area in a State under WIOA title I is subject to the 
same primary indicators of performance for the core programs for WIOA 
title I under Sec.  361.155(a)(1) and (c) that apply to the State.
    (b) In addition to the indicators described in paragraph (a) of this 
section, under Sec.  361.165, the Governor may apply additional 
indicators of performance to local areas in the State.
    (c) States must annually make local area performance reports 
available to the public using a template that the Departments of Labor 
and Education will disseminate in guidance, including by electronic 
means. The State must provide electronic access to the public local area 
performance report in its annual State performance report.
    (d) The local area performance report must include:
    (1) The actual results achieved under Sec.  361.155 and the 
information required under Sec.  361.160(a);
    (2) The percentage of a local area's allotment under WIOA secs. 
128(b) and 133(b) that the local area spent on administrative costs; and
    (3) Other information that facilitates comparisons of programs with 
programs in other local areas (or planning regions if the local area is 
part of a planning region).
    (e) The disaggregation of data for the local area performance report 
must be done in compliance with WIOA sec. 116(d)(6)(C).
    (f) States must comply with any requirements from sec. 116(d)(3) of 
WIOA as explained in guidance, including the use of the performance 
reporting template, issued by DOL.



Sec.  361.210  How are local performance levels established?

    (a) The objective statistical adjustment model required under sec. 
116(b)(3)(A)(viii) of WIOA and described in Sec.  361.170(c) must be:
    (1) Applied to the core programs' primary indicators upon 
availability of data which are necessary to populate the model and apply 
the model to the local core programs;
    (2) Used in order to reach agreement on local negotiated levels of 
performance for the upcoming program year; and
    (3) Used to establish adjusted levels of performance at the end of a 
program year based on actual conditions, consistent with WIOA sec. 
116(c)(3).
    (b) Until all indicators for the core program in a local area have 
at least 2

[[Page 368]]

years of complete data, the comparison of the actual results achieved to 
the adjusted levels of performance for each of the primary indicators 
only will be applied where there are at least 2 years of complete data 
for that program.
    (c) The Governor, Local Workforce Development Board (WDB), and chief 
elected official must reach agreement on local negotiated levels of 
performance based on a negotiations process before the start of a 
program year with the use of the objective statistical model described 
in paragraph (a) of this section. The negotiations will include a 
discussion of circumstances not accounted for in the model and will take 
into account the extent to which the levels promote continuous 
improvement. The objective statistical model will be applied at the end 
of the program year based on actual economic conditions and 
characteristics of the participants served.
    (d) The negotiations process described in paragraph (c) of this 
section must be developed by the Governor and disseminated to all Local 
WDBs and chief elected officials.
    (e) The Local WDBs may apply performance measures to service 
providers that differ from the performance indicators that apply to the 
local area. These performance measures must be established after 
considering:
    (1) The established local negotiated levels;
    (2) The services provided by each provider; and
    (3) The populations the service providers are intended to serve.



Sec.  361.215  Under what circumstances are local areas eligible for
State Incentive Grants?

    (a) The Governor is not required to award local incentive funds, but 
is authorized to provide incentive grants to local areas for performance 
on the primary indicators of performance consistent with WIOA sec. 
134(a)(3)(A)(xi).
    (b) The Governor may use non-Federal funds to create incentives for 
the Local WDBs to implement pay-for-performance contract strategies for 
the delivery of training services described in WIOA sec. 134(c)(3) or 
activities described in WIOA sec. 129(c)(2) in the local areas served by 
the Local WDBs. Pay-for-performance contract strategies must be 
implemented in accordance with 20 CFR part 683, subpart E and Sec.  
361.160.



Sec.  361.220  Under what circumstances may a corrective action
or sanction be applied to local areas for poor performance?

    (a) If a local area fails to meet the adjusted levels of performance 
agreed to under Sec.  361.210 for the primary indicators of performance 
in the adult, dislocated worker, and youth programs authorized under 
WIOA title I in any program year, technical assistance must be provided 
by the Governor or, upon the Governor's request, by the Secretary of 
Labor.
    (1) A State must establish the threshold for failure to meet 
adjusted levels of performance for a local area before coming to 
agreement on the negotiated levels of performance for the local area.
    (i) A State must establish the adjusted level of performance for a 
local area, using the statistical adjustment model described in Sec.  
361.170(c).
    (ii) At least 2 years of complete data on any indicator for any 
local core program are required in order to establish adjusted levels of 
performance for a local area.
    (2) The technical assistance may include:
    (i) Assistance in the development of a performance improvement plan;
    (ii) The development of a modified local or regional plan; or
    (iii) Other actions designed to assist the local area in improving 
performance.
    (b) If a local area fails to meet the adjusted levels of performance 
agreed to under Sec.  361.210 for the same primary indicators of 
performance for the same core program authorized under WIOA title I for 
a third consecutive program year, the Governor must take corrective 
actions. The corrective actions must include the development of a 
reorganization plan under which the Governor:
    (1) Requires the appointment and certification of a new Local WDB, 
consistent with the criteria established under 20 CFR 679.350;
    (2) Prohibits the use of eligible providers and one-stop partners 
that have

[[Page 369]]

been identified as achieving poor levels of performance; or
    (3) Takes such other significant actions as the Governor determines 
are appropriate.



Sec.  361.225  Under what circumstances may local areas appeal a
reorganization plan?

    (a) The Local WDB and chief elected official for a local area that 
is subject to a reorganization plan under WIOA sec. 116(g)(2)(A) may 
appeal to the Governor to rescind or revise the reorganization plan not 
later than 30 days after receiving notice of the reorganization plan. 
The Governor must make a final decision within 30 days after receipt of 
the appeal.
    (b) The Local WDB and chief elected official may appeal the final 
decision of the Governor to the Secretary of Labor not later than 30 
days after receiving the decision from the Governor. Any appeal of the 
Governor's final decision must be:
    (1) Appealed jointly by the Local WDB and chief elected official to 
the Secretary of Labor under 20 CFR 683.650; and
    (2) Must be submitted by certified mail, return receipt requested, 
to the Secretary of Labor, U.S. Department of Labor, 200 Constitution 
Ave. NW., Washington, DC 20210, Attention: ASET. A copy of the appeal 
must be simultaneously provided to the Governor.
    (c) Upon receipt of the joint appeal from the Local WDB and chief 
elected official, the Secretary of Labor must make a final decision 
within 30 days. In making this determination the Secretary of Labor may 
consider any comments submitted by the Governor in response to the 
appeals.
    (d) The decision by the Governor on the appeal becomes effective at 
the time it is issued and remains effective unless the Secretary of 
Labor rescinds or revises the reorganization plan under WIOA sec. 
116(g)(2)(C).



Sec.  361.230  What information is required for the eligible training
provider performance reports?

    (a) States are required to make available and publish annually using 
a template the Departments of Labor and Education will disseminate 
including through electronic means, the ETP performance reports for ETPs 
who provide services under sec. 122 of WIOA that are described in 20 CFR 
680.400 through 680.530. These reports at a minimum must include, 
consistent with Sec.  361.175 and with respect to each program of study 
that is eligible to receive funds under WIOA:
    (1) The total number of participants as defined by Sec.  361.150(a) 
who received training services under the adult and dislocated worker 
programs authorized under WIOA title I for the most recent year and the 
3 preceding program years, including:
    (i) The number of participants under the adult and dislocated worker 
programs disaggregated by barriers to employment;
    (ii) The number of participants under the adult and dislocated 
worker programs disaggregated by race, ethnicity, sex, and age;
    (iii) The number of participants under the adult and dislocated 
worker programs disaggregated by the type of training entity for the 
most recent program year and the 3 preceding program years;
    (2) The total number of participants who exit a program of study or 
its equivalent, including disaggregate counts by the type of training 
entity during the most recent program year and the 3 preceding program 
years;
    (3) The average cost-per-participant for participants who received 
training services for the most recent program year and the 3 preceding 
program years disaggregated by type of training entity;
    (4) The total number of individuals exiting from the program of 
study (or the equivalent) with respect to all individuals engaging in 
the program of study (or the equivalent); and
    (5) The levels of performance achieved for the primary indicators of 
performance identified in Sec.  361.155(a)(1)(i) through (iv) with 
respect to all individuals engaging in a program of study (or the 
equivalent).
    (b) Apprenticeship programs registered under the National 
Apprenticeship Act are not required to submit

[[Page 370]]

ETP performance information. If a registered apprenticeship program 
voluntarily submits performance information to a State, the State must 
include this information in the report.
    (c) The State must provide a mechanism of electronic access to the 
public ETP performance report in its annual State performance report.
    (d) States must comply with any requirements from sec. 116(d)(4) of 
WIOA as explained in guidance issued by DOL.
    (e) The Governor may designate one or more State agencies such as a 
State Education Agency or other State Educational Authority to assist in 
overseeing ETP performance and facilitating the production and 
dissemination of ETP performance reports. These agencies may be the same 
agencies that are designated as responsible for administering the ETP 
list as provided under 20 CFR 680.500. The Governor or such agencies, or 
authorities, is responsible for:
    (1) Facilitating data matches between ETP records and unemployment 
insurance (UI) wage data in order to produce the report;
    (2) The creation and dissemination of the reports as described in 
paragraphs (a) through (d) of this section;
    (3) Coordinating the dissemination of the performance reports with 
the ETP list and the information required to accompany the list, as 
provided in 20 CFR 680.500.



Sec.  361.235  What are the reporting requirements for individual
records for core Workforce Innovation and Opportunity Act (WIOA) 
title I programs; the Wagner-Peyser Act Employment Service program,
as amended by WIOA title III; and the Vocational Rehabilitation program 
authorized under title I of the Rehabilitation Act of 1973, as 
amended by WIOA title IV?

    (a) On a quarterly basis, each State must submit to the Secretary of 
Labor or the Secretary of Education, as appropriate, individual records 
that include demographic information, information on services received, 
and information on resulting outcomes, as appropriate, for each 
reportable individual in either of the following programs administered 
by the Secretary of Labor or Secretary of Education: A WIOA title I core 
program; the Employment Service program authorized under the Wagner-
Peyser Act, as amended by WIOA title III; or the VR program authorized 
under title I of the Rehabilitation Act of 1973, as amended by WIOA 
title IV.
    (b) For individual records submitted to the Secretary of Labor, 
those records may be required to be integrated across all programs 
administered by the Secretary of Labor in one single file.
    (c) States must comply with the requirements of sec. 116(d)(2) of 
WIOA as explained in guidance issued by the Departments of Labor and 
Education.



Sec.  361.240  What are the requirements for data validation of
State annual performance reports?

    (a) States must establish procedures, consistent with guidelines 
issued by the Secretary of Labor or the Secretary of Education, to 
ensure that they submit complete annual performance reports that contain 
information that is valid and reliable, as required by WIOA sec. 
116(d)(5).
    (b) If a State fails to meet standards in paragraph (a) of this 
section as determined by the Secretary of Labor or the Secretary of 
Education, the appropriate Secretary will provide technical assistance 
and may require the State to develop and implement corrective actions, 
which may require the State to provide training for its subrecipients.
    (c) The Secretaries of Labor and Education will provide training and 
technical assistance to States in order to implement this section. 
States must comply with the requirements of sec. 116(d)(5) of WIOA as 
explained in guidance.



 Subpart F_Description of the One-Stop Delivery System Under Title I of 
              the Workforce Innovation and Opportunity Act

    Authority: Secs. 503, 107, 121, 134, 189, Pub. L. 113-128, 128 Stat. 
1425 (Jul. 22, 2014).

    Source: 81 FR 56033, Aug. 19, 2016, unless otherwise noted.

[[Page 371]]



Sec.  361.300  What is the one-stop delivery system?

    (a) The one-stop delivery system brings together workforce 
development, educational, and other human resource services in a 
seamless customer-focused service delivery network that enhances access 
to the programs' services and improves long-term employment outcomes for 
individuals receiving assistance. One-stop partners administer 
separately funded programs as a set of integrated streamlined services 
to customers.
    (b) Title I of the Workforce Innovation and Opportunity Act (WIOA) 
assigns responsibilities at the local, State, and Federal level to 
ensure the creation and maintenance of a one-stop delivery system that 
enhances the range and quality of education and workforce development 
services that employers and individual customers can access.
    (c) The system must include at least one comprehensive physical 
center in each local area as described in Sec.  361.305.
    (d) The system may also have additional arrangements to supplement 
the comprehensive center. These arrangements include:
    (1) An affiliated site or a network of affiliated sites, where one 
or more partners make programs, services, and activities available, as 
described in Sec.  361.310;
    (2) A network of eligible one-stop partners, as described in 
Sec. Sec.  361.400 through 361.410, through which each partner provides 
one or more of the programs, services, and activities that are linked, 
physically or technologically, to an affiliated site or access point 
that assures customers are provided information on the availability of 
career services, as well as other program services and activities, 
regardless of where they initially enter the public workforce system in 
the local area; and
    (3) Specialized centers that address specific needs, including those 
of dislocated workers, youth, or key industry sectors, or clusters.
    (e) Required one-stop partner programs must provide access to 
programs, services, and activities through electronic means if 
applicable and practicable. This is in addition to providing access to 
services through the mandatory comprehensive physical one-stop center 
and any affiliated sites or specialized centers. The provision of 
programs and services by electronic methods such as Web sites, 
telephones, or other means must improve the efficiency, coordination, 
and quality of one-stop partner services. Electronic delivery must not 
replace access to such services at a comprehensive one-stop center or be 
a substitute to making services available at an affiliated site if the 
partner is participating in an affiliated site. Electronic delivery 
systems must be in compliance with the nondiscrimination and equal 
opportunity provisions of WIOA sec. 188 and its implementing regulations 
at 29 CFR part 38.
    (f) The design of the local area's one-stop delivery system must be 
described in the Memorandum of Understanding (MOU) executed with the 
one-stop partners, described in Sec.  361.500.



Sec.  361.305  What is a comprehensive one-stop center and what
must be provided there?

    (a) A comprehensive one-stop center is a physical location where job 
seeker and employer customers can access the programs, services, and 
activities of all required one-stop partners. A comprehensive one-stop 
center must have at least one title I staff person physically present.
    (b) The comprehensive one-stop center must provide:
    (1) Career services, described in Sec.  361.430;
    (2) Access to training services described in 20 CFR 680.200;
    (3) Access to any employment and training activities carried out 
under sec. 134(d) of WIOA;
    (4) Access to programs and activities carried out by one-stop 
partners listed in Sec. Sec.  361.400 through 361.410, including the 
Employment Service program authorized under the Wagner-Peyser Act, as 
amended by WIOA title III (Wagner-Peyser Act Employment Service 
program); and
    (5) Workforce and labor market information.
    (c) Customers must have access to these programs, services, and 
activities during regular business days at a comprehensive one-stop 
center. The Local

[[Page 372]]

Workforce Development Board (WDB) may establish other service hours at 
other times to accommodate the schedules of individuals who work on 
regular business days. The State WDB will evaluate the hours of access 
to service as part of the evaluation of effectiveness in the one-stop 
certification process described in Sec.  361.800(b).
    (d) ``Access'' to each partner program and its services means:
    (1) Having a program staff member physically present at the one-stop 
center;
    (2) Having a staff member from a different partner program 
physically present at the one-stop center appropriately trained to 
provide information to customers about the programs, services, and 
activities available through partner programs; or
    (3) Making available a direct linkage through technology to program 
staff who can provide meaningful information or services.
    (i) A ``direct linkage'' means providing direct connection at the 
one-stop center, within a reasonable time, by phone or through a real-
time Web-based communication to a program staff member who can provide 
program information or services to the customer.
    (ii) A ``direct linkage'' cannot exclusively be providing a phone 
number or computer Web site or providing information, pamphlets, or 
materials.
    (e) All comprehensive one-stop centers must be physically and 
programmatically accessible to individuals with disabilities, as 
described in 29 CFR part 38, the implementing regulations of WIOA sec. 
188.



Sec.  361.310  What is an affiliated site and what must be provided there?

    (a) An affiliated site, or affiliate one-stop center, is a site that 
makes available to job seeker and employer customers one or more of the 
one-stop partners' programs, services, and activities. An affiliated 
site does not need to provide access to every required one-stop partner 
program. The frequency of program staff's physical presence in the 
affiliated site will be determined at the local level. Affiliated sites 
are access points in addition to the comprehensive one-stop center(s) in 
each local area. If used by local areas as a part of the service 
delivery strategy, affiliate sites must be implemented in a manner that 
supplements and enhances customer access to services.
    (b) As described in Sec.  361.315, Wagner-Peyser Act employment 
services cannot be a stand-alone affiliated site.
    (c) States, in conjunction with the Local WDBs, must examine lease 
agreements and property holdings throughout the one-stop delivery system 
in order to use property in an efficient and effective way. Where 
necessary and appropriate, States and Local WDBs must take expeditious 
steps to align lease expiration dates with efforts to consolidate one-
stop operations into service points where Wagner-Peyser Act employment 
services are colocated as soon as reasonably possible. These steps must 
be included in the State Plan.
    (d) All affiliated sites must be physically and programmatically 
accessible to individuals with disabilities, as described in 29 CFR part 
38, the implementing regulations of WIOA sec. 188.



Sec.  361.315  Can a stand-alone Wagner-Peyser Act Employment Service
office be designated as an affiliated one-stop site?

    (a) Separate stand-alone Wagner-Peyser Act Employment Service 
offices are not permitted under WIOA, as also described in 20 CFR 
652.202.
    (b) If Wagner-Peyser Act employment services are provided at an 
affiliated site, there must be at least one or more other partners in 
the affiliated site with a physical presence of combined staff more than 
50 percent of the time the center is open. Additionally, the other 
partner must not be the partner administering local veterans' employment 
representatives, disabled veterans' outreach program specialists, or 
unemployment compensation programs. If Wagner-Peyser Act employment 
services and any of these 3 programs are provided at an affiliated site, 
an additional partner or partners must have a presence of combined staff 
in the center more than 50 percent of the time the center is open.

[[Page 373]]



Sec.  361.320  Are there any requirements for networks of eligible
one-stop partners or specialized centers?

    Any network of one-stop partners or specialized centers, as 
described in Sec.  361.300(d)(3), must be connected to the comprehensive 
one-stop center and any appropriate affiliate one-stop centers, for 
example, by having processes in place to make referrals to these centers 
and the partner programs located in them. Wagner-Peyser Act employment 
services cannot stand alone in a specialized center. Just as described 
in Sec.  361.315 for an affiliated site, a specialized center must 
include other programs besides Wagner-Peyser Act employment services, 
local veterans' employment representatives, disabled veterans' outreach 
program specialists, and unemployment compensation.



Sec.  361.400  Who are the required one-stop partners?

    (a) Section 121(b)(1)(B) of WIOA identifies the entities that are 
required partners in the local one-stop delivery systems.
    (b) The required partners are the entities responsible for 
administering the following programs and activities in the local area:
    (1) Programs authorized under title I of WIOA, including:
    (i) Adults;
    (ii) Dislocated workers;
    (iii) Youth;
    (iv) Job Corps;
    (v) YouthBuild;
    (vi) Native American programs; and
    (vii) Migrant and seasonal farmworker programs;
    (2) The Wagner-Peyser Act Employment Service program authorized 
under the Wagner-Peyser Act (29 U.S.C. 49 et seq.), as amended by WIOA 
title III;
    (3) The Adult Education and Family Literacy Act (AEFLA) program 
authorized under title II of WIOA;
    (4) The Vocational Rehabilitation (VR) program authorized under 
title I of the Rehabilitation Act of 1973 (29 U.S.C. 720 et seq.), as 
amended by WIOA title IV;
    (5) The Senior Community Service Employment Program authorized under 
title V of the Older Americans Act of 1965 (42 U.S.C. 3056 et seq.);
    (6) Career and technical education programs at the postsecondary 
level authorized under the Carl D. Perkins Career and Technical 
Education Act of 2006 (20 U.S.C. 2301 et seq.);
    (7) Trade Adjustment Assistance activities authorized under chapter 
2 of title II of the Trade Act of 1974 (19 U.S.C. 2271 et seq.);
    (8) Jobs for Veterans State Grants programs authorized under chapter 
41 of title 38, U.S.C.;
    (9) Employment and training activities carried out under the 
Community Services Block Grant (42 U.S.C. 9901 et seq.);
    (10) Employment and training activities carried out by the 
Department of Housing and Urban Development;
    (11) Programs authorized under State unemployment compensation laws 
(in accordance with applicable Federal law);
    (12) Programs authorized under sec. 212 of the Second Chance Act of 
2007 (42 U.S.C. 17532); and
    (13) Temporary Assistance for Needy Families (TANF) authorized under 
part A of title IV of the Social Security Act (42 U.S.C. 601 et seq.), 
unless exempted by the Governor under Sec.  361.405(b).



Sec.  361.405  Is Temporary Assistance for Needy Families a required
one-stop partner?

    (a) Yes, TANF, authorized under part A of title IV of the Social 
Security Act (42 U.S.C. 601 et seq.), is a required partner.
    (b) The Governor may determine that TANF will not be a required 
partner in the State, or within some specific local areas in the State. 
In this instance, the Governor must notify the Secretaries of the U.S. 
Departments of Labor and Health and Human Services in writing of this 
determination.
    (c) In States, or local areas within a State, where the Governor has 
determined that TANF is not required to be a partner, local TANF 
programs may still work in collaboration or partnership with the local 
one-stop centers to deliver employment and training services to the TANF 
population unless inconsistent with the Governor's direction.

[[Page 374]]



Sec.  361.410  What other entities may serve as one-stop partners?

    (a) Other entities that carry out a workforce development program, 
including Federal, State, or local programs and programs in the private 
sector, may serve as additional partners in the one-stop delivery system 
if the Local WDB and chief elected official(s) approve the entity's 
participation.
    (b) Additional partners may include, but are not limited to:
    (1) Employment and training programs administered by the Social 
Security Administration, including the Ticket to Work and Self-
Sufficiency Program established under sec. 1148 of the Social Security 
Act (42 U.S.C. 1320b-19);
    (2) Employment and training programs carried out by the Small 
Business Administration;
    (3) Supplemental Nutrition Assistance Program (SNAP) employment and 
training programs, authorized under secs. 6(d)(4) and 6(o) of the Food 
and Nutrition Act of 2008 (7 U.S.C. 2015(d)(4));
    (4) Client Assistance Program authorized under sec. 112 of the 
Rehabilitation Act of 1973 (29 U.S.C. 732);
    (5) Programs authorized under the National and Community Service Act 
of 1990 (42 U.S.C. 12501 et seq.); and
    (6) Other appropriate Federal, State or local programs, including, 
but not limited to, employment, education, and training programs 
provided by public libraries or in the private sector.



Sec.  361.415  What entity serves as the one-stop partner for a 
particular program in the local area?

    (a) The entity that carries out the program and activities listed in 
Sec.  361.400 or Sec.  361.410, and therefore serves as the one-stop 
partner, is the grant recipient, administrative entity, or organization 
responsible for administering the funds of the specified program in the 
local area. The term ``entity'' does not include the service providers 
that contract with, or are subrecipients of, the local administrative 
entity. For programs that do not include local administrative entities, 
the responsible State agency must be the partner. Specific entities for 
particular programs are identified in paragraphs (b) through (e) of this 
section. If a program or activity listed in Sec.  361.400 is not carried 
out in a local area, the requirements relating to a required one-stop 
partner are not applicable to such program or activity in that local 
one-stop delivery system.
    (b) For title II of WIOA, the entity or agency that carries out the 
program for the purposes of paragraph (a) of this section is the sole 
entity or agency in the State or outlying area responsible for 
administering or supervising policy for adult education and literacy 
activities in the State or outlying area. The State eligible entity or 
agency may delegate its responsibilities under paragraph (a) of this 
section to one or more eligible providers or consortium of eligible 
providers.
    (c) For the VR program, authorized under title I of the 
Rehabilitation Act of 1973, as amended by WIOA title IV, the entity that 
carries out the program for the purposes of paragraph (a) of this 
section is the designated State agencies or designated State units 
specified under sec. 101(a)(2) of the Rehabilitation Act that is 
primarily concerned with vocational rehabilitation, or vocational and 
other rehabilitation, of individuals with disabilities.
    (d) Under WIOA title I, the national programs, including Job Corps, 
the Native American program, YouthBuild, and Migrant and Seasonal 
Farmworker programs are required one-stop partners. The entity for the 
Native American program, YouthBuild, and Migrant and Seasonal Farmworker 
programs is the grantee of those respective programs. The entity for Job 
Corps is the Job Corps center.
    (e) For the Carl D. Perkins Career and Technical Education Act of 
2006, the entity that carries out the program for the purposes of 
paragraph (a) of this section is the eligible recipient or recipients at 
the postsecondary level, or a consortium of eligible recipients at the 
postsecondary level in the local area. The eligible recipient at the 
postsecondary level may also request assistance from the State eligible 
agency in completing its responsibilities under paragraph (a) of this 
section.

[[Page 375]]



Sec.  361.420  What are the roles and responsibilities of the
required one-stop partners?

    Each required partner must:
    (a) Provide access to its programs or activities through the one-
stop delivery system, in addition to any other appropriate locations;
    (b) Use a portion of funds made available to the partner's program, 
to the extent consistent with the Federal law authorizing the partner's 
program and with Federal cost principles in 2 CFR parts 200 and 3474 
(requiring, among other things, that costs are allowable, reasonable, 
necessary, and allocable), to:
    (1) Provide applicable career services; and
    (2) Work collaboratively with the State and Local WDBs to establish 
and maintain the one-stop delivery system. This includes jointly funding 
the one-stop infrastructure through partner contributions that are based 
upon:
    (i) A reasonable cost allocation methodology by which infrastructure 
costs are charged to each partner based on proportionate use and 
relative benefit received;
    (ii) Federal cost principles; and
    (iii) Any local administrative cost requirements in the Federal law 
authorizing the partner's program. (This is further described in Sec.  
361.700.)
    (c) Enter into an MOU with the Local WDB relating to the operation 
of the one-stop delivery system that meets the requirements of Sec.  
361.500(b);
    (d) Participate in the operation of the one-stop delivery system 
consistent with the terms of the MOU, requirements of authorizing laws, 
the Federal cost principles, and all other applicable legal 
requirements; and
    (e) Provide representation on the State and Local WDBs as required 
and participate in Board committees as needed.



Sec.  361.425  What are the applicable career services that must 
be provided through the one-stop delivery system by required 
one-stop partners?

    (a) The applicable career services to be delivered by required one-
stop partners are those services listed in Sec.  361.430 that are 
authorized to be provided under each partner's program.
    (b) One-stop centers provide services to individual customers based 
on individual needs, including the seamless delivery of multiple 
services to individual customers. There is no required sequence of 
services.



Sec.  361.430  What are career services?

    Career services, as identified in sec. 134(c)(2) of WIOA, consist of 
three types:
    (a) Basic career services must be made available and, at a minimum, 
must include the following services, as consistent with allowable 
program activities and Federal cost principles:
    (1) Determinations of whether the individual is eligible to receive 
assistance from the adult, dislocated worker, or youth programs;
    (2) Outreach, intake (including worker profiling), and orientation 
to information and other services available through the one-stop 
delivery system. For the TANF program, States must provide individuals 
with the opportunity to initiate an application for TANF assistance and 
non-assistance benefits and services, which could be implemented through 
the provision of paper application forms or links to the application Web 
site;
    (3) Initial assessment of skill levels including literacy, numeracy, 
and English language proficiency, as well as aptitudes, abilities 
(including skills gaps), and supportive services needs;
    (4) Labor exchange services, including--
    (i) Job search and placement assistance, and, when needed by an 
individual, career counseling, including--
    (A) Provision of information on in-demand industry sectors and 
occupations (as defined in sec. 3(23) of WIOA); and
    (B) Provision of information on nontraditional employment; and
    (ii) Appropriate recruitment and other business services on behalf 
of employers, including information and referrals to specialized 
business services other than those traditionally offered through the 
one-stop delivery system;
    (5) Provision of referrals to and coordination of activities with 
other programs and services, including programs and services within the 
one-stop delivery system and, when appropriate,

[[Page 376]]

other workforce development programs;
    (6) Provision of workforce and labor market employment statistics 
information, including the provision of accurate information relating to 
local, regional, and national labor market areas, including--
    (i) Job vacancy listings in labor market areas;
    (ii) Information on job skills necessary to obtain the vacant jobs 
listed; and
    (iii) Information relating to local occupations in demand and the 
earnings, skill requirements, and opportunities for advancement for 
those jobs;
    (7) Provision of performance information and program cost 
information on eligible providers of education, training, and workforce 
services by program and type of providers;
    (8) Provision of information, in usable and understandable formats 
and languages, about how the local area is performing on local 
performance accountability measures, as well as any additional 
performance information relating to the area's one-stop delivery system;
    (9) Provision of information, in usable and understandable formats 
and languages, relating to the availability of supportive services or 
assistance, and appropriate referrals to those services and assistance, 
including: Child care; child support; medical or child health assistance 
available through the State's Medicaid program and Children's Health 
Insurance Program; benefits under SNAP; assistance through the earned 
income tax credit; and assistance under a State program for TANF, and 
other supportive services and transportation provided through that 
program;
    (10) Provision of information and meaningful assistance to 
individuals seeking assistance in filing a claim for unemployment 
compensation.
    (i) ``Meaningful assistance'' means:
    (A) Providing assistance on-site using staff who are well-trained in 
unemployment compensation claims filing and the rights and 
responsibilities of claimants; or
    (B) Providing assistance by phone or via other technology, as long 
as the assistance is provided by trained and available staff and within 
a reasonable time.
    (ii) The costs associated in providing this assistance may be paid 
for by the State's unemployment insurance program, or the WIOA adult or 
dislocated worker programs, or some combination thereof.
    (11) Assistance in establishing eligibility for programs of 
financial aid assistance for training and education programs not 
provided under WIOA.
    (b) Individualized career services must be made available if 
determined to be appropriate in order for an individual to obtain or 
retain employment. These services include the following services, as 
consistent with program requirements and Federal cost principles:
    (1) Comprehensive and specialized assessments of the skill levels 
and service needs of adults and dislocated workers, which may include--
    (i) Diagnostic testing and use of other assessment tools; and
    (ii) In-depth interviewing and evaluation to identify employment 
barriers and appropriate employment goals;
    (2) Development of an individual employment plan, to identify the 
employment goals, appropriate achievement objectives, and appropriate 
combination of services for the participant to achieve his or her 
employment goals, including the list of, and information about, the 
eligible training providers (as described in 20 CFR 680.180);
    (3) Group counseling;
    (4) Individual counseling;
    (5) Career planning;
    (6) Short-term pre-vocational services including development of 
learning skills, communication skills, interviewing skills, punctuality, 
personal maintenance skills, and professional conduct services to 
prepare individuals for unsubsidized employment or training;
    (7) Internships and work experiences that are linked to careers (as 
described in 20 CFR 680.170);
    (8) Workforce preparation activities;
    (9) Financial literacy services as described in sec. 129(b)(2)(D) of 
WIOA and 20 CFR 681.500;
    (10) Out-of-area job search assistance and relocation assistance; 
and

[[Page 377]]

    (11) English language acquisition and integrated education and 
training programs.
    (c) Follow-up services must be provided, as appropriate, including: 
Counseling regarding the workplace, for participants in adult or 
dislocated worker workforce investment activities who are placed in 
unsubsidized employment, for up to 12 months after the first day of 
employment.
    (d) In addition to the requirements in paragraph (a)(2) of this 
section, TANF agencies must identify employment services and related 
support being provided by the TANF program (within the local area) that 
qualify as career services and ensure access to them via the local one-
stop delivery system.



Sec.  361.435  What are the business services provided through the
one-stop delivery system, and how are they provided?

    (a) Certain career services must be made available to local 
employers, specifically labor exchange activities and labor market 
information described in Sec.  361.430(a)(4)(ii) and (a)(6). Local areas 
must establish and develop relationships and networks with large and 
small employers and their intermediaries. Local areas also must develop, 
convene, or implement industry or sector partnerships.
    (b) Customized business services may be provided to employers, 
employer associations, or other such organizations. These services are 
tailored for specific employers and may include:
    (1) Customized screening and referral of qualified participants in 
training services to employers;
    (2) Customized services to employers, employer associations, or 
other such organizations, on employment-related issues;
    (3) Customized recruitment events and related services for employers 
including targeted job fairs;
    (4) Human resource consultation services, including but not limited 
to assistance with:
    (i) Writing/reviewing job descriptions and employee handbooks;
    (ii) Developing performance evaluation and personnel policies;
    (iii) Creating orientation sessions for new workers;
    (iv) Honing job interview techniques for efficiency and compliance;
    (v) Analyzing employee turnover;
    (vi) Creating job accommodations and using assistive technologies; 
or
    (vii) Explaining labor and employment laws to help employers comply 
with discrimination, wage/hour, and safety/health regulations;
    (5) Customized labor market information for specific employers, 
sectors, industries or clusters; and
    (6) Other similar customized services.
    (c) Local areas may also provide other business services and 
strategies that meet the workforce investment needs of area employers, 
in accordance with partner programs' statutory requirements and 
consistent with Federal cost principles. These business services may be 
provided through effective business intermediaries working in 
conjunction with the Local WDB, or through the use of economic 
development, philanthropic, and other public and private resources in a 
manner determined appropriate by the Local WDB and in cooperation with 
the State. Allowable activities, consistent with each partner's 
authorized activities, include, but are not limited to:
    (1) Developing and implementing industry sector strategies 
(including strategies involving industry partnerships, regional skills 
alliances, industry skill panels, and sectoral skills partnerships);
    (2) Customized assistance or referral for assistance in the 
development of a registered apprenticeship program;
    (3) Developing and delivering innovative workforce investment 
services and strategies for area employers, which may include career 
pathways, skills upgrading, skill standard development and certification 
for recognized postsecondary credential or other employer use, and other 
effective initiatives for meeting the workforce investment needs of area 
employers and workers;
    (4) Assistance to area employers in managing reductions in force in 
coordination with rapid response activities and with strategies for the 
aversion of layoffs, which may include strategies such as early 
identification of firms at risk of layoffs, use of feasibility studies 
to assess the needs of and options for

[[Page 378]]

at-risk firms, and the delivery of employment and training activities to 
address risk factors;
    (5) The marketing of business services to appropriate area 
employers, including small and mid-sized employers; and
    (6) Assisting employers with accessing local, State, and Federal tax 
credits.
    (d) All business services and strategies must be reflected in the 
local plan, described in 20 CFR 679.560(b)(3).



Sec.  361.440  When may a fee be charged for the business services
in this subpart?

    (a) There is no requirement that a fee-for-service be charged to 
employers.
    (b) No fee may be charged for services provided in Sec.  361.435(a).
    (c) A fee may be charged for services provided under Sec.  
361.435(b) and (c). Services provided under Sec.  361.435(c) may be 
provided through effective business intermediaries working in 
conjunction with the Local WDB and may also be provided on a fee-for-
service basis or through the leveraging of economic development, 
philanthropic, and other public and private resources in a manner 
determined appropriate by the Local WDB. The Local WDB may examine the 
services provided compared with the assets and resources available 
within the local one-stop delivery system and through its partners to 
determine an appropriate cost structure for services, if any.
    (d) Any fees earned are recognized as program income and must be 
expended by the partner in accordance with the partner program's 
authorizing statute, implementing regulations, and Federal cost 
principles identified in Uniform Guidance.



Sec.  361.500  What is the Memorandum of Understanding for the
one-stop delivery system and what must be included in the Memorandum
of Understanding?

    (a) The MOU is the product of local discussion and negotiation, and 
is an agreement developed and executed between the Local WDB and the 
one-stop partners, with the agreement of the chief elected official and 
the one-stop partners, relating to the operation of the one-stop 
delivery system in the local area. Two or more local areas in a region 
may develop a single joint MOU, if they are in a region that has 
submitted a regional plan under sec. 106 of WIOA.
    (b) The MOU must include:
    (1) A description of services to be provided through the one-stop 
delivery system, including the manner in which the services will be 
coordinated and delivered through the system;
    (2) Agreement on funding the costs of the services and the operating 
costs of the system, including:
    (i) Funding of infrastructure costs of one-stop centers in 
accordance with Sec. Sec.  361.700 through 361.755; and
    (ii) Funding of the shared services and operating costs of the one-
stop delivery system described in Sec.  361.760;
    (3) Methods for referring individuals between the one-stop operators 
and partners for appropriate services and activities;
    (4) Methods to ensure that the needs of workers, youth, and 
individuals with barriers to employment, including individuals with 
disabilities, are addressed in providing access to services, including 
access to technology and materials that are available through the one-
stop delivery system;
    (5) The duration of the MOU and procedures for amending it; and
    (6) Assurances that each MOU will be reviewed, and if substantial 
changes have occurred, renewed, not less than once every 3-year period 
to ensure appropriate funding and delivery of services.
    (c) The MOU may contain any other provisions agreed to by the 
parties that are consistent with WIOA title I, the authorizing statutes 
and regulations of one-stop partner programs, and the WIOA regulations.
    (d) When fully executed, the MOU must contain the signatures of the 
Local WDB, one-stop partners, the chief elected official(s), and the 
time period in which the agreement is effective. The MOU must be updated 
not less than every 3 years to reflect any changes in the signatory 
official of the Board, one-stop partners, and chief elected officials, 
or one-stop infrastructure funding.

[[Page 379]]

    (e) If a one-stop partner appeal to the State regarding 
infrastructure costs, using the process described in Sec.  361.750, 
results in a change to the one-stop partner's infrastructure cost 
contributions, the MOU must be updated to reflect the final one-stop 
partner infrastructure cost contributions.



Sec.  361.505  Is there a single Memorandum of Understanding for the
local area, or must there be different Memoranda of Understanding
between the Local Workforce Development Board and each partner?

    (a) A single ``umbrella'' MOU may be developed that addresses the 
issues relating to the local one-stop delivery system for the Local WDB, 
chief elected official and all partners. Alternatively, the Local WDB 
(with agreement of chief elected official) may enter into separate 
agreements between each partner or groups of partners.
    (b) Under either approach, the requirements described in Sec.  
361.500 apply. Since funds are generally appropriated annually, the 
Local WDB may negotiate financial agreements with each partner annually 
to update funding of services and operating costs of the system under 
the MOU.



Sec.  361.510  How must the Memorandum of Understanding be negotiated?

    (a) WIOA emphasizes full and effective partnerships between Local 
WDBs, chief elected officials, and one-stop partners. Local WDBs and 
partners must enter into good-faith negotiations. Local WDBs, chief 
elected officials, and one-stop partners may also request assistance 
from a State agency responsible for administering the partner program, 
the Governor, State WDB, or other appropriate parties on other aspects 
of the MOU.
    (b) Local WDBs and one-stop partners must establish, in the MOU, how 
they will fund the infrastructure costs and other shared costs of the 
one-stop centers. If agreement regarding infrastructure costs is not 
reached when other sections of the MOU are ready, an interim 
infrastructure funding agreement may be included instead, as described 
in Sec.  361.715(c). Once agreement on infrastructure funding is 
reached, the Local WDB and one-stop partners must amend the MOU to 
include the infrastructure funding of the one-stop centers. 
Infrastructure funding is described in detail in Sec. Sec.  361.700 
through 361.760.
    (c) The Local WDB must report to the State WDB, Governor, and 
relevant State agency when MOU negotiations with one-stop partners have 
reached an impasse.
    (1) The Local WDB and partners must document the negotiations and 
efforts that have taken place in the MOU. The State WDB, one-stop 
partner programs, and the Governor may consult with the appropriate 
Federal agencies to address impasse situations related to issues other 
than infrastructure funding after attempting to address the impasse. 
Impasses related to infrastructure cost funding must be resolved using 
the State infrastructure cost funding mechanism described in Sec.  
361.730.
    (2) The Local WDB must report failure to execute an MOU with a 
required partner to the Governor, State WDB, and the State agency 
responsible for administering the partner's program. Additionally, if 
the State cannot assist the Local WDB in resolving the impasse, the 
Governor or the State WDB must report the failure to the Secretary of 
Labor and to the head of any other Federal agency with responsibility 
for oversight of a partner's program.



Sec.  361.600  Who may operate one-stop centers?

    (a) One-stop operators may be a single entity (public, private, or 
nonprofit) or a consortium of entities. If the consortium of entities is 
one of one-stop partners, it must include a minimum of three of the one-
stop partners described in Sec.  361.400.
    (b) The one-stop operator may operate one or more one-stop centers. 
There may be more than one one-stop operator in a local area.
    (c) The types of entities that may be a one-stop operator include:
    (1) An institution of higher education;
    (2) An Employment Service State agency established under the Wagner-
Peyser Act;

[[Page 380]]

    (3) A community-based organization, nonprofit organization, or 
workforce intermediary;
    (4) A private for-profit entity;
    (5) A government agency;
    (6) A Local WDB, with the approval of the chief elected official and 
the Governor; or
    (7) Another interested organization or entity, which is capable of 
carrying out the duties of the one-stop operator. Examples may include a 
local chamber of commerce or other business organization, or a labor 
organization.
    (d) Elementary schools and secondary schools are not eligible as 
one-stop operators, except that a nontraditional public secondary school 
such as a night school, adult school, or an area career and technical 
education school may be selected.
    (e) The State and Local WDBs must ensure that, in carrying out WIOA 
programs and activities, one-stop operators:
    (1) Disclose any potential conflicts of interest arising from the 
relationships of the operators with particular training service 
providers or other service providers (further discussed in 20 CFR 
679.430);
    (2) Do not establish practices that create disincentives to 
providing services to individuals with barriers to employment who may 
require longer-term career and training services; and
    (3) Comply with Federal regulations and procurement policies 
relating to the calculation and use of profits, including those at 20 
CFR 683.295, the Uniform Guidance at 2 CFR part 200, and other 
applicable regulations and policies.



Sec.  361.605  How is the one-stop operator selected?

    (a) Consistent with paragraphs (b) and (c) of this section, the 
Local WDB must select the one-stop operator through a competitive 
process, as required by sec. 121(d)(2)(A) of WIOA, at least once every 4 
years. A State may require, or a Local WDB may choose to implement, a 
competitive selection process more than once every 4 years.
    (b) In instances in which a State is conducting the competitive 
process described in paragraph (a) of this section, the State must 
follow the same policies and procedures it uses for procurement with 
non-Federal funds.
    (c) All other non-Federal entities, including subrecipients of a 
State (such as local areas), must use a competitive process based on 
local procurement policies and procedures and the principles of 
competitive procurement in the Uniform Guidance set out at 2 CFR 200.318 
through 200.326. All references to ``noncompetitive proposals'' in the 
Uniform Guidance at 2 CFR 200.320(f) will be read as ``sole source 
procurement'' for the purposes of implementing this section.
    (d) Entities must prepare written documentation explaining the 
determination concerning the nature of the competitive process to be 
followed in selecting a one-stop operator.



Sec.  361.610  When is the sole-source selection of one-stop operators
appropriate, and how is it conducted?

    (a) States may select a one-stop operator through sole source 
selection when allowed under the same policies and procedures used for 
competitive procurement with non-Federal funds, while other non-Federal 
entities including subrecipients of a State (such as local areas) may 
select a one-stop operator through sole selection when consistent with 
local procurement policies and procedures and the Uniform Guidance set 
out at 2 CFR 200.320.
    (b) In the event that sole source procurement is determined 
necessary and reasonable, in accordance with Sec.  361.605(c), written 
documentation must be prepared and maintained concerning the entire 
process of making such a selection.
    (c) Such sole source procurement must include appropriate conflict 
of interest policies and procedures. These policies and procedures must 
conform to the specifications in 20 CFR 679.430 for demonstrating 
internal controls and preventing conflict of interest.
    (d) A Local WDB may be selected as a one-stop operator through sole 
source procurement only with agreement of the chief elected official in 
the local area and the Governor. The Local WDB must establish sufficient 
conflict of interest policies and procedures and these policies and 
procedures must be approved by the Governor.

[[Page 381]]



Sec.  361.615  May an entity currently serving as one-stop operator
compete to be a one-stop operator under the procurement requirements 
of this subpart?

    (a) Local WDBs may compete for and be selected as one-stop 
operators, as long as appropriate firewalls and conflict of interest 
policies and procedures are in place. These policies and procedures must 
conform to the specifications in 20 CFR 679.430 for demonstrating 
internal controls and preventing conflict of interest.
    (b) State and local agencies may compete for and be selected as one-
stop operators by the Local WDB, as long as appropriate firewalls and 
conflict of interest policies and procedures are in place. These 
policies and procedures must conform to the specifications in 20 CFR 
679.430 for demonstrating internal controls and preventing conflict of 
interest.
    (c) In the case of single-area States where the State WDB serves as 
the Local WDB, the State agency is eligible to compete for and be 
selected as operator as long as appropriate firewalls and conflict of 
interest policies are in place and followed for the competition. These 
policies and procedures must conform to the specifications in 20 CFR 
679.430 for demonstrating internal controls and preventing conflicts of 
interest.



Sec.  361.620  What is the one-stop operator's role?

    (a) At a minimum, the one-stop operator must coordinate the service 
delivery of required one-stop partners and service providers. Local WDBs 
may establish additional roles of one-stop operator, including, but not 
limited to: Coordinating service providers across the one-stop delivery 
system, being the primary provider of services within the center, 
providing some of the services within the center, or coordinating 
service delivery in a multi-center area, which may include affiliated 
sites. The competition for a one-stop operator must clearly articulate 
the role of the one-stop operator.
    (b)(1) Subject to paragraph (b)(2) of this section, a one-stop 
operator may not perform the following functions: Convene system 
stakeholders to assist in the development of the local plan; prepare and 
submit local plans (as required under sec. 107 of WIOA); be responsible 
for oversight of itself; manage or significantly participate in the 
competitive selection process for one-stop operators; select or 
terminate one-stop operators, career services, and youth providers; 
negotiate local performance accountability measures; or develop and 
submit budget for activities of the Local WDB in the local area.
    (2) An entity serving as a one-stop operator, that also serves a 
different role within the one-stop delivery system, may perform some or 
all of these functions when it is acting in its other role, if it has 
established sufficient firewalls and conflict of interest policies and 
procedures. The policies and procedures must conform to the 
specifications in 20 CFR 679.430 for demonstrating internal controls and 
preventing conflict of interest.



Sec.  361.625  Can a one-stop operator also be a service provider?

    Yes, but there must be appropriate firewalls in place in regards to 
the competition, and subsequent oversight, monitoring, and evaluation of 
performance of the service provider. The operator cannot develop, 
manage, or conduct the competition of a service provider in which it 
intends to compete. In cases where an operator is also a service 
provider, there must be firewalls and internal controls within the 
operator-service provider entity, as well as specific policies and 
procedures at the Local WDB level regarding oversight, monitoring, and 
evaluation of performance of the service provider. The firewalls must 
conform to the specifications in 20 CFR 679.430 for demonstrating 
internal controls and preventing conflicts of interest.



Sec.  361.630  Can State merit staff still work in a one-stop center
where the operator is not a governmental entity?

    Yes. State merit staff can continue to perform functions and 
activities in the one-stop center. The Local WDB and one-stop operator 
must establish a system for management of merit staff in accordance with 
State policies and procedures. Continued use of State

[[Page 382]]

merit staff for the provision of Wagner-Peyser Act services or services 
from other programs with merit staffing requirements must be included in 
the competition for and final contract with the one-stop operator when 
Wagner-Peyser Act services or services from other programs with merit 
staffing requirements are being provided.



Sec.  361.635  What is the compliance date of the provisions of
this subpart?

    (a) No later than July 1, 2017, one-stop operators selected under 
the competitive process described in this subpart must be in place and 
operating the one-stop center.
    (b) By November 17, 2016, every Local WDB must demonstrate it is 
taking steps to prepare for competition of its one-stop operator. This 
demonstration may include, but is not limited to, market research, 
requests for information, and conducting a cost and price analysis.



Sec.  361.700  What are the one-stop infrastructure costs?

    (a) Infrastructure costs of one-stop centers are nonpersonnel costs 
that are necessary for the general operation of the one-stop center, 
including:
    (1) Rental of the facilities;
    (2) Utilities and maintenance;
    (3) Equipment (including assessment-related products and assistive 
technology for individuals with disabilities); and
    (4) Technology to facilitate access to the one-stop center, 
including technology used for the center's planning and outreach 
activities.
    (b) Local WDBs may consider common identifier costs as costs of one-
stop infrastructure.
    (c) Each entity that carries out a program or activities in a local 
one-stop center, described in Sec. Sec.  361.400 through 361.410, must 
use a portion of the funds available for the program and activities to 
maintain the one-stop delivery system, including payment of the 
infrastructure costs of one-stop centers. These payments must be in 
accordance with this subpart; Federal cost principles, which require 
that all costs must be allowable, reasonable, necessary, and allocable 
to the program; and all other applicable legal requirements.



Sec.  361.705  What guidance must the Governor issue regarding one-stop
infrastructure funding?

    (a) The Governor, after consultation with chief elected officials, 
the State WDB, and Local WDBs, and consistent with guidance and policies 
provided by the State WDB, must develop and issue guidance for use by 
local areas, specifically:
    (1) Guidelines for State-administered one-stop partner programs for 
determining such programs' contributions to a one-stop delivery system, 
based on such programs' proportionate use of such system, and relative 
benefit received, consistent with Office of Management and Budget (OMB) 
Uniform Administrative Requirements, Cost Principles, and Audit 
Requirements for Federal Awards in 2 CFR part 200, including determining 
funding for the costs of infrastructure; and
    (2) Guidance to assist Local WDBs, chief elected officials, and one-
stop partners in local areas in determining equitable and stable methods 
of funding the costs of infrastructure at one-stop centers based on 
proportionate use and relative benefit received, and consistent with 
Federal cost principles contained in the Uniform Guidance at 2 CFR part 
200.
    (b) The guidance must include:
    (1) The appropriate roles of the one-stop partner programs in 
identifying one-stop infrastructure costs;
    (2) Approaches to facilitate equitable and efficient cost allocation 
that results in a reasonable cost allocation methodology where 
infrastructure costs are charged to each partner based on its 
proportionate use of the one-stop centers and relative benefit received, 
consistent with Federal cost principles at 2 CFR part 200; and
    (3) The timelines regarding notification to the Governor for not 
reaching local agreement and triggering the State funding mechanism 
described in Sec.  361.730, and timelines for a one-stop partner to 
submit an appeal in the State funding mechanism.

[[Page 383]]



Sec.  361.710  How are infrastructure costs funded?

    Infrastructure costs are funded either through the local funding 
mechanism described in Sec.  361.715 or through the State funding 
mechanism described in Sec.  361.730.



Sec.  361.715  How are one-stop infrastructure costs funded in the
local funding mechanism?

    (a) In the local funding mechanism, the Local WDB, chief elected 
officials, and one-stop partners agree to amounts and methods of 
calculating amounts each partner will contribute for one-stop 
infrastructure funding, include the infrastructure funding terms in the 
MOU, and sign the MOU. The local funding mechanism must meet all of the 
following requirements:
    (1) The infrastructure costs are funded through cash and fairly 
evaluated non-cash and third-party in-kind partner contributions and 
include any funding from philanthropic organizations or other private 
entities, or through other alternative financing options, to provide a 
stable and equitable funding stream for ongoing one-stop delivery system 
operations;
    (2) Contributions must be negotiated between one-stop partners, 
chief elected officials, and the Local WDB and the amount to be 
contributed must be included in the MOU;
    (3) The one-stop partner program's proportionate share of funding 
must be calculated in accordance with the Uniform Administrative 
Requirements, Cost Principles, and Audit Requirements for Federal Awards 
in 2 CFR part 200 based upon a reasonable cost allocation methodology 
whereby infrastructure costs are charged to each partner in proportion 
to its use of the one-stop center, relative to benefits received. Such 
costs must also be allowable, reasonable, necessary, and allocable;
    (4) Partner shares must be periodically reviewed and reconciled 
against actual costs incurred, and adjusted to ensure that actual costs 
charged to any one-stop partners are proportionate to the use of the 
one-stop center and relative to the benefit received by the one-stop 
partners and their respective programs or activities.
    (b) In developing the section of the MOU on one-stop infrastructure 
funding described in Sec.  361.755, the Local WDB and chief elected 
officials will:
    (1) Ensure that the one-stop partners adhere to the guidance 
identified in Sec.  361.705 on one-stop delivery system infrastructure 
costs.
    (2) Work with one-stop partners to achieve consensus and informally 
mediate any possible conflicts or disagreements among one-stop partners.
    (3) Provide technical assistance to new one-stop partners and local 
grant recipients to ensure that those entities are informed and 
knowledgeable of the elements contained in the MOU and the one-stop 
infrastructure costs arrangement.
    (c) The MOU may include an interim infrastructure funding agreement, 
including as much detail as the Local WDB has negotiated with one-stop 
partners, if all other parts of the MOU have been negotiated, in order 
to allow the partner programs to operate in the one-stop centers. The 
interim infrastructure funding agreement must be finalized within 6 
months of when the MOU is signed. If the interim infrastructure funding 
agreement is not finalized within that timeframe, the Local WDB must 
notify the Governor, as described in Sec.  361.725.



Sec.  361.720  What funds are used to pay for infrastructure costs
in the local one-stop infrastructure funding mechanism?

    (a) In the local funding mechanism, one-stop partner programs may 
determine what funds they will use to pay for infrastructure costs. The 
use of these funds must be in accordance with the requirements in this 
subpart, and with the relevant partner's authorizing statutes and 
regulations, including, for example, prohibitions against supplanting 
non-Federal resources, statutory limitations on administrative costs, 
and all other applicable legal requirements. In the case of partners 
administering programs authorized by title I of WIOA, these 
infrastructure costs may be considered program costs. In the case of 
partners administering adult education and literacy programs authorized 
by title II of WIOA, these funds must include Federal funds made

[[Page 384]]

available for the local administration of adult education and literacy 
programs authorized by title II of WIOA. These funds may also include 
non-Federal resources that are cash, in-kind or third-party 
contributions. In the case of partners administering the Carl D. Perkins 
Career and Technical Education Act of 2006, funds used to pay for 
infrastructure costs may include funds available for local 
administrative expenses, non-Federal resources that are cash, in-kind or 
third-party contributions, and may include other funds made available by 
the State.
    (b) There are no specific caps on the amount or percent of overall 
funding a one-stop partner may contribute to fund infrastructure costs 
under the local funding mechanism, except that contributions for 
administrative costs may not exceed the amount available for 
administrative costs under the authorizing statute of the partner 
program. However, amounts contributed for infrastructure costs must be 
allowable and based on proportionate use of the one-stop centers and 
relative benefit received by the partner program, taking into account 
the total cost of the one-stop infrastructure as well as alternate 
financing options, and must be consistent with 2 CFR part 200, including 
the Federal cost principles.
    (c) Cash, non-cash, and third-party in-kind contributions may be 
provided by one-stop partners to cover their proportionate share of 
infrastructure costs.
    (1) Cash contributions are cash funds provided to the Local WDB or 
its designee by one-stop partners, either directly or by an interagency 
transfer.
    (2) Non-cash contributions are comprised of--
    (i) Expenditures incurred by one-stop partners on behalf of the one-
stop center; and
    (ii) Non-cash contributions or goods or services contributed by a 
partner program and used by the one-stop center.
    (3) Non-cash contributions, especially those set forth in paragraph 
(c)(2)(ii) of this section, must be valued consistent with 2 CFR 200.306 
to ensure they are fairly evaluated and meet the partners' proportionate 
share.
    (4) Third-party in-kind contributions are:
    (i) Contributions of space, equipment, technology, non-personnel 
services, or other like items to support the infrastructure costs 
associated with one-stop operations, by a non-one-stop partner to 
support the one-stop center in general, not a specific partner; or
    (ii) Contributions by a non-one-stop partner of space, equipment, 
technology, non-personnel services, or other like items to support the 
infrastructure costs associated with one-stop operations, to a one-stop 
partner to support its proportionate share of one-stop infrastructure 
costs.
    (iii) In-kind contributions described in paragraphs (c)(4)(i) and 
(ii) of this section must be valued consistent with 2 CFR 200.306 and 
reconciled on a regular basis to ensure they are fairly evaluated and 
meet the proportionate share of the partner.
    (5) All partner contributions, regardless of the type, must be 
reconciled on a regular basis (i.e., monthly or quarterly), comparing 
actual expenses incurred to relative benefits received, to ensure each 
partner program is contributing its proportionate share in accordance 
with the terms of the MOU.



Sec.  361.725  What happens if consensus on infrastructure funding is
not reached at the local level between the Local Workforce Development
Board, chief elected officials, and one-stop partners?

    With regard to negotiations for infrastructure funding for Program 
Year (PY) 2017 and for each subsequent program year thereafter, if the 
Local WDB, chief elected officials, and one-stop partners do not reach 
consensus on methods of sufficiently funding local infrastructure 
through the local funding mechanism in accordance with the Governor's 
guidance issued under Sec.  361.705 and consistent with the regulations 
in Sec. Sec.  361.715 and 361.720, and include that consensus agreement 
in the signed MOU, then the Local WDB must notify the Governor by the 
deadline established by the Governor under Sec.  361.705(b)(3). Once 
notified, the Governor must administer funding through the State funding 
mechanism, as described in Sec. Sec.  361.730 through 361.738, for

[[Page 385]]

the program year impacted by the local area's failure to reach 
consensus.



Sec.  361.730  What is the State one-stop infrastructure funding
mechanism?

    (a) Consistent with sec. 121(h)(1)(A)(i)(II) of WIOA, if the Local 
WDB, chief elected official, and one-stop partners in a local area do 
not reach consensus agreement on methods of sufficiently funding the 
costs of infrastructure of one-stop centers for a program year, the 
State funding mechanism is applicable to the local area for that program 
year.
    (b) In the State funding mechanism, the Governor, subject to the 
limitations in paragraph (c) of this section, determines one-stop 
partner contributions after consultation with the chief elected 
officials, Local WDBs, and the State WDB. This determination involves:
    (1) The application of a budget for one-stop infrastructure costs as 
described in Sec.  361.735, based on either agreement reached in the 
local area negotiations or the State WDB formula outlined in Sec.  
361.745;
    (2) The determination of each local one-stop partner program's 
proportionate use of the one-stop delivery system and relative benefit 
received, consistent with the Uniform Guidance at 2 CFR part 200, 
including the Federal cost principles, the partner programs' authorizing 
laws and regulations, and other applicable legal requirements described 
in Sec.  361.736; and
    (3) The calculation of required statewide program caps on 
contributions to infrastructure costs from one-stop partner programs in 
areas operating under the State funding mechanism as described in Sec.  
361.738.
    (c) In certain situations, the Governor does not determine the 
infrastructure cost contributions for some one-stop partner programs 
under the State funding mechanism.
    (1) The Governor will not determine the contribution amounts for 
infrastructure funds for Native American program grantees described in 
20 CFR part 684. The appropriate portion of funds to be provided by 
Native American program grantees to pay for one-stop infrastructure must 
be determined as part of the development of the MOU described in Sec.  
361.500 and specified in that MOU.
    (2) In States in which the policy-making authority is placed in an 
entity or official that is independent of the authority of the Governor 
with respect to the funds provided for adult education and literacy 
activities authorized under title II of WIOA, postsecondary career and 
technical education activities authorized under the Carl D. Perkins 
Career and Technical Education Act of 2006, or VR services authorized 
under title I of the Rehabilitation Act of 1973 (other than sec. 112 or 
part C), as amended by WIOA title IV, the determination of the amount 
each of the applicable partners must contribute to assist in paying the 
infrastructure costs of one-stop centers must be made by the official or 
chief officer of the entity with such authority, in consultation with 
the Governor.
    (d) Any duty, ability, choice, responsibility, or other action 
otherwise related to the determination of infrastructure costs 
contributions that is assigned to the Governor in Sec. Sec.  361.730 
through 361.745 also applies to this decision-making process performed 
by the official or chief officer described in paragraph (c)(2) of this 
section.



Sec.  361.731  What are the steps to determine the amount to be
paid under the State one-stop infrastructure funding mechanism?

    (a) To initiate the State funding mechanism, a Local WDB that has 
not reached consensus on methods of sufficiently funding local 
infrastructure through the local funding mechanism as provided in Sec.  
361.725 must notify the Governor by the deadline established by the 
Governor under Sec.  361.705(b)(3).
    (b) Once a Local WDB has informed the Governor that no consensus has 
been reached:
    (1) The Local WDB must provide the Governor with local negotiation 
materials in accordance with Sec.  361.735(a).
    (2) The Governor must determine the one-stop center budget by 
either:
    (i) Accepting a budget previously agreed upon by partner programs in 
the local negotiations, in accordance with Sec.  361.735(b)(1); or

[[Page 386]]

    (ii) Creating a budget for the one-stop center using the State WDB 
formula (described in Sec.  361.745) in accordance with Sec.  
361.735(b)(3).
    (3) The Governor then must establish a cost allocation methodology 
to determine the one-stop partner programs' proportionate shares of 
infrastructure costs, in accordance with Sec.  361.736.
    (4)(i) Using the methodology established under paragraph (b)(2)(ii) 
of this section, and taking into consideration the factors concerning 
individual partner programs listed in Sec.  361.737(b)(2), the Governor 
must determine each partner's proportionate share of the infrastructure 
costs, in accordance with Sec.  361.737(b)(1), and
    (ii) In accordance with Sec.  361.730(c), in some instances, the 
Governor does not determine a partner program's proportionate share of 
infrastructure funding costs, in which case it must be determined by the 
entities named in Sec.  361.730(c)(1) and (2).
    (5) The Governor must then calculate the statewide caps on the 
amounts that partner programs may be required to contribute toward 
infrastructure funding, according to the steps found at Sec.  
361.738(a)(1) through (4).
    (6) The Governor must ensure that the aggregate total of the 
infrastructure contributions according to proportionate share required 
of all local partner programs in local areas under the State funding 
mechanism do not exceed the cap for that particular program, in 
accordance with Sec.  361.738(b)(1). If the total does not exceed the 
cap, the Governor must direct each one-stop partner program to pay the 
amount determined under Sec.  361.737(a) toward the infrastructure 
funding costs of the one-stop center. If the total does exceed the cap, 
then to determine the amount to direct each one-stop program to pay, the 
Governor may:
    (i) Ascertain, in accordance with Sec.  361.738(b)(2)(i), whether 
the local partner or partners whose proportionate shares are calculated 
above the individual program caps are willing to voluntarily contribute 
above the capped amount to equal that program's proportionate share; or
    (ii) Choose from the options provided in Sec.  361.738(b)(2)(ii), 
including having the local area re-enter negotiations to reassess each 
one-stop partner's proportionate share and make adjustments or identify 
alternate sources of funding to make up the difference between the 
capped amount and the proportionate share of infrastructure funding of 
the one-stop partner.
    (7) If none of the solutions given in paragraphs (b)(6)(i) and (ii) 
of this section prove to be viable, the Governor must reassess the 
proportionate shares of each one-stop partner so that the aggregate 
amount attributable to the local partners for each program is less than 
that program's cap amount. Upon such reassessment, the Governor must 
direct each one-stop partner program to pay the reassessed amount toward 
the infrastructure funding costs of the one-stop center.



Sec.  361.735  How are infrastructure cost budgets for the one-stop
centers in a local area determined in the State one-stop infrastructure
funding mechanism?

    (a) Local WDBs must provide to the Governor appropriate and relevant 
materials and documents used in the negotiations under the local funding 
mechanism, including but not limited to: the local WIOA plan, the cost 
allocation method or methods proposed by the partners to be used in 
determining proportionate share, the proposed amounts or budget to fund 
infrastructure, the amount of total partner funds included, the type of 
funds or non-cash contributions, proposed one-stop center budgets, and 
any agreed upon or proposed MOUs.
    (b)(1) If a local area has reached agreement as to the 
infrastructure budget for the one-stop centers in the local area, it 
must provide this budget to the Governor as required by paragraph (a) of 
this section. If, as a result of the agreed upon infrastructure budget, 
only the individual programmatic contributions to infrastructure funding 
based upon proportionate use of the one-stop centers and relative 
benefit received are at issue, the Governor may accept the budget, from 
which the Governor must calculate each partner's contribution consistent 
with the cost allocation methodologies contained in the Uniform Guidance 
found in 2 CFR part 200, as described in Sec.  361.736.

[[Page 387]]

    (2) The Governor may also take into consideration the extent to 
which the partners in the local area have agreed in determining the 
proportionate shares, including any agreements reached at the local 
level by one or more partners, as well as any other element or product 
of the negotiating process provided to the Governor as required by 
paragraph (a) of this section.
    (3) If a local area has not reached agreement as to the 
infrastructure budget for the one-stop centers in the local area, or if 
the Governor determines that the agreed upon budget does not adequately 
meet the needs of the local area or does not reasonably work within the 
confines of the local area's resources in accordance with the Governor's 
one-stop budget guidance (which is required to be issued by WIOA sec. 
121(h)(1)(B) and under Sec.  361.705), then, in accordance with Sec.  
361.745, the Governor must use the formula developed by the State WDB 
based on at least the factors required under Sec.  361.745, and any 
associated weights to determine the local area budget.



Sec.  361.736  How does the Governor establish a cost allocation
methodology used to determine the one-stop partner programs' 
proportionate shares of infrastructure costs under the State
one-stop infrastructure funding mechanism?

    Once the appropriate budget is determined for a local area through 
either method described in Sec.  361.735 (by acceptance of a budget 
agreed upon in local negotiation or by the Governor applying the formula 
detailed in Sec.  361.745), the Governor must determine the appropriate 
cost allocation methodology to be applied to the one-stop partners in 
such local area, consistent with the Federal cost principles permitted 
under 2 CFR part 200, to fund the infrastructure budget.



Sec.  361.737  How are one-stop partner programs' proportionate shares
of infrastructure costs determined under the State one-stop 
infrastructure funding mechanism?

    (a) The Governor must direct the one-stop partners in each local 
area that have not reached agreement under the local funding mechanism 
to pay what the Governor determines is each partner program's 
proportionate share of infrastructure funds for that area, subject to 
the application of the caps described in Sec.  361.738.
    (b)(1) The Governor must use the cost allocation methodology--as 
determined under Sec.  361.736--to determine each partner's 
proportionate share of the infrastructure costs under the State funding 
mechanism, subject to considering the factors described in paragraph 
(b)(2) of this section.
    (2) In determining each partner program's proportionate share of 
infrastructure costs, the Governor must take into account the costs of 
administration of the one-stop delivery system for purposes not related 
to one-stop centers for each partner (such as costs associated with 
maintaining the Local WDB or information technology systems), as well as 
the statutory requirements for each partner program, the partner 
program's ability to fulfill such requirements, and all other applicable 
legal requirements. The Governor may also take into consideration the 
extent to which the partners in the local area have agreed in 
determining the proportionate shares, including any agreements reached 
at the local level by one or more partners, as well as any other 
materials or documents of the negotiating process, which must be 
provided to the Governor by the Local WDB and described in Sec.  
361.735(a).



Sec.  361.738  How are statewide caps on the contributions for
one-stop infrastructure funding determined in the State one-stop 
infrastructure funding mechanism?

    (a) The Governor must calculate the statewide cap on the 
contributions for one-stop infrastructure funding required to be 
provided by each one-stop partner program for those local areas that 
have not reached agreement. The cap is the amount determined under 
paragraph (a)(4) of this section, which the Governor derives by:
    (1) First, determining the amount resulting from applying the 
percentage for the corresponding one-stop partner program provided in 
paragraph (d) of this section to the amount of Federal funds provided to 
carry out the one-stop partner program in the State for the applicable 
fiscal year;

[[Page 388]]

    (2) Second, selecting a factor (or factors) that reasonably 
indicates the use of one-stop centers in the State, applying such 
factor(s) to all local areas in the State, and determining the 
percentage of such factor(s) applicable to the local areas that reached 
agreement under the local funding mechanism in the State;
    (3) Third, determining the amount resulting from applying the 
percentage determined in paragraph (a)(2) of this section to the amount 
determined under paragraph (a)(1) of this section for the one-stop 
partner program; and
    (4) Fourth, determining the amount that results from subtracting the 
amount determined under paragraph (a)(3) of this section from the amount 
determined under paragraph (a)(1) of this section. The outcome of this 
final calculation results in the partner program's cap.
    (b)(1) The Governor must ensure that the funds required to be 
contributed by each partner program in the local areas in the State 
under the State funding mechanism, in aggregate, do not exceed the 
statewide cap for each program as determined under paragraph (a) of this 
section.
    (2) If the contributions initially determined under Sec.  361.737 
would exceed the applicable cap determined under paragraph (a) of this 
section, the Governor may:
    (i) Ascertain if the one-stop partner whose contribution would 
otherwise exceed the cap determined under paragraph (a) of this section 
will voluntarily contribute above the capped amount, so that the total 
contributions equal that partner's proportionate share. The one-stop 
partner's contribution must still be consistent with the program's 
authorizing laws and regulations, the Federal cost principles in 2 CFR 
part 200, and other applicable legal requirements; or
    (ii) Direct or allow the Local WDB, chief elected officials, and 
one-stop partners to: Re-enter negotiations, as necessary; reduce the 
infrastructure costs to reflect the amount of funds that are available 
for such costs without exceeding the cap levels; reassess the 
proportionate share of each one-stop partner; or identify alternative 
sources of financing for one-stop infrastructure funding, consistent 
with the requirement that each one-stop partner pay an amount that is 
consistent with the proportionate use of the one-stop center and 
relative benefit received by the partner, the program's authorizing laws 
and regulations, the Federal cost principles in 2 CFR part 200, and 
other applicable legal requirements.
    (3) If applicable under paragraph (b)(2)(ii) of this section, the 
Local WDB, chief elected officials, and one-stop partners, after 
renegotiation, may come to agreement, sign an MOU, and proceed under the 
local funding mechanism. Such actions do not require the redetermination 
of the applicable caps under paragraph (a) of this section.
    (4) If, after renegotiation, agreement among partners still cannot 
be reached or alternate financing cannot be identified, the Governor may 
adjust the specified allocation, in accordance with the amounts 
available and the limitations described in paragraph (d) of this 
section. In determining these adjustments, the Governor may take into 
account information relating to the renegotiation as well as the 
information described in Sec.  361.735(a).
    (c) Limitations. Subject to paragraph (a) of this section and in 
accordance with WIOA sec. 121(h)(2)(D), the following limitations apply 
to the Governor's calculations of the amount that one-stop partners in 
local areas that have not reached agreement under the local funding 
mechanism may be required under Sec.  361.736 to contribute to one-stop 
infrastructure funding:
    (1) WIOA formula programs and Wagner-Peyser Act Employment Service. 
The portion of funds required to be contributed under the WIOA youth, 
adult, or dislocated worker programs, or under the Wagner-Peyser Act (29 
U.S.C. 49 et seq.) must not exceed three percent of the amount of the 
program in the State for a program year.
    (2) Other one-stop partners. For required one-stop partners other 
than those specified in paragraphs (c)(1), (3), (5), and (6) of this 
section, the portion of funds required to be contributed must not exceed 
1.5 percent of the amount of Federal funds provided to carry out that 
program in the State for a fiscal year. For purposes of the Carl

[[Page 389]]

D. Perkins Career and Technical Education Act of 2006, the cap on 
contributions is determined based on the funds made available by the 
State for postsecondary level programs and activities under sec. 132 of 
the Carl D. Perkins Career and Technical Education Act and the amount of 
funds used by the State under sec. 112(a)(3) of the Perkins Act during 
the prior year to administer postsecondary level programs and 
activities, as applicable.
    (3) Vocational rehabilitation. (i) Within a State, for the entity or 
entities administering the programs described in WIOA sec. 
121(b)(1)(B)(iv) and Sec.  361.400, the allotment is based on the one 
State Federal fiscal year allotment, even in instances where that 
allotment is shared between two State agencies, and the cumulative 
portion of funds required to be contributed must not exceed--
    (A) 0.75 percent of the amount of Federal funds provided to carry 
out such program in the State for Fiscal Year 2016 for purposes of 
applicability of the State funding mechanism for PY 2017;
    (B) 1.0 percent of the amount provided to carry out such program in 
the State for Fiscal Year 2017 for purposes of applicability of the 
State funding mechanism for PY 2018;
    (C) 1.25 percent of the amount provided to carry out such program in 
the State for Fiscal Year 2018 for purposes of applicability of the 
State funding mechanism for PY 2019;
    (D) 1.5 percent of the amount provided to carry out such program in 
the State for Fiscal Year 2019 and following years for purposes of 
applicability of the State funding mechanism for PY 2020 and subsequent 
years.
    (ii) The limitations set forth in paragraph (d)(3)(i) of this 
section for any given fiscal year must be based on the final VR 
allotment to the State in the applicable Federal fiscal year.
    (4) Federal direct spending programs. For local areas that have not 
reached a one-stop infrastructure funding agreement by consensus, an 
entity administering a program funded with direct Federal spending, as 
defined in sec. 250(c)(8) of the Balanced Budget and Emergency Deficit 
Control Act of 1985, as in effect on February 15, 2014 (2 U.S.C. 
900(c)(8)), must not be required to provide more for infrastructure 
costs than the amount that the Governor determined (as described in 
Sec.  361.737).
    (5) TANF programs. For purposes of TANF, the cap on contributions is 
determined based on the total Federal TANF funds expended by the State 
for work, education, and training activities during the prior Federal 
fiscal year (as reported to the Department of Health and Human Services 
(HHS) on the quarterly TANF Financial Report form), plus any additional 
amount of Federal TANF funds that the State TANF agency reasonably 
determines was expended for administrative costs in connection with 
these activities but that was separately reported to HHS as an 
administrative cost. The State's contribution to the one-stop 
infrastructure must not exceed 1.5 percent of these combined 
expenditures.
    (6) Community Services Block Grant (CSBG) programs. For purposes of 
CSBG, the cap on contributions will be based on the total amount of CSBG 
funds determined by the State to have been expended by local CSBG-
eligible entities for the provision of employment and training 
activities during the prior Federal fiscal year for which information is 
available (as reported to HHS on the CSBG Annual Report) and any 
additional amount that the State CSBG agency reasonably determines was 
expended for administrative purposes in connection with these activities 
and was separately reported to HHS as an administrative cost. The 
State's contribution must not exceed 1.5 percent of these combined 
expenditures.
    (d) For programs for which it is not otherwise feasible to determine 
the amount of Federal funding used by the program until the end of that 
program's operational year--because, for example, the funding available 
for education, employment, and training activities is included within 
funding for the program that may also be used for other unrelated 
activities--the determination of the Federal funds provided to carry out 
the program for a fiscal year under paragraph (a)(1) of this section may 
be determined by:

[[Page 390]]

    (1) The percentage of Federal funds available to the one-stop 
partner program that were used by the one-stop partner program for 
education, employment, and training activities in the previous fiscal 
year for which data are available; and
    (2) Applying the percentage determined under paragraph (d)(1) of 
this section to the total amount of Federal funds available to the one-
stop partner program for the fiscal year for which the determination 
under paragraph (a)(1) of this section applies.



Sec.  361.740  What funds are used to pay for infrastructure costs in
the State one-stop infrastructure funding mechanism?

    (a) In the State funding mechanism, infrastructure costs for WIOA 
title I programs, including Native American Programs described in 20 CFR 
part 684, may be paid using program funds, administrative funds, or 
both. Infrastructure costs for the Senior Community Service Employment 
Program under title V of the Older Americans Act (42 U.S.C. 3056 et 
seq.) may also be paid using program funds, administrative funds, or 
both.
    (b) In the State funding mechanism, infrastructure costs for other 
required one-stop partner programs (listed in Sec. Sec.  361.400 through 
361.410) are limited to the program's administrative funds, as 
appropriate.
    (c) In the State funding mechanism, infrastructure costs for the 
adult education program authorized by title II of WIOA must be paid from 
the funds that are available for local administration and may be paid 
from funds made available by the State or non-Federal resources that are 
cash, in-kind, or third-party contributions.
    (d) In the State funding mechanism, infrastructure costs for the 
Carl D. Perkins Career and Technical Education Act of 2006 must be paid 
from funds available for local administration of postsecondary level 
programs and activities to eligible recipients or consortia of eligible 
recipients and may be paid from funds made available by the State or 
non-Federal resources that are cash, in-kind, or third-party 
contributions.



Sec.  361.745  What factors does the State Workforce Development
Board use to develop the formula described in Workforce Innovation
and Opportunity Act, which is used by the Governor to determine the
appropriate one-stop infrastructure budget for each local area operating
under the State infrastructure funding mechanism, if no reasonably 
implementable locally negotiated budget exists?

    The State WDB must develop a formula, as described in WIOA sec. 
121(h)(3)(B), to be used by the Governor under Sec.  361.735(b)(3) in 
determining the appropriate budget for the infrastructure costs of one-
stop centers in the local areas that do not reach agreement under the 
local funding mechanism and are, therefore, subject to the State funding 
mechanism. The formula identifies the factors and corresponding weights 
for each factor that the Governor must use, which must include: The 
number of one-stop centers in a local area; the population served by 
such centers; the services provided by such centers; and any factors 
relating to the operations of such centers in the local area that the 
State WDB determines are appropriate. As indicated in Sec.  
361.735(b)(1), if the local area has agreed on such a budget, the 
Governor may accept that budget in lieu of applying the formula factors.



Sec.  361.750  When and how can a one-stop partner appeal a one-stop
infrastructure amount designated by the State under the State 
infrastructure funding mechanism?

    (a) The Governor must establish a process, described under sec. 
121(h)(2)(E) of WIOA, for a one-stop partner administering a program 
described in Sec. Sec.  361.400 through 361.410 to appeal the Governor's 
determination regarding the one-stop partner's portion of funds to be 
provided for one-stop infrastructure costs. This appeal process must be 
described in the Unified State Plan.
    (b) The appeal may be made on the ground that the Governor's 
determination is inconsistent with proportionate share requirements in 
Sec.  361.735(a), the cost contribution limitations in Sec.  361.735(b), 
the cost contribution caps

[[Page 391]]

in Sec.  361.738, consistent with the process described in the State 
Plan.
    (c) The process must ensure prompt resolution of the appeal in order 
to ensure the funds are distributed in a timely manner, consistent with 
the requirements of 20 CFR 683.630.
    (d) The one-stop partner must submit an appeal in accordance with 
State's deadlines for appeals specified in the guidance issued under 
Sec.  361.705(b)(3), or if the State has not set a deadline, within 21 
days from the Governor's determination.



Sec.  361.755  What are the required elements regarding infrastructure
funding that must be included in the one-stop Memorandum of Understanding?

    The MOU, fully described in Sec.  361.500, must contain the 
following information whether the local areas use either the local one-
stop or the State funding method:
    (a) The period of time in which this infrastructure funding 
agreement is effective. This may be a different time period than the 
duration of the MOU.
    (b) Identification of an infrastructure and shared services budget 
that will be periodically reconciled against actual costs incurred and 
adjusted accordingly to ensure that it reflects a cost allocation 
methodology that demonstrates how infrastructure costs are charged to 
each partner in proportion to its use of the one-stop center and 
relative benefit received, and that complies with 2 CFR part 200 (or any 
corresponding similar regulation or ruling).
    (c) Identification of all one-stop partners, chief elected 
officials, and Local WDB participating in the infrastructure funding 
arrangement.
    (d) Steps the Local WDB, chief elected officials, and one-stop 
partners used to reach consensus or an assurance that the local area 
followed the guidance for the State funding process.
    (e) Description of the process to be used among partners to resolve 
issues during the MOU duration period when consensus cannot be reached.
    (f) Description of the periodic modification and review process to 
ensure equitable benefit among one-stop partners.



Sec.  361.760  How do one-stop partners jointly fund other shared
costs under the Memorandum of Understanding?

    (a) In addition to jointly funding infrastructure costs, one-stop 
partners listed in Sec. Sec.  361.400 through 361.410 must use a portion 
of funds made available under their programs' authorizing Federal law 
(or fairly evaluated in-kind contributions) to pay the additional costs 
relating to the operation of the one-stop delivery system. These other 
costs must include applicable career services and may include other 
costs, including shared services.
    (b) For the purposes of paragraph (a) of this section, shared 
services' costs may include the costs of shared services that are 
authorized for and may be commonly provided through the one-stop partner 
programs to any individual, such as initial intake, assessment of needs, 
appraisal of basic skills, identification of appropriate services to 
meet such needs, referrals to other one-stop partners, and business 
services. Shared operating costs may also include shared costs of the 
Local WDB's functions.
    (c) Contributions to the additional costs related to operation of 
the one-stop delivery system may be cash, non-cash, or third-party in-
kind contributions, consistent with how these are described in Sec.  
361.720(c).
    (d) The shared costs described in paragraph (a) of this section must 
be allocated according to the proportion of benefit received by each of 
the partners, consistent with the Federal law authorizing the partner's 
program, and consistent with all other applicable legal requirements, 
including Federal cost principles in 2 CFR part 200 (or any 
corresponding similar regulation or ruling) requiring that costs are 
allowable, reasonable, necessary, and allocable.
    (e) Any shared costs agreed upon by the one-stop partners must be 
included in the MOU.

[[Page 392]]



Sec.  361.800  How are one-stop centers and one-stop delivery systems
certified for effectiveness, physical and programmatic accessibility,
and continuous improvement?

    (a) The State WDB, in consultation with chief elected officials and 
Local WDBs, must establish objective criteria and procedures for Local 
WDBs to use when certifying one-stop centers.
    (1) The State WDB, in consultation with chief elected officials and 
Local WDBs, must review and update the criteria every 2 years as part of 
the review and modification of State Plans pursuant to Sec.  361.135.
    (2) The criteria must be consistent with the Governor's and State 
WDB's guidelines, guidance, and policies on infrastructure funding 
decisions, described in Sec.  361.705. The criteria must evaluate the 
one-stop centers and one-stop delivery system for effectiveness, 
including customer satisfaction, physical and programmatic 
accessibility, and continuous improvement.
    (3) When the Local WDB is the one-stop operator as described in 20 
CFR 679.410, the State WDB must certify the one-stop center.
    (b) Evaluations of effectiveness must include how well the one-stop 
center integrates available services for participants and businesses, 
meets the workforce development needs of participants and the employment 
needs of local employers, operates in a cost-efficient manner, 
coordinates services among the one-stop partner programs, and provides 
access to partner program services to the maximum extent practicable, 
including providing services outside of regular business hours where 
there is a workforce need, as identified by the Local WDB. These 
evaluations must take into account feedback from one-stop customers. 
They must also include evaluations of how well the one-stop center 
ensures equal opportunity for individuals with disabilities to 
participate in or benefit from one-stop center services. These 
evaluations must include criteria evaluating how well the centers and 
delivery systems take actions to comply with the disability-related 
regulations implementing WIOA sec. 188, set forth at 29 CFR part 38. 
Such actions include, but are not limited to:
    (1) Providing reasonable accommodations for individuals with 
disabilities;
    (2) Making reasonable modifications to policies, practices, and 
procedures where necessary to avoid discrimination against persons with 
disabilities;
    (3) Administering programs in the most integrated setting 
appropriate;
    (4) Communicating with persons with disabilities as effectively as 
with others;
    (5) Providing appropriate auxiliary aids and services, including 
assistive technology devices and services, where necessary to afford 
individuals with disabilities an equal opportunity to participate in, 
and enjoy the benefits of, the program or activity; and
    (6) Providing for the physical accessibility of the one-stop center 
to individuals with disabilities.
    (c) Evaluations of continuous improvement must include how well the 
one-stop center supports the achievement of the negotiated local levels 
of performance for the indicators of performance for the local area 
described in sec. 116(b)(2) of WIOA and part 361. Other continuous 
improvement factors may include a regular process for identifying and 
responding to technical assistance needs, a regular system of continuing 
professional staff development, and having systems in place to capture 
and respond to specific customer feedback.
    (d) Local WDBs must assess at least once every 3 years the 
effectiveness, physical and programmatic accessibility, and continuous 
improvement of one-stop centers and the one-stop delivery systems using 
the criteria and procedures developed by the State WDB. The Local WDB 
may establish additional criteria, or set higher standards for service 
coordination, than those set by the State criteria. Local WDBs must 
review and update the criteria every 2 years as part of the Local Plan 
update process described in Sec.  361.580. Local WDBs must certify one-
stop centers in order to be eligible to use infrastructure funds in the 
State funding mechanism described in Sec.  361.730.
    (e) All one-stop centers must comply with applicable physical and 
programmatic accessibility requirements,

[[Page 393]]

as set forth in 29 CFR part 38, the implementing regulations of WIOA 
sec. 188.



Sec.  361.900  What is the common identifier to be used by each 
one-stop delivery system?

    (a) The common one-stop delivery system identifier is ``American Job 
Center.''
    (b) As of November 17, 2016, each one-stop delivery system must 
include the ``American Job Center'' identifier or ``a proud partner of 
the American Job Center network'' on all primary electronic resources 
used by the one-stop delivery system, and on any newly printed, 
purchased, or created materials.
    (c) As of July 1, 2017, each one-stop delivery system must include 
the ``American Job Center'' identifier or ``a proud partner of the 
American Job Center network'' on all products, programs, activities, 
services, electronic resources, facilities, and related property and new 
materials used in the one-stop delivery system.
    (d) One-stop partners, States, or local areas may use additional 
identifiers on their products, programs, activities, services, 
facilities, and related property and materials.



PART 363_THE STATE SUPPORTED EMPLOYMENT SERVICES PROGRAM--Table of Contents



                            Subpart A_General

Sec.
363.1 What is the State Supported Employment Services program?
363.2 Who is eligible for an award?
363.3 Who is eligible for services?
363.4 What are the authorized activities under the State Supported 
          Employment Services program?
363.5 What regulations apply?
363.6 What definitions apply?

              Subpart B_How Does a State Apply for a Grant?

363.10 What documents must a State submit to receive a grant?
363.11 What are the vocational rehabilitation services portion of the 
          Unified or Combined State Plan supplement requirements?

Subpart C_How Are State Supported Employment Services Programs Financed?

363.20 How does the Secretary allot funds?
363.21 How does the Secretary reallot funds?
363.22 How are funds reserved for youth with the most significant 
          disabilities?
363.23 What are the matching requirements?
363.24 What is program income and how may it be used?
363.25 What is the period of availability of funds?

Subparts D-E [Reserved]

      Subpart F_What Post-Award Conditions Must Be Met by a State?

363.50 What collaborative agreements must the State develop?
363.51 What are the allowable administrative costs?
363.52 What are the information collection and reporting requirements?
363.53 What requirements must a designated State unit meet for the 
          transition of an individual to extended services?
363.54 When will an individual be considered to have achieved an 
          employment outcome in supported employment?
363.55 When will the service record of an individual who has achieved an 
          employment outcome in supported employment be closed?
363.56 What notice requirements apply to this program?

    Authority: Sections 602-608 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 795g-795m, unless otherwise noted.

    Source: 81 FR 55780, Aug. 19, 2016, unless otherwise noted.



                            Subpart A_General



Sec.  363.1  What is the State Supported Employment Services program?

    (a) Under the State supported employment services program, the 
Secretary provides grants to assist States in developing and 
implementing collaborative programs with appropriate entities to provide 
programs of supported employment services for individuals with the most 
significant disabilities, including youth with the most significant 
disabilities, to enable them to achieve an employment outcome of 
supported employment in competitive integrated employment. Grants made 
under the State supported

[[Page 394]]

employment services program supplement a State's vocational 
rehabilitation program grants under 34 CFR part 361.
    (b) For purposes of this part and 34 CFR part 361, ``supported 
employment'' means competitive integrated employment, including 
customized employment, or employment in an integrated work setting in 
which an individual with a most significant disability, including a 
youth with a most significant disability, is working on a short-term 
basis toward competitive integrated employment, that is individualized 
and customized, consistent with the unique strengths, abilities, 
interests, and informed choice of the individual, including with ongoing 
support services for individuals with the most significant 
disabilities--
    (1)(i) For whom competitive integrated employment has not 
historically occurred; or
    (ii) For whom competitive integrated employment has been interrupted 
or intermittent as a result of a significant disability; and
    (2) Who, because of the nature and severity of the disability, need 
intensive supported employment services, and extended services after the 
transition from support provided by the designated State unit in order 
to perform the work.
    (c) Short-term basis. For purposes of this part, an individual with 
a most significant disability, whose supported employment in an 
integrated setting does not satisfy the criteria of competitive 
integrated employment, as defined in 34 CFR 361.5(c)(9), is considered 
to be working on a short-term basis toward competitive integrated 
employment so long as the individual can reasonably anticipate achieving 
competitive integrated employment--
    (1) Within six months of achieving a supported employment outcome; 
or,
    (2) In limited circumstances, within a period not to exceed 12 
months from the achievement of the supported employment outcome, if a 
longer period is necessary based on the needs of the individual, and the 
individual has demonstrated progress toward competitive earnings based 
on information contained in the service record.

(Authority: Sections 7(38), 7(39), 12(c), and 602 of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 705(38) 705(39), 709(c), and 795g)



Sec.  363.2  Who is eligible for an award?

    Any State that submits the documentation required by Sec.  363.10, 
as part of the vocational rehabilitation services portion of the Unified 
or Combined State Plan under 34 CFR part 361, is eligible for an award 
under this part.

(Authority: Section 606(a) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 795k(a))



Sec.  363.3  Who is eligible for services?

    A State may provide services under this part to any individual, 
including a youth with a disability, if--
    (a) The individual has been determined to be--
    (1) Eligible for vocational rehabilitation services in accordance 
with 34 CFR 361.42; and
    (2) An individual with a most significant disability;
    (b) For purposes of activities carried out under Sec.  363.4(a)(2), 
the individual is a youth with a disability, as defined in 34 CFR 
361.5(c)(59), who satisfies the requirements of this section; and
    (c) Supported employment has been identified as the appropriate 
employment outcome for the individual on the basis of a comprehensive 
assessment of rehabilitation needs, as defined in 34 CFR 361.5(c)(5), 
including an evaluation of rehabilitation, career, and job needs.

(Authority: Section 605 of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 795j)



Sec.  363.4  What are the authorized activities under the State 
Supported Employment Services program?

    (a) The State may use funds allotted under this part to--
    (1) Provide supported employment services, as defined in 34 CFR 
361.5(c)(54);
    (2) Provide extended services, as defined in 34 CFR 361.5(c)(19), to 
youth with the most significant disabilities, in accordance with Sec.  
363.11(f), for a period of time not to exceed four years, or until such 
time that a youth reaches the age of 25 and no longer meets the

[[Page 395]]

definition of a youth with a disability under 34 CFR 361.5(c)(58), 
whichever occurs first; and
    (3) With funds reserved, in accordance with Sec.  363.22 for the 
provision of supported employment services to youth with the most 
significant disabilities, leverage other public and private funds to 
increase resources for extended services and expand supported employment 
opportunities.
    (b) Except as provided in paragraph (a)(2) of this section, a State 
may not use funds under this part to provide extended services to 
individuals with the most significant disabilities.
    (c) Nothing in this part will be construed to prohibit a State from 
providing--
    (1) Supported employment services in accordance with the vocational 
rehabilitation services portion of the Unified or Combined State Plan 
submitted under 34 CFR part 361 by using funds made available through a 
State allotment under that part.
    (2) Discrete postemployment services in accordance with 34 CFR 
361.48(b) by using funds made available under 34 CFR part 361 to an 
individual who is eligible under this part.
    (d) A State must coordinate with the entities described in Sec.  
363.50(a) regarding the services provided to individuals with the most 
significant disabilities, including youth with the most significant 
disabilities, under this part and under 34 CFR part 361 to ensure that 
the services are complementary and not duplicative.

(Authority: Sections 7(39), 12(c), 604, 606(b)(6), and 608 of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(39), 709(c), 795i, 
795k(b)(6), and 795m)



Sec.  363.5  What regulations apply?

    The following regulations apply to the State supported employment 
services program:
    (a) The Education Department General Administrative Regulations 
(EDGAR) as follows:
    (1) 34 CFR part 76 (State-Administered Programs).
    (2) 34 CFR part 77 (Definitions that Apply to Department 
Regulations).
    (3) 34 CFR part 79 (Intergovernmental Review of Department of 
Education Programs and Activities).
    (4) 34 CFR part 81 (General Education Provisions Act--Enforcement).
    (5) 34 CFR part 82 (New Restrictions on Lobbying).
    (b) The regulations in this part 363.
    (c) The following regulations in 34 CFR part 361 (The State 
Vocational Rehabilitation Services Program): Sec. Sec.  361.5, 361.31, 
361.32, 361.34, 361.35, 361.39, 361.40, 361.41, 361.42, 361.47(a), 
361.48, 361.49, and 361.53.
    (d) 2 CFR part 200 (Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards), as adopted in 2 
CFR part 3474.
    (e) 2 CFR part 180 (OMB Guidelines to Agencies on Governmentwide 
Debarment and Suspension (Nonprocurement)), as adopted in 2 CFR part 
3485.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))



Sec.  363.6  What definitions apply?

    The following definitions apply to this part:
    (a) Definitions in 34 CFR part 361.
    (b) Definitions in 34 CFR part 77.
    (c) Definitions in 2 CFR part 200, subpart A.

(Authority: Sections 7 and 12(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 705 and 709(c))



              Subpart B_How Does a State Apply for a Grant?



Sec.  363.10  What documents must a State submit to receive a grant?

    (a) To be eligible to receive a grant under this part, a State must 
submit to the Secretary, as part of the vocational rehabilitation 
services portion of the Unified or Combined State Plan under 34 CFR part 
361, a State plan supplement that meets the requirements of Sec.  
363.11.
    (b) A State must submit revisions to the vocational rehabilitation 
services portion of the Unified or Combined State Plan supplement 
submitted under this part as may be necessary.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Section 606(a) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 795k(a))

[[Page 396]]



Sec.  363.11  What are the vocational rehabilitation services portion
of the Unified or Combined State Plan supplement requirements?

    Each State plan supplement, submitted in accordance with Sec.  
363.10, must--
    (a) Designate a designated State unit or, as applicable, units, as 
defined in 34 CFR 361.5(c)(13), as the State agency or agencies to 
administer the Supported Employment program under this part;
    (b) Summarize the results of the needs assessment of individuals 
with most significant disabilities, including youth with the most 
significant disabilities, conducted under 34 CFR 361.29(a), with respect 
to the rehabilitation and career needs of individuals with most 
significant disabilities and their need for supported employment 
services. The results of the needs assessment must also address needs 
relating to coordination;
    (c) Describe the quality, scope, and extent of supported employment 
services to be provided to eligible individuals with the most 
significant disabilities under this part, including youth with the most 
significant disabilities;
    (d) Describe the State's goals and plans with respect to the 
distribution of funds received under Sec.  363.20;
    (e) Demonstrate evidence of the designated State unit's efforts to 
identify and make arrangements, including entering into cooperative 
agreements, with--
    (1) Other State agencies and other appropriate entities to assist in 
the provision of supported employment services; and
    (2) Other public or non-profit agencies or organizations within the 
State, employers, natural supports, and other entities with respect to 
the provision of extended services;
    (f) Describe the activities to be conducted for youth with the most 
significant disabilities with the funds reserved in accordance with 
Sec.  363.22, including--
    (1) The provision of extended services to youth with the most 
significant disabilities for a period not to exceed four years, in 
accordance with Sec.  363.4(a)(2); and
    (2) How the State will use supported employment funds reserved under 
Sec.  363.22 to leverage other public and private funds to increase 
resources for extended services and expand supported employment 
opportunities for youth with the most significant disabilities;
    (g) Assure that--
    (1) Funds made available under this part will only be used to 
provide authorized supported employment services to individuals who are 
eligible under this part to receive such services;
    (2) The comprehensive assessments of individuals with significant 
disabilities, including youth with the most significant disabilities, 
conducted under 34 CFR part 361 will include consideration of supported 
employment as an appropriate employment outcome;
    (3) An individualized plan for employment, as described in 34 CFR 
361.45 and 361.46, will be developed and updated, using funds received 
under 34 CFR part 361, in order to--
    (i) Specify the supported employment services to be provided, 
including, as appropriate, transition services and pre-employment 
transition services to be provided for youth with the most significant 
disabilities;
    (ii) Specify the expected extended services needed, including the 
extended services that may be provided under this part to youth with the 
most significant disabilities in accordance with an approved 
individualized plan for employment for a period not to exceed four 
years; and
    (iii) Identify, as appropriate, the source of extended services, 
which may include natural supports, programs, or other entities, or an 
indication that it is not possible to identify the source of extended 
services at the time the individualized plan for employment is 
developed;
    (4) The State will use funds provided under this part only to 
supplement, and not supplant, the funds received under 34 CFR part 361, 
in providing supported employment services specified in the 
individualized plan for employment;
    (5) Services provided under an individualized plan for employment 
will be coordinated with services provided under other individualized 
plans established under other Federal or State programs;

[[Page 397]]

    (6) To the extent job skills training is provided, the training will 
be provided onsite;
    (7) Supported employment services will include placement in an 
integrated setting based on the unique strengths, resources, interests, 
concerns, abilities, and capabilities of individuals with the most 
significant disabilities, including youth with the most significant 
disabilities;
    (8) The designated State agency or agencies, as described in 
paragraph (a) of this section, will expend no more than 2.5 percent of 
the State's allotment under this part for administrative costs of 
carrying out this program; and
    (9) The designated State agency or agencies will provide, directly 
or indirectly through public or private entities, non-Federal 
contributions in an amount that is not less than 10 percent of the costs 
of carrying out supported employment services provided to youth with the 
most significant disabilities with the funds reserved for such purpose 
under Sec.  363.22; and
    (h) Contain any other information and be submitted in the form and 
in accordance with the procedures that the Secretary may require.

(Approved by the Office of Management and Budget under control number 
1205-0522)

(Authority: Section 606 of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 795k)



Subpart C_How Are State Supported Employment Services Programs Financed?



Sec.  363.20  How does the Secretary allot funds?

    (a) States. The Secretary will allot the sums appropriated for each 
fiscal year to carry out the activities of this part among the States on 
the basis of relative population of each State, except that--
    (1) No State will receive less than $250,000, or \1/3\ of 1 percent 
of the sums appropriated for the fiscal year for which the allotment is 
made, whichever amount is greater; and
    (2) If the sums appropriated to carry out this part for the fiscal 
year exceed the sums appropriated to carry out this part (as in effect 
on September 30, 1992) in fiscal year 1992 by $1,000,000 or more, no 
State will receive less than $300,000, or \1/3\ of 1 percent of the sums 
appropriated for the fiscal year for which the allotment is made, 
whichever amount is greater.
    (b) Certain Territories. (1) For the purposes of this section, Guam, 
American Samoa, the United States Virgin Islands, and the Commonwealth 
of the Northern Mariana Islands are not considered to be States.
    (2) Each jurisdiction described in paragraph (b)(1) of this section 
will be allotted not less than \1/8\ of 1 percent of the amounts 
appropriated for the fiscal year for which the allotment is made.

(Authority: Section 603(a) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 795h(a))



Sec.  363.21  How does the Secretary reallot funds?

    (a) Whenever the Secretary determines that any amount of an 
allotment to a State under Sec.  363.20 for any fiscal year will not be 
expended by such State for carrying out the provisions of this part, the 
Secretary will make such amount available for carrying out the 
provisions of this part to one or more of the States that the Secretary 
determines will be able to use additional amounts during such year for 
carrying out such provisions.
    (b) Any amount made available to a State for any fiscal year in 
accordance with paragraph (a) will be regarded as an increase in the 
State's allotment under this part for such year.

(Authority: Section 603(b) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 795h(b))



Sec.  363.22  How are funds reserved for youth with the most
significant disabilities?

    A State that receives an allotment under this part must reserve and 
expend 50 percent of such allotment for the provision of supported 
employment services, including extended services, to youth with the most 
significant disabilities in order to assist those youth in achieving an 
employment outcome in supported employment.

(Authority: Sections 12(c) and 603(d) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 795h(d))

[[Page 398]]



Sec.  363.23  What are the matching requirements?

    (a) Non-Federal share. (1) For funds allotted under Sec.  363.20 and 
not reserved under Sec.  363.22 for the provision of supported 
employment services to youth with the most significant disabilities, 
there is no non-Federal share requirement.
    (2)(i) For funds allotted under Sec.  363.20 and reserved under 
Sec.  363.22 for the provision of supported employment services to youth 
with the most significant disabilities, a designated State agency must 
provide non-Federal expenditures in an amount that is not less than 10 
percent of the total expenditures, including the Federal reserved funds 
and the non-Federal share, incurred for the provision of supported 
employment services to youth with the most significant disabilities, 
including extended services.
    (ii) In the event that a designated State agency uses more than 50 
percent of its allotment under this part to provide supported employment 
services to youth with the most significant disabilities as required by 
Sec.  363.22, there is no requirement that a designated State agency 
provide non-Federal expenditures to match the excess Federal funds spent 
for this purpose.
    (3) Except as provided under paragraphs (b) and (c) of this section, 
non-Federal expenditures made under the vocational rehabilitation 
services portion of the Unified or Combined State Plan supplement to 
meet the non-Federal share requirement under this section must be 
consistent with the provision of 2 CFR 200.306.
    (b) Third-party in-kind contributions. Third-party in-kind 
contributions, as described in 2 CFR 200.306(b), may not be used to meet 
the non-Federal share under this section.
    (c)(1) Contributions by private entities. Expenditures made from 
contributions by private organizations, agencies, or individuals that 
are deposited into the sole account of the State agency, in accordance 
with State law may be used as part of the non-Federal share under this 
section, provided the expenditures under the vocational rehabilitation 
services portion of the Unified or Combined State Plan supplement, as 
described in Sec.  363.11, do not benefit in any way the donor, an 
individual to whom the donor is related by blood or marriage or with 
whom the donor shares a financial interest.
    (2) The Secretary does not consider a donor's receipt from the State 
unit of a contract or subaward with funds allotted under this part to be 
a benefit for the purpose of this paragraph if the contract or subaward 
is awarded under the State's regular competitive procedures.

(Authority: Sections 12(c) and 606(b)(7)(I) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 795k(b)(7)(I))



Sec.  363.24  What is program income and how may it be used?

    (a) Definition. (1) Program income means gross income earned by the 
State that is directly generated by authorized activities supported 
under this part or earned as a result of the Federal award during the 
period of performance.
    (2) Program income received through the transfer of Social Security 
Administration payments from the State Vocational Rehabilitation 
Services program, in accordance with 34 CFR 361.63(c)(2), will be 
treated as program income received under this part.
    (b) Use of program income. (1) Program income must be used for the 
provision of services authorized under Sec.  363.4. Program income 
earned or received during the fiscal year must be disbursed during the 
period of performance of the award, prior to requesting additional cash 
payments.
    (2) States are authorized to treat program income as an addition to 
the grant funds to be used for additional allowable program 
expenditures, in accordance with 2 CFR 200.307(e)(2).
    (3) Program income cannot be used to meet the non-Federal share 
requirement under Sec.  363.23.

(Authority: Sections 12(c) and 108 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 728)



Sec.  363.25  What is the period of availability of funds?

    (a) Except as provided in paragraph (b) of this section, any Federal 
award funds, including reallotted funds, that are appropriated for a 
fiscal year to carry out a program under this part

[[Page 399]]

that are not obligated by the State by the beginning of the succeeding 
fiscal year, and any program income received during a fiscal year that 
is not obligated or expended by the State prior to the beginning of the 
succeeding fiscal year in which the program income was received, remain 
available for obligation by the State during that succeeding fiscal 
year.
    (b) Federal funds appropriated for a fiscal year and reserved for 
the provision of supported employment services to youth with the most 
significant disabilities, in accordance with Sec.  363.22 of this part, 
remain available for obligation in the succeeding fiscal year only to 
the extent that the State met the matching requirement, as described in 
Sec.  363.23, for those Federal funds by obligating, in accordance with 
34 CFR 76.707, the non-Federal share in the fiscal year for which the 
funds were appropriated. Any reserved funds carried over may only be 
obligated and expended in that succeeding Federal fiscal year for the 
provision of supported employment services to youth with the most 
significant disabilities.

(Authority: Sections 12(c) and 19 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 716)

Subparts D-E [Reserved]



      Subpart F_What Post-Award Conditions Must Be Met by a State?



Sec.  363.50  What collaborative agreements must the State develop?

    (a) A designated State unit must enter into one or more written 
collaborative agreements, memoranda of understanding, or other 
appropriate mechanisms with other public agencies, private nonprofit 
organizations, and other available funding sources, including employers 
and other natural supports, as appropriate, to assist with the provision 
of supported employment services and extended services to individuals 
with the most significant disabilities in the State, including youth 
with the most significant disabilities, to enable them to achieve an 
employment outcome of supported employment in competitive integrated 
employment.
    (b) These agreements provide the mechanism for collaboration at the 
State level that is necessary to ensure the smooth transition from 
supported employment services to extended services, the transition of 
which is inherent to the definition of ``supported employment'' in Sec.  
363.1(b). The agreement may contain information regarding the--
    (1) Supported employment services to be provided, for a period not 
to exceed 24 months, by the designated State unit with funds received 
under this part;
    (2) Extended services to be provided to youth with the most 
significant disabilities, for a period not to exceed four years, by the 
designated State unit with the funds reserved under Sec.  363.22 of this 
part;
    (3) Extended services to be provided by other public agencies, 
private nonprofit organizations, or other sources, including employers 
and other natural supports, following the provision of authorized 
supported employment services, or extended services as appropriate for 
youth with the most significant disabilities, under this part; and
    (4) Collaborative efforts that will be undertaken by all relevant 
entities to increase opportunities for competitive integrated employment 
in the State for individuals with the most significant disabilities, 
especially youth with the most significant disabilities.

(Authority: Sections 7(38), 7(39), 12(c), 602, and 606(b) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(38), 705(39), 
709(c), 795g, and 795k(b))



Sec.  363.51  What are the allowable administrative costs?

    (a) A State may use funds under this part to pay for expenditures 
incurred in the administration of activities carried out under this 
part, consistent with the definition of administrative costs in 34 CFR 
361.5(c)(2).
    (b) A designated State agency may not expend more than 2.5 percent 
of a State's allotment under this part for administrative costs for 
carrying out

[[Page 400]]

the State supported employment program.

(Authority: Sections 7(1), 12(c), and 603(c) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 705(1), 709(c), and 795h(c))



Sec.  363.52  What are the information collection and reporting
requirements?

    Each State agency designated in Sec.  363.11(a) must collect and 
report separately the information required under 34 CFR 361.40 for--
    (a) Eligible individuals receiving supported employment services 
under this part;
    (b) Eligible individuals receiving supported employment services 
under 34 CFR part 361;
    (c) Eligible youth receiving supported employment services and 
extended services under this part; and
    (d) Eligible youth receiving supported employment services under 34 
CFR part 361 and extended services.

(Authority: Sections 13 and 607 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 710 and 795l)



Sec.  363.53  What requirements must a designated State unit meet
for the transition of an individual to extended services?

    (a) A designated State unit must provide for the transition of an 
individual with a most significant disability, including a youth with a 
most significant disability, to extended services, as defined in 34 CFR 
361.5(c)(19), no later than 24 months after the individual enters 
supported employment, unless a longer period is established in the 
individualized plan for employment.
    (b) Prior to assisting the individual in transitioning from 
supported employment services to extended services, the designated State 
unit must ensure--
    (1) The counselor and individual have considered extending the 
provision of supported employment services beyond 24 months, as 
appropriate, and have determined that no further supported employment 
services are necessary to support and maintain the individual in 
supported employment before the individual transitions to extended 
services; and
    (2) The source of extended services for the individual has been 
identified in order to ensure there will be no interruption of services. 
The providers of extended services may include--
    (i) A State agency, a private nonprofit organization, employer, or 
any other appropriate resource, after an individual has made the 
transition from support from the designated State unit; or,
    (ii) The designated State unit, in the case of a youth with a most 
significant disability, in accordance with requirements set forth in 34 
CFR 361.5(c)(19) and this part for a period not to exceed four years, or 
at such time that a youth reaches the age of 25 and no longer meets the 
definition of a youth with a disability under 34 CFR 361.5(c)(58), 
whichever occurs first. For youth who still require extended services 
after they can no longer receive them from the designated State unit, 
the designated State unit must identify another source of extended 
services for those youth in order to ensure there will be no 
interruption of services. The designated State unit may not provide 
extended services to individuals with the most significant disabilities 
who are not youth with the most significant disabilities.

(Authority: Sections 7(13), 12(c), and 604(b) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 705(13), 709(c) and 795i)



Sec.  363.54  When will an individual be considered to have achieved
an employment outcome in supported employment?

    An individual with a most significant disability, including a youth 
with a most significant disability, who is employed in competitive 
integrated employment or who is employed in an integrated setting 
working on a short-term basis to achieve competitive integrated 
employment will be considered to have achieved an employment outcome, 
including customized employment, in supported employment when--
    (a) The individual has completed supported employment services 
provided under this part and 34 CFR part 361, except for any other 
vocational rehabilitation services listed on the individualized plan for 
employment provided to individuals who are working on a

[[Page 401]]

short-term basis toward the achievement of competitive integrated 
employment in supported employment. An individual has completed 
supported employment services when--
    (1) The individual has received up to 24 months of supported 
employment services; or
    (2) The counselor and individual have determined that an extension 
of time to provide supported employment services beyond 24 months is 
necessary to support and maintain the individual in supported employment 
before the individual transitions to extended services and that 
extension of time has concluded; and
    (b) The individual has transitioned to extended services provided by 
either the designated State unit for youth with the most significant 
disabilities, or another provider, consistent with the provisions of 
Sec. Sec.  363.4(a)(2) and 363.22; and
    (c) The individual has maintained employment and achieved stability 
in the work setting for at least 90 days after transitioning to extended 
services; and
    (d) The employment is individualized and customized consistent with 
the strengths, abilities, interests, and informed choice of the 
individual.

(Authority: Sections 7(11), 7(13), 7(38), 7(39), 7(40), 12(c), 602, and 
606(b) of the Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(11), 
705(13), 705(38), 705(39), 705(40), 709(c), 795g, and 795k(b))



Sec.  363.55  When will the service record of an individual who has
achieved an employment outcome in supported employment be closed?

    (a) The service record of an individual with a most significant 
disability, including a youth with a most significant disability, who 
has achieved an employment outcome in supported employment in 
competitive integrated employment will be closed concurrently with the 
achievement of the employment outcome in supported employment when the 
individual--
    (1) Satisfies requirements for case closure, as set forth in 34 CFR 
361.56; and
    (2) Is not receiving extended services or any other vocational 
rehabilitation service provided by the designated State unit with funds 
under this part or 34 CFR part 361.
    (b) The service record of an individual with a most significant 
disability, including a youth with a most significant disability who is 
working toward competitive integrated employment on a short-term basis 
and is receiving extended services from funds other than those allotted 
under this part and 34 CFR part 361 will be closed when the individual--
    (1) Achieves competitive integrated employment within the short-term 
basis period established pursuant to Sec.  363.1(c); and the 
individual--
    (i) Satisfies requirements for case closure, as set forth in 34 CFR 
361.56; and
    (ii) Is no longer receiving vocational rehabilitation services 
provided by the designated State unit with funds under 34 CFR part 361; 
or
    (2) Does not achieve competitive integrated employment within the 
short-term basis period established pursuant to Sec.  363.1(c).
    (c) The service record of a youth with a most significant disability 
who is receiving extended services provided by the designated State unit 
from funds under this part or 34 CFR part 361 will be closed when--
    (1) The youth with a most significant disability achieves an 
employment outcome in supported employment in competitive integrated 
employment without entering the short-term basis period; and
    (i) Is no longer eligible to receive extended services provided by 
the designated State unit with funds allotted under this part and 34 CFR 
part 361 because the individual--
    (A) No longer meets age requirements established in the definition 
of a youth with a disability pursuant to 34 CFR 361.5(c)(58); or
    (B) Has received extended services for a period of four years; or
    (C) Has transitioned to extended services provided with funds other 
than those allotted under this part or part 361 prior to meeting the age 
or time restrictions established under paragraphs (c)(1)(i)(A) and (B) 
of this section, respectively; and

[[Page 402]]

    (ii) Satisfies requirements for case closure, as set forth in 34 CFR 
361.56; and
    (iii) The individual is no longer receiving any other vocational 
rehabilitation service from the designated State unit provided with 
funds under 34 CFR part 361; or
    (2) The youth with a most significant disability who is working 
toward competitive integrated employment on a short-term basis--
    (i) Achieves competitive integrated employment within the short-term 
basis period established pursuant to Sec.  363.1(c);
    (ii) Is no longer eligible to receive extended services provided by 
the designated State unit with funds allotted under this part and 34 CFR 
part 361 because the individual--
    (A) No longer meets age requirements established in the definition 
of a youth with a disability pursuant to 34 CFR 361.5(c)(58); or
    (B) Has received extended services for a period of four years; or
    (C) Has transitioned to extended services provided with funds other 
than those allotted under this part or 34 CFR part 361 prior to meeting 
the age or time restrictions established under paragraphs (c)(2)(ii)(A) 
and (B) of this section, respectively; and
    (iii) Satisfies requirements for case closure, as set forth in 34 
CFR 361.56; or
    (3) The youth with a most significant disability working toward 
competitive integrated employment on a short-term basis does not achieve 
competitive integrated employment within the short-term basis period 
established pursuant to Sec.  363.1(c).

(Authority: Sections 7(11), 7(13), 7(38), 7(39), 7(40), 7(42), 12(c), 
602, and 606(b) of the Rehabilitation Act of 1973, as amended; 29 U.S.C. 
705(11), 705(13), 705(38), 705(39), 705(40), 705(42), 709(c), 795g, and 
795k(b))



Sec.  363.56  What notice requirements apply to this program?

    Each grantee must advise applicants for or recipients of services 
under this part, or as appropriate, the parents, family members, 
guardians, advocates, or authorized representatives of those 
individuals, including youth with the most significant disabilities, of 
the availability and purposes of the Client Assistance Program, 
including information on seeking assistance from that program.

(Authority: Section 20 of the Rehabilitation Act of 1973, as amended; 29 
U.S.C. 717)

                        PARTS 364	366 [RESERVED]



PART 367_INDEPENDENT LIVING SERVICES FOR OLDER INDIVIDUALS WHO ARE
BLIND--Table of Contents



                            Subpart A_General

Sec.
367.1 What is the independent living services for older individuals who 
          are blind program?
367.2 Who is eligible for an award?
367.3 What activities may the Secretary fund?
367.4 What regulations apply?
367.5 What definitions apply?

               Subpart B_Training and Technical Assistance

367.20 What are the requirements for funding training and technical 
          assistance under this chapter?
367.21 How does the Secretary use these funds to provide training and 
          technical assistance?
367.22 How does the Secretary make an award?
367.23 How does the Secretary determine funding priorities?
367.24 How does the Secretary evaluate an application?

    Subpart C_What are the application requirements under this Part?

367.30 How does a designated State agency (DSA) apply for an award?
367.31 What assurances must a DSA include in its application?

      Subpart D_How does the Secretary award discretionary grants?

367.40 Under what circumstances does the Secretary award discretionary 
          grants to States?
367.41 How does the Secretary evaluate an application for a 
          discretionary grant?

         Subpart E_How does the Secretary award formula grants?

367.50 Under what circumstances does the Secretary award formula grants 
          to States?
367.51 How are allotments made?

[[Page 403]]

367.52 How does the Secretary reallot funds under this program?

          Subpart F_What conditions must be met after an award?

367.60 When may a DSA make subawards or contracts?
367.61 What matching requirements apply?
367.62 What requirements apply if the State's non-Federal share is in 
          cash?
367.63 What requirements apply if the State's non-Federal share is in 
          kind?
367.64 What is the prohibition against a State's condition of an award 
          of a sub-award or contract based on cash or in-kind 
          contributions?
367.65 What is program income and how may it be used?
367.66 What requirements apply to the obligation of Federal funds and 
          program income?
367.67 May an individual's ability to pay be considered in determining 
          his or her participation in the costs of OIB services?
367.68 What notice must be given about the Client Assistance Program 
          (CAP)?
367.69 What are the special requirements pertaining to the protection, 
          use, and release of personal information?
367.70 What access to records must be provided?
367.71 What records must be maintained?

    Authority: Sections 751-753 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796j-796l, unless otherwise noted.

    Source: 81 FR 55583, Aug. 19, 2016, unless otherwise noted.



                            Subpart A_General



Sec.  367.1  What is the Independent Living Services for Older
Individuals Who Are Blind program?

    This program supports projects that--
    (a) Provide any of the independent living (IL) services to older 
individuals who are blind that are described in Sec.  367.3(b);
    (b) Conduct activities that will improve or expand services for 
these individuals; and
    (c) Conduct activities to help improve public understanding of the 
challenges of these individuals.

(Authority: Section 752 of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 796k(a) and (d))



Sec.  367.2  Who is eligible for an award?

    Any designated State agency (DSA) is eligible for an award under 
this program if the DSA--
    (a) Is authorized to provide rehabilitation services to individuals 
who are blind; and
    (b) Submits to and obtains approval from the Secretary of an 
application that meets the requirements of section 752(h) of the Act and 
Sec. Sec.  367.30-367.31.

(Authority: Section 752(a)(2) and 752(h) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 796k(a)(2) and (h))



Sec.  367.3  What activities may the Secretary fund?

    (a) The DSA may use funds awarded under this part for the activities 
described in Sec.  367.1 and paragraph (b) of this section.
    (b) For purposes of Sec.  367.1(a), IL services for older 
individuals who are blind include--
    (1) Services to help correct blindness, such as--
    (i) Outreach services;
    (ii) Visual screening;
    (iii) Surgical or therapeutic treatment to prevent, correct, or 
modify disabling eye conditions; and
    (iv) Hospitalization related to these services;
    (2) The provision of eyeglasses and other visual aids;
    (3) The provision of services and equipment to assist an older 
individual who is blind to become more mobile and more self-sufficient;
    (4) Mobility training, Braille instruction, and other services and 
equipment to help an older individual who is blind adjust to blindness;
    (5) Guide services, reader services, and transportation;
    (6) Any other appropriate service designed to assist an older 
individual who is blind in coping with daily living activities, 
including supportive services and rehabilitation teaching services;
    (7) IL skills training, information and referral services, peer 
counseling, individual advocacy training, facilitating the transition 
from nursing homes and other institutions to home and community-based 
residences with the requisite supports and services, and providing 
assistance to older individuals who are blind who are at risk of

[[Page 404]]

entering institutions so that the individuals may remain in the 
community; and
    (8) Other IL services, as defined in Sec.  367.5.

(Authority: Section 752(d) and (e) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796k (d) and (e))



Sec.  367.4  What regulations apply?

    The following regulations apply to the Independent Living Services 
for Older Individuals Who Are Blind program:
    (a) The Education Department General Administrative Regulations 
(EDGAR) as follows:
    (1) 34 CFR part 75 (Direct Grant Programs), with respect to grants 
under subpart B and D.
    (2) 34 CFR part 76 (State-Administered Programs), with respect to 
grants under subpart E.
    (3) 34 CFR part 77 (Definitions That Apply to Department 
Regulations).
    (4) 34 CFR part 79 (Intergovernmental Review of Department of 
Education Programs and Activities).
    (5) 34 CFR part 81 (General Education Provisions Act--Enforcement).
    (6) 34 CFR part 82 (New Restrictions on Lobbying).
    (7) 2 CFR part 180 (OMB Guidelines to Agencies on Debarment and 
Suspension (Nonprocurement)), as adopted at 2 CFR part 3485.
    (8) 2 CFR part 200 (Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards), as adopted at 2 
CFR part 3474.
    (b) The regulations in this part 367.

(Authority: Sections 12(c) and 752 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 796k)



Sec.  367.5  What definitions apply?

    (a) The definitions of terms used in this part that are included in 
the regulations identified in Sec.  367.4 as applying to this program.
    (b) In addition, the following definitions also apply to this part:
    (1) Act means the Rehabilitation Act, as amended by WIOA.
    (2) Advocacy means pleading an individual's cause or speaking or 
writing in support of an individual. To the extent permitted by State 
law or the rules of the agency before which an individual is appearing, 
a non-lawyer may engage in advocacy on behalf of another individual. 
Advocacy may--
    (i) Involve representing an individual--
    (A) Before private entities or organizations, government agencies 
(whether State, local, or Federal), or in a court of law (whether State 
or Federal); or
    (B) In negotiations or mediation, in formal or informal 
administrative proceedings before government agencies (whether State, 
local, or Federal), or in legal proceedings in a court of law; and
    (ii) Be on behalf of--
    (A) A single individual, in which case it is individual advocacy;
    (B) A group or class of individuals, in which case it is systems (or 
systemic) advocacy; or
    (C) Oneself, in which case it is self advocacy.
    (3) Attendant care means a personal assistance service provided to 
an individual with significant disabilities in performing a variety of 
tasks required to meet essential personal needs in areas such as 
bathing, communicating, cooking, dressing, eating, homemaking, 
toileting, and transportation.
    (4) Contract means a legal instrument by which RSA in subpart B or 
the DSA receiving a grant under this part purchases property or services 
needed to carry out the program under this Part. The term as used in 
this part does not include a legal instrument, even if RSA or the DSA 
considers it a contract, when the substance of the transaction meets the 
definition of a Federal award or subaward.

(Authority: 20 U.S.C. 1221e-3)

    (5) Designated State Agency means the agency described in section 
101(a)(2)(A)(i) of the Rehabilitation Act as the sole State agency 
authorized to provide rehabilitation services to individuals who are 
blind and administer the OIB grant.
    (6) Independent living services for older individuals who are blind 
means those services listed in Sec.  367.3(b).
    (7) Legally authorized advocate or representative means an 
individual who is authorized under State law to act or advocate on 
behalf of another individual. Under certain circumstances, State law 
permits only an attorney,

[[Page 405]]

legal guardian, or individual with a power of attorney to act or 
advocate on behalf of another individual. In other circumstances, State 
law may permit other individuals to act or advocate on behalf of another 
individual.
    (8) Minority group means Alaska Natives, American Indians, Asians, 
Blacks (African Americans), Hispanics (Latinos), Native Hawaiians, and 
Pacific Islanders.
    (9) Older individual who is blind means an individual age fifty-five 
or older whose severe visual impairment makes competitive employment 
extremely difficult to obtain but for whom IL goals are feasible.
    (10) Other IL services include:
    (i) Counseling services, including psychological, psychotherapeutic, 
and related services;
    (ii) Services related to securing housing or shelter, including 
services related to community group living, that are supportive of the 
purposes of the Act, and adaptive housing services, including 
appropriate accommodations to and modifications of any space used to 
serve, or to be occupied by, older individuals who are blind;
    (iii) Rehabilitation technology;
    (iv) Services and training for older individuals who are blind who 
also have cognitive and sensory disabilities, including life skills 
training and interpreter services;
    (v) Personal assistance services, including attendant care and the 
training of personnel providing these services;
    (vi) Surveys, directories, and other activities to identify 
appropriate housing, recreation opportunities, and accessible 
transportation, and other support services;
    (vii) Consumer information programs on rehabilitation and IL 
services available under the Act, especially for minorities and other 
older individuals who are blind who have traditionally been unserved or 
underserved by programs under the Act;
    (viii) Education and training necessary for living in a community 
and participating in community activities;
    (ix) Supported living;
    (x) Transportation, including referral and assistance for 
transportation;
    (xi) Physical rehabilitation;
    (xii) Therapeutic treatment;
    (xiii) Provision of needed prostheses and other appliances and 
devices;
    (xiv) Individual and group social and recreational services;
    (xv) Services under other Federal, State, or local programs designed 
to provide resources, training, counseling, or other assistance of 
substantial benefit in enhancing the independence, productivity, and 
quality of life of older individuals who are blind;
    (xvi) Appropriate preventive services to decrease the need of older 
individuals who are blind who are assisted under the Act for similar 
services in the future;
    (xvii) Community awareness programs to enhance the understanding and 
integration into society of older individuals who are blind; and
    (xviii) Any other services that may be necessary to improve the 
ability of an older individual who is blind to function, continue 
functioning, or move toward functioning independently in the family or 
community or to continue in employment and that are not inconsistent 
with any other provisions of the Act.
    (11) Peer relationships mean relationships involving mutual support 
and assistance among individuals with significant disabilities who are 
actively pursuing IL goals.
    (12) Peer role models means individuals with significant 
disabilities whose achievements can serve as a positive example for 
other older individuals who are blind.
    (13) Personal assistance services means a range of IL services, 
provided by one or more persons, designed to assist an older individual 
who is blind to perform daily living activities on or off the job that 
the individual would typically perform if the individual was not blind. 
These IL services must be designed to increase the individual's control 
in life and ability to perform everyday activities on or off the job.
    (14) Service provider means--
    (i) The DSA that directly provides services authorized under Sec.  
367.3; or
    (ii) Any other entity that receives a subaward or contract from the 
DSA to provide services authorized under Sec.  367.3.

[[Page 406]]

    (15) Significant disability means a severe physical, mental, 
cognitive, or sensory impairment that substantially limits an 
individual's ability to function independently in the family or 
community or to obtain, maintain, or advance in employment.
    (16) State means, except where otherwise specified in the Act, in 
addition to each of the several States of the United States, the 
District of Columbia, the Commonwealth of Puer5to Rico, the United 
States Virgin Islands, Guam, American Samoa, and the Commonwealth of the 
Northern Mariana Islands.
    (17) Subaward means a grant or a cooperative agreement provided by 
the DSA to a subrecipient for the subrecipient to carry out part of the 
Federal award received by the DSA under this part. It does not include 
payments to a contractor or payments to an individual that is a 
beneficiary of a program funded under this part. A subaward may be 
provided through any form of legal agreement, including an agreement 
that the DSA considers a contract.

(Authority: 20 U.S.C. 1221e-3)

    (18) Subrecipient means a non-Federal entity that receives a 
subaward from the DSA to carry out part of the program funded under this 
part; but does not include an individual that is a beneficiary of such 
program. A subrecipient may also be a recipient of other Federal awards 
directly from a Federal awarding agency.

(Authority: 20 U.S.C. 1221e-3)

    (19) Transportation means travel and related expenses that are 
necessary to enable an older individual who is blind to benefit from 
another IL service and travel and related expenses for an attendant or 
aide if the services of that attendant or aide are necessary to enable 
an older individual who is blind to benefit from that IL service.
    (20) Unserved and underserved groups or populations, with respect to 
groups or populations of older individuals who are blind in a State, 
include, but are not limited to, groups or populations of older 
individuals who are blind who--
    (i) Have cognitive and sensory impairments;
    (ii) Are members of racial and ethnic minority groups;
    (iii) Live in rural areas; or
    (iv) Have been identified by the DSA as unserved or underserved.

(Authority: Unless otherwise noted, Section 7 of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 705)



               Subpart B_Training and Technical Assistance



Sec.  367.20  What are the requirements for funding training and 
technical assistance under this chapter?

    For any fiscal year, beginning with fiscal year 2015, the Secretary 
shall first reserve not less than 1.8 percent and not more than 2 
percent of funds appropriated and made available to carry out this 
chapter to provide training and technical assistance to DSAs, or other 
providers of independent living services for older individuals who are 
blind, that are funded under this chapter for such fiscal year.

(Authority: Section 751A(a) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796j-1(a))



Sec.  367.21  How does the Secretary use these funds to provide
training and technical assistance?

    (a) The Secretary uses these funds to provide training and technical 
assistance, either directly or through grants, contracts, or cooperative 
agreements with State and public or non-profit agencies and 
organizations and institutions of higher education that have the 
capacity to provide technical assistance and training in the provision 
of independent living services for older individuals who are blind.
    (b) An entity receiving assistance in accordance with paragraph (a) 
of this section shall provide training and technical assistance to DSAs 
or other service providers to assist them in improving the operation and 
performance of programs and services for older individuals who are blind 
resulting in their enhanced independence and self-sufficiency.

(Authority: Section 751A(a) and (c) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 796j-1(a) and (c))

[[Page 407]]



Sec.  367.22  How does the Secretary make an award?

    (a) To be eligible to receive a grant or enter into a contract or 
cooperative agreement under section 751A of the Act and this subpart, an 
applicant shall submit an application to the Secretary containing a 
proposal to provide training and technical assistance to DSAs or other 
service providers of IL services to older individuals who are blind and 
any additional information at the time and in the manner that the 
Secretary may require.
    (b) The Secretary shall provide for peer review of applications by 
panels that include persons who are not Federal or State government 
employees and who have experience in the provision of services to older 
individuals who are blind.

(Authority: Section 751A(a) and (c) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 796j-1(a) and (c))



Sec.  367.23  How does the Secretary determine funding priorities?

    The Secretary shall conduct a survey of DSAs that receive grants 
under section 752 regarding training and technical assistance needs in 
order to inform funding priorities for such training and technical 
assistance.

(Authority: Section 751A(b) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796j-1(b))



Sec.  367.24  How does the Secretary evaluate an application?

    (a) The Secretary evaluates each application for a grant, 
cooperative agreement or contract under this subpart on the basis of the 
selection criteria chosen from the general selection criteria found in 
EDGAR regulations at 34 CFR 75.210.
    (b) If using a contract to award funds under this subpart, the 
Secretary may conduct the application process and make the subsequent 
award in accordance with 34 CFR part 75.

(Authority: Section 751A of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 796j-1(b), 20 U.S.C. 1221e-3, and 3474)



    Subpart C_What Are the Application Requirements Under This Part?



Sec.  367.30  How does a designated State agency (DSA) apply for an award?

    To receive a grant under section 752(h) or a reallotment grant under 
section 752(i)(4) of the Act, a DSA must submit to and obtain approval 
from the Secretary of an application for assistance under this program 
at the time, in the form and manner, and containing the agreements, 
assurances, and information, that the Secretary determines to be 
necessary to carry out this program.

(Approved by the Office of Management and Budget under control number 
1820-0660)

(Authority: Sections 752 (h) and (i)(4) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 796k(h) and (i))



Sec.  367.31  What assurances must a DSA include in its application?

    An application for a grant under section 752(h) or a reallotment 
grant under section 752(i)(4) of the Act must contain an assurance 
that--
    (a) Grant funds will be expended only for the purposes described in 
Sec.  367.1;
    (b) With respect to the costs of the program to be carried out by 
the State pursuant to this part, the State will make available, directly 
or through donations from public or private entities, non-Federal 
contributions toward these costs in an amount that is not less than $1 
for each $9 of Federal funds provided in the grant;
    (c) At the end of each fiscal year, the DSA will prepare and submit 
to the Secretary a report, with respect to each project or program the 
DSA operates or administers under this part, whether directly or through 
a grant or contract, that contains information that the Secretary 
determines necessary for the proper and efficient administration of this 
program, including--
    (1) The number and demographics of older individuals who are blind, 
including older individuals who are blind from minority backgrounds, and 
are receiving services;
    (2) The types of services provided and the number of older 
individuals who

[[Page 408]]

are blind and are receiving each type of service;
    (3) The sources and amounts of funding for the operation of each 
project or program;
    (4) The amounts and percentages of resources committed to each type 
of service provided;
    (5) Data on actions taken to employ, and advance in employment, 
qualified--
    (i) Individuals with significant disabilities; and
    (ii) Older individuals with significant disabilities who are blind;
    (6) A comparison, if appropriate, of prior year activities with the 
activities of the most recent year; and
    (7) Any new methods and approaches relating to IL services for older 
individuals who are blind that are developed by projects funded under 
this part;
    (d) The DSA will--
    (1) Provide services that contribute to the maintenance of, or the 
increased independence of, older individuals who are blind; and
    (2) Engage in--
    (i) Capacity-building activities, including collaboration with other 
agencies and organizations;
    (ii) Activities to promote community awareness, involvement, and 
assistance; and
    (iii) Outreach efforts; and
    (e) The applicant has been designated by the State as the sole State 
agency authorized to provide rehabilitation services to individuals who 
are blind.

(Approved by the Office of Management and Budget under control numbers 
1820-0660 and 1820-0608)

(Authority: Section 752(h) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796k(h))



      Subpart D_How does the Secretary award discretionary grants?



Sec.  367.40  Under what circumstances does the Secretary award
discretionary grants to States?

    (a) In the case of a fiscal year for which the amount appropriated 
under section 753 of the Act is less than $13,000,000, the Secretary 
awards discretionary grants under this part on a competitive basis to 
States in accordance with section 752(b) of the Act and EDGAR 
regulations at 34 CFR part 75 (Direct Grant Programs).
    (b) The Secretary awards noncompetitive continuation grants for a 
multi-year project to pay for the costs of activities for which a grant 
was awarded under this part--as long as the grantee satisfies the 
applicable requirements in this part, the terms of the grant, and 34 CFR 
75.250 through 75.253 (Approval of Multi-year Projects).
    (c) Subparts A, C, D, and F of this part govern the award of 
competitive grants under this part.

(Authority: Section 752(b) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796k(b); 20 U.S.C. 1221e-3 and 3474)



Sec.  367.41  How does the Secretary evaluate an application for 
a discretionary grant?

    (a) The Secretary evaluates an application for a discretionary grant 
based on the selection criteria chosen from the general selection 
criteria found in EDGAR regulations at 34 CFR 75.210.
    (b) In addition to the selection criteria, the Secretary considers 
the geographic distribution of projects in making an award.

(Authority: Section 752(b) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796k(b); 20 U.S.C. 1221e-3 and 3474)



         Subpart E_How Does the Secretary Award Formula Grants?



Sec.  367.50  Under what circumstances does the Secretary award
formula grants to States?

    (a) In the case of a fiscal year for which the amount appropriated 
under section 753 of the Act is equal to or greater than $13,000,000, 
grants under this part are made to States from allotments under section 
752(c)(2) of the Act.
    (b) Subparts A, C, E, and F of this part govern the award of formula 
grants under this part.

(Authority: Section 752(c) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796k(c))

[[Page 409]]



Sec.  367.51  How are allotments made?

    (a) For purposes of making grants under section 752(c) of the Act 
and this subpart, the Secretary makes an allotment to each State in an 
amount determined in accordance with section 752(i) of the Act.
    (b) The Secretary makes a grant to a DSA in the amount of the 
allotment to the State under section 752(i) of the Act if the DSA 
submits to and obtains approval from the Secretary of an application for 
assistance under this program that meets the requirements of section 
752(h) of the Act and Sec. Sec.  367.30 and 367.31.

(Approved by the Office of Management and Budget under control number 
1820-0660)

(Authority: Section 752(c)(2) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796k(c)(2))



Sec.  367.52  How does the Secretary reallot funds under this program?

    (a) From the amounts specified in paragraph (b) of this section, the 
Secretary may make reallotment grants to States, as determined by the 
Secretary, whose population of older individuals who are blind has a 
substantial need for the services specified in section 752(d) of the Act 
and Sec.  367.3(b), relative to the populations in other States of older 
individuals who are blind.
    (b) The amounts referred to in paragraph (a) of this section are any 
amounts that are not paid to States under section 752(c)(2) of the Act 
and Sec.  367.51 as a result of--
    (1) The failure of a DSA to prepare, submit, and receive approval of 
an application under section 752(h) of the Act and in accordance with 
Sec. Sec.  367.30 and 367.31; or
    (2) Information received by the Secretary from the DSA that the DSA 
does not intend to expend the full amount of the State's allotment under 
section 752(c) of the Act and this subpart.
    (c) A reallotment grant to a State under paragraph (a) of this 
section is subject to the same conditions as grants made under section 
752(a) of the Act and this part.
    (d) Any funds made available to a State for any fiscal year pursuant 
to this section are regarded as an increase in the allotment of the 
State under Sec.  367.51 for that fiscal year only.
    (e) A State that does not intend to expend the full amount of its 
allotment must notify RSA at least 45 days prior to the end of the 
fiscal year that its grant, or a portion of it, is available for 
reallotment.

(Approved by the Office of Management and Budget under control number 
1820-0660)

(Authority: Section 752(i)(4) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796k(i)(4))



          Subpart F_What Conditions Must Be Met After an Award?



Sec.  367.60  When may a DSA make subawards or contracts?

    A DSA may operate or administer the program or projects under this 
part to carry out the purposes specified in Sec.  367.1, either directly 
or through--
    (a) Subawards to public or private nonprofit agencies or 
organizations; or
    (b) Contracts with individuals, entities, or organizations that are 
not public or private nonprofit agencies or organizations.

(Authority: Sections 752(g) and (h) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 796k(g) and (h)(2)(A))



Sec.  367.61  What matching requirements apply?

    Non-Federal contributions required by Sec.  367.31(b) must meet the 
requirements in 2 CFR 200.306 (Cost sharing or matching).

(Authority: Section 752(f) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796k(f))



Sec.  367.62  What requirements apply if the State's non-Federal
share is in cash?

    (a) Expenditures that meet the non-Federal share requirements of 2 
CFR 200.306 may be used to meet the non-Federal share matching 
requirement. Expenditures used as non-Federal share must also meet the 
following requirements:
    (1) The expenditures are made with funds made available by 
appropriation directly to the DSA or with funds made available by 
allotment or transfer from

[[Page 410]]

any other unit of State or local government;
    (2) The expenditures are made with cash contributions from a donor 
that are deposited in the account of the DSA in accordance with State 
law for expenditure by, and at the sole discretion of, the DSA for 
activities authorized by Sec.  367.3; or
    (3) The expenditures are made with cash contributions from a donor 
that are earmarked for meeting the State's share for activities listed 
in Sec.  367.3;
    (b) Cash contributions are permissible under paragraph (a)(3) of 
this section only if the cash contributions are not used for 
expenditures that benefit or will benefit in any way the donor, an 
individual to whom the donor is related by blood or marriage or with 
whom the donor has a close personal relationship, or an individual, 
entity, or organization with whom the donor shares a financial interest.
    (c) The receipt of a subaward or contract under section 752(g) of 
the Act from the DSA is not considered a benefit to the donor of a cash 
contribution for purposes of paragraph (b) of this section if the 
subaward or contract was awarded under the State's regular competitive 
procedures. The State may not exempt the awarding of the subaward or 
contract from its regular competitive procedures.
    (d) For purposes of this section, a donor may be a private agency, a 
profit-making or nonprofit organization, or an individual.

(Authority: Section 752(f) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796k(f))



Sec.  367.63  What requirements apply if the State's non-Federal
share is in kind?

    In-kind contributions may be--
    (a) Used to meet the matching requirement under section 752(f) of 
the Act if the in-kind contributions meet the requirements and are 
allowable under 2 CFR 200.306; and
    (b) Made to the program or project by the State or by a third party 
(i.e., an individual, entity, or organization, whether local, public, 
private, for profit, or nonprofit), including a third party that is a 
subrecipient or contractor that is receiving or will receive assistance 
under section 752(g) of the Rehabilitation Act.

(Authority: Section 752(f) and (g) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796k(f) and (g))



Sec.  367.64  What is the prohibition against a State's condition
of an award of a sub-award or contract based on cash or in-kind
contributions?

    (a) A State may not condition the making of a subaward or contract 
under section 752(g) of the Act on the requirement that the applicant 
for the subaward or contract make a cash or in-kind contribution of any 
particular amount or value to the State.
    (b) An individual, entity, or organization that is a subrecipient or 
contractor of the State, may not condition the award of a subcontract on 
the requirement that the applicant for the subcontract make a cash or 
in-kind contribution of any particular amount or value to the State or 
to the subrecipient or contractor of the State.

(Authority: Section 752(f) and (g) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 796k(f) and (g))



Sec.  367.65  What is program income and how may it be used?

    (a) Definition--Program income means gross income earned by the 
grantee, subrecipient, or contractor that is directly generated by a 
supported activity or earned as a result of the grant, subaward, or 
contract.
    (1) Program income received through the transfer of Social Security 
Administration program income from the State Vocational Rehabilitation 
Services program (Title I) in accordance with 34 CFR 361.63(c)(2) will 
be treated as program income received under this part.
    (2) Payments received by the State agency, subrecipients, or 
contractors from insurers, consumers, or other for IL services provided 
under the Independent Living Services for Older Individuals Who Are 
Blind program to defray part or all of the costs of services provided to 
individual consumers will be treated as program income received under 
this part.
    (b) Use of program income. (1) Program income, whenever earned, must 
be used

[[Page 411]]

for the provision of services authorized under Sec.  367.3.
    (2) Program income must be added to the Federal Award in accordance 
with 2 CFR 200.307(e)(2).
    (3) Program income may not be used to meet the non-Federal share 
requirement under Sec.  367.31(b).

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))



Sec.  367.66  What requirements apply to the obligation of Federal
funds and program income?

    (a) Except as provided in paragraph (b) of this section, any Federal 
funds, including reallotted funds, that are appropriated for a fiscal 
year to carry out a program under this part that are not obligated or 
expended by the DSA prior to the beginning of the succeeding fiscal 
year, and any program income received during a fiscal year that is not 
obligated or expended by the DSA prior to the beginning of the 
succeeding fiscal year in which the program income was received, remain 
available for obligation and expenditure by the DSA during that 
succeeding fiscal year.
    (b) Federal funds appropriated for a fiscal year under this part 
remain available for obligation in the succeeding fiscal year only to 
the extent that the DSA complied with its matching requirement by 
obligating, in accordance with 34 CFR 76.707, the non-Federal share in 
the fiscal year for which the funds were appropriated.
    (c) Program income is considered earned in the fiscal year in which 
it is received. Program income earned during the fiscal year must be 
disbursed during the time in which new obligations may be incurred to 
carry out the work authorized under the award, and prior to requesting 
additional cash payments.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))



Sec.  367.67  May an individual's ability to pay be considered in
determining his or her participation in the costs of OIB services?

    (a) Participation of individuals in cost of services. (1) A State is 
neither required to charge nor prohibited from charging consumers for 
the cost of IL services provided under the Independent Living Services 
for Older Individuals Who Are Blind program;
    (2) If a State charges consumers or allows other service providers 
to charge for the cost of IL services provided under the Independent 
Living Services for Older Individuals Who Are Blind program, a State is 
neither required to nor prohibited from considering the ability of 
individual consumers to pay for the cost of these services in 
determining how much a particular consumer must contribute to the costs 
of a particular service.
    (b) State policies on cost of services. If a State chooses to charge 
or allow other service providers to charge consumers for the cost of IL 
services provided under the Independent Living Services for Older 
Individuals Who Are Blind program and if a State chooses to consider and 
allow other service providers to consider the ability of individual 
consumers to pay for the cost of IL services provided under the 
Independent Living Services for Older Individual Who Are Blind program, 
the State must maintain policies that--
    (1) Specify the type of IL services for which costs may be charged 
and the type of IL services for which a financial need test may be 
applied;
    (2) Explain the method for determining the amount charged for the IL 
services and how any financial need test will be applied;
    (3) Ensure costs are charged uniformly so that all individuals are 
treated equally;
    (4) Ensure that if costs are charged or financial need is 
considered, the consumer's required participation is not so high that it 
effectively denies the individual a necessary service;
    (5) Require documentation of an individual's participation in the 
cost of any IL services provided, including the determination of an 
individual's financial need; and
    (6) Provide that individuals who have been determined eligible for 
Social Security benefits under Titles II and XVI of the Social Security 
Act may not be charged any cost to receive IL services under this 
program.
    (c) Policies on consumer financial participation. If a State permits 
other service providers to charge the costs of IL

[[Page 412]]

services provided under the Independent Living Services for Older 
Individuals Who Are Blind program, or chooses to allow other service 
providers to consider the ability of individual consumers to contribute 
to the cost of IL services provided through the Independent Living 
Services for Older Individuals Who Are Blind program, the State must 
require that such service providers comply with the State's written 
policies regarding consumer financial participation in the cost of IL 
services.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c)).



Sec.  367.68  What notice must be given about the Client 
Assistance Program (CAP)?

    The DSA and all other service providers under this part shall use 
formats that are accessible to notify individuals seeking or receiving 
services under this part about--
    (a) The availability of CAP authorized by section 112 of the Act;
    (b) The purposes of the services provided under the CAP; and
    (c) How to contact the CAP.

(Authority: Section 20 of the Rehabilitation Act of 1973, as amended; 29 
U.S.C. 717)



Sec.  367.69  What are the special requirements pertaining to the
protection, use, and release of personal information?

    (a) General provisions. The DSA and all other service providers 
under this part shall adopt and implement policies and procedures to 
safeguard the confidentiality of all personal information, including 
photographs and lists of names. These policies and procedures must 
assure that--
    (1) Specific safeguards protect current and stored personal 
information, including a requirement that data only be released when 
governed by a written agreement between the DSA and other service 
providers and the receiving entity under paragraphs (d) and (e)(1) of 
this section, which addresses the requirements in this section;
    (2) All applicants for, or recipients of, services under this part 
and, as appropriate, those individuals' legally authorized 
representatives, service providers, cooperating agencies, and interested 
persons are informed of the confidentiality of personal information and 
the conditions for gaining access to and releasing this information;
    (3) All applicants or their legally authorized representatives are 
informed about the service provider's need to collect personal 
information and the policies governing its use, including--
    (i) Identification of the authority under which information is 
collected;
    (ii) Explanation of the principal purposes for which the service 
provider intends to use or release the information;
    (iii) Explanation of whether providing requested information to the 
service provider is mandatory or voluntary and the effects to the 
individual of not providing requested information;
    (iv) Identification of those situations in which the service 
provider requires or does not require informed written consent of the 
individual or his or her legally authorized representative before 
information may be released; and
    (v) Identification of other agencies to which information is 
routinely released;
    (4) Persons who do not speak, listen, read, or write English 
proficiently or who rely on alternative modes of communication must be 
provided an explanation of service provider policies and procedures 
affecting personal information through methods that can be meaningfully 
understood by them;
    (5) At least the same protections are provided to individuals served 
under this part as provided by State laws and regulations; and
    (6) Access to records is governed by rules established by the 
service provider and any fees charged for copies of records are 
reasonable and cover only extraordinary costs of duplication or making 
extensive searches.
    (b) Service provider use. All personal information in the possession 
of the service provider may be used only for the purposes directly 
connected with the provision of services under this part and the 
administration of the program under which services are provided under 
this part. Information containing identifiable personal information may 
not be shared with advisory or other bodies that do not have official 
responsibility for the provision of

[[Page 413]]

services under this part or the administration of the program under 
which services are provided under this part. In the provision of 
services under this part or the administration of the program under 
which services are provided under this part, the service provider may 
obtain personal information from other service providers and cooperating 
agencies under assurances that the information may not be further 
divulged, except as provided under paragraphs (c), (d), and (e) of this 
section.
    (c) Release to recipients of services under this part. (1) Except as 
provided in paragraphs (c)(2) and (3) of this section, if requested in 
writing by a recipient of services under this part, the service provider 
shall release all information in that individual's record of services to 
the individual or the individual's legally authorized representative in 
a timely manner.
    (2) Medical, psychological, or other information that the service 
provider determines may be harmful to the individual may not be released 
directly to the individual, but must be provided through a qualified 
medical or psychological professional or the individual's legally 
authorized representative.
    (3) If personal information has been obtained from another agency or 
organization, it may be released only by, or under the conditions 
established by, the other agency or organization.
    (d) Release for audit, evaluation, and research. Personal 
information may be released to an organization, agency, or individual 
engaged in audit, evaluation, or research activities only for purposes 
directly connected with the administration of a program under this part, 
or for purposes that would significantly improve the quality of life for 
individuals served under this part and only if, in accordance with a 
written agreement, the organization, agency, or individual assures 
that--
    (1) The information will be used only for the purposes for which it 
is being provided;
    (2) The information will be released only to persons officially 
connected with the audit, evaluation, or research;
    (3) The information will not be released to the involved individual;
    (4) The information will be managed in a manner to safeguard 
confidentiality; and
    (5) The final product will not reveal any personally identifying 
information without the informed written consent of the involved 
individual or the individual's legally authorized representative.
    (e) Release to other programs or authorities. (1) Upon receiving the 
informed written consent of the individual or, if appropriate, the 
individual's legally authorized representative, the service provider may 
release personal information to another agency or organization, in 
accordance with a written agreement, for the latter's program purposes 
only to the extent that the information may be released to the involved 
individual and only to the extent that the other agency or organization 
demonstrates that the information requested is necessary for the proper 
administration of its program.
    (2) Medical or psychological information may be released pursuant to 
paragraph (e)(1) of this section if the other agency or organization 
assures the service provider that the information will be used only for 
the purpose for which it is being provided and will not be further 
released to the individual.
    (3) The service provider shall release personal information if 
required by Federal laws or regulations.
    (4) The service provider shall release personal information in 
response to investigations in connection with law enforcement, fraud, or 
abuse, unless expressly prohibited by Federal or State laws or 
regulations, and in response to judicial order.
    (5) The service provider also may release personal information to 
protect the individual or others if the individual poses a threat to his 
or her safety or to the safety of others.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))



Sec.  367.70  What access to records must be provided?

    For the purpose of conducting audits, examinations, and compliance 
reviews, the DSA and all other service providers shall provide access to 
the Secretary and the Comptroller General, or any of

[[Page 414]]

their duly authorized representatives, to--
    (a) The records maintained under this part;
    (b) Any other books, documents, papers, and records of the 
recipients that are pertinent to the financial assistance received under 
this part; and
    (c) All individual case records or files or consumer service records 
of individuals served under this part, including names, addresses, 
photographs, and records of evaluation included in those individual case 
records or files or consumer service records.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))



Sec.  367.71  What records must be maintained?

    The DSA and all other service providers shall maintain--
    (a) Records that fully disclose and document--
    (1) The amount and disposition by the recipient of that financial 
assistance;
    (2) The total cost of the project or undertaking in connection with 
which the financial assistance is given or used;
    (3) The amount of that portion of the cost of the project or 
undertaking supplied by other sources; and
    (4) Compliance with the requirements of this part; and
    (b) Other records that the Secretary determines to be appropriate to 
facilitate an effective audit.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))

                           PART 369 [RESERVED]



PART 370_CLIENT ASSISTANCE PROGRAM--Table of Contents



                            Subpart A_General

Sec.
370.1 What is the Client Assistance Program (CAP)?
370.2 Who is eligible for an award?
370.3 Who is eligible for services and information under the CAP?
370.4 What kinds of activities may the Secretary fund?
370.5 What regulations apply?
370.6 What definitions apply?
370.7 What shall the designated agency do to make its services 
          accessible?

           Subpart B_What Requirements Apply to Redesignation?

370.10 When do the requirements for redesignation apply?
370.11 What requirements apply to a notice of proposed redesignation?
370.12 How does a designated agency preserve its right to appeal a 
          redesignation?
370.13 What are the requirements for a decision to redesignate?
370.14 How does a designated agency appeal a written decision to 
          redesignate?
370.15 What must the Governor of a State do upon receipt of a copy of a 
          designated agency's written appeal to the Secretary?
370.16 How does the Secretary review an appeal of a redesignation?
370.17 When does a redesignation become effective?

       Subpart C_What Are the Requirements for Requesting a Grant?

370.20 What must be included in a request for a grant?

  Subpart D_How Does the Secretary Allocate and Reallocate Funds to a 
                                 State?

370.30 How does the Secretary allocate funds?
370.31 How does the Secretary reallocate funds?

Subpart E_What Post-Award Conditions Must Be Met by a Designated Agency?

370.40 What are allowable costs?
370.41 What conflict of interest provision applies to employees of a 
          designated agency?
370.42 What access must the CAP be afforded to policymaking and 
          administrative personnel?
370.43 What requirement applies to the use of mediation procedures?
370.44 What reporting requirement applies to each designated agency?
370.45 What limitation applies to the pursuit of legal remedies?
370.46 What consultation requirement applies to a Governor of a State?
370.47 What is program income and how may it be used?
370.48 When must grant funds and program income be obligated?
370.49 What are the special requirements pertaining to the protection, 
          use, and release of personal information?

    Authority: Section 112 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 732, unless otherwise noted.

[[Page 415]]


    Source: 81 FR 55590, Aug. 19. 2016, unless otherwise noted.



                            Subpart A_General



Sec.  370.1  What is the Client Assistance Program (CAP)?

    The purpose of this program is to establish and carry out CAPs 
that--
    (a) Advise and inform clients and client-applicants of all services 
and benefits available to them through programs authorized under the 
Rehabilitation Act of 1973, as amended (Act), including activities 
carried out under sections 113 and 511;
    (b) Assist and advocate for clients and client-applicants in their 
relationships with projects, programs, and community rehabilitation 
programs providing services under the Act; and
    (c) Inform individuals with disabilities in the State, especially 
individuals with disabilities who have traditionally been unserved or 
underserved by vocational rehabilitation programs, of the services and 
benefits available to them under the Act and under title I of the 
Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. 12111 et seq.).

(Authority: Section 112(a) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 732(a))



Sec.  370.2  Who is eligible for an award?

    (a)(1) Any State, through its Governor, and the protection and 
advocacy system serving the American Indian Consortium are eligible for 
an award under this part if the State or eligible protection and 
advocacy system submits, and receives approval of, an application in 
accordance with Sec.  370.20.
    (2) For purposes of this part, the terms--
    (i) ``American Indian Consortium'' has the meaning given the term in 
section 102 of the Developmental Disabilities Assistance and Bill of 
Rights Act of 2000 (DD Act) (42 U.S.C. 15002); and
    (ii) ``Protection and advocacy system'' means a protection and 
advocacy system established under subtitle C of title I of the DD Act 
(42 U.S.C. 15041 et seq.).
    (b) Notwithstanding the protection and advocacy system serving the 
American Indian Consortium, the Governor of each State shall designate a 
public or private agency to conduct the State's CAP under this part.
    (c) Except as provided in paragraph (d) of this section, the 
Governor shall designate an agency that is independent of any agency 
that provides treatment, services, or rehabilitation to individuals 
under the Act.
    (d) The Governor may, in the initial designation, designate an 
agency that provides treatment, services, or rehabilitation to 
individuals with disabilities under the Act if, at any time before 
February 22, 1984, there was an agency in the State that both--
    (1) Was a grantee under section 112 of the Act by serving as a 
client assistance agency and directly carrying out a CAP; and
    (2) Was, at the same time, a grantee under any other provision of 
the Act.
    (e) An agency designated by the Governor of a State to conduct the 
State's CAP or the protection and advocacy system serving the American 
Indian Consortium under this part may not make a subaward to or enter 
into a contract with an agency that provides services under this Act 
either to carry out the CAP or to provide services under the CAP.
    (f) A designated agency, including the protection and advocacy 
system serving the American Indian Consortium, that contracts to provide 
CAP services with another entity or individual remains responsible for--
    (1) The conduct of a CAP that meets all of the requirements of this 
part;
    (2) Ensuring that the entity or individual expends CAP funds in 
accordance with--
    (i) The regulations in this part; and
    (ii) The regulations at 2 CFR part 200 applicable to the designated 
agency identified in paragraph (b) or the protection and advocacy system 
serving the American Indian Consortium, as described in paragraph (a) of 
this section; and
    (3) The direct day-to-day supervision of the CAP services being 
carried out by the contractor. This day-to-day supervision must include 
the direct supervision of the individuals who are

[[Page 416]]

employed or used by the contractor to provide CAP services.

(Authority: Sections 12(c) and 112(a), (c)(1)(A), and (e)(1)(E) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c) and 732(a), 
(c)(1)(A), and (e)(1)(E))



Sec.  370.3  Who is eligible for services and information under the CAP?

    (a) Any client or client-applicant is eligible for the services 
described in Sec.  370.4.
    (b) Any individual with a disability is eligible to receive 
information on the services and benefits available to individuals with 
disabilities under the Act and title I of the ADA.

(Authority: Section 112(a) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 732(a))



Sec.  370.4  What kinds of activities may the Secretary fund?

    (a) Funds made available under this part must be used for activities 
consistent with the purposes of this program, including--
    (1) Advising and informing clients, client-applicants, and 
individuals with disabilities in the State, especially individuals with 
disabilities who have traditionally been unserved or underserved by 
vocational rehabilitation programs, of--
    (i) All services and benefits available to them through programs 
authorized under the Act; and
    (ii) Their rights in connection with those services and benefits;
    (2) Informing individuals with disabilities in the State, especially 
individuals with disabilities who have traditionally been unserved or 
underserved by vocational rehabilitation programs, of the services and 
benefits available to them under title I of the ADA;
    (3) Upon the request of the client or client-applicant, assisting 
and advocating on behalf of the client or client-applicant in his or her 
relationship with projects, programs, and community rehabilitation 
programs that provide services under the Act by engaging in individual 
or systemic advocacy and pursuing, or assisting and advocating on behalf 
of the client or client-applicant to pursue, legal, administrative, and 
other available remedies, if necessary--
    (i) To ensure the protection of the rights of a client or client-
applicant under the Act; and
    (ii) To facilitate access by individuals with disabilities, 
including students and youth with disabilities who are making the 
transition from school programs, to services funded under the Act; and
    (4) Providing information to the public concerning the CAP.
    (b) In providing assistance and advocacy services under this part 
with respect to services under title I of the Act, a designated agency 
may provide assistance and advocacy services to a client or client-
applicant to facilitate the individual's employment, including 
assistance and advocacy services with respect to the individual's claims 
under title I of the ADA, if those claims under title I of the ADA are 
directly related to services under title I of the Act that the 
individual is receiving or seeking.

(Authority: Sections 12(c) and 112(a) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 732(a))



Sec.  370.5  What regulations apply?

    The following regulations apply to the expenditure of funds and the 
administration of the program under this part:
    (a) The Education Department General Administrative Regulations 
(EDGAR) as follows:
    (1) 34 CFR part 75 (Direct Grant Programs) for purposes of an award 
made under Sec.  370.30(d)(1) when the CAP appropriation equals or 
exceeds $14,000,000.
    (2) 34 CFR part 76 (State-Administered Programs) applies to the 
State and, if the designated agency is a State or local government 
agency, to the designated agency, except for--
    (i) Section 76.103;
    (ii) Sections 76.125 through 76.137;
    (iii) Sections 76.300 through 76.401;
    (iv) Section 76.708;
    (v) Section 76.734; and
    (vi) Section 76.740.
    (3) 34 CFR part 77 (Definitions That Apply to Department 
Regulations).
    (4) 34 CFR part 79 (Intergovernmental Review of Department of 
Education Programs and Activities).
    (5) 34 CFR part 81 (General Education Provisions Act--Enforcement) 
applies

[[Page 417]]

to both the State and the designated agency, whether or not the 
designated agency is the actual recipient of the CAP grant. As the 
entity that eventually, if not directly, receives the CAP grant funds, 
the designated agency is considered a recipient for purposes of Part 81.
    (6) 34 CFR part 82 (New Restrictions on Lobbying).
    (b) Other regulations as follows:
    (1) 2 CFR part 180 (OMB Guidelines to Agencies on Debarment and 
Suspension (Nonprocurement)), as adopted at 2 CFR part 3485.
    (2) 2 CFR part 200 (Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards), as adopted at 2 
CFR part 3474.
    (c) The regulations in this part 370.

    Note to Sec.  370.5: Any funds made available to a State under this 
program that are transferred by a State to a designated agency do not 
make a subaward as that term is defined in 2 CFR 200.330. The designated 
agency is not, therefore, in these circumstances a subrecipient, as that 
term is defined in 2 CFR 200.330.

(Authority: Sections 12(c) and 112 of the Rehabilitation Act, as 
amended; 29 U.S.C. 709(c) and 732)



Sec.  370.6  What definitions apply?

    (a) Definitions in EDGAR at 34 CFR part 77.
    (b) Definitions in 2 CFR part 200, subpart A.
    (c) Other definitions. The following definitions also apply to this 
part:
    Act means the Rehabilitation Act of 1973, as amended.
    Advocacy means pleading an individual's cause or speaking or writing 
in support of an individual. Advocacy may be formal, as in the case of a 
lawyer representing an individual in a court of law or in formal 
administrative proceedings before government agencies (whether tribal, 
State, local, or Federal). Advocacy also may be informal, as in the case 
of a lawyer or non-lawyer representing an individual in negotiations, 
mediation, or informal administrative proceedings before government 
agencies (whether tribal, State, local, or Federal), or as in the case 
of a lawyer or non-lawyer representing an individual's cause before 
private entities or organizations, or government agencies (whether 
tribal, State, local, or Federal). Advocacy may be on behalf of--
    (1) A single individual, in which case it is individual advocacy;
    (2) More than one individual or a group of individuals, in which 
case it is systems (or systemic) advocacy, but systems or systemic 
advocacy, for the purposes of this part, does not include class actions, 
or
    (3) Oneself, in which case it is self advocacy.
    American Indian Consortium means that entity described in Sec.  
370.2(a).
    Class action means a formal legal suit on behalf of a group or class 
of individuals filed in a Federal or State court that meets the 
requirements for a ``class action'' under Federal or State law. 
``Systems (or systemic) advocacy'' that does not include filing a formal 
class action in a Federal or State court is not considered a class 
action for purposes of this part.
    Client or client-applicant means an individual receiving or seeking 
services under the Act, respectively.
    Designated agency means the agency designated by the Governor under 
Sec.  370.2 or the protection and advocacy system serving the American 
Indian Consortium that is conducting a CAP under this part.
    Mediation means the act or process of using an independent third 
party to act as a mediator, intermediary, or conciliator to settle 
differences or disputes between persons or parties. The third party who 
acts as a mediator, intermediary, or conciliator may not be any entity 
or individual who is connected in any way with the eligible system or 
the agency, entity, or individual with whom the individual with a 
disability has a dispute. Mediation may involve the use of professional 
mediators or any other independent third party mutually agreed to by the 
parties to the dispute.
    Protection and Advocacy System has the meaning set forth at Sec.  
370.2(a).
    Services under the Act means vocational rehabilitation, independent 
living, supported employment, and other similar rehabilitation services 
provided under the Act. For purposes of the CAP, the term ``services 
under the Act'' does not include activities carried

[[Page 418]]

out under the protection and advocacy program authorized by section 509 
of the Act (i.e., the Protection and Advocacy of Individual Rights 
(PAIR) program, 34 CFR part 381).
    State means, in addition to each of the several States of the United 
States, the District of Columbia, the Commonwealth of Puerto Rico, The 
United States Virgin Islands, Guam, American Samoa, and the Commonwealth 
of the Northern Mariana Islands, except for purposes of the allotments 
under Sec.  370.30, in which case ``State'' does not mean or include 
Guam, American Samoa, the United States Virgin Islands, and the 
Commonwealth of the Northern Mariana Islands.

(Authority: Sections 7(34), 12(c), and 112 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 705(34), 709(c), and 732)



Sec.  370.7  What shall the designated agency do to make its services
accessible?

    The designated agency shall provide, as appropriate, the CAP 
services described in Sec.  370.4 in formats that are accessible to 
clients or client-applicants who seek or receive CAP services.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))



           Subpart B_What Requirements Apply to Redesignation?



Sec.  370.10  When do the requirements for redesignation apply?

    (a) The Governor shall redesignate the designated agency for 
carrying out the CAP to an agency that is independent of any agency that 
provides treatment, services, or rehabilitation to individuals under the 
Act if, after August 7, 1998--
    (1) The designated State agency undergoes any change in the 
organizational structure of the agency that results in one or more new 
State agencies or departments, or results in the merger with one or more 
other State agencies or departments, and
    (2) The designated State agency contains an office or unit 
conducting the CAP.
    (3) For purposes of paragraph (a) of this section, the designated 
State agency has the meaning given to that term at 34 CFR 361.5(c)(12) 
and described at 34 CFR 361.13.
    (b) The Governor may not redesignate the agency designated pursuant 
to section 112(c) of the Act and Sec.  370.2(b) without good cause and 
without complying with the requirements of Sec. Sec.  370.10 through 
370.17.
    (c) For purposes of Sec. Sec.  370.10 through 370.17, a 
``redesignation of'' or ``to redesignate'' a designated agency means any 
change in or transfer of the designation of an agency previously 
designated by the Governor to conduct the State's CAP to a new or 
different agency, unit, or organization, including--
    (1) A decision by a designated agency to cancel its existing 
contract with another entity with which it has previously contracted to 
carry out and operate all or part of its responsibilities under the CAP 
(including providing advisory, assistance, or advocacy services to 
eligible clients and client-applicants); or
    (2) A decision by a designated agency not to renew its existing 
contract with another entity with which it has previously contracted. 
Therefore, an agency that is carrying out a State's CAP under a contract 
with a designated agency is considered a designated agency for purposes 
of Sec. Sec.  370.10 through 370.17.
    (d) For purposes of paragraph (b) of this section, a designated 
agency that does not renew a contract for CAP services because it is 
following State procurement laws that require contracts to be awarded 
through a competitive bidding process is presumed to have good cause for 
not renewing an existing contract. However, this presumption may be 
rebutted.
    (e) If State procurement laws require a designated agency to award a 
contract through a competitive bidding process, the designated agency 
must hold public hearings on the request for proposal before awarding 
the new contract.

(Authority: Sections 12(c) and 112(c)(1)(B) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 732(c)(1)(B))



Sec.  370.11  What requirements apply to a notice of proposed 
redesignation?

    (a) Prior to any redesignation of the agency that conducts the CAP, 
the

[[Page 419]]

Governor shall give written notice of the proposed redesignation to the 
designated agency, the State Rehabilitation Council (SRC), and the State 
Independent Living Council (SILC) and publish a public notice of the 
Governor's intention to redesignate. Both the notice to the designated 
agency, the SRC, and the SILC and the public notice must include, at a 
minimum, the following:
    (1) The Federal requirements for the CAP (section 112 of the Act).
    (2) The goals and function of the CAP.
    (3) The name of the current designated agency.
    (4) A description of the current CAP and how it is administered.
    (5) The reason or reasons for proposing the redesignation, including 
why the Governor believes good cause exists for the proposed 
redesignation.
    (6) The effective date of the proposed redesignation.
    (7) The name of the agency the Governor proposes to administer the 
CAP.
    (8) A description of the system that the redesignated (i.e., new) 
agency would administer.
    (b) The notice to the designated agency must--
    (1) Be given at least 30 days in advance of the Governor's written 
decision to redesignate; and
    (2) Advise the designated agency that it has at least 30 days from 
receipt of the notice of proposed redesignation to respond to the 
Governor and that the response must be in writing.
    (c) The notice of proposed redesignation must be published in a 
place and manner that provides the SRC, the SILC, individuals with 
disabilities or their representatives, and the public with at least 30 
days to submit oral or written comments to the Governor.
    (d) Following public notice, public hearings concerning the proposed 
redesignation must be conducted in an accessible format that provides 
individuals with disabilities or their representatives an opportunity 
for comment. The Governor shall maintain a written public record of 
these hearings.
    (e) The Governor shall fully consider any public comments before 
issuing a written decision to redesignate.

(Authority: Sections 12(c) and 112(c)(1)(B) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 732(c)(1)(B))



Sec.  370.12  How does a designated agency preserve its right to
appeal a redesignation?

    (a) To preserve its right to appeal a Governor's written decision to 
redesignate (see Sec.  370.13), a designated agency must respond in 
writing to the Governor within 30 days after it receives the Governor's 
notice of proposed redesignation.
    (b) The designated agency shall send its response to the Governor by 
registered or certified mail, return receipt requested, or other means 
that provides a record that the Governor received the designated 
agency's response.

(Approved by the Office of Management and Budget under control number 
1820-0520)

(Authority: Sections 12(c) and 112(c)(1)(B) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 732(c)(1)(B))



Sec.  370.13  What are the requirements for a decision to redesignate?

    (a) If, after complying with the requirements of Sec.  370.11, the 
Governor decides to redesignate the designated agency, the Governor 
shall provide to the designated agency a written decision to redesignate 
that includes the rationale for the redesignation. The Governor shall 
send the written decision to redesignate to the designated agency by 
registered or certified mail, return receipt requested, or other means 
that provides a record that the designated agency received the 
Governor's written decision to redesignate.
    (b) If the designated agency submitted to the Governor a timely 
response to the Governor's notice of proposed redesignation, the 
Governor shall inform the designated agency that it has at least 15 days 
from receipt of the

[[Page 420]]

Governor's written decision to redesignate to file a formal written 
appeal with the Secretary.

(Approved by the Office of Management and Budget under control number 
1820-0520)

(Authority: Sections 12(c) and 112(c)(1)(B) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 732(c)(1)(B))



Sec.  370.14  How does a designated agency appeal a written decision
to redesignate?

    (a) A designated agency may appeal to the Secretary a Governor's 
written decision to redesignate only if the designated agency submitted 
to the Governor a timely written response to the Governor's notice of 
proposed redesignation in accordance with Sec.  370.12.
    (b) To appeal to the Secretary a Governor's written decision to 
redesignate, a designated agency shall file a formal written appeal with 
the Secretary within 15 days after the designated agency's receipt of 
the Governor's written decision to redesignate. The date of filing of 
the designated agency's written appeal with the Secretary will be 
determined in a manner consistent with the requirements of 34 CFR 81.12.
    (c) If the designated agency files a written appeal with the 
Secretary, the designated agency shall send a separate copy of this 
appeal to the Governor by registered or certified mail, return receipt 
requested, or other means that provides a record that the Governor 
received a copy of the designated agency's appeal to the Secretary.
    (d) The designated agency's written appeal to the Secretary must 
state why the Governor has not met the burden of showing that good cause 
for the redesignation exists or has not met the procedural requirements 
under Sec. Sec.  370.11 and 370.13.
    (e) The designated agency's written appeal must be accompanied by 
the designated agency's written response to the Governor's notice of 
proposed redesignation and may be accompanied by any other written 
submissions or documentation the designated agency wishes the Secretary 
to consider.
    (f) As part of its submissions under this section, the designated 
agency may request an informal meeting with the Secretary at which 
representatives of both parties will have an opportunity to present 
their views on the issues raised in the appeal.

(Approved by the Office of Management and Budget under control number 
1820-0520)

(Authority: Sections 12(c) and 112(c)(1)(B) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 732(c)(1)(B))



Sec.  370.15  What must the Governor of a State do upon receipt of a 
copy of a designated agency's written appeal to the Secretary?

    (a) If the designated agency files a formal written appeal in 
accordance with Sec.  370.14, the Governor shall, within 15 days of 
receipt of the designated agency's appeal, submit to the Secretary 
copies of the following:
    (1) The written notice of proposed redesignation sent to the 
designated agency.
    (2) The public notice of proposed redesignation.
    (3) Transcripts of all public hearings held on the proposed 
redesignation.
    (4) Written comments received by the Governor in response to the 
public notice of proposed redesignation.
    (5) The Governor's written decision to redesignate, including the 
rationale for the decision.
    (6) Any other written documentation or submissions the Governor 
wishes the Secretary to consider.
    (7) Any other information requested by the Secretary.
    (b) As part of the submissions under this section, the Governor may 
request an informal meeting with the Secretary at which representatives 
of both parties will have an opportunity to present their views on the 
issues raised in the appeal.

(Approved by the Office of Management and Budget under control number 
1820-0520)

(Authority: Sections 12(c) and 112(c)(1)(B) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 732(c)(1)(B))



Sec.  370.16  How does the Secretary review an appeal of a redesignation?

    (a) If either party requests a meeting under Sec.  370.14(f) or 
Sec.  370.15(b), the meeting is to be held within 30 days of the 
submissions by the Governor under Sec.  370.15, unless both parties 
agree to waive this requirement. The Secretary promptly notifies the 
parties of the date and place of the meeting.

[[Page 421]]

    (b) Within 30 days of the informal meeting permitted under paragraph 
(a) of this section or, if neither party has requested an informal 
meeting, within 60 days of the submissions required from the Governor 
under Sec.  370.15, the Secretary issues to the parties a final written 
decision on whether the redesignation was for good cause.
    (c) The Secretary reviews a Governor's decision based on the record 
submitted under Sec. Sec.  370.14 and 370.15 and any other relevant 
submissions of other interested parties. The Secretary may affirm or, if 
the Secretary finds that the redesignation is not for good cause, remand 
for further findings or reverse a Governor's redesignation.
    (d) The Secretary sends copies of the decision to the parties by 
registered or certified mail, return receipt requested, or other means 
that provide a record of receipt by both parties.

(Approved by the Office of Management and Budget under control number 
1820-0520)

(Authority: Sections 12(c) and 112(c)(1)(B) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 732(c)(1)(B))



Sec.  370.17  When does a redesignation become effective?

    A redesignation does not take effect for at least 15 days following 
the designated agency's receipt of the Governor's written decision to 
redesignate or, if the designated agency appeals, for at least 5 days 
after the Secretary has affirmed the Governor's written decision to 
redesignate.

(Authority: Sections 12(c) and 112(c)(1)(B) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 732(c)(1)(B))



       Subpart C_What are the Requirements for Requesting a Grant?



Sec.  370.20  What must be included in a request for a grant?

    (a) Each State and the protection and advocacy system serving the 
American Indian Consortium seeking assistance under this part shall 
submit to the Secretary, in writing, at the time and in the manner 
determined by the Secretary to be appropriate, an application that 
includes, at a minimum--
    (1) The name of the designated agency; and
    (2) An assurance that the designated agency meets the independence 
requirement of section 112(c)(1)(A) of the Act and Sec.  370.2(c), or 
that the State is exempted from that requirement under section 
112(c)(1)(A) of the Act and Sec.  370.2(d).
    (b)(1) Each State and the protection and advocacy system serving the 
American Indian Consortium also shall submit to the Secretary an 
assurance that the designated agency has the authority to pursue legal, 
administrative, and other appropriate remedies to ensure the protection 
of the rights of clients or client-applicants within the State or 
American Indian Consortium.
    (2) The authority to pursue remedies described in paragraph (b)(1) 
of this section must include the authority to pursue those remedies 
against the State vocational rehabilitation agency and other appropriate 
State agencies. The designated agency meets this requirement if it has 
the authority to pursue those remedies either on its own behalf or by 
obtaining necessary services, such as legal representation, from outside 
sources.
    (c) Each State and the protection and advocacy system serving the 
American Indian Consortium also shall submit to the Secretary assurances 
that--
    (1) All entities conducting, administering, operating, or carrying 
out programs within the State that provide services under the Act to 
individuals with disabilities in the State will advise all clients and 
client-applicants of the existence of the CAP, the services provided 
under the program, and how to contact the designated agency;
    (2) The designated agency will meet each of the requirements in this 
part; and
    (3) The designated agency will provide the Secretary with the annual 
report required by section 112(g)(4) of the Act and Sec.  370.44.
    (d) To allow a designated agency to receive direct payment of funds 
under this part, a State or the protection and advocacy system serving 
the American Indian Consortium must provide to the Secretary, as part of 
its application for assistance, an assurance that direct payment to the 
designated agency is

[[Page 422]]

not prohibited by or inconsistent with State or tribal law, regulation, 
or policy.

(Approved by the Office of Management and Budget under control number 
1820-0520)

(Authority: Sections 12(c) and 112(b) and (f) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 732(b) and (f))



  Subpart D_How Does the Secretary Allocate and Reallocate Funds to a 
                                 State?



Sec.  370.30  How does the Secretary allocate funds?

    (a) After reserving funds required under paragraphs (c) and (d) of 
this section, the Secretary shall allot the remainder of the sums 
appropriated for each fiscal year under this section among the States on 
the basis of relative population of each State, except that no such 
entity shall receive less than $50,000.
    (b) The Secretary allocates $30,000 each, unless the provisions of 
section 112(e)(1)(D) of the Act are applicable, to American Samoa, Guam, 
the Virgin Islands, and the Commonwealth of Northern Mariana Islands.
    (c) The Secretary shall reserve funds, from the amount appropriated 
to carry out this part, to make a grant to the protection and advocacy 
system serving the American Indian Consortium to provide services in 
accordance with this part. The amount of the grant to the protection and 
advocacy system serving the American Indian Consortium shall be the same 
amount as is provided to a territory under paragraph (b) of this 
section.
    (d)(1) For any fiscal year for which the amount appropriated equals 
or exceeds $14,000,000, the Secretary may reserve not less than 1.8 
percent and not more than 2.2 percent of such amount to provide a grant 
for training and technical assistance for the programs established under 
this part.
    (2) All training and technical assistance shall be coordinated with 
activities provided under 34 CFR 381.22.
    (3) The Secretary shall make a grant pursuant to paragraph (d)(1) of 
this section to an entity that has experience in or knowledge related to 
the provision of services authorized under this part.
    (4) An entity receiving a grant under paragraph (d)(1) of this 
section shall provide training and technical assistance to the 
designated agencies or entities carrying out the CAP to assist them in 
improving the provision of services authorized under this part and the 
administration of the program.
    (e)(1) Unless prohibited or otherwise provided by State or tribal 
law, regulation, or policy, the Secretary pays to the designated agency, 
from the State allotment under paragraph (a), (b), or (c) of this 
section, the amount specified in the State's or the eligible protection 
and advocacy system's approved request. Because the designated agency, 
including the protection and advocacy system serving the American Indian 
Consortium, is the eventual, if not the direct, recipient of the CAP 
funds, 34 CFR part 81 and 2 CFR part 200 apply to the designated agency, 
whether or not the designated agency is the actual recipient of the CAP 
grant.
    (2) Notwithstanding the grant made to the protection and advocacy 
system serving the American Indian Consortium under paragraph (c) of 
this section, the State remains the grantee for purposes of 34 CFR part 
76 and 2 CFR part 200 because it is the State that submits an 
application for and receives the CAP grant. In addition, both the State 
and the designated agency are considered recipients for purposes of 34 
CFR part 81.

(Authority: Sections 12(c) and 112(b) and (e) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 732(b) and (e))



Sec.  370.31  How does the Secretary reallocate funds?

    (a) The Secretary reallocates funds in accordance with section 
112(e)(2) of the Act.
    (b) A designated agency shall inform the Secretary at least 45 days 
before the end of the fiscal year for which CAP funds were received 
whether the designated agency is making available for reallotment any of 
those CAP funds that it will be unable to obligate in

[[Page 423]]

that fiscal year or the succeeding fiscal year.

(Approved by the Office of Management and Budget under control number 
1820-0520)

(Authority: Sections 12(c), 19, and 112(e)(2) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c), 716, and 732(e)(2))



Subpart E_What Post-Award Conditions Must Be Met by a Designated Agency?



Sec.  370.40  What are allowable costs?

    (a) The designated agency, including the eligible protection and 
advocacy system serving the American Indian Consortium, shall apply the 
regulations at 2 CFR part 200.
    (b) Consistent with the program activities listed in Sec.  370.4, 
the cost of travel in connection with the provision to a client or 
client-applicant of assistance under this program is allowable, in 
accordance with 2 CFR part 200. The cost of travel includes the cost of 
travel for an attendant if the attendant must accompany the client or 
client-applicant.
    (c)(1) The State and the designated agency are accountable, both 
jointly and severally, to the Secretary for the proper use of funds made 
available under this part. However, the Secretary may choose to recover 
funds under the procedures in 34 CFR part 81 from either the State or 
the designated agency, or both, depending on the circumstances of each 
case.
    (2) For purposes of the grant made under this part to the protection 
and advocacy system serving the American Indian Consortium, such entity 
will be solely accountable to the Secretary for the proper use of funds 
made available under this part. If the Secretary determines it 
necessary, the Secretary may recover funds from the protection and 
advocacy system serving the American Indian Consortium pursuant to the 
procedures in 34 CFR part 81.

(Authority: Sections 12(c) and 112(c)(3) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 732(c)(3))



Sec.  370.41  What conflict of interest provision applies to employees 
of a designated agency?

    (a) Except as permitted by paragraph (b) of this section, an 
employee of a designated agency, or of an entity or individual under 
contract with a designated agency, who carries out any CAP duties or 
responsibilities, while so employed, may not--
    (1) Serve concurrently as a staff member of, consultant to, or in 
any other capacity within, any other rehabilitation project, program, or 
community rehabilitation program receiving assistance under the Act in 
the State; or
    (2) Provide any services under the Act, other than CAP and PAIR 
services.
    (b) An employee of a designated agency under contract with a 
designated agency, may--
    (1) Receive a traineeship under section 302 of the Act;
    (2) Provide services under the PAIR program;
    (3) Represent the CAP on any board or council (such as the SRC) if 
CAP representation on the board or council is specifically permitted or 
mandated by the Act; and
    (4) Consult with policymaking and administrative personnel in State 
and local rehabilitation programs, projects, and community 
rehabilitation programs, if consultation with the designated agency is 
specifically permitted or mandated by the Act.

(Authority: Sections 12(c) and 112(g)(1) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 732(g)(1))



Sec.  370.42  What access must the CAP be afforded to policymaking and
administrative personnel?

    The CAP must be afforded reasonable access to policymaking and 
administrative personnel in State and local rehabilitation programs, 
projects, and community rehabilitation programs. One way in which the 
CAP may be provided that access would be to include the director of the 
designated agency among the individuals to be consulted

[[Page 424]]

on matters of general policy development and implementation, as required 
by section 101(a)(16) of the Act.

(Authority: Sections 12(c), 101(a)(16), and 112(g)(2) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 721(a)(16), 
and 732(g)(2))



Sec.  370.43  What requirement applies to the use of mediation
procedures?

    (a) Each designated agency shall implement procedures designed to 
ensure that, to the maximum extent possible, good faith negotiations and 
mediation procedures are used before resorting to formal administrative 
or legal remedies. In designing these procedures, the designated agency 
may take into account its level of resources.
    (b) For purposes of this section, mediation may involve the use of 
professional mediators, other independent third parties mutually agreed 
to by the parties to the dispute, or an employee of the designated 
agency who--
    (1) Is not assigned to advocate for or otherwise represent or is not 
involved with advocating for or otherwise representing the client or 
client-applicant who is a party to the mediation; and
    (2) Has not previously advocated for or otherwise represented or 
been involved with advocating for or otherwise representing that same 
client or client-applicant.

(Authority: Section 112(g)(3) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 732(g)(3))



Sec.  370.44  What reporting requirement applies to each designated
agency?

    In addition to the program and fiscal reporting requirements in 34 
CFR 76.720 and 2 CFR 200.327 that are applicable to this program, each 
designated agency shall submit to the Secretary, no later than 90 days 
after the end of each fiscal year, an annual report on the operation of 
its CAP during the previous year, including a summary of the work done 
and the uniform statistical tabulation of all cases handled by the 
program. The annual report must contain information on--
    (a) The number of requests received by the designated agency for 
information on services and benefits under the Act and title I of the 
ADA;
    (b) The number of referrals to other agencies made by the designated 
agency and the reason or reasons for those referrals;
    (c) The number of requests for advocacy services received by the 
designated agency from clients or client-applicants;
    (d) The number of requests for advocacy services from clients or 
client-applicants that the designated agency was unable to serve;
    (e) The reasons that the designated agency was unable to serve all 
of the requests for advocacy services from clients or client-applicants; 
and
    (f) Any other information that the Secretary may require.

(Approved by the Office of Management and Budget under control number 
1820-0520)

(Authority: Sections 12(c) and 112(g)(4) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 732(g)(4))



Sec.  370.45  What limitation applies to the pursuit of legal remedies?

    A designated agency may not bring any class action in carrying out 
its responsibilities under this part.

(Authority: Section 112(d) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 732(d))



Sec.  370.46  What consultation requirement applies to a Governor
of a State?

    In designating a client assistance agency under Sec.  370.2, 
redesignating a client assistance agency under Sec.  370.10, and 
carrying out the other provisions of this part, the Governor shall 
consult with the director of the State vocational rehabilitation agency 
(or, in States with both a general agency and an agency for the blind, 
the directors of both agencies), the head of the developmental 
disability protection and advocacy agency, and representatives of 
professional and consumer organizations serving individuals with 
disabilities in the State.

(Authority: Section 112(c)(2) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 732(c)(2))



Sec.  370.47  What is program income and how may it be used?

    (a) Definition. (1) Consistent with 2 CFR 200.80 and for purposes of 
this

[[Page 425]]

part, program income means gross income earned by the designated agency 
that is directly generated by an activity supported under this part.
    (2) Funds received through the transfer of Social Security 
Administration payments from the designated State unit, as defined in 34 
CFR 361.5(c)(13), in accordance with 34 CFR 361.63(c)(2) will be treated 
as program income received under this part.
    (b) Use of program income. (1) Program income, whenever earned or 
received, must be used for the provision of services authorized under 
Sec.  370.4.
    (2)(i) The designated agency must use program income to supplement 
Federal funds that support program activities that are subject to this 
part. See, for example 2 CFR 200.307(e)(2).
    (ii) Notwithstanding 2 CFR 200.305(a) and consistent with 2 CFR 
200.305(b)(5), and to the extent that program income funds are 
available, a designated agency, regardless of whether it is a State 
agency, must disburse those funds (including repayments to a revolving 
fund), rebates, refunds, contract settlements, audit recoveries, and 
interest earned on such funds before requesting additional funds from 
the Department.

(Authority: Sections 12(c) and 108 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 728; and 20 U.S.C. 3474);



Sec.  370.48  When must grant funds and program income be obligated?

    Any Federal funds, including reallotted funds, that are appropriated 
for a fiscal year to carry out the activities under this part that are 
not obligated or expended by the designated agency prior to the 
beginning of the succeeding fiscal year, and any program income received 
during a fiscal year that is not obligated or expended by the designated 
agency prior to the beginning of the succeeding fiscal year in which the 
program income was received, remain available for obligation and 
expenditure by the designated agency during that succeeding fiscal year 
in accordance with section 19 of the Act.

(Authority: Sections 12(c) and 19 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 716)



Sec.  370.49  What are the special requirements pertaining to the
protection, use, and release of personal information?

    (a) All personal information about individuals served by any 
designated agency under this part, including lists of names, addresses, 
photographs, and records of evaluation, must be held strictly 
confidential.
    (b) The designated agency's use of information and records 
concerning individuals must be limited only to purposes directly 
connected with the CAP, including program evaluation activities. Except 
as provided in paragraphs (c) and (e) of this section, this information 
may not be disclosed, directly or indirectly, other than in the 
administration of the CAP, unless the consent of the individual to whom 
the information applies, or his or her parent, legal guardian, or other 
legally authorized representative or advocate (including the 
individual's advocate from the designated agency), has been obtained in 
writing. A designated agency may not produce any report, evaluation, or 
study that reveals any personally identifying information without the 
written consent of the individual or his or her representative.
    (c) Except as limited in paragraphs (d) and (e) of this section, the 
Secretary or other Federal or State officials responsible for enforcing 
legal requirements are to have complete access to all--
    (1) Records of the designated agency that receives funds under this 
program; and
    (2) All individual case records of clients served under this part 
without the consent of the client.
    (d) For purposes of conducting any periodic audit, preparing or 
producing any report, or conducting any evaluation of the performance of 
the CAP established or assisted under this part, the Secretary does not 
require the designated agency to disclose the identity of, or any other 
personally identifiable information related to, any individual 
requesting assistance under the CAP.
    (e) Notwithstanding paragraph (d) of this section and consistent 
with paragraph (f) of this section, a designated agency shall disclose 
to the Secretary,

[[Page 426]]

if the Secretary so requests, the identity of, or any other personally 
identifiable information (i.e., name, address, telephone number, social 
security number, or any other official code or number by which an 
individual may be readily identified) related to, any individual 
requesting assistance under the CAP if--
    (1) An audit, evaluation, monitoring review, State plan assurance 
review, or other investigation produces reliable evidence that there is 
probable cause to believe that the designated agency has violated its 
legislative mandate or misused Federal funds; or
    (2) The Secretary determines that this information may reasonably 
lead to further evidence that is directly related to alleged misconduct 
of the designated agency.
    (f) In addition to the protection afforded by paragraph (d) of this 
section, the right of a person or designated agency not to produce 
documents or disclose information to the Secretary is governed by the 
common law of privileges, as interpreted by the courts of the United 
States.

(Authority: Sections 12(c) and 112(g)(4) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 732(g)(4))



PART 371_AMERICAN INDIAN VOCATIONAL REHABILITATION SERVICES
--Table of Contents



                            Subpart A_General

Sec.
371.1 What is the American Indian Vocational Rehabilitation Services 
          program?
371.2 Who is eligible for assistance under this program?
371.3 What types of projects are authorized under this program?
371.4 What is the length of the project period under this program?
371.5 What regulations apply to this program?
371.6 What definitions apply to this program?

               Subpart B_Training and Technical Assistance

371.10 What are the requirements for funding training and technical 
          assistance under this subpart?
371.11 How does the Secretary use these funds to provide training and 
          technical assistance?
371.12 How does the Secretary make an award?
371.13 How does the Secretary determine funding priorities?
371.14 How does the Secretary evaluate an application?

                Subpart C_How Does One Apply for a Grant?

371.20 What are the application procedures for this program?
371.21 What are the special application requirements related to the 
          projects funded under this part?

             Subpart D_How Does the Secretary Make a Grant?

371.31 How are grants awarded?
371.32 What other factors does the Secretary consider in reviewing an 
          application?

    Subpart E_What Conditions Apply to a Grantee Under this Program?

371.40 What are the matching requirements?
371.41 What are allowable costs?
371.42 How are services to be administered under this program?
371.43 What other special conditions apply to this program?
371.44 What are the special requirements pertaining to the protection, 
          use, and release of personal information?
371.45 What notice must be given about the Client Assistance Program 
          (CAP)?

    Authority: Sections 12(c) and 121 of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 741, unless otherwise noted.

    Source: 81 FR 55596, Aug. 19, 2016, unless otherwise noted.



                            Subpart A_General



Sec.  371.1  What is the American Indian Vocational Rehabilitation
Services program?

    This program is designed to provide vocational rehabilitation 
services, including culturally appropriate services, to American Indians 
with disabilities who reside on or near Federal or State reservations, 
consistent with such eligible individual's strengths, resources, 
priorities, concerns, abilities, capabilities, interests, and informed 
choice, so that such individual may prepare for,

[[Page 427]]

and engage in, high-quality employment that will increase opportunities 
for economic self-sufficiency.

(Authority: Section 121(a) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 741(a))



Sec.  371.2  Who is eligible for assistance under this program?

    (a) Applications may be made only by Indian tribes and consortia of 
those Indian tribes located on Federal and State reservations.
    (1) The applicant for the grant must be
    (i) The governing body of an Indian tribe, either on behalf the 
Indian tribe or on behalf of a consortium of Indian tribes; or
    (ii) A tribal organization that is a separate legal organization 
from an Indian tribe.
    (2) In order to receive a grant under this section, a tribal 
organization that is not a governing body of an Indian tribe must:
    (i) Have as one of its functions the vocational rehabilitation of 
American Indians with disabilities; and
    (ii) Have the approval of the tribe to be served by such 
organization.
    (3) If a grant is made to the governing body of an Indian tribe, 
either on its own behalf or on behalf of a consortium, or to a tribal 
organization to perform services benefiting more than one Indian tribe, 
the approval of each such Indian tribe shall be a prerequisite to the 
making of such a grant.
    (b) Applications for awards under Subpart B may be made by State, 
local or tribal governments, non-profit organizations, or institutions 
of higher education.

(Authority: Sections 12(c) and 121(a) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 741(a))



Sec.  371.3  What types of projects are authorized under this program?

    The American Indian Vocational Rehabilitation Services program 
provides financial assistance for the establishment and operation of 
tribal vocational rehabilitation services programs for American Indians 
with disabilities who reside on or near Federal or State reservations.

(Authority: Sections 12(c) and 121(a) of the Rehabilitation Act of 1973, 
as amended Act, 29 U.S.C. 709(c) and 741(a))



Sec.  371.4  What is the length of the project period under this program?

    The Secretary approves a project period of up to sixty months.

(Authority: Sections 12(c) and 121(b)(3) of the Rehabilitation Act of 
1973, as amended, 29 U.S.C. 709(c) and 121(b)(3))



Sec.  371.5  What regulations apply to this program?

    The following regulations apply to this program--
    (a) The regulations in this part 371.
    (b) 2 CFR part 180 (OMB Guidelines to Agencies on Debarment and 
Suspension (Nonprocurement)), as adopted at 2 CFR part 3485;
    (c) 2 CFR part 200 (Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards) as adopted at 2 
CFR part 3474.
    (d) 34 CFR part 75 Direct Grant Programs
    (e) 34 CFR part 77 Definitions that Apply to Department Regulations
    (f) 34 CFR part 81 General Education Provisions Act--Enforcement
    (g) 34 CFR part 82 New Restrictions on Lobbying
    (h) 34 CFR part 84 Governmentwide Requirements for Drug-Free 
Workplace

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))



Sec.  371.6  What definitions apply to this program?

    (a) The definitions of terms included in the applicable regulations 
listed in Sec.  371.5;
    (b) The following definitions also apply to this program--
    Act means the Rehabilitation Act of 1973, as amended.
    Assessment for determining eligibility and vocational rehabilitation 
needs means as appropriate in each case--
    (i)(A) A review of existing data--
    (1) To determine if an individual is eligible for vocational 
rehabilitation services; and
    (2) To assign priority for an order of selection described in an 
approved plan or the approved grant application; and

[[Page 428]]

    (B) To the extent necessary, the provision of appropriate assessment 
activities to obtain necessary additional data to make the eligibility 
determination and assignment;
    (ii) To the extent additional data are necessary to make a 
determination of the employment outcomes, and the nature and scope of 
vocational rehabilitation services, to be included in the individualized 
plan for employment of an eligible individual, a comprehensive 
assessment to determine the unique strengths, resources, priorities, 
concerns, abilities, capabilities, interests, and informed choice, 
including the need for supported employment, of the eligible individual, 
this comprehensive assessment--
    (A) Is limited to information that is necessary to identify the 
rehabilitation needs of the individual and to develop the individualized 
plan for employment of the eligible individual;
    (B) Uses as a primary source of information, to the maximum extent 
possible and appropriate and in accordance with confidentiality 
requirements--
    (1) Existing information obtained for the purposes of determining 
the eligibility of the individual and assigning priority for an order of 
selection described in an approved plan or the approved grant 
application for the individual; and
    (2) Information that can be provided by the individual and, if 
appropriate, by the family of the individual;
    (C) May include, to the degree needed to make such a determination, 
an assessment of the personality, interests, interpersonal skills, 
intelligence and related functional capacities, educational 
achievements, work experience, vocational aptitudes, personal and social 
adjustments, and employment opportunities of the individual, and the 
medical, psychiatric, psychological, and other pertinent vocational, 
educational, cultural, social, recreational, and environmental factors, 
that affect the employment and rehabilitation needs of the individual;
    (D) May include, to the degree needed, an appraisal of the patterns 
of work behavior of the individual and services needed for the 
individual to acquire occupational skills, and to develop work 
attitudes, work habits, work tolerance, and social and behavior patterns 
necessary for successful job performance, including the use of work in 
real job situations to assess and develop the capacities of the 
individual to perform adequately in a work environment; and
    (E) To the maximum extent possible, relies on information obtained 
from experiences in integrated employment settings in the community, and 
other integrated community settings;
    (iii) Referral, for the provision of rehabilitation technology 
services to the individual, to assess and develop the capacities of the 
individual to perform in a work environment; and
    (iv) An exploration of the individual's abilities, capabilities, and 
capacity to perform in work situations, which must be assessed 
periodically during trial work experiences, including experiences in 
which the individual is provided appropriate supports and training.

(Authority: Sections 7(2) and 12(c) of the Rehabilitation Act of 1973, 
as amended, 29 U.S.C. 705(2) and 709(c))

    Community rehabilitation program means a program that provides 
directly, or facilitates the provision of, one or more of the following 
vocational rehabilitation services to individuals with disabilities to 
enable those individuals to maximize their opportunities for employment, 
including career advancement--
    (i) Medical, psychiatric, psychological, social, and vocational 
services that are provided under one management;
    (ii) Testing, fitting, or training in the use of prosthetic and 
orthotic devices;
    (iii) Recreational therapy;
    (iv) Physical and occupational therapy;
    (v) Speech, language, and hearing therapy;
    (vi) Psychiatric, psychological, and social services, including 
positive behavior management;
    (vii) Assessment for determining eligibility and vocational 
rehabilitation needs;
    (viii) Rehabilitation technology;
    (ix) Job development, placement, and retention services;
    (x) Evaluation or control of specific disabilities;

[[Page 429]]

    (xi) Orientation and mobility services for individuals who are 
blind;
    (xii) Extended employment;
    (xiii) Psychosocial rehabilitation services;
    (xiv) Supported employment services and extended services;
    (xv) Customized employment;
    (xvi) Services to family members if necessary to enable the 
applicant or eligible individual to achieve an employment outcome;
    (xvii) Personal assistance services; or
    (xviii) Services similar to the services described in paragraphs (i) 
through (xvii) of this definition.

(Authority: Sections 7(4) and 12(c) of the Rehabilitation Act of 1973, 
as amended, 29 U.S.C. 705(4) and 709(c))

    Comparable services and benefits means--
    (i) Services and benefits, including accommodations and auxiliary 
aids and services, that are--
    (A) Provided or paid for, in whole or in part, by other Federal, 
State, or local public agencies, by health insurance, or by employee 
benefits;
    (B) Available to the individual at the time needed to ensure the 
progress of the individual toward achieving the employment outcome in 
the individual's individualized plan for employment; and
    (C) Commensurate to the services that the individual would otherwise 
receive from the Tribal Vocational Rehabilitation unit.
    (ii) For the purposes of this definition, comparable benefits do not 
include awards and scholarships based on merit.

(Authority: Sections 12(c) and 101(a)(8)(A) of the Rehabilitation Act of 
1973, as amended, 29 U.S.C. 709(c) and 721(a)(8)(A))

    Competitive integrated employment means work that--
    (i) Is performed on a full-time or part-time basis (including self-
employment) and for which an individual is compensated at a rate that--
    (A) Is not less than the higher of the rate specified in section 
6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)) or 
the rate required under the applicable State or local minimum wage law;
    (B) Is not less than the customary rate paid by the employer for the 
same or similar work performed by other employees who are not 
individuals with disabilities and who are similarly situated in similar 
occupations by the same employer and who have similar training, 
experience, and skills; and
    (C) In the case of an individual who is self-employed, yields an 
income that is comparable to the income received by other individuals 
who are not individuals with disabilities and who are self-employed in 
similar occupations or on similar tasks and who have similar training, 
experience, and skills; and
    (D) Is eligible for the level of benefits provided to other 
employees; and
    (ii) Is at a location--
    (A) Typically found in the community; and
    (B) Where the employee with a disability interacts for the purpose 
of performing the duties of the position with other employees within the 
particular work unit and the entire work site, and, as appropriate to 
the work performed, other persons (e.g., customers and vendors), who are 
not individuals with disabilities (not including supervisory personnel 
or individuals who are providing services to such employee) to the same 
extent that employees who are not individuals with disabilities and who 
are in comparable positions interact with these persons; and
    (C) Presents, as appropriate, opportunities for advancement that are 
similar to those for other employees who are not individuals with 
disabilities and who have similar positions.

(Authority: Sections 7(5) and 12(c) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 705(5) and 709(c))

    Consortium means two or more eligible governing bodies of Indian 
tribes that apply for an award under this program by either:
    (i) Designating one governing body to apply for the grant; or
    (ii) Establishing and designating a tribal organization to apply for 
a grant.

(Authority: Sections 12(c) and 121 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 741(a))

    Customized employment means competitive integrated employment, for 
an

[[Page 430]]

individual with a significant disability, that is based on an 
individualized determination of the unique strengths, needs, and 
interests of the individual with a significant disability, is designed 
to meet the specific abilities of the individual with a significant 
disability and the business needs of the employer, and is carried out 
through flexible strategies, such as--
    (i) Job exploration by the individual;
    (ii) Working with an employer to facilitate placement, including--
    (A) Customizing a job description based on current employer needs or 
on previously unidentified and unmet employer needs; and
    (B) Developing a set of job duties, a work schedule and job 
arrangement, and specifics of supervision (including performance 
evaluation and review), and determining a job location;
    (iii) Using a professional representative chosen by the individual, 
or if elected self-representation, to work with an employer to 
facilitate placement; and
    (iv) Providing services and supports at the job location.

(Authority: Sections 7(7) and 12(c) of the Rehabilitation Act of 1973, 
as amended, 29 U.S.C. 705(7) and 709(c))

    Eligible individual means an applicant for vocational rehabilitation 
services who meets the eligibility requirements of Section 102(a)(1) of 
the Act.

(Authority: Sections 7(20)(A), 12(c), and 102(a)(1) of the 
Rehabilitation Act of 1973, as amended, 29 U.S.C. 705(20)(A), 709(c), 
and 722)

    Employment outcome means, with respect to an individual, entering, 
advancing in or retaining full-time or, if appropriate, part-time 
competitive integrated employment (including customized employment, 
self-employment, telecommuting or business ownership), or supported 
employment, that is consistent with an individual's unique strengths, 
resources, priorities, concerns, abilities, capabilities, interests, and 
informed choice.

(Authority: Sections 7(11) and 12(c) of the Rehabilitation Act of 1973, 
as amended, 29 U.S.C. 705(11), and 709(c))

    Family member for purposes of receiving vocational rehabilitation 
services means an individual--
    (i) Who either--
    (A) Is a relative or guardian of an applicant or eligible 
individual; or
    (B) Lives in the same household as an applicant or eligible 
individual;
    (ii) Who has a substantial interest in the well-being of that 
individual; and
    (iii) Whose receipt of vocational rehabilitation services is 
necessary to enable the applicant or eligible individual to achieve an 
employment outcome.

(Authority: Sections 12(c) and 103(a)(19) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 723(a)(19))

    Governing bodies of Indian tribes means those duly elected or 
appointed representatives of an Indian tribe or of an Alaskan native 
village. These representatives must have the authority to enter into 
contracts, agreements, and grants on behalf of their constituency.

(Authority: Sections 12(c) and 121(a) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 741(a))

    Indian; American Indian; Indian American; Indian tribe means---
    (i) Indian, American Indian, and Indian American mean an individual 
who is a member of an Indian tribe and includes a Native and a 
descendant of a Native, as such terms are defined in subsections (b) and 
(r) of section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 
1602).
    (ii) Indian tribe means any Federal or State Indian tribe, band, 
rancheria, pueblo, colony, or community, including any Alaskan native 
village or regional village corporation (as defined in or established 
pursuant to the Alaska Native Claims Settlement Act) and a tribal 
organization (as defined in section 4(l) of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450(b)(l)) and 
this section.

(Authority: Section 7(19) of the Rehabilitation Act of 1973, as amended, 
29 U.S.C. 705(19))

    Individual with a disability means--
    In general any individual--
    (i) Who has a physical or mental impairment;
    (ii) Whose impairment constitutes or results in a substantial 
impediment to employment; and

[[Page 431]]

    (iii) Who can benefit in terms of an employment outcome from the 
provision of vocational rehabilitation services.

(Authority: Section 7(20)(A) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 705(20)(A))

    Individual with a significant disability means--
    In general an individual with a disability--
    (i) Who has a severe physical or mental impairment that seriously 
limits one or more functional capacities (such as mobility, 
communication, self-care, self-direction, interpersonal skills, work 
tolerance, or work skills) in terms of an employment outcome;
    (ii) Whose vocational rehabilitation can be expected to require 
multiple vocational rehabilitation services over an extended period of 
time; and
    (iii) Who has one or more physical or mental disabilities resulting 
from amputation, arthritis, autism, blindness, burn injury, cancer, 
cerebral palsy, cystic fibrosis, deafness, head injury, heart disease, 
hemiplegia, hemophilia, respiratory or pulmonary dysfunction, 
intellectual disability, mental illness, multiple sclerosis, muscular 
dystrophy, musculo-skeletal disorders, neurological disorders (including 
stroke and epilepsy), spinal cord conditions (including paraplegia and 
quadriplegia), sickle cell anemia, specific learning disability, end-
stage renal disease, or another disability or combination of 
disabilities determined on the basis of an assessment for determining 
eligibility and vocational rehabilitation needs to cause comparable 
substantial functional limitation.

(Authority: Section 7(21) of the Rehabilitation Act of 1973, as amended, 
29 U.S.C. 705(21))

    Maintenance means monetary support provided to an individual for 
expenses, such as food, shelter, and clothing, that are in excess of the 
normal expenses of the individual and that are necessitated by the 
individual's participation in an assessment for determining eligibility 
and vocational rehabilitation needs or the individual's receipt of 
vocational rehabilitation services under an individualized plan for 
employment.

(Authority: Sections 12(c) and 103(a)(7) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 723(a)(7))

    Examples: The following are examples of expenses that would meet the 
definition of maintenance. The examples are illustrative, do not address 
all possible circumstances, and are not intended to substitute for 
individual counselor judgment.

    Example 1: The cost of a uniform or other suitable clothing that is 
required for an individual's job placement or job-seeking activities.
    Example 2: The cost of short-term shelter that is required in order 
for an individual to participate in assessment activities or vocational 
training at a site that is not within commuting distance of an 
individual's home.
    Example 3: The initial one-time costs, such as a security deposit or 
charges for the initiation of utilities, that are required in order for 
an individual to relocate for a job placement.

    Physical and mental restoration services means--
    (i) Corrective surgery or therapeutic treatment that is likely, 
within a reasonable period of time, to correct or modify substantially a 
stable or slowly progressive physical or mental impairment that 
constitutes a substantial impediment to employment;
    (ii) Diagnosis of and treatment for mental or emotional disorders by 
qualified personnel in accordance with State licensure laws;
    (iii) Dentistry;
    (iv) Nursing services;
    (v) Necessary hospitalization (either inpatient or outpatient care) 
in connection with surgery or treatment and clinic services;
    (vi) Drugs and supplies;
    (vii) Prosthetic and orthotic devices;
    (viii) Eyeglasses and visual services, including visual training, 
and the examination and services necessary for the prescription and 
provision of eyeglasses, contact lenses, microscopic lenses, telescopic 
lenses, and other special visual aids prescribed by personnel that are 
qualified in accordance with State licensure laws;
    (ix) Podiatry;
    (x) Physical therapy;
    (xi) Occupational therapy;

[[Page 432]]

    (xii) Speech or hearing therapy;
    (xiii) Mental health services;
    (xiv) Treatment of either acute or chronic medical complications and 
emergencies that are associated with or arise out of the provision of 
physical and mental restoration services, or that are inherent in the 
condition under treatment;
    (xv) Special services for the treatment of individuals with end-
stage renal disease, including transplantation, dialysis, artificial 
kidneys, and supplies; and
    (xvi) Other medical or medically related rehabilitation services.
    (xvii) Services reflecting the cultural background of the American 
Indian being served, including treatment provided by native healing 
practitioners in accordance with 34 CFR 371.41(a)(2).

(Authority: Sections 12(c), 103(a)(6), and 121(b)(1)(B) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 723(a)(6), and 
741(b)(1)(B))

    Physical or mental impairment means--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological, musculo-skeletal, special sense organs, respiratory 
(including speech organs), cardiovascular, reproductive, digestive, 
genitourinary, hemic and lymphatic, skin, and endocrine; or
    (ii) Any mental or psychological disorder such as intellectual or 
developmental disability, organic brain syndrome, emotional or mental 
illness, and specific learning disabilities.

(Authority: Sections 7(20)(A) and 12(c) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 705(20)(A) and 709(c))

    Post-employment services means one or more of the services that are 
provided subsequent to the achievement of an employment outcome and that 
are necessary for an individual to maintain, regain, or advance in 
employment, consistent with the individual's unique strengths, 
resources, priorities, concerns, abilities, capabilities, interests, and 
informed choice.

(Authority: Sections 12(c) and 103(a)(18) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c)) and 723(a)(18))

    Note to definition of post-employment services: Post-employment 
services are intended to ensure that the employment outcome remains 
consistent with the individual's unique strengths, resources, 
priorities, concerns, abilities, capabilities, interests, and informed 
choice. These services are available to meet rehabilitation needs that 
do not require a complex and comprehensive provision of services and, 
thus, should be limited in scope and duration. If more comprehensive 
services are required, then a new rehabilitation effort should be 
considered. Post-employment services are to be provided under an amended 
individualized plan for employment; thus, a re-determination of 
eligibility is not required. The provision of post-employment services 
is subject to the same requirements in this part as the provision of any 
other vocational rehabilitation service. Post-employment services are 
available to assist an individual to maintain employment, e.g., the 
individual's employment is jeopardized because of conflicts with 
supervisors or co-workers, and the individual needs mental health 
services and counseling to maintain the employment; or the individual 
requires assistive technology to maintain the employment; to regain 
employment, e.g., the individual's job is eliminated through 
reorganization and new placement services are needed; and to advance in 
employment, e.g., the employment is no longer consistent with the 
individual's unique strengths, resources, priorities, concerns, 
abilities, capabilities, interests, and informed choice.
    Representatives of the Tribal Vocational Rehabilitation program 
means, consistent with 34 CFR 371.21(b), those individuals specifically 
responsible for determining eligibility, the nature and scope of 
vocational rehabilitation services, and the provision of those services.

(Authority: Sections 12(c) and 121(b)(1)(D) of the Rehabilitation Act of 
1973, as amended, 29 U.S.C. 709(c) and 741(b)(1)(D))

    Reservation means a Federal or State Indian reservation, public 
domain Indian allotment, former Indian reservation in Oklahoma, land 
held by incorporated Native groups, regional corporations and village 
corporations under the provisions of the Alaska Native Claims Settlement 
Act; or a defined area of land recognized by a State or the Federal 
Government where there is a concentration of tribal members and on which 
the tribal government is

[[Page 433]]

providing structured activities and services.

(Authority: Sections 12(c) and 121(e) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 741(e))

    Subsistence means a form of self-employment in which individuals 
produce, using culturally relevant and traditional methods, goods or 
services that are predominantly consumed by their own household or used 
for noncommercial customary trade or barter and that constitute an 
important basis for the worker's livelihood.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))

    Substantial impediment to employment means that a physical or mental 
impairment (in light of attendant medical, psychological, vocational, 
educational, communication, and other related factors) hinders an 
individual from preparing for, entering into, engaging in, advancing in 
or retaining employment consistent with the individual's abilities and 
capabilities.

(Authority: Sections 7(20)(A) and 12(c) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 705(20)(A) and 709(c))

    Supported employment--(i) Supported employment means competitive 
integrated employment, including customized employment, or employment in 
an integrated work setting in which an individual with a most 
significant disability, including a youth with a most significant 
disability, is working on a short-term basis toward competitive 
integrated employment that is individualized, consistent with the unique 
strengths, abilities, interests, and informed choice of the individual, 
including with ongoing support services for individuals with the most 
significant disabilities--
    (A) For whom competitive integrated employment has not historically 
occurred, or for whom competitive integrated employment has been 
interrupted or intermittent as a result of a significant disability; and
    (B) Who, because of the nature and severity of their disability, 
need intensive supported employment services and extended services after 
the transition from support provided by the Tribal Vocational 
Rehabilitation Unit, in order to perform this work.
    (ii) For purposes of this part, an individual with the most 
significant disabilities, whose supported employment in an integrated 
setting does not satisfy the criteria of competitive integrated 
employment is considered to be working on a short-term basis toward 
competitive integrated employment so long as the individual can 
reasonably anticipate achieving competitive integrated employment:
    (A) Within six months of achieving a supported employment outcome; 
or
    (B) Within a period not to exceed 12 months from the achievement of 
the supported employment outcome, if a longer period is necessary based 
on the needs of the individual, and the individual has demonstrated 
progress toward competitive earnings based on information contained in 
the service record.

(Authority: Sections 7(38) and 12(c) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 705(38) and 709(c))

    Supported employment services means ongoing support services, 
including customized employment, and other appropriate services needed 
to support and maintain an individual with a most significant 
disability, including a youth with a most significant disability, in 
supported employment that are:
    (i) Organized and made available, singly or in combination, in such 
a way as to assist an eligible individual to achieve competitive 
integrated employment;
    (ii) Based on a determination of the needs of an eligible 
individual, as specified in an individualized plan for employment;
    (iii) Provided by the Tribal Vocational Rehabilitation Unit for a 
period of time not to exceed 24 months, unless under special 
circumstances the eligible individual and the rehabilitation counselor 
or coordinator jointly agree to extend the time to achieve the 
employment outcome identified in the individualized plan for employment; 
and
    (iv) Following transition, as post-employment services that are 
unavailable from an extended services provider and

[[Page 434]]

that are necessary to maintain or regain the job placement or advance in 
employment.

(Authority: Sections 7(39) and 12(c) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 705(39) and 709(c))

    Transition services means a coordinated set of activities for a 
student or youth with a disability--
    (i) Designed within an outcome-oriented process that promotes 
movement from school to post-school activities, including postsecondary 
education, vocational training, competitive integrated employment, 
supported employment, continuing and adult education, adult services, 
independent living, or community participation;
    (ii) Based upon the individual student's or youth's needs, taking 
into account the student's or youth's preferences and interests;
    (iii) That includes instruction, community experiences, the 
development of employment and other post-school adult living objectives, 
and, if appropriate, acquisition of daily living skills and functional 
vocational evaluation;
    (iv) That promotes or facilitates the achievement of the employment 
outcome identified in the student's or youth's individualized plan for 
employment; and
    (v) That includes outreach to and engagement of the parents, or, as 
appropriate, the representative of such a student or youth with a 
disability.

(Authority: Sections 12(c), 103(a)(15), and (b)(7) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c), 723(a)(15), and (b)(7))

    Transportation means travel and related expenses that are necessary 
to enable an applicant or eligible individual to participate in a 
vocational rehabilitation service, including expenses for training in 
the use of public transportation vehicles and systems.

(Authority: Sections 12(c) and 103(a)(8) of the Rehabilitation Act of 
1973, as amended, 29 U.S.C. 709(c) and 723(a)(8))

    Tribal organization means the recognized governing body of any 
Indian tribe or any legally established organization of Indians which is 
controlled, sanctioned, or chartered by such governing body or which is 
democratically elected by the adult members of the Indian community to 
be served by such organization and which includes the maximum 
participation of Indians in all phases of its activities.

(Authority: Sections 7(19) and 12(c) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 705(19) and 709(c); Section 4 of the Indian Self-
Determination and Education Assistance Act, 25 U.S.C. 450(b))

    Tribal Vocational Rehabilitation program means the unit designated 
by the governing bodies of an Indian Tribe, or consortia of governing 
bodies, to implement and administer the grant under this program in 
accordance with the purpose of the grant and all applicable programmatic 
and fiscal requirements.

(Authority: Sections 12(c) and 121(b)(1) of the Rehabilitation Act of 
1973, as amended, 29 U.S.C. 709(c) and 741(b)(1))

    Vocational Rehabilitation Services for Individuals means any 
services described in an individualized plan for employment necessary to 
assist an individual with a disability in preparing for, securing, 
retaining, advancing in or regaining an employment outcome that is 
consistent with the unique strengths, resources, priorities, concerns, 
abilities, capabilities, interests, and informed choice of the 
individual, including, but not limited to--
    (i) An assessment for determining eligibility, priority for 
services, and vocational rehabilitation needs by qualified personnel, 
including, if appropriate, an assessment by personnel skilled in 
rehabilitation technology.
    (ii) Vocational rehabilitation counseling and guidance, including 
information and support services to assist an individual in exercising 
informed choice.
    (iii) Referral and other services necessary to assist applicants and 
eligible individuals to secure needed services from other agencies and 
to advise those individuals about client assistance programs established 
under 34 CFR part 370.
    (iv) Physical and mental restoration services, to the extent that 
financial support is not readily available from a source other than the 
Tribal Vocational Rehabilitation unit (such as

[[Page 435]]

through health insurance or a comparable service or benefit).
    (v) Vocational and other training services, including personal and 
vocational adjustment training, advanced training (particularly advanced 
training in a field of science, technology, engineering, or mathematics 
(including computer science), medicine, law or business); books, tools, 
and other training materials, except that no training or training 
services in an institution of higher education (universities, colleges, 
community or junior colleges, vocational schools, technical institutes, 
or hospital schools of nursing or any other postsecondary education 
institution) may be paid for with funds under this part unless maximum 
efforts have been made by the Tribal Vocational Rehabilitation unit and 
the individual to secure grant assistance in whole or in part from other 
sources to pay for that training.
    (vi) Maintenance.
    (vii) Transportation in connection with the provision of any 
vocational rehabilitation service.
    (viii) Vocational rehabilitation services to family members of an 
applicant or eligible individual if necessary to enable the applicant or 
eligible individual to achieve an employment outcome.
    (ix) Interpreter services, including sign language and oral 
interpreter services, for individuals who are deaf or hard of hearing 
and tactile interpreting services for individuals who are deaf-blind 
provided by qualified personnel.
    (x) Reader services, rehabilitation teaching services, and 
orientation and mobility services for individuals who are blind.
    (xi) Job-related services, including job search and placement 
assistance, job retention services, follow-up services, and follow-along 
services.
    (xii) Supported employment services.
    (xiii) Personal assistance services.
    (xiv) Post-employment services.
    (xv) Occupational licenses, tools, equipment, initial stocks, and 
supplies.
    (xvi) Rehabilitation technology, including vehicular modification, 
telecommunications, sensory, and other technological aids and devices.
    (xvii) Transition services for students and youth with disabilities 
that facilitate the transition from school to postsecondary life, such 
as achievement of an employment outcome in competitive integrated 
employment.
    (xviii) Technical assistance and other consultation services to 
conduct market analyses, develop business plans, and otherwise provide 
resources to eligible individuals who are pursuing self-employment or 
telecommuting or establishing a small business operation as an 
employment outcome.
    (xix) Customized employment.
    (x) Other goods and services determined necessary for the individual 
with a disability to achieve an employment outcome.
    Vocational Rehabilitation Services for Groups of Individuals 
provided for the benefit of groups of individuals with disabilities--
    (i) May be provided by the Tribal Vocational Rehabilitation Unit and 
may include the following:
    (A) In the case of any small business enterprise operated by 
individuals with significant disabilities under the supervision of the 
Tribal Vocational Rehabilitation unit, management services and 
supervision provided by the Tribal Vocational Rehabilitation unit, along 
with the acquisition by the Tribal Vocational Rehabilitation unit of 
vending facilities or other equipment and initial stocks and supplies in 
accordance with the following requirements:
    (1) Management services and supervision includes inspection, quality 
control, consultation, accounting, regulating, in-service training, and 
related services provided on a systematic basis to support and improve 
small business enterprises operated by individuals with significant 
disabilities. Management services and supervision may be provided 
throughout the operation of the small business enterprise.
    (2) Initial stocks and supplies include those items necessary to the 
establishment of a new business enterprise during the initial 
establishment period, which may not exceed 6 months.
    (3) Costs of establishing a small business enterprise may include 
operational costs during the initial establishment period, which may not 
exceed six months.
    (4) If the Tribal Vocational Rehabilitation unit provides for these 
services,

[[Page 436]]

it must ensure that only individuals with significant disabilities will 
be selected to participate in this supervised program.
    (5) If the Tribal Vocational Rehabilitation unit provides for these 
services and chooses to set aside funds from the proceeds of the 
operation of the small business enterprises, the Tribal Vocational 
Rehabilitation unit must maintain a description of the methods used in 
setting aside funds and the purposes for which funds are set aside. 
Funds may be used only for small business enterprises purposes, and 
benefits that are provided to operators from set-aside funds must be 
provided on an equitable basis.
    (B) The establishment, development, or improvement of a community 
rehabilitation program that is used to provide vocational rehabilitation 
services that promote integration into the community and prepare 
individuals with disabilities for competitive integrated employment, 
including supported employment and customized employment, and under 
special circumstances, the construction of a community rehabilitation 
facility. Examples of ``special circumstances'' include the destruction 
by natural disaster of the only available center serving an area or a 
Tribal Vocational Rehabilitation unit determination that construction is 
necessary in a rural area because no other public agencies or private 
nonprofit organizations are currently able to provide vocational 
rehabilitation services to individuals.
    (C) Telecommunications systems (that have the potential for 
substantially improving vocational rehabilitation service delivery 
methods and developing appropriate programming to meet the particular 
needs of individuals with disabilities including telephone, television, 
video description services, satellite, tactile-vibratory devices, and 
similar systems, as appropriate.
    (D) Special services to provide nonvisual access to information for 
individuals who are blind, including the use of telecommunications, 
Braille, sound recordings, or other appropriate media; captioned 
television, films, or video cassettes for individuals who are deaf or 
hard of hearing; tactile materials for individuals who are deaf-blind; 
and other special services that provide information through tactile, 
vibratory, auditory, and visual media.
    (E) Technical assistance to businesses that are seeking to employ 
individuals with disabilities.
    (F) Consultation and technical assistance services to assist State 
educational agencies and local educational agencies, and, where 
appropriate, Tribal Educational agencies, in planning for the transition 
of students with disabilities from school to postsecondary life, 
including employment.
    (G) Transition services to youth with disabilities and students with 
disabilities, for which a vocational rehabilitation counselor works in 
concert with educational agencies, providers of job training programs, 
providers of services under the Medicaid program under title XIX of the 
Social Security Act (42 U.S.C. 1396 et seq.), entities designated by the 
Tribal Vocational Rehabilitation unit to provide services for 
individuals with developmental disabilities, centers for independent 
living (as defined in section 702 of the Act), housing and 
transportation authorities, workforce development systems, and 
businesses and employers. These specific transition services are to 
benefit a group of students with disabilities or youth with disabilities 
and are not individualized services directly related to a goal in an 
individualized plan for employment (IPE). Services may include, but are 
not limited to group tours of universities and vocational training 
programs, employer or business site visits to learn about career 
opportunities, career fairs coordinated with workforce development and 
employers to facilitate mock interviews and resume writing, and other 
general services applicable to groups of students with disabilities and 
youth with disabilities.
    (H) The establishment, development, or improvement of assistive 
technology demonstration, loan, reutilization, or financing programs in 
coordination with activities authorized under the Assistive Technology 
Act of 1998 (29 U.S.C. 3001 et seq.) to promote access to assistive 
technology for individuals with disabilities and employers.

[[Page 437]]

    (I) Support (including, as appropriate, tuition) for advanced 
training in a field of science, technology, engineering, or mathematics 
(including computer science), medicine, law, or business, provided after 
an individual eligible to receive services under this title, 
demonstrates:
    (1) Such eligibility;
    (2) Previous completion of a bachelor's degree program at an 
institution of higher education or scheduled completion of such degree 
program prior to matriculating in the program for which the individual 
proposes to use the support; and
    (3) Acceptance by a program at an institution of higher education in 
the United States that confers a master's degree in a field of science, 
technology, engineering, or mathematics (including computer science), a 
juris doctor degree, a master of business administration degree, or a 
doctor of medicine degree, except that--
    (i) No training provided at an institution of higher education shall 
be paid for with funds under this program unless maximum efforts have 
been made by the Tribal Vocational Rehabilitation unit and the 
individual to secure grant assistance, in whole or in part, from other 
sources to pay for such training; and
    (ii) Nothing in this paragraph prevents any Tribal Vocational 
Rehabilitation unit from providing similar support to individuals with 
disabilities pursuant to their approved IPEs who are eligible to receive 
support under this program and who are not served under this paragraph.
    (ii) If the Tribal Vocational Rehabilitation Unit provides for 
vocational rehabilitation services for groups of individuals it must --
    (A) Develop and maintain written policies covering the nature and 
scope of each of the vocational rehabilitation services it provides and 
the criteria under which each service is provided; and
    (B) Maintain information to ensure the proper and efficient 
administration of those services in the form and detail and at the time 
required by the Secretary, including the types of services provided, the 
costs of those services, and to the extent feasible, estimates of the 
numbers of individuals benefiting from those services.

(Authority: Sections 12(c) and 103(a) and (b) of the Rehabilitation Act 
of 1973, as amended, 29 U.S.C. 709(c) and 723(a) and (b))



               Subpart B_Training and Technical Assistance



Sec.  371.10  What are the requirements for funding training and
technical assistance under this subpart?

    The Secretary shall first reserve not less than 1.8 percent and not 
more than 2 percent of funds appropriated and made available to carry 
out this program to provide training and technical assistance to the 
governing bodies of Indian tribes and consortia of those governing 
bodies awarded a grant under this program.

(Authority: Sections 12(c) and Section 121(c) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 741(c))



Sec.  371.11  How does the Secretary use these funds to provide
training and technical assistance?

    (a) The Secretary uses these funds to make grants to, or enter into 
contracts or other cooperative agreements with, entities that have staff 
with experience in the operation of vocational rehabilitation services 
programs under this part.
    (b) An entity receiving assistance in accordance with paragraph (a) 
of this section shall provide training and technical assistance with 
respect to developing, conducting, administering, and evaluating tribal 
vocational rehabilitation programs funded under this part.

(Authority: Sections 12(c) and Section 121(c) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 741(c))



Sec.  371.12  How does the Secretary make an award?

    (a) To be eligible to receive a grant or enter into a contract or 
cooperative agreement under section 121(c) of the Act and this subpart, 
an applicant shall submit an application to the Secretary at such time, 
in such manner, and containing a proposal to provide such training and 
technical assistance, and any additional information as the Secretary 
may require.

[[Page 438]]

    (b) The Secretary shall provide for peer review of applications by 
panels that include persons who are not Federal or State government 
employees and who have experience in the operation of vocational 
rehabilitation services programs under this part.

(Authority: Sections 12(c) and Section 121(c) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 741(c))



Sec.  371.13  How does the Secretary determine funding priorities?

    The Secretary shall conduct a survey of the governing bodies of 
Indian tribes funded under this part regarding training and technical 
assistance needs in order to determine funding priorities for such 
training and technical assistance.

(Authority: Sections 12(c) and Section 121(c) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 741(c))



Sec.  371.14  How does the Secretary evaluate an application?

    (a) The Secretary evaluates each application for a grant, 
cooperative agreement or contract under this subpart on the basis of the 
selection criteria chosen from the general selection criteria found in 
EDGAR regulations at 34 CFR 75.210.
    (b) The Secretary may award a competitive preference consistent with 
34 CFR 75.102(c)(2) to applications that include as project personnel in 
a substantive role, individuals that have been employed as a project 
director or VR counselor by a Tribal Vocational Rehabilitation unit 
funded under this part.
    (c) If using a contract to award funds under this subpart, the 
Secretary may conduct the application process and make the subsequent 
award in accordance with 34 CFR part 75.

(Authority: Sections 12(c) and Section 121(c) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 741(c))



                Subpart C_How Does One Apply for a Grant?



Sec.  371.20  What are the application procedures for this program?

    (a) In the development of an application, the applicant is required 
to consult with the designated State unit (DSU) for the state vocational 
rehabilitation program in the State or States in which vocational 
rehabilitation services are to be provided.
    (b) The procedures for the review and comment by the DSU or the DSUs 
of the State or States in which vocational rehabilitation services are 
to be provided on applications submitted from within the State that the 
DSU or DSUs serve are in 34 CFR 75.155-75.159.

(Authority: Sections 12(c) and 121(b)(1)(C) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 741(b)(1)(C))



Sec.  371.21  What are the special application requirements related
to the projects funded under this part?

    Each applicant under this program must provide evidence that--
    (a) Effort will be made to provide a broad scope of vocational 
rehabilitation services in a manner and at a level of quality at least 
comparable to those services provided by the designated State unit.

(Authority: Sections 12(c) and 121(b)(1)(B) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 741(b)(1)(B))

    (b) All decisions affecting eligibility for vocational 
rehabilitation services, the nature and scope of available vocational 
rehabilitation services and the provision of such services will be made 
by a representative of the tribal vocational rehabilitation program 
funded through this grant and such decisions will not be delegated to 
another agency or individual.

(Authority: Sections 12(c) and 121(b)(1)(D) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 741(b)(1)(D))

    (c) Priority in the delivery of vocational rehabilitation services 
will be given to those American Indians with disabilities who are the 
most significantly disabled.

(Authority: Sections 12(c) and 101(a)(5) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 721(a)(5))

    (d) An order of selection of individuals with disabilities to be 
served under the program will be specified if

[[Page 439]]

services cannot be provided to all eligible American Indians with 
disabilities who apply.

(Authority: Sections 12(c) and 101(a)(5) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709 (c) and 721(a)(5))

    (e) All vocational rehabilitation services will be provided 
according to an individualized plan for employment which has been 
developed jointly by the representative of the tribal vocational 
rehabilitation program and each American Indian with disabilities being 
served.

(Authority: Sections 12(c) and 101(a)(9) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 721 (a)(9))

    (f) American Indians with disabilities living on or near Federal or 
State reservations where tribal vocational rehabilitation service 
programs are being carried out under this part will have an opportunity 
to participate in matters of general policy development and 
implementation affecting vocational rehabilitation service delivery by 
the tribal vocational rehabilitation program.

(Authority: Sections 12(c) and 101(a)(16) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 721(a)(16))

    (g) Cooperative working arrangements will be developed with the DSU, 
or DSUs, as appropriate, which are providing vocational rehabilitation 
services to other individuals with disabilities who reside in the State 
or States being served.

(Authority: Sections 12(c) and 101(a)(11)(F) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 721(a)(11)(F))

    (h) Any comparable services and benefits available to American 
Indians with disabilities under any other program, which might meet in 
whole or in part the cost of any vocational rehabilitation service, will 
be fully considered in the provision of vocational rehabilitation 
services.

(Authority: Sections 12(c) and 101(a)(8) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 721(a)(8))

    (i) Any American Indian with disabilities who is an applicant or 
recipient of services, and who is dissatisfied with a determination made 
by a representative of the tribal vocational rehabilitation program and 
files a request for a review, will be afforded a review under procedures 
developed by the grantee comparable to those under the provisions of 
section 102(c)(1)-(5) and (7) of the Act.

(Authority: Sections 12(c) and 102(c) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 722(c)(1)-(5) and (7))

    (j) The tribal vocational rehabilitation program funded under this 
part must assure that any facility used in connection with the delivery 
of vocational rehabilitation services meets facility and program 
accessibility requirements consistent with the requirements, as 
applicable, of the Architectural Barriers Act of 1968, the Americans 
with Disabilities Act of 1990, section 504 of the Act, and the 
regulations implementing these laws.

(Authority: Sections 12(c) and 101(a)(6)(C) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 721(a)(6)(C))

    (k) The tribal vocational rehabilitation program funded under this 
part must ensure that providers of vocational rehabilitation services 
are able to communicate in the native language of, or by using an 
appropriate mode of communication with, applicants and eligible 
individuals who have limited English proficiency, unless it is clearly 
not feasible to do so.

(Authority: Sections 12(c) and 101(a)(6)(A) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 721(a)(6)(A))



             Subpart D_How Does the Secretary Make a Grant?



Sec.  371.31  How are grants awarded?

    To the extent that funds have been appropriated under this program, 
the Secretary approves all applications which meet acceptable standards 
of program quality. If any application is not approved because of 
deficiencies in proposed program standards, the Secretary provides 
technical assistance to the applicant Indian tribe with respect to any 
areas of the proposal which were judged to be deficient.

(Authority: Sections 12(c) and 121(b)(1)(A) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 741(b)(1)(A))

[[Page 440]]



Sec.  371.32  What other factors does the Secretary consider in
reviewing an application?

    (a) In addition to the selection criteria used in accordance with 
the procedures in 34 CFR part 75, the Secretary, in making an award 
under this program, considers the past performance of the applicant in 
carrying out similar activities under previously awarded grants, as 
indicated by such factors as compliance with grant conditions, soundness 
of programmatic and financial management practices and attainment of 
established project objectives.
    (b) The Secretary may award a competitive preference consistent with 
34 CFR 75.102(c)(2) to applications for the continuation of programs 
which have been funded under this program.

(Authority: Sections 12(c), 121(b)(1)(A), and 121(b)(4) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 741(b)(1)(A)), 
and 741(b)(4).



    Subpart E_What Conditions Apply to a Grantee Under this Program?



Sec.  371.40  What are the matching requirements?

    (a) Federal share Except as provided in paragraph (c) of this 
section, the Federal share may not be more than 90 percent of the total 
cost of the project.
    (b) Non-Federal share The non-Federal share of the cost of the 
project may be in cash or in kind, fairly valued pursuant to match 
requirements in 2 CFR 200.306.
    (c) Waiver of non-Federal share In order to carry out the purposes 
of the program, the Secretary may waive the non-Federal share 
requirement, in part or in whole, only if the applicant demonstrates 
that it does not have sufficient resources to contribute the non-Federal 
share of the cost of the project.

(Authority: Sections 12(c) and 121(a) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 741(a))



Sec.  371.41  What are allowable costs?

    (a) In addition to those allowable cost established in 2 CFR 
200.400--200.475, the following items are allowable costs under this 
program--
    (1) Expenditures for the provision of vocational rehabilitation 
services and for the administration, including staff development, of a 
program of vocational rehabilitation services.
    (2) Expenditures for services reflecting the cultural background of 
the American Indians being served, including treatment provided by 
native healing practitioners who are recognized as such by the tribal 
vocational rehabilitation program when the services are necessary to 
assist an individual with disabilities to achieve his or her vocational 
rehabilitation objective.
    (b) Expenditures may not be made under this program to cover the 
costs of providing vocational rehabilitation services to individuals 
with disabilities not residing on or near Federal or State reservations.

(Authority: Sections 12(c) and 121(a) and (b)(1) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 741(a) and (b)(1))



Sec.  371.42  How are services to be administered under this program?

    (a) Directly or by contract. A grantee under this part may provide 
the vocational rehabilitation services directly or it may contract or 
otherwise enter into an agreement with a DSU, a community rehabilitation 
program, or another agency to assist in the implementation of the tribal 
vocational rehabilitation program.
    (b) Inter-tribal agreement. A grantee under this part may enter into 
an inter-tribal arrangement with governing bodies of other Indian tribes 
for carrying out a project that serves more than one Indian tribe.
    (c) Comparable services. To the maximum extent feasible, services 
provided by a grantee under this part must be comparable to vocational 
rehabilitation services provided under the State vocational 
rehabilitation program to other individuals with disabilities residing 
in the State.

(Authority: Sections 12(c) and 121(b)(1)(B) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 741(b)(1)(B))



Sec.  371.43  What other special conditions apply to this program?

    (a) Any American Indian with disabilities who is eligible for 
services

[[Page 441]]

under this program but who wishes to be provided services by the DSU 
must be referred to the DSU for such services.

(Authority: Sec. 12(c) and 121(b)(3) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 741(b)(3))

    (b) Preference in employment in connection with the provision of 
vocational rehabilitation services under this section must be given to 
American Indians, with a special priority being given to American 
Indians with disabilities.

(Authority: Sections 12(c) and 121(b)(2) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 741(b)(2))

    (c) The provisions of sections 5, 6, 7, and 102(a) of the Indian 
Self-Determination and Education Assistance Act also apply under this 
program (25 U.S.C. 450c, 450d, 450e, and 450f(a)). These provisions 
relate to grant reporting and audit requirements, maintenance of 
records, access to records, availability of required reports and 
information to Indian people served or represented, repayment of 
unexpended Federal funds, criminal activities involving grants, 
penalties, wage and labor standards, preference requirements for 
American Indians in the conduct and administration of the grant, and 
requirements affecting requests of tribal organizations to enter into 
contracts. For purposes of applying these requirements to this program, 
the Secretary carries out those responsibilities assigned to the 
Secretary of Interior.

(Authority: Sec. 12(c) and 121(b)(2) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C 709(c) and 741(b)(2))

    (d) The Tribal Vocational Rehabilitation unit must develop and 
maintain written policies regarding the provision of vocational 
rehabilitation services that ensure that the provision of services is 
based on the vocational rehabilitation needs of each individual as 
identified in that individual's IPE and is consistent with the 
individual's informed choice. The written policies may not establish any 
arbitrary limits on the nature and scope of vocational rehabilitation 
services to be provided to the individual to achieve an employment 
outcome. The policies must be developed in accordance with the following 
provisions:
    (1) Off-reservation services. (i) The Tribal Vocational 
Rehabilitation unit may establish a preference for on- or near-
reservation services, provided that the preference does not effectively 
deny an individual a necessary service. If the individual chooses an 
equivalent off-reservation service at a higher cost than an available 
on- or near-reservation service, the Tribal Vocational Rehabilitation 
unit is not responsible for those costs in excess of the cost of the on- 
or near-reservation service, if either service would meet the 
individual's rehabilitation needs.
    (ii) The Tribal Vocational Rehabilitation unit may not establish 
policies that effectively prohibit the provision of off-reservation 
services.
    (2) Payment for services (i) The Tribal Vocational Rehabilitation 
unit must establish and maintain written policies to govern the rates of 
payment for all purchased vocational rehabilitation services.
    (ii) The Tribal Vocational Rehabilitation unit may establish a fee 
schedule designed to ensure the program pays a reasonable cost for each 
service, as long as the fee schedule--
    (A) Is not so low as effectively to deny an individual a necessary 
service; and
    (B) permits exceptions so that individual needs can be addressed.
    (C) The Tribal Vocational Rehabilitation unit may not place absolute 
dollar limits on the amount it will pay for specific service categories 
or on the total services provided to an individual.
    (3) Duration of services (i) The Tribal Vocational Rehabilitation 
unit may establish reasonable time periods for the provision of services 
provided that the time periods--
    (A) Are not so short as effectively to deny an individual a 
necessary service; and
    (B) Permit exceptions so that individual needs can be addressed.
    (ii) The Tribal Vocational Rehabilitation unit may not place time 
limits on the provision of specific services or on the provision of 
services to an individual. The duration of each service

[[Page 442]]

needed by an individual must be determined on the basis of that 
individual's needs and reflected in that individual's individualized 
plan for employment.
    (4) Authorization of services. The Tribal Vocational Rehabilitation 
unit must establish policies related to the timely authorization of 
services.

(Authority: Sections 12(c) and 121(b) of the Rehabilitation Act of 1973, 
as amended, 29 U.S.C. 709(c) and 741(b))

    (e) Informed choice. Each individual who is an applicant for or 
eligible to receive vocational rehabilitation services must be afforded 
the opportunity to exercise informed choice throughout the vocational 
rehabilitation process carried out under programs funded under this 
part. The Tribal Vocational Rehabilitation unit must develop and 
maintain written policies and procedures that require it--
    (1) To inform each applicant and eligible individual, through 
appropriate modes of communication, about the availability of, and 
opportunities to exercise, informed choice, including the availability 
of support services for individuals with cognitive or other disabilities 
who require assistance in exercising informed choice, throughout the 
vocational rehabilitation process;
    (2) To assist applicants and eligible individuals in exercising 
informed choice in decisions related to the provision of assessment 
services;
    (3) To develop and implement flexible procurement policies and 
methods that facilitate the provision of vocational rehabilitation 
services, and that afford eligible individuals meaningful choices among 
the methods used to procure vocational rehabilitation services;
    (4) To provide or assist eligible individuals in acquiring 
information that enables them to exercise informed choice in the 
development of their IPEs and selection of--
    (i) The employment outcome;
    (ii) The specific vocational rehabilitation services needed to 
achieve the employment outcome;
    (iii) The entity that will provide the services;
    (iv) The employment setting and the settings in which the services 
will be provided; and
    (v) The methods available for procuring the services; and
    (5) To ensure that the availability and scope of informed choice is 
consistent with the obligations of the Tribal Vocational Rehabilitation 
unit.
    (6) Information and assistance in the selection of vocational 
rehabilitation services and service providers: In assisting an applicant 
and eligible individual in exercising informed choice during the 
assessment for determining eligibility and vocational rehabilitation 
needs and during development of the IPE, the Tribal Vocational 
Rehabilitation unit must provide the individual or the individual's 
representative, or assist the individual or the individual's 
representative in acquiring, information necessary to make an informed 
choice about the specific vocational rehabilitation services, including 
the providers of those services, that are needed to achieve the 
individual's employment outcome. This information must include, at a 
minimum, information relating to the--
    (i) Cost, accessibility, and duration of potential services;
    (ii) Consumer satisfaction with those services to the extent that 
information relating to consumer satisfaction is available;
    (iii) Qualifications of potential service providers;
    (iv) Types of services offered by the potential providers;
    (v) Degree to which services are provided in integrated settings; 
and
    (vi) Outcomes achieved by individuals working with service 
providers, to the extent that such information is available.
    (7) Methods or sources of information: In providing or assisting the 
individual or the individual's representative in acquiring the 
information required under paragraph (c) of this section, the Tribal 
Vocational Rehabilitation unit may use, but is not limited to, the 
following methods or sources of information:
    (i) Lists of services and service providers.
    (ii) Periodic consumer satisfaction surveys and reports.
    (iii) Referrals to other consumers, consumer groups, or disability 
advisory councils qualified to discuss the services or service 
providers.

[[Page 443]]

    (iv) Relevant accreditation, certification, or other information 
relating to the qualifications of service providers.
    (v) Opportunities for individuals to visit or experience various 
work and service provider settings.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sections 12(c), 102(b)(2)(B), and 102(d) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 722(b)(2)(B), 
and 722(d))



Sec.  371.44  What are the special requirements pertaining to the
protection, use, and release of personal information?

    (a) General provisions. (1) The Tribal Vocational Rehabilitation 
unit must adopt and implement written policies and procedures to 
safeguard the confidentiality of all personal information, including 
photographs and lists of names. These policies and procedures must 
ensure that--
    (i) Specific safeguards are established to protect current and 
stored personal information, including a requirement that data only be 
released when governed by a written agreement between the Tribal 
Vocational Rehabilitation unit and receiving entity under paragraphs (d) 
and (e)(1) of this section, which addresses the requirements in this 
section;
    (ii) All applicants and eligible individuals and, as appropriate, 
those individuals' representatives, service providers, cooperating 
agencies, and interested persons are informed through appropriate modes 
of communication of the confidentiality of personal information and the 
conditions for accessing and releasing this information;
    (iii) All applicants or their representatives are informed about the 
Tribal Vocational Rehabilitation unit's need to collect personal 
information and the policies governing its use, including--
    (A) Identification of the authority under which information is 
collected;
    (B) Explanation of the principal purposes for which the Tribal 
Vocational Rehabilitation unit intends to use or release the 
information;
    (C) Explanation of whether providing requested information to the 
Tribal Vocational Rehabilitation unit is mandatory or voluntary and the 
effects of not providing requested information;
    (D) Identification of those situations in which the Tribal 
Vocational Rehabilitation unit requires or does not require informed 
written consent of the individual before information may be released; 
and
    (E) Identification of other agencies to which information is 
routinely released;
    (iv) An explanation of the Tribal Vocational Rehabilitation unit's 
policies and procedures affecting personal information will be provided 
to each individual in that individual's native language or through the 
appropriate mode of communication; and
    (v) These policies and procedures provide no fewer protections for 
individuals than State laws and regulations.
    (2) The Tribal Vocational Rehabilitation unit may establish 
reasonable fees to cover extraordinary costs of duplicating records or 
making extensive searches and must establish policies and procedures 
governing access to records.
    (b) Tribal Vocational Rehabilitation Program Use. All personal 
information in the possession of the Tribal Vocational Rehabilitation 
unit must be used only for the purposes directly connected with the 
administration of the Tribal Vocational Rehabilitation program. 
Information containing identifiable personal information may not be 
shared with advisory or other bodies or other tribal agencies that do 
not have official responsibility for administration of the program. In 
the administration of the program, the Tribal Vocational Rehabilitation 
unit may obtain personal information from service providers and 
cooperating agencies under assurances that the information may not be 
further divulged, except as provided under paragraphs (c), (d), and (e) 
of this section.
    (c) Release to applicants and eligible individuals. (1) Except as 
provided in paragraphs (c)(2) and (3) of this section, if requested in 
writing by an applicant or eligible individual, the Tribal Vocational 
Rehabilitation unit must make all requested information in that 
individual's record of services accessible to and must release the 
information to

[[Page 444]]

the individual or the individual's representative in a timely manner.
    (2) Medical, psychological, or other information that the Tribal 
Vocational Rehabilitation unit determines may be harmful to the 
individual may not be released directly to the individual, but must be 
provided to the individual through a third party chosen by the 
individual, which may include, among others, an advocate, a family 
member, or a qualified medical or mental health professional, unless a 
representative has been appointed by a court to represent the 
individual, in which case the information must be released to the court-
appointed representative.
    (3) If personal information has been obtained from another agency or 
organization, it may be released only by, or under the conditions 
established by, the other agency or organization.
    (4) An applicant or eligible individual who believes that 
information in the individual's record of services is inaccurate or 
misleading may request that the Tribal Vocational Rehabilitation unit 
amend the information. If the information is not amended, the request 
for an amendment must be documented in the record of services.
    (d) Release for audit, evaluation, and research. Personal 
information may be released to an organization, agency, or individual 
engaged in audit, evaluation, or research only for purposes directly 
connected with the administration of the tribal vocational 
rehabilitation program or for purposes that would significantly improve 
the quality of life for applicants and eligible individuals and only if, 
in accordance with a written agreement, the organization, agency, or 
individual assures that--
    (1) The information will be used only for the purposes for which it 
is being provided;
    (2) The information will be released only to persons officially 
connected with the audit, evaluation, or research;
    (3) The information will not be released to the involved individual;
    (4) The information will be managed in a manner to safeguard 
confidentiality; and
    (5) The final product will not reveal any personal identifying 
information without the informed written consent of the involved 
individual or the individual's representative.
    (e) Release to other programs or authorities. (1) Upon receiving the 
informed written consent of the individual or, if appropriate, the 
individual's representative, the Tribal Vocational Rehabilitation unit 
may release personal information to another agency or organization, in 
accordance with a written agreement, for its program purposes only to 
the extent that the information may be released to the involved 
individual or the individual's representative and only to the extent 
that the other agency or organization demonstrates that the information 
requested is necessary for its program.
    (2) Medical or psychological information that the Tribal Vocational 
Rehabilitation unit determines may be harmful to the individual may be 
released if the other agency or organization assures the Tribal 
Vocational Rehabilitation unit that the information will be used only 
for the purpose for which it is being provided and will not be further 
released to the individual.
    (3) The Tribal Vocational Rehabilitation unit must release personal 
information if required by Federal law or regulations.
    (4) The Tribal Vocational Rehabilitation unit must release personal 
information in response to investigations in connection with law 
enforcement, fraud, or abuse, unless expressly prohibited by Federal or 
State laws or regulations, and in response to an order issued by a 
judge, magistrate, or other authorized judicial officer.
    (5) The Tribal Vocational Rehabilitation unit also may release 
personal information in order to protect the individual or others if the 
individual poses a threat to his or her safety or to the safety of 
others.

(Authority: Sections 12(c) and 121(b)(1) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 741(b)(1))



Sec.  371.45  What notice must be given about the Client Assistance
Program (CAP)?

    The Tribal Vocational Rehabilitation unit shall use formats that are 
accessible to notify individuals seeking or receiving services under 
this part, or as

[[Page 445]]

appropriate, the parents, family members, guardians, advocates, or 
authorized representatives of those individuals, about--
    (a) The availability of CAP authorized by section 112 of the Act;
    (b) The purposes of the services provided under the CAP; and
    (c) How to contact the CAP.

(Authority: Section 20 of the Rehabilitation Act of 1973, as amended; 29 
U.S.C. 717)



PART 373_REHABILITATION NATIONAL ACTIVITIES PROGRAM--Table of Contents



                            Subpart A_General

Sec.
373.1 What is the purpose of the Rehabilitation National Activities 
          program?
373.2 Who is eligible for assistance?
373.3 What regulations apply?
373.4 What definitions apply?
373.5 Who is eligible to receive services and to benefit from activities 
          conducted by eligible entities?
373.6 What types of projects may be funded?
373.7 What are the priorities and other factors and requirements for 
          competitions?

             Subpart B_How Does the Secretary Make a Grant?

373.10 What selection criteria does the Secretary use?
373.11 What other factors does the Secretary consider when making a 
          grant?

           Subpart C_What Conditions Must Be Met By a Grantee?

373.20 What are the matching requirements?
373.21 What are the reporting requirements under this part?
373.22 What are the limitations on indirect costs?
373.23 What additional requirements must be met?
373.24 What are the special requirements pertaining to the protection, 
          use, and release of personal information?

    Authority: Section 303(b) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 773(b); Pub. L. 111-256, 124 Stat. 2643; unless 
otherwise noted.

    Source: 81 FR 55607, Aug. 19, 2016, unless otherwise noted.



                            Subpart A_General



Sec.  373.1  What is the purpose of the Rehabilitation National
Activities program?

    The purpose of this program is to provide competitive grants, 
including cooperative agreements, to, or enter into contracts with, 
eligible entities to expand and improve the provision of vocational 
rehabilitation and other services authorized under the Rehabilitation 
Act of 1973, as amended (Act), or to further the purposes and policies 
in sections 2(b) and (c) of the Act by supporting activities that 
increase the provision, extent, availability, scope, and quality of 
rehabilitation services under the Act, including related research and 
evaluation activities.

(Authority: Sections 2(b) and (c), 7(40), 12(c), and 303(b) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 701(b) and (c), 
705(40), 709(c), and 773(b))



Sec.  373.2  Who is eligible for assistance?

    (a) The following types of organizations are eligible for
    assistance 
under this program:
    (1) State vocational rehabilitation agencies.
    (2) Community rehabilitation programs.
    (3) Indian tribes or tribal organizations.
    (4) Other public or nonprofit agencies or organizations, including 
institutions of higher education.
    (5) For-profit organizations, if the Secretary considers them to be 
appropriate.
    (6) Consortia that meet the requirements of 34 CFR 75.128 and 
75.129.
    (7) Other organizations identified by the Secretary and published in 
the Federal Register.
    (b) In competitions held under this program, the Secretary may limit 
competitions to one or more types of these organizations.

(Authority: Sections 12(c) and 303(b)(2) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 773(b)(2))



Sec.  373.3  What regulations apply?

    The following regulations apply to this program:

[[Page 446]]

    (a) The Education Department General Administrative Regulations 
(EDGAR) as follows:
    (1) 34 CFR part 75 (Direct Grant Programs).
    (2) 34 CFR part 77 (Definitions that Apply to Department 
Regulations).
    (3) 34 CFR part 79 (Intergovernmental Review of Department of 
Education Programs and Activities).
    (4) 34 CFR part 81 (General Education Provisions Act--Enforcement).
    (5) 35 CFR part 82 (New Restrictions on Lobbying).
    (6) 34 CFR part 84 (Governmentwide Requirements for Drug-Free 
Workplace (Financial Assistance).
    (7) 34 CFR part 86 (Drug and Alcohol Abuse Prevention).
    (8) 34 CFR part 97 (Protection of Human Subjects).
    (9) 34 CFR part 98 (Student Rights in Research, Experimental 
Programs, and Testing.
    (10) 34 CFR part 99 (Family Educational Rights and Privacy).
    (b) The regulations in this part 373.
    (c) The regulations in 48 CFR part 31 (Contracts Cost Principles and 
Procedures).
    (d)(1) 2 CFR part 180 (Nonprocurement Debarment and Suspension), as 
adopted at 2 CFR part 3485; and
    (2) 2 CFR part 200 (Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards) as adopted at 2 
CFR part 3474.

(Authority: Sections 12(c) and 303(b) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c)) and 773(b)



Sec.  373.4  What definitions apply?

    The following definitions apply to this part:
    Act means the Rehabilitation Act of 1973, as amended.

(Authority: 29 U.S.C. 701 et seq.)

    Competitive integrated employment is defined in 34 CFR 361.5(c)(9).

(Authority: Section 7(5) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 705(5))

    Early intervention means a service delivery or model demonstration 
program for adults with disabilities designed to begin the 
rehabilitation services as soon as possible after the onset or 
identification of actually or potentially disabling conditions. The 
populations served may include, but are not limited to, the following:
    (1) Individuals with chronic and progressive diseases that may 
become more disabling, such as multiple sclerosis, progressive visual 
disabilities, or HIV.
    (2) Individuals in the acute stages of injury or illness, including, 
but not limited to, diabetes, traumatic brain injury, stroke, burns, or 
amputation.
    (3) Individuals receiving an employer's short-term or long-term 
disability insurance benefits.

(Authority: Sections 12(c) and 303(b) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 773(b))

    Employment outcome is defined in 34 CFR 361.5.

(Authority: Section 7(11) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 705(11))

    Individual with a disability is defined as follows:
    (1) For an individual who will receive rehabilitation services under 
this part, an individual with a disability means an individual--
    (i) Who has a physical or mental impairment which, for that 
individual, constitutes or results in a substantial impediment to 
employment; and
    (ii) Who can benefit in terms of an employment outcome from 
vocational rehabilitation services.
    (2) For all other purposes of this part, an individual with a 
disability means an individual--
    (i) Who has a physical or mental impairment that substantially 
limits one or more major life activities;
    (ii) Who has a record of such an impairment; or
    (iii) Who is regarded as having such an impairment.
    (3) For purposes of paragraph (2) of this definition, projects that 
carry out services or activities pertaining to Title V of the Act must 
also meet the requirements for ``an individual with a disability'' in 
section 7(20)(c) through (e) of the Act, as applicable.

(Authority: Section 7(20) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 705(20))


[[Page 447]]


    Individual with a significant disability means an individual--
    (1) Who has a severe physical or mental impairment that seriously 
limits one or more functional capacities (such as mobility, 
communication, self-care, self-direction, interpersonal skills, work 
tolerance, or work skills) in terms of an employment outcome;
    (2) Whose vocational rehabilitation can be expected to require 
multiple vocational rehabilitation services over an extended period of 
time; and
    (3) Who has one or more physical or mental disabilities resulting 
from amputation, arthritis, autism, blindness, burn injury, cancer, 
cerebral palsy, cystic fibrosis, deafness, head injury, heart disease, 
hemiplegia, hemophilia, intellectual disability, respiratory or 
pulmonary dysfunction, mental illness, multiple sclerosis, muscular 
dystrophy, musculo-skeletal disorders, neurological disorders (including 
stroke and epilepsy), paraplegia, quadriplegia and other spinal cord 
conditions, sickle-cell anemia, specific learning disabilities, end-
stage renal disease, or another disability or combination of 
disabilities determined on the basis of an assessment for determining 
eligibility and vocational rehabilitation needs to cause comparable 
substantial functional limitation.
    Informed choice means the provision of activities whereby 
individuals with disabilities served by projects under this part have 
the opportunity to be active, full partners in the rehabilitation 
process, making meaningful and informed choices as follows:
    (1) During assessments of eligibility and vocational rehabilitation 
needs.
    (2) In the selection of employment outcomes, services needed to 
achieve the outcomes, entities providing these services, and the methods 
used to secure these services.

(Authority: Sections 2(c) and 12(c) of the Act 29 U.S.C. 701(c) and 
709(c))

    Rehabilitation services means services, including vocational, 
medical, social, and psychological rehabilitation services and other 
services under the Rehabilitation Act, provided to individuals with 
disabilities in performing functions necessary in preparing for, 
securing, retaining, or regaining an employment or independent living 
outcome.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))

    Substantial impediment to employment means that a physical or mental 
impairment (in light of attendant medical, psychological, vocational, 
educational, and other related factors) hinders an individual from 
preparing for, entering into, engaging in, or retaining employment 
consistent with the individual's abilities and capabilities.

(Authority: Section 7(20)(A) and 12(c) of the Act 29; U.S.C. 705(20)(A) 
and 709(c))

    Supported employment is defined in 34 CFR 361.5(c)(53).

(Authority: Section 7(38) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 705(38))

    Vocational Rehabilitation Services means services provided to an 
individual with a disability in preparing for, securing, retaining, or 
regaining an employment outcome that is consistent with the strengths, 
resources, priorities, concerns, abilities, capabilities, interests, and 
informed choice of the individual. Vocational Rehabilitation Services 
for an individual with a disability may include--
    (1) An assessment for determining eligibility and vocational 
rehabilitation needs by qualified personnel, including, if appropriate, 
an assessment by personnel skilled in rehabilitation technology;
    (2) Counseling and guidance, including information and support 
services to assist an individual in exercising informed choice;
    (3) Referral and other services to secure needed services from other 
agencies;
    (4) Job-related services, including job search and placement 
assistance, job retention services, follow-up services, and follow-along 
services;
    (5) Vocational and other training services, including the provision 
of personal and vocational adjustment services, books, tools, and other 
training materials;
    (6) Diagnosis and treatment of physical and mental impairments;

[[Page 448]]

    (7) Maintenance for additional costs incurred while the individual 
is receiving services;
    (8) Transportation;
    (9) On-the-job or other related personal assistance services;
    (10) Interpreter and reader services;
    (11) Rehabilitation teaching services, and orientation and mobility 
services;
    (12) Occupational licenses, tools, equipment, and initial stocks and 
supplies;
    (13) Technical assistance and other consultation services to conduct 
market analysis, develop business plans, and otherwise provide resources 
to eligible individuals who are pursuing self-employment or 
telecommuting or establishing a small business operation as an 
employment outcome;
    (14) Rehabilitation technology, including telecommunications, 
sensory, and other technological aids and devices;
    (15) Transition services for individuals with disabilities that 
facilitate the achievement of employment outcomes;
    (16) Supported employment services;
    (17) Services to the family of an individual with a disability 
necessary to assist the individual to achieve an employment outcome;
    (18) Post-employment services necessary to assist an individual with 
a disability to retain, regain, or advance in employment; and
    (19) Expansion of employment opportunities for individuals with 
disabilities, which includes, but is not limited to--
    (i) Self-employment, business ownership, and entreprenuership;
    (ii) Non-traditional jobs, professional employment, and work 
settings;
    (iii) Collaborating with employers, Economic Development Councils, 
and others in creating new jobs and career advancement options in local 
job markets through the use of job restructuring and other methods; and
    (iv) Other services as identified by the Secretary and published in 
the Federal Register.

(Authority: Section 7(40) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 705(40))

    Youth or Young adults with disabilities means individuals with 
disabilities who are between the ages of 14 and 24 inclusive when 
entering the program.

(Authority: Section 7(42) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 705(42)

(Authority: Sections 7(40), 12(c), and 103(a) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 705(40), 709(c) and 723(a))

[81 FR 55607, Aug. 19, 2016, as amended at 82 FR 31913, July 11, 2017]



Sec.  373.5  Who is eligible to receive services and to benefit from
activities conducted by eligible entities?

    (a)(1) For projects that provide rehabilitation services or 
activities to expand and improve the provision of rehabilitation 
services and other services authorized under Titles I, III, and VI of 
the Act, individuals are eligible who meet the definition in paragraph 
(a) of an ``individual with a disability'' as stated in Sec.  373.4.
    (2) For projects that provide independent living services or 
activities, individuals are eligible who meet the definition in 
paragraph (b) of an ``individual with a disability'' as stated in Sec.  
373.4.
    (3) For projects that provide other services or activities that 
further the purposes of the Act, individuals are eligible who meet the 
definition in paragraph (b) of an ``individual with a disability'' as 
stated in Sec.  373.4.
    (b) By publishing a notice in the Federal Register, the Secretary 
may identify individuals determined to be eligible under one or more of 
the provisions in paragraph (a) of this section.

(Authority: Sections 12(c), 103(a), and 303(b) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c), 723(a), and 773(b))



Sec.  373.6  What types of projects may be funded?

    The Secretary may fund the following types of projects under this 
program:
    (a) Special projects of service delivery.
    (b) Model demonstration.
    (c) Technical assistance.
    (d) Systems change.
    (e) Special studies, research, or evaluations.

[[Page 449]]

    (f) Dissemination and utilization.

(Authority: Sections 12(c) and 303(b)(4) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 773(b)(4))



Sec.  373.7  What are the priorities and other factors and requirements
for competitions?

    (a) In announcing competitions for grants and contracts, the 
Secretary gives priority consideration to--
    (1) Initiatives focused on improving transition from education, 
including postsecondary education, to employment, particularly in 
competitive integrated employment, for youth who are individuals with 
significant disabilities.
    (2) Supported employment, including community-based supported 
employment programs to meet the needs of individuals with the most 
significant disabilities or to provide technical assistance to States 
and community organizations to improve and expand the provision of 
supported employment services.
    (3) Increasing competitive integrated employment for individuals 
with significant disabilities.
    (b) In announcing competitions for grants and contracts, the 
Secretary may also identify one or more of the following as priorities--
    (1) Expansion of employment opportunities for individuals with 
disabilities, as authorized in paragraph(s) of the definition of 
``vocational rehabilitation services'' as stated in Sec.  373.4.
    (2) System change projects to promote meaningful access of 
individuals with disabilities to employment-related services under 
subtitle B of title I of the Workforce Innovation and Opportunity Act 
and under other Federal laws.
    (3) Innovative methods of promoting achievement of high-quality 
employment outcomes.
    (4) The demonstration of the effectiveness of early intervention 
activities in improving employment outcomes.
    (5) Projects to find alternative methods of providing affordable 
transportation services to individuals with disabilities.
    (6) Technical assistance to designated State units and their 
personnel in working with employers to identify competitive integrated 
employment opportunities and career exploration opportunities in order 
to facilitate the provision of vocational rehabilitation services and 
transition services for youth with disabilities and students with 
disabilities.
    (7) Consultation, training and technical assistance to businesses 
that have hired or are interested in hiring individuals with 
disabilities.
    (8) Technical assistance and training to designated State units and 
their personnel on establishment and maintenance of education and 
experience requirements, to ensure that the personnel have a 21st 
century understanding of the evolving labor force and the needs of 
individuals with disabilities.
    (9) Technical assistance to State vocational rehabilitation agencies 
or State vocational rehabilitation units to improve management practices 
that will improve the provision of vocational rehabilitation services 
and increase competitive employment outcomes for individuals with 
disabilities.
    (10) Other projects that will expand and improve the provision, 
extent, availability, scope, and quality of rehabilitation and other 
services under the Act or that further the purpose and policy of the Act 
as stated in sections 2(b) and (c) of the Act.
    (c) In announcing competitions of grants and contract the Secretary 
may limit the priorities listed in paragraphs (a) and (b) of this 
section to address one or more of the following factors:
    (1) Age ranges.
    (2) Types of disabilities.
    (3) Types of services.
    (4) Models of service delivery.
    (5) Stages of the vocational rehabilitation process;
    (6) Unserved and underserved populations.
    (7) Unserved and underserved geographical areas.
    (8) Individuals with significant disabilities.
    (9) Low-incidence disability populations.
    (10) Individuals residing in federally designated Empowerment Zones 
and Enterprise Communities.

[[Page 450]]

    (d) The Secretary may require that an applicant certify that the 
project does not include building upon or expanding activities that have 
previously been conducted or funded, for that applicant or in that 
service area.
    (e) The Secretary may require that the project widely disseminate 
the methods of vocational rehabilitation service delivery or model 
proven to be effective, so that they may be adapted, replicated, or 
purchased under fee-for-service arrangements by State vocational 
rehabilitation agencies and other disability organizations in the 
project's targeted service area or other locations.

(Authority: Sections 12(c), 101(a)(7)(B)(ii) and (11)(E), 103(b)(5), 
108a, and 303(b)(5) of the Rehabilitation Act of 1973, as amended; 29 
U.S.C. 709(c), 721(a)(7)(B)(ii) and (11)(E), 723(b)(5), 728a, and 
773(b)(5))



             Subpart B_How Does the Secretary Make a Grant?



Sec.  373.10  What selection criteria does the Secretary use?

    The Secretary publishes in the Federal Register or includes in the 
application package the selection criteria for each competition under 
this program. To evaluate the applications for new grants under this 
program, the Secretary may use the following:
    (a) Selection criteria established under 34 CFR 75.209.
    (b) Selection criteria in 34 CFR 75.210.
    (c) Any combination of selection criteria from paragraphs (a) and 
(b) of this section.

(Authority: Sections 12(c) and 103(a) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 723(a))



Sec.  373.11  What other factors does the Secretary consider when 
making a grant?

    (a) The Secretary funds only those applications submitted in 
response to competitions announced in the Federal Register.
    (b) The Secretary may consider the past performance of the applicant 
in carrying out activities under previously awarded grants.
    (c) The Secretary awards bonus points if identified and published in 
the Federal Register for specific competitions.

(Authority: Sections 12(c) and 103(a) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 723(a))



           Subpart C_What Conditions Must Be Met By a Grantee?



Sec.  373.20  What are the matching requirements?

    The Secretary may make grants to pay all or part of the cost of 
activities covered under this program. If the Secretary determines that 
the grantee is required to pay part of the costs, the amount of grantee 
participation is specified in the application notice, and the Secretary 
will not require grantee participation to be more than 10 percent of the 
total cost of the project.

(Authority: Sections 12(c) and 303(b)(1) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 773(b)(1))



Sec.  373.21  What are the reporting requirements under this part?

    (a) In addition to the program and fiscal reporting requirements in 
34 CFR 75.720 and 2 CFR 200.327 that are applicable to projects funded 
under this program, the Secretary may require that recipients of grants 
under this part submit information determined by the Secretary to be 
necessary to measure project outcomes and performance, including any 
data needed to comply with the Government Performance and Results Act.
    (b) Specific reporting requirements for competitions will be 
identified by the Secretary and published in the Federal Register.

(Authority: Sections 12(c), 303(b)(2)(B), and 306 of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c), 773(b)(2)(B), and 776)



Sec.  373.22  What are the limitations on indirect costs?

    (a) Indirect cost reimbursement for grants under this program is 
limited to the recipient's actual indirect costs, as determined by its 
negotiated indirect cost rate agreement, or 10 percent of the total 
direct cost base, whichever amount is less.

[[Page 451]]

    (b) Indirect costs in excess of the 10 percent limit may be used to 
satisfy matching or cost-sharing requirements.
    (c) The 10 percent limit does not apply to federally recognized 
Indian tribal governments and their tribal representatives.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))



Sec.  373.23  What additional requirements must be met?

    (a) Each grantee must do the following:
    (1) Ensure equal access and treatment for eligible project 
participants who are members of groups that have traditionally been 
underrepresented based on race, color, national origin, gender, age, or 
disabilities.
    (2) Encourage applications for employment from persons who are 
members of groups that have traditionally been underrepresented based on 
race, color, national origin, gender, age, or disabilities.
    (3) Advise individuals with disabilities who are applicants for or 
recipients of the services, or the applicants' representatives or the 
individuals' representatives, of the availability and purposes of the 
Client Assistance Program, including information on means of seeking 
assistance under that program.
    (4) Provide, through a careful appraisal and study, an assessment 
and evaluation of the project that indicates the significance or worth 
of processes, methodologies, and practices implemented by the project.
    (b) A grantee may not make a subgrant under this part. However, a 
grantee may contract for supplies, equipment, and other services, in 
accordance with 2 CFR part 200 (Uniform Administrative Requirements, 
Cost Principles, and Audit Requirements for Federal Awards) as adopted 
at 2 CFR part 3474.

(Authority: Sections 12(c) and 303(b)(2)(B) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 773(b)(2)(B))



Sec.  373.24  What are the special requirements pertaining to the 
protection, use, and release of personal information?

    (a) All personal information about individuals served by any project 
under this part, including lists of names, addresses, photographs, and 
records of evaluation, must be confidential.
    (b) The use of information and records concerning individuals must 
be limited only to purposes directly connected with the project, 
including project reporting and evaluation activities. This information 
may not be disclosed, directly or indirectly, other than in the 
administration of the project unless the consent of the agency providing 
the information and the individual to whom the information applies, or 
his or her representative, has been obtained in writing. The Secretary 
or other Federal officials responsible for enforcing legal requirements 
have access to this information without written consent being obtained. 
The final products of the project may not reveal any personal 
identifying information without written consent of the individual or his 
or her representative.

(Authority: Sections 12(c) and 303(b)(2)(B) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c), and 773(b)(2)(B))

                        PARTS 376	377 [RESERVED]

                        PARTS 379	380 [RESERVED]



PART 381_PROTECTION AND ADVOCACY OF INDIVIDUAL RIGHTS--Table of Contents



                            Subpart A_General

Sec.
381.1 What is the Protection and Advocacy of Individual Rights program?
381.2 Who is eligible for an award?
381.3 What activities may the Secretary fund?
381.4 What regulations apply?
381.5 What definitions apply?

               Subpart B_How Does One Apply for an Award?

381.10 What are the application requirements?

[[Page 452]]

             Subpart C_How Does the Secretary Make an Award?

381.20 How does the Secretary evaluate an application?
381.22 How does the Secretary allocate funds under this program?

          Subpart D_What Conditions Must Be Met After an Award?

381.30 How are services to be administered?
381.31 What are the requirements pertaining to the protection, use, and 
          release of personal information?
381.32 What are the reporting requirements under this part?
381.33 What are the requirements related to the use of funds provided 
          under this part?

    Authority: Section 509 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 794e, unless otherwise noted.

    Source: 81 FR 55611, Aug. 19, 2016, unless otherwise noted.



                            Subpart A_General



Sec.  381.1  What is the Protection and Advocacy of Individual Rights
program?

    This program is designed to support a system in each State to 
protect the legal and human rights of eligible individuals with 
disabilities.

(Authority: Section 509(a) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 794e(a))



Sec.  381.2  Who is eligible for an award?

    (a)(1) A protection and advocacy system that is established under 
part C of title I of the Developmental Disabilities Assistance and Bill 
of Rights Act of 2000 (DD Act), 42 U.S.C. 15041 et seq., and that meets 
the requirements of Sec.  381.10 is eligible to apply for a grant award 
under this part.
    (2)(i) For any fiscal year in which the appropriation to carry out 
the activities of this part equals or exceeds $10,500,000, the eligible 
system serving the American Indian Consortium is eligible to apply for a 
grant award under this part.
    (ii) For purposes of this part, an eligible system is defined at 
Sec.  381.5(c).
    (iii) For purposes of this part, the American Indian Consortium 
means a consortium established as described in section 102 of the DD Act 
(42 U.S.C. 15002).
    (b) In any fiscal year in which the amount appropriated to carry out 
this part is less than $5,500,000, a protection and advocacy system from 
any State or from Guam, American Samoa, the United States Virgin 
Islands, or the Commonwealth of the Northern Mariana Islands, may apply 
for a grant under the Protection and Advocacy of Individual Rights 
(PAIR) program to plan for, develop outreach strategies for, and carry 
out a protection and advocacy program authorized under this part.
    (c) In any fiscal year in which the amount appropriated to carry out 
this part is equal to or greater than $5,500,000, an eligible system 
from any State and from any of the jurisdictions named in paragraph (b) 
of this section may apply to receive the amount allotted pursuant to 
section 509(c)-(e) of the Act.

(Authority: Section 509(b), (c), and (m) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 794e(b), (c), and (m))



Sec.  381.3  What activities may the Secretary fund?

    (a) Funds made available under this part must be used for the 
following activities:
    (1) Establishing a system to protect, and advocate for, the rights 
of individuals with disabilities.
    (2) Pursuing legal, administrative, and other appropriate remedies 
or approaches to ensure the protection of, and advocacy for, the rights 
of eligible individuals with disabilities within the State or the 
American Indian Consortium.
    (3) Providing information on and making referrals to programs and 
services addressing the needs of individuals with disabilities in the 
State or American Indian Consortium, including individuals with 
disabilities who are exiting from school programs.
    (4) Coordinating the protection and advocacy program provided 
through an eligible system with the advocacy programs under--
    (i) Section 112 of the Act (the Client Assistance Program (CAP));
    (ii) The Older Americans Act of 1965 (the State long-term care 
ombudsman program) (42 U.S.C. 3001 et seq.);
    (iii) Part C of the DD Act; and

[[Page 453]]

    (iv) The Protection and Advocacy for Individuals with Mental Illness 
Act of 2000 (PAIMI) (42 U.S.C. 10801-10807).
    (5) Developing a statement of objectives and priorities on an annual 
basis and a plan for achieving these objectives and priorities.
    (6) Providing to the public, including individuals with disabilities 
and, as appropriate, their representatives, an opportunity to comment on 
the objectives and priorities described in Sec.  381.10(a)(6).
    (7) Establishing a grievance procedure for clients or prospective 
clients of the eligible system to ensure that individuals with 
disabilities are afforded equal access to the services of the eligible 
system.
    (b) Funds made available under this part also may be used to carry 
out any other activities consistent with the purpose of this part and 
the activities listed in paragraph (a) of this section.

(Authority: Sections 12(c) and 509(f) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 794e(f)).



Sec.  381.4  What regulations apply?

    The following regulations apply to the PAIR program:
    (a) The Education Department General Administrative Regulations 
(EDGAR) as follows:
    (1) 34 CFR part 75 (Direct Grant Programs) for purposes of an award 
made under Sec.  Sec.  381.20 or 381.22(a)(1).
    (2) 34 CFR part 76 (State-Administered Programs), if the 
appropriation for the PAIR program is equal to or greater than 
$5,500,000 and the eligible system is a State or local government 
agency, except for--
    (i) Section 76.103;
    (ii) Sections 76.125 through 76.137;
    (iii) Sections 76.300 through 76.401;
    (iv) Section 76.704;
    (v) Section 76.734; and
    (vi) Section 76.740.
    (3) 34 CFR part 77 (Definitions that Apply to Department 
Regulations).
    (4) 34 CFR part 79 (Intergovernmental Review of Department of 
Education Programs and Activities).
    (5) 34 CFR part 81 (General Education Provisions Act--Enforcement).
    (6) 34 CFR part 82 (New Restrictions on Lobbying).
    (b) 2 CFR part 180 (OMB Guidelines to Agencies on Debarment and 
Suspension (Nonprocurement)), as adopted at 2 CFR part 3485.
    (c) 2 CFR part 200 (Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards), as adopted at 2 
CFR part 3474.
    (d) The regulations in this part 381.

(Authority: Sections 12(c) and 509 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 794e)



Sec.  381.5  What definitions apply?

    (a) Definitions in EDGAR at 34 CFR part 77.
    (b) Definitions in 2 CFR part 200 subpart A.
    (c) Other definitions. The following definitions also apply to this 
part:
    Act means the Rehabilitation Act of 1973, as amended.
    Advocacy means pleading an individual's cause or speaking or writing 
in support of an individual. Advocacy may be formal, as in the case of a 
lawyer representing an individual in a court of law or in formal 
administrative proceedings before government agencies (whether tribal, 
State, local, or Federal). Advocacy also may be informal, as in the case 
of a lawyer or non-lawyer representing an individual in negotiations, 
mediation, or informal administrative proceedings before government 
agencies (whether tribal, State, local, or Federal), or as in the case 
of a lawyer or non-lawyer representing an individual's cause before 
private entities or organizations, or government agencies (whether 
tribal, State, local, or Federal). Advocacy may be on behalf of--
    (i) A single individual, in which case it is individual advocacy;
    (ii) More than one individual or a group or class of individuals, in 
which case it is systems (or systemic) advocacy; or
    (iii) Oneself, in which case it is self advocacy.
    Eligible individual with a disability means an individual who--
    (i) Needs protection and advocacy services that are beyond the scope 
of services authorized to be provided by the CAP under section 112 of 
the Act; and
    (ii) Is ineligible for--

[[Page 454]]

    (A) Protection and advocacy programs under part C of the DD Act; and
    (B) Protection and advocacy programs under the PAIMI.
    Eligible system means a protection and advocacy system that is 
established under part C of the DD Act and that meets the requirements 
of Sec.  381.10.
    Mediation means the act or process of using an independent third 
party to act as a mediator, intermediary, or conciliator to settle 
differences or disputes between persons or parties. The third party who 
acts as a mediator, intermediary, or conciliator must not be any entity 
or individual who is connected in any way with the eligible system or 
the agency, entity, or individual with whom the individual with a 
disability has a dispute. Mediation may involve the use of professional 
mediators or any other independent third party mutually agreed to by the 
parties to the dispute.
    State means, in addition to each of the several States of the United 
States, the District of Columbia, the Commonwealth of Puerto Rico, the 
United States Virgin Islands, Guam, American Samoa, and the Commonwealth 
of the Northern Mariana Islands, except for purposes of sections 
509(c)(3)(B) and (c)(4) of the Act, in which case State does not mean or 
include Guam, American Samoa, the United States Virgin Islands, and the 
Commonwealth of the Northern Mariana Islands.

(Authority: Sections 7(34), 12(c), and 509 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 705(34), 709(c) and 794e)



               Subpart B_How Does One Apply for an Award?



Sec.  381.10  What are the application requirements?

    (a) Regardless of the amount of funds appropriated for the PAIR 
program in a fiscal year, an eligible system shall submit to the 
Secretary an application for assistance under this part at the time and 
in the form and manner determined by the Secretary that contains all 
information that the Secretary determines necessary, including 
assurances that the eligible system will--
    (1) Have in effect a system to protect, and advocate for, the rights 
of eligible individuals with disabilities;
    (2) Have the same general authorities, including the authority to 
access records and program income, as in part C of title I of the DD 
Act;
    (3) Have the authority to pursue legal, administrative, and other 
appropriate remedies or approaches to ensure the protection of, and 
advocacy for, the rights of eligible individuals with disabilities 
within the State and the American Indian Consortium;
    (4) Provide information on and make referrals to programs and 
services addressing the needs of individuals with disabilities in the 
State and the American Indian Consortium, including individuals with 
disabilities who are exiting from school programs;
    (5) Develop a statement of objectives and priorities on an annual 
basis and a plan for achieving these objectives and priorities;
    (6) Provide to the public, including individuals with disabilities 
and, as appropriate, their representatives, an opportunity to comment on 
the objectives and priorities established by, and activities of, the 
eligible system including--
    (i) The objectives and priorities for the activities of the eligible 
system for each year and the rationale for the establishment of those 
objectives and priorities; and
    (ii) The coordination of the PAIR program provided through eligible 
systems with the advocacy programs under--
    (A) Section 112 of the Act (CAP);
    (B) The Older Americans Act of 1965 (the State long-term care 
ombudsman program);
    (C) Part C of the DD Act; and
    (D) The PAIMI;
    (7) Establish a grievance procedure for clients or prospective 
clients of the eligible system to ensure that individuals with 
disabilities are afforded equal access to the services of the eligible 
system;
    (8) Use funds made available under this part to supplement and not 
supplant the non-Federal funds that would otherwise be made available 
for the purpose for which Federal funds are provided; and

[[Page 455]]

    (9) Implement procedures designed to ensure that, to the maximum 
extent possible, mediation (and other alternative dispute resolution) 
procedures, which include good faith negotiation, are used before 
resorting to formal administrative or legal remedies.
    (b) To receive direct payment of funds under this part, an eligible 
system must provide to the Secretary, as part of its application for 
assistance, an assurance that direct payment is not prohibited by or 
inconsistent with tribal or State law, regulation, or policy.

(Approved by the Office of Management and Budget under control number 
1820-0018)

(Authority: Sections 12(c) and 509(f) and (g)(1) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 794e(f) and (g)(1))



             Subpart C_How Does the Secretary Make an Award?



Sec.  381.20  How does the Secretary evaluate an application?

    In any fiscal year in which the amount appropriated for the PAIR 
program is less than $5,500,000, the Secretary evaluates applications 
under the procedures in 34 CFR part 75.

(Authority: Sections 12(c) and 509(b) and (f) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 794e(b) and (f))



Sec.  381.22  How does the Secretary allocate funds under this program?

    (a) In any fiscal year in which the amount appropriated for this 
program is equal to or greater than $5,500,000--
    (1) The Secretary sets aside not less than 1.8 percent but not more 
than 2.2 percent of the amount appropriated to provide a grant, 
contract, or cooperative agreement for training and technical assistance 
to eligible systems carrying out activities under this part.
    (2) After the reservation required by paragraph (a)(1) of this 
section, the Secretary makes allotments from the remainder of the amount 
appropriated in accordance with section 509(c)(2)-(d) of the Act.
    (b) Notwithstanding any other provision of law, in any fiscal year 
in which the amount appropriated for this program is equal to or greater 
than $5,500,000, the Secretary pays directly to an eligible system that 
submits an application that meets the requirements of Sec.  381.10 the 
amount of the allotment to the State pursuant to section 509 of the Act, 
unless the State provides otherwise.
    (c) For any fiscal year in which the amount appropriated to carry 
out this program equals or exceeds $10,500,000, the Secretary shall 
reserve a portion, and use the portion to make a grant for the eligible 
system serving the American Indian Consortium. The Secretary shall make 
the grant in an amount of not less than $50,000 for the fiscal year.
    (d) Reallotment:
    (1) For any fiscal year in which the amount appropriated to carry 
out this program equals or exceeds $5,500,000 and if the Secretary 
determines that any amount of an allotment to an eligible system within 
a State will not be expended by such system in carrying out the 
provisions of this part, the Secretary shall make such amount available 
to one or more of the eligible systems that the Secretary determines 
will be able to use additional amounts during such year for carrying out 
this part.
    (2) Any reallotment amount made available to an eligible system for 
any fiscal year shall, for the purposes of this section, be regarded as 
an increase in the eligible system's allotment under this part for that 
fiscal year.

(Authority: Sections 12(c) and 509(c)-(e) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 794e(c)-(e))



          Subpart D_What Conditions Must Be Met After an Award?



Sec.  381.30  How are services to be administered?

    (a) Each eligible system shall carry out the protection and advocacy 
program authorized under this part.
    (b) An eligible system may not award a grant or make a subaward to 
another entity to carry out, in whole or in part, the protection and 
advocacy program authorized under this part.
    (c) An eligible system may contract with another agency, entity, or 
individual to carry out the PAIR program in whole or in part, but only 
if the agency, entity, or individual with

[[Page 456]]

whom the eligible system has contracted--
    (1) Does not provide services under the Act or does not provide 
treatment, services, or habilitation to persons with disabilities; and
    (2) Is independent of, and not connected financially or through a 
board of directors to, an entity or individual that provides services 
under the Act or that provides treatment, services, or habilitation to 
persons with disabilities.
    (d) For purposes of paragraph (c) of this section, ``services under 
the Act'' and ``treatment, services, or habilitation'' does not include 
client assistance services under CAP, protection and advocacy services 
authorized under the protection and advocacy programs under part C of 
the DD Act and the PAIMI, or any other protection and advocacy services.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))



Sec.  381.31  What are the requirements pertaining to the protection,
use, and release of personal information?

    (a) All personal information about individuals served by any 
eligible system under this part, including lists of names, addresses, 
photographs, and records of evaluation, must be held confidential.
    (b) The eligible system's use of information and records concerning 
individuals must be limited only to purposes directly connected with the 
protection and advocacy program, including program evaluation 
activities. Except as provided in paragraph (c) of this section, an 
eligible system may not disclose personal information about an 
individual, directly or indirectly, other than in the administration of 
the protection and advocacy program, unless the consent of the 
individual to whom the information applies, or his or her guardian, 
parent, or other authorized representative or advocate (including the 
individual's advocate from the eligible system), has been obtained in 
writing. An eligible system may not produce any report, evaluation, or 
study that reveals any personally identifying information without the 
written consent of the individual or his or her representative.
    (c) Except as limited in paragraph (d) of this section, the 
Secretary or other Federal or State officials responsible for enforcing 
legal requirements must be given complete access to all--
    (1) Records of the eligible system receiving funds under this 
program; and
    (2) All individual case records of clients served under this part 
without the consent of the client.
    (d)(1) The privilege of a person or eligible system not to produce 
documents or provide information pursuant to paragraph (c) of this 
section is governed by the principles of common law as interpreted by 
the courts of the United States, except that, for purposes of any 
periodic audit, report, or evaluation of the performance of the eligible 
system established or assisted under this part, the Secretary does not 
require the eligible system to disclose the identity of, or any other 
personally identifiable information related to, any individual 
requesting assistance under the PAIR program.
    (2) However, notwithstanding paragraph (d)(1) of this section, if an 
audit, monitoring review, State plan assurance review, evaluation, or 
other investigation has already produced independent and reliable 
evidence that there is probable cause to believe that the eligible 
system has violated its legislative mandate or misused Federal funds, 
the eligible system shall disclose, if the Secretary so requests, the 
identity of, or any other personally identifiable information (i.e., 
name, address, telephone number, social security number, or other 
official code or number by which an individual may be readily 
identified) related to, any individual requesting assistance under the 
PAIR program, in accordance with the principles of common law as 
interpreted by the courts of the United States.

(Authority: Sections 12(c) and 509(h) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 794e(h))



Sec.  381.32  What are the reporting requirements under this part?

    Each eligible system shall provide to the Secretary, no later than 
90 days

[[Page 457]]

after the end of each fiscal year, an annual report that includes 
information on the following:
    (a) The types of services and activities undertaken by the eligible 
system and how these services and activities addressed the objectives 
and priorities developed pursuant to Sec.  381.10(a)(6).
    (b) The total number of individuals, by race, color, national 
origin, gender, age, and disabling condition, who requested services 
from the eligible system and the total number of individuals, by race, 
color, national origin, gender, age, and disabling condition, who were 
served by the eligible system.
    (c) The types of disabilities represented by individuals served by 
the eligible system.
    (d) The types of issues being addressed on behalf of individuals 
served by the eligible system.
    (e) Any other information that the Secretary may require.

(Approved by the Office of Management and Budget under control number 
1820-0018)

(Authority: Sections 12(c), 13, and 509(k) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c), 710, and 794e(k))



Sec.  381.33  What are the requirements related to the use of funds 
provided under this part?

    (a) Funds made available under this part must be used to supplement 
and not supplant the non-Federal funds that would otherwise be made 
available for the purpose for which Federal funds are provided under 
this part.
    (b) In any State in which an eligible system is located within a 
State agency, that State or State agency may not use more than five 
percent of any allotment for the costs of administration of the eligible 
system supported under this part. For purposes of this paragraph, 
``costs of administration'' include, but are not limited to, 
administrative salaries (including salaries for clerical and support 
staff), supplies, depreciation, the cost of operating and maintaining 
facilities, equipment, and grounds (e.g., rental of office space or 
equipment, telephone, postage, maintenance agreements), and other 
similar types of costs that may be incurred by the State or State agency 
to administer the eligible system.
    (c) Funds paid to an eligible system within a State for a fiscal 
year, including reallotment funds, to carry out this program that are 
not expended or obligated prior to the end of that fiscal year remain 
available to the eligible system within a State for obligation during 
the succeeding fiscal year in accordance with sections 19 and 509(g) of 
the Act.
    (d) For determining when an eligible system makes an obligation for 
various kinds of property or services, 34 CFR 75.707 and 76.707, as 
appropriate, apply to this program. If the appropriation for the PAIR 
program is less than $5,500,000, Sec.  75.707 applies. If the 
appropriation for the PAIR program is equal to or greater than 
$5,500,000, Sec.  76.707 applies. An eligible system is considered a 
State for purposes of Sec.  76.707.
    (e) Program income:
    (1) Consistent with 2 CFR 200.80 and for purposes of this part, 
program income means gross income earned by the designated agency that 
is directly generated by an activity supported under this part.
    (2)(i) The designated agency must use program income to supplement 
Federal funds that support program activities that are subject to this 
part. See, for example 2 CFR 200.307(e)(2).
    (ii) Notwithstanding 2 CFR 200.305(a) and consistent with 2 CFR 
200.305(b)(5), and to the extent that program income funds are 
available, all designated agencies, regardless of whether they are a 
State agency, must disburse those funds (including repayments to a 
revolving fund), rebates, refunds, contract settlements, audit 
recoveries, and interest earned on such funds before requesting 
additional funds from the Department.
    (3) Any program income received during a fiscal year that is not 
obligated or expended prior to the beginning of the succeeding fiscal 
year in which the program income was received, remain available for 
obligation and expenditure by the grantee during that succeeding fiscal 
year.

(Authority: Sections 12(c), 19, and 509(f)(7), (g), and (i) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 716, and 
794e(f)(7), (g), and (i); and 20 U.S.C. 3474)

[[Page 458]]



PART 385_REHABILITATION TRAINING--Table of Contents



                            Subpart A_General

Sec.
385.1 What is the Rehabilitation Training program?
385.2 Who is eligible for assistance under these programs?
385.3 What regulations apply to these programs?
385.4 What definitions apply to these programs?

Subpart B [Reserved]

                Subpart C_How Does One Apply for a Grant?

385.20 What are the application procedures for these programs?

             Subpart D_How Does the Secretary Make a Grant?

385.30 [Reserved]
385.31 How does the Secretary evaluate an application?
385.33 What other factors does the Secretary consider in reviewing an 
          application?

           Subpart E_What Conditions Must Be Met by a Grantee?

385.40 What are the requirements pertaining to the membership of a 
          project advisory committee?
385.41 What are the requirements affecting the collection of data from 
          designated State agencies?
385.42 What are the requirements affecting the dissemination of training 
          materials?
385.43 What requirements apply to the training of rehabilitation 
          counselors and other rehabilitation personnel?
385.44 What requirement applies to the training of individuals with 
          disabilities?
385.45 What additional application requirements apply to the training of 
          individuals for rehabilitation careers?
385.46 What limitations apply to the rate of pay for experts or 
          consultants appointed or serving under contract under the 
          Rehabilitation Training program?

    Authority: Sections 12(c), 301, and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c), 771, and 772; Pub. L. 111-256, 124 
Stat. 2643; unless otherwise noted.

    Source: 81 FR 55614, Aug. 19, 2016, unless otherwise noted.



                            Subpart A_General



Sec.  385.1  What is the Rehabilitation Training program?

    (a) Purpose. The Rehabilitation Training program is designed to--
    (1) Ensure that skilled personnel are available to provide 
rehabilitation services to individuals with disabilities through 
vocational, medical, social, and psychological rehabilitation programs 
(including supported employment programs), through economic and business 
development programs, through independent living services programs, and 
through client assistance programs;
    (2) Maintain and upgrade basic skills and knowledge of personnel 
employed, including personnel specifically trained to deliver 
rehabilitation services, including supported employment services and 
customized employment services, to individuals with the most significant 
disabilities, and personnel specifically trained to deliver services to 
individuals with disabilities whose employment outcome is self-
employment, business ownership, or telecommuting, to provide state-of-
the-art service delivery and rehabilitation technology services; and
    (3) Provide training and information to individuals with 
disabilities, the parents, families, guardians, advocates, and 
authorized representatives of the individuals, and other appropriate 
parties to develop the skills necessary for individuals with 
disabilities to access the rehabilitation system and to become active 
decision makers in the vocational rehabilitation process.
    (b) The Secretary awards grants and contracts on a competitive basis 
to pay part of the costs of projects for training, traineeships or 
scholarships, and related activities, including the provision of 
technical assistance, to assist in increasing the numbers of qualified 
personnel trained in providing vocational rehabilitation services and 
other services provided under the Act, to individuals with disabilities. 
Financial assistance is provided through multiple training programs, 
including:
    (1) Rehabilitation Long-Term Training (34 CFR part 386).
    (2) Innovative Rehabilitation Training (34 CFR part 387).

[[Page 459]]

    (3) Rehabilitation Short-Term Training (34 CFR part 390).
    (4) Training of Interpreters for Individuals Who Are Deaf and Hard 
of Hearing and Individuals Who Are Deaf-Blind (34 CFR part 396).

(Authority: Sections 12(c), 301 and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c), 771 and 772)



Sec.  385.2  Who is eligible for assistance under these programs?

    States and public or private nonprofit agencies and organizations, 
including Indian tribes and institutions of higher education, are 
eligible for assistance under the Rehabilitation Training program.

(Authority: Sections 7(19), 301, and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 705(19), 771 and 772)



Sec.  385.3  What regulations apply to these programs?

    The following regulations apply to the Rehabilitation Training 
program:
    (a) The Education Department General Administrative Regulations 
(EDGAR) as follows:
    (1) 34 CFR part 75 (Direct Grant Programs).
    (2) 34 CFR part 77 (Definitions That Apply to Department 
Regulations).
    (3) 34 CFR part 79 (Intergovernmental Review of Department of 
Education Programs and Activities).
    (4) 34 CFR part 81 (General Education Provisions Act--Enforcement).
    (5) 34 CFR part 82 (New Restrictions on Lobbying).
    (6) 34 CFR part 84 (Governmentwide Requirements for Drug-Free 
Workplace (Financial Assistance).
    (7) 34 CFR part 86 (Drug-Free Schools and Campuses).
    (8) 34 CFR part 97 (Protection of Human Subjects).
    (9) 34 CFR part 98 (Student Rights in Research, Experimental 
Programs, and Testing.
    (10) 34 CFR part 99 (Family Educational Rights and Privacy).
    (b) The regulations in this part 385.
    (c) [Reserved]
    (d)(1) 2 CFR part 180 (OMB Guidelines to Agencies on Debarment and 
Suspension (Nonprocurement)), as adopted at 2 CFR part 3485; and
    (2) 2 CFR part 200 (Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards) as adopted at 2 
CFR part 3474.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 711(c) and 772)



Sec.  385.4  What definitions apply to these programs?

    (a) The following definitions in 34 CFR part 77 apply to the 
programs under the Rehabilitation Training Program--

Applicant
Application
Award
Budget Period
Department
EDGAR
Grantee
Nonprofit
Private
Project
Project Period
Public
Secretary

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))

    (b) The following definitions also apply to programs under the 
Rehabilitation Training program:
    Act means the Rehabilitation Act of 1973, as amended (29 U.S.C. 701 
et seq.).
    Assistive technology means technology designed to be utilized in an 
assistive technology device or assistive technology service.
    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 functional 
capabilities of individuals with disabilities.
    Assistive technology service means any service that directly assists 
an individual with a disability in the selection, acquisition, or use of 
an assistive technology device. The term includes--
    (i) The evaluation of the needs of an individual with a disability, 
including a functional evaluation of the individual in the individual's 
customary environment;
    (ii) Purchasing, leasing, or otherwise providing for the acquisition 
of assistive technology devices by individuals with disabilities;

[[Page 460]]

    (iii) Selecting, designing, fitting, customizing, adapting, 
applying, maintaining, repairing, or replacing of assistive technology 
devices;
    (iv) Coordinating and using other therapies, interventions, or 
services with assistive technology devices, such as those associated 
with existing education and rehabilitation plans and programs;
    (v) Training or technical assistance for an individual with 
disabilities, or, if appropriate, the family of an individual with 
disabilities;
    (vi) Training or technical assistance for professionals (including 
individuals providing education and rehabilitation services), employers, 
or other individuals who provide services to, employ, or are otherwise 
substantially involved in the major life functions of individuals with 
disabilities; and
    (vii) A service consisting of expanding the availability of access 
to technology, including electronic and information technology, to 
individuals with disabilities.
    Community rehabilitation program means a program that provides 
directly or facilitates the provision of vocational rehabilitation 
services to individuals with disabilities, and that provides, singly or 
in combination, for an individual with a disability to enable the 
individual to maximize opportunities for employment, including career 
advancement--
    (i) Medical, psychiatric, psychological, social, and vocational 
services that are provided under one management;
    (ii) Testing, fitting, or training in the use of prosthetic and 
orthotic devices;
    (iii) Recreational therapy;
    (iv) Physical and occupational therapy;
    (v) Speech, language, and hearing therapy;
    (vi) Psychiatric, psychological, and social services, including 
positive behavior management;
    (vii) Assessment for determining eligibility and vocational 
rehabilitation needs;
    (viii) Rehabilitation technology;
    (ix) Job development, placement, and retention services;
    (x) Evaluation or control of specific disabilities;
    (xi) Orientation and mobility services for individuals who are 
blind;
    (xii) Extended employment;
    (xiii) Psychosocial rehabilitation services;
    (xiv) Supported employment services and extended services;
    (xv) Services to family members when necessary to the vocational 
rehabilitation of the individual;
    (xvi) Personal assistance services; or
    (xvii) Services similar to the services described in paragraphs (i) 
through (xvi) of this definition.
    Designated State agency means an agency designated under section 
7(8) and 101(a)(2)(A) of the Act.
    Designated State unit means
    (i) Any State agency unit required under section 7(8) and 
101(a)(2)(B) of the Act, or
    (ii) In cases in which no State agency unit is required, the State 
agency described in section 101(a)(2)(B)(ii) of the Act.
    Independent living core services means--
    (i) Information and referral services;
    (ii) Independent living skills training;
    (iii) Peer counseling, including cross-disability peer counseling; 
and
    (iv) Individual and systems advocacy.
    Independent living services includes--
    (i) Independent living core services; and
    (ii)(A) Counseling services, including psychological, 
psychotherapeutic, and related services;
    (B) Services related to securing housing or shelter, including 
services related to community group living, and supportive of the 
purposes of this Act and of the titles of this Act, and adaptive housing 
services (including appropriate accommodations to and modifications of 
any space used to serve, or occupied by, individuals with disabilities);
    (C) Rehabilitation technology;
    (D) Mobility training;
    (E) Services and training for individuals with cognitive and sensory 
disabilities, including life skills training, and interpreter and reader 
services;
    (F) Personal assistance services, including attendant care and the 
training of personnel providing these services;

[[Page 461]]

    (G) Surveys, directories, and other activities to identify 
appropriate housing, recreation opportunities, and accessible 
transportation, and other support services;
    (H) Consumer information programs on rehabilitation and independent 
living services available under this Act, especially for minorities and 
other individuals with disabilities who have traditionally been unserved 
or underserved by programs under this Act;
    (I) Education and training necessary for living in the community and 
participating in community activities;
    (J) Supported living;
    (K) Transportation, including referral and assistance for 
transportation;
    (L) Physical rehabilitation;
    (M) Therapeutic treatment;
    (N) Provision of needed prostheses and other appliances and devices;
    (O) Individual and group social and recreational services;
    (P) Training to develop skills specifically designed for youths who 
are individuals with disabilities to promote self-awareness and esteem, 
develop advocacy and self-empowerment skills, and explore career 
options;
    (Q) Services for children;
    (R) Services under other Federal, State, or local programs designed 
to provide resources, training, counseling, or other assistance of 
substantial benefit in enhancing the independence, productivity, and 
quality of life of individuals with disabilities;
    (S) Appropriate preventive services to decrease the need of 
individuals assisted under this Act for similar services in the future;
    (T) Community awareness programs to enhance the understanding and 
integration of individuals with disabilities; and
    (U) Such other services as may be necessary and not inconsistent 
with the provisions of this Act.
    Individual with a disability means any individual who--
    (i) Has a physical or mental impairment, which for that individual 
constitutes or results in a substantial impediment to employment;
    (ii) Can benefit in terms of an employment outcome from vocational 
rehabilitation services provided pursuant to title I, III, or VI of the 
Rehabilitation Act of 1973, as amended; and
    (iii) Has a disability as defined in section 7(20)(B) of the Act.
    Individual with a significant disability means an individual with a 
disability--
    (i) Who has a severe physical or mental impairment that seriously 
limits one or more functional capacities (such as mobility, 
communication, self-care, self-direction, interpersonal skills, work 
tolerance, or work skills) in terms of an employment outcome;
    (ii) Whose vocational rehabilitation can be expected to require 
multiple vocational rehabilitation services over an extended period of 
time; and
    (iii) Who has one or more physical or mental disabilities resulting 
from amputation, arthritis, autism, blindness, burn injury, cancer, 
cerebral palsy, cystic fibrosis, deafness, head injury, heart disease, 
hemiplegia, hemophilia, intellectual disability, respiratory or 
pulmonary dysfunction, mental illness, multiple sclerosis, muscular 
dystrophy, musculo-skeletal disorders, neurological disorders (including 
stroke and epilepsy), paraplegia, quadriplegia and other spinal cord 
conditions, sickle-cell anemia, specific learning disabilities, end-
stage renal disease, or another disability or combination of 
disabilities determined on the basis of an assessment for determining 
eligibility and vocational rehabilitation needs.
    Institution of higher education has the meaning given the term in 
section 101(a) of the Higher Education Act (20 U.S.C. 1001(a)).
    Personal assistance services means a range of services provided by 
one or more persons designed to assist an individual with a disability 
to perform daily living activities on or off the job that the individual 
would typically perform if the individual did not have a disability. The 
services shall be designed to increase the individual's control in life 
and ability to perform everyday activities on or off the job.
    Qualified personnel. (i) For designated State agencies or designated 
State units, means personnel who have met standards that are consistent 
with existing national or State approved or recognized certification, 
licensing, registration, or other comparable requirements that apply to 
the area in which

[[Page 462]]

such personnel are providing vocational rehabilitation services.
    (ii) For other than designated State agencies or designated State 
units, means personnel who have met existing State certification or 
licensure requirements, or, in the absence of State requirements, have 
met professionally accepted requirements established by national 
certification boards.
    Rehabilitation services means services, including vocational, 
medical, social, and psychological rehabilitation services and other 
services under the Rehabilitation Act, provided to individuals with 
disabilities in performing functions necessary in preparing for, 
securing, retaining, or regaining an employment or independent living 
outcome.
    Rehabilitation technology means the systematic application of 
technologies, engineering methodologies, or scientific principles to 
meet the needs of and address the barriers confronted by individuals 
with disabilities in areas that include education, rehabilitation, 
employment, transportation, independent living, and recreation. The term 
includes rehabilitation engineering, assistive technology devices, and 
assistive technology services.
    State includes, in addition to each of the several States of the 
United States, the District of Columbia, the Commonwealth of Puerto 
Rico, the United States Virgin Islands, Guam, American Samoa, and the 
Commonwealth of the Northern Mariana Islands.
    Stipend means financial assistance on behalf of individuals in 
support of their training, as opposed to salary payment for services 
provided within the project.
    Supported employment means competitive integrated employment, 
including customized employment, or employment in an integrated work 
setting in which individuals are working on a short-term basis toward 
competitive integrated employment, that is individualized and customized 
consistent with the strengths, abilities, interests, and informed choice 
of the individuals involved, for individuals with the most severe 
disabilities--
    (i)(A) For whom competitive integrated employment has not 
traditionally occurred; or
    (B) For whom competitive employment has been interrupted or 
intermittent as a result of a severe disability; and
    (ii) Who, because of the nature and severity of their disability, 
need intensive supported employment services from the designated State 
unit and extended services after transition in order to perform the work 
involved.
    Supported employment services means ongoing support services, 
including customized employment, and other appropriate services needed 
to support and maintain an individual with most severe disability in 
supported employment, that are--
    (i) Provided singly or in combination and are organized and made 
available in such a way as to assist an eligible individual in entering 
or maintaining integrated, competitive employment;
    (ii) Based on a determination of the needs of an eligible 
individual, as specified in an individualized written rehabilitation 
program; and
    (iii) Provided by the designated State unit for a period of time not 
more than 24 months, unless under special circumstances the eligible 
individual and the rehabilitation counselor or coordinator jointly agree 
to extend the time in order to achieve the rehabilitation objectives 
identified in the individualized plan for employment.
    Vocational rehabilitation services means services provided to an 
individual with a disability in preparing for, securing, retaining, or 
regaining an employment outcome that is consistent with the strengths, 
resources, priorities, concerns, abilities, capabilities, interests, and 
informed choice of the individual, and services provided for the benefit 
of groups of individuals with disabilities. Vocational Rehabilitation 
Services for an individual with a disability may include--
    (i) An assessment for determining eligibility and vocational 
rehabilitation needs by qualified personnel, including, if appropriate, 
an assessment by personnel skilled in rehabilitation technology;
    (ii) Counseling and guidance, including information and support 
services to assist an individual in exercising informed choice;

[[Page 463]]

    (iii) Referral and other services to secure needed services from 
other agencies;
    (iv) Job-related services, including job search and placement 
assistance, job retention services, follow-up services, and follow-along 
services;
    (v) Vocational and other training services, including the provision 
of personal and vocational adjustment services, books, tools, and other 
training materials;
    (vi) Diagnosis and treatment of physical and mental impairments;
    (vii) Maintenance for additional costs incurred while the individual 
is receiving services;
    (viii) Transportation;
    (ix) On-the-job or other related personal assistance services;
    (x) Interpreter and reader services;
    (xi) Rehabilitation teaching services, and orientation and mobility 
services;
    (xii) Occupational licenses, tools, equipment, and initial stocks 
and supplies;
    (xiii) Technical assistance and other consultation services to 
conduct market analysis, develop business plans, and otherwise provide 
resources to eligible individuals who are pursuing self-employment or 
telecommuting or establishing a small business operation as an 
employment outcome;
    (xiv) Rehabilitation technology, including telecommunications, 
sensory, and other technological aids and devices;
    (xv) Transition services for individuals with disabilities that 
facilitate the achievement of employment outcomes;
    (xvi) Supported employment services;
    (xvii) Services to the family of an individual with a disability 
necessary to assist the individual to achieve an employment outcome;
    (xviii) Post-employment services necessary to assist an individual 
with a disability to retain, regain, or advance in employment; and
    (xix) Expansion of employment opportunities for individuals with 
disabilities, which includes, but is not limited to--
    (A) Self-employment, business ownership, and entrepreneurship;
    (B) Non-traditional jobs, professional employment, and work 
settings;
    (C) Collaborating with employers, Economic Development Councils, and 
others in creating new jobs and career advancement options in local job 
markets through the use of job restructuring and other methods; and
    (D) Other services as identified by the Secretary and published in 
the Federal Register.

[81 FR 55614, Aug. 19, 2016, as amended at 82 FR 31913, July 11, 2017]

Subpart B [Reserved]



                Subpart C_How Does One Apply for a Grant?



Sec.  385.20  What are the application procedures for these programs?

    The Secretary gives the designated State agency an opportunity to 
review and comment on applications submitted from within the State that 
it serves. The procedures to be followed by the applicant and the State 
are in 34 CFR 75.155 through 75.159.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 772)



             Subpart D_How Does the Secretary Make a Grant?



Sec.  385.30  [Reserved]



Sec.  385.31  How does the Secretary evaluate an application?

    (a) The Secretary evaluates applications under the procedures in 34 
CFR part 75.
    (b) The Secretary evaluates each application using selection 
criteria identified in parts 386, 387, and 390, as appropriate.
    (c) In addition to the selection criteria described in paragraph (b) 
of this section, the Secretary evaluates each application using--
    (1) Selection criteria in 34 CFR 75.210;
    (2) Selection criteria established under 34 CFR 75.209; or
    (3) A combination of selection criteria established under 34 CFR 
75.209 and selection criteria in 34 CFR 75.210.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 772)

[[Page 464]]



Sec.  385.33  What other factors does the Secretary consider in reviewing
an application?

    In addition to the selection criteria listed in Sec.  75.210 and 
parts 386, 387, and 390, the Secretary, in making awards under this 
program, considers such factors as--
    (a) The geographical distribution of projects in each Rehabilitation 
Training Program category throughout the country; and
    (b) The past performance of the applicant in carrying out similar 
training activities under previously awarded grants, as indicated by 
such factors as compliance with grant conditions, soundness of 
programmatic and financial management practices and attainment of 
established project objectives.

(Authority: Sections 12(c) and 302(b) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 772(b))



           Subpart E_What Conditions Must Be Met by a Grantee?



Sec.  385.40  What are the requirements pertaining to the membership of
a project advisory committee?

    If a project establishes an advisory committee, its membership must 
include individuals with disabilities or parents, family members, 
guardians, advocates, or other authorized representatives of the 
individuals; members of minority groups; trainees; and providers of 
vocational rehabilitation and independent living rehabilitation 
services.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))



Sec.  385.41  What are the requirements affecting the collection of data 
from designated State agencies?

    If the collection of data is necessary from individuals with 
disabilities being served by two or more designated State agencies or 
from employees of two or more of these agencies, the project director 
must submit requests for the data to appropriate representatives of the 
affected agencies, as determined by the Secretary. This requirement also 
applies to employed project staff and individuals enrolled in courses of 
study supported under these programs.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))



Sec.  385.42  What are the requirements affecting the dissemination of
training materials?

    A set of any training materials developed under the Rehabilitation 
Training Program must be submitted to any information clearinghouse 
designated by the Secretary.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))



Sec.  385.43  What requirements apply to the training of rehabilitation 
counselors and other rehabilitation personnel?

    Any grantee who provides training of rehabilitation counselors or 
other rehabilitation personnel must train those counselors and personnel 
on the services provided under this Act, and, in particular, services 
provided in accordance with amendments made to the Rehabilitation Act by 
the Workforce Innovation and Opportunity Act of 2014. The grantee must 
also furnish training to these counselors and personnel regarding 
applications of rehabilitation technology in vocational rehabilitation 
services, the applicability of section 504 of this Act, title I of the 
Americans with Disabilities Act of 1990, and the provisions of titles II 
and XVI of the Social Security Act that are related to work incentives 
for individuals with disabilities.

(Authority: Sections 12(c), 101(a), and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c), 721(a) and 772)



Sec.  385.44  What requirement applies to the training of individuals 
with disabilities?

    Any grantee or contractor who provides training shall give due 
regard to the training of individuals with disabilities as part of its 
effort to increase the number of qualified personnel available to 
provide rehabilitation services.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c)

[[Page 465]]



Sec.  385.45  What additional application requirements apply to the
training of individuals for rehabilitation careers?

    (a) All applicants for a grant or contract to provide training shall 
demonstrate how the training they plan to provide will prepare 
rehabilitation professionals to address the needs of individuals with 
disabilities from minority backgrounds.
    (b) All applicants for a grant shall include a detailed description 
of strategies that will be utilized to recruit and train persons so as 
to reflect the diverse populations of the United States, as part of the 
effort to increase the number of individuals with disabilities, 
individuals who are members of minority groups, who are available to 
provide rehabilitation services.

(Approved by the Office of Management and Budget under control number 
1820-0018)

(Authority: Sections 21(a) and (b) and 302 of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 718(a) and (b) and 772)



Sec.  385.46  What limitations apply to the rate of pay for experts or
consultants appointed or serving under contract under the Rehabilitation
Training program?

    An expert or consultant appointed or serving under contract pursuant 
to this section shall be compensated at a rate subject to approval of 
the Commissioner which shall not exceed the daily equivalent of the rate 
of pay for level 4 of the Senior Executive Service Schedule under 
section 5382 of title 5, United States Code. Such an expert or 
consultant may be allowed travel and transportation expenses in 
accordance with section 5703 of title 5, United States Code.

(Authority: Section 302(b)(3) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 772(b)(3))



PART 386_REHABILITATION TRAINING: REHABILITATION LONG-TERM TRAINING
--Table of Contents



                            Subpart A_General

Sec.
386.1 What is the Rehabilitation Long-Term Training program?
386.2 Who is eligible for an award?
386.3 What regulations apply?
386.4 What definitions apply?

Subpart B [Reserved]

             Subpart C_How Does the Secretary Make an Award?

386.20 What additional selection criteria are used under this program?
386.21 What are the application procedures for these programs?

          Subpart D_What Conditions Must Be Met After an Award?

386.30 What are the matching requirements?
386.31 What are the requirements for directing grant funds?
386.32 What are allowable costs?
386.33 What are the requirements for grantees in disbursing 
          scholarships?
386.34 What assurances must be provided by a grantee that intends to 
          provide scholarships?
386.35 What information must be provided by a grantee that is an 
          institution of higher education to assist designated State 
          agencies?
386.36 What is a grantee's liability for failing to provide accurate and 
          complete scholar information to the Department?

           Subpart E_What Conditions Must Be Met by a Scholar?

386.40 What are the requirements for scholars?
386.41 Under what circumstances does the Secretary grant a deferral or 
          exception to performance or repayment under a scholarship 
          agreement?
386.42 What must a scholar do to obtain an exception or a deferral to 
          performance or repayment under a scholarship agreement?
386.43 What are the consequences of a scholar's failure to meet the 
          terms and conditions of a scholarship agreement?

    Authority: Sections 12(c) and 302 of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 772, unless otherwise noted.

    Source: 81 FR 55619, Aug. 19, 2016, unless otherwise noted.



                            Subpart A_General



Sec.  386.1  What is the Rehabilitation Long-Term Training program?

    (a) The Rehabilitation Long-Term Training program provides financial 
assistance for--
    (1) Projects that provide basic or advanced training leading to an 
academic degree in one of those fields of study

[[Page 466]]

identified in paragraph (b) of this section;
    (2) Projects that provide a specified series of courses or program 
of study leading to award of a certificate in one of those fields of 
study identified in paragraph (b) of this section; and
    (3) Projects that provide support for medical residents enrolled in 
residency training programs in the specialty of physical medicine and 
rehabilitation.
    (b) The Rehabilitation Long-Term Training program is designed to 
provide academic training that leads to an academic degree or academic 
certificate in areas of personnel shortages identified by the Secretary 
and published in a notice in the Federal Register. These areas may 
include--
    (1) Assisting and supporting individuals with disabilities pursuing 
self-employment, business ownership, and telecommuting;
    (2) Vocational rehabilitation counseling;
    (3) Rehabilitation technology, including training on its use, 
applications, and benefits;
    (4) Rehabilitation medicine;
    (5) Rehabilitation nursing;
    (6) Rehabilitation social work;
    (7) Rehabilitation psychiatry;
    (8) Rehabilitation psychology;
    (9) Rehabilitation dentistry;
    (10) Physical therapy;
    (11) Occupational therapy;
    (12) Speech pathology and audiology;
    (13) Physical education;
    (14) Therapeutic recreation;
    (15) Community rehabilitation program personnel;
    (16) Prosthetics and orthotics;
    (17) Rehabilitation of individuals who are blind or visually 
impaired, including rehabilitation teaching and orientation and 
mobility;
    (18) Rehabilitation of individuals who are deaf or hard of hearing;
    (19) Rehabilitation of individuals who are mentally ill;
    (20) Undergraduate education in the rehabilitation services;
    (21) Independent living;
    (22) Client assistance;
    (23) Administration of community rehabilitation programs;
    (24) Rehabilitation administration;
    (25) Vocational evaluation and work adjustment;
    (26) Services to individuals with specific disabilities or specific 
impediments to rehabilitation, including individuals who are members of 
populations that are unserved or underserved by programs under this Act;
    (27) Job development and job placement services to individuals with 
disabilities;
    (28) Supported employment services and customized employment 
services for individuals with the most significant disabilities;
    (29) Specialized services for individuals with significant 
disabilities;
    (30) Other fields contributing to the rehabilitation of individuals 
with disabilities.

(Authority: Sections 12 and 302 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709 and 772)



Sec.  386.2  Who is eligible for an award?

    Those agencies and organizations eligible for assistance under this 
program are described in 34 CFR 385.2.

(Authority: Section 302(a) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 772(a))



Sec.  386.3  What regulations apply?

    The following regulations apply to the Rehabilitation Training: 
Rehabilitation Long-Term Training program:
    (a) The regulations in this part 386.
    (b) The regulations in 34 CFR part 385.

(Authority: Section 302(a) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 772(a))



Sec.  386.4  What definitions apply?

    The following definitions apply to this program:
    (a) Definitions in 34 CFR 385.4.
    (b) Other definitions. The following definitions also apply to this 
part:
    Academic year means a full-time course of study--
    (i) Taken for a period totaling at least nine months; or
    (ii) Taken for the equivalent of at least two semesters, two 
trimesters, or three quarters.
    Certificate means a recognized educational credential awarded by a 
grantee under this part that attests to the completion of a specified 
series of courses or program of study.

[[Page 467]]

    Professional corporation or professional practice means--
    (i) A professional service corporation or practice formed by one or 
more individuals duly authorized to render the same professional 
service, for the purpose of rendering that service; and
    (ii) The corporation or practice and its members are subject to the 
same supervision by appropriate State regulatory agencies as individual 
practitioners.
    Related agency means--
    (i) An American Indian rehabilitation program; or
    (ii) Any of the following agencies that provide services to 
individuals with disabilities under an agreement or other arrangement 
with a designated State agency in the area of specialty for which 
training is provided:
    (A) A Federal, State, or local agency.
    (B) A nonprofit organization.
    (C) A professional corporation or professional practice group.
    Scholar means an individual who is enrolled in a certificate or 
degree granting course of study in one of the areas listed in Sec.  
386.1(b) and who receives scholarship assistance under this part.
    Scholarship means an award of financial assistance to a scholar for 
training and includes all disbursements or credits for student stipends, 
tuition and fees, books and supplies, and student travel in conjunction 
with training assignments.
    State vocational rehabilitation agency means the designated State 
agency as defined in 34 CFR 361.5(c)(13).

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))f  Subpart B [Reserved]



             Subpart C_How Does the Secretary Make an Award?



Sec.  386.20  What additional selection criteria are used under this
program?

    In addition to the criteria in 34 CFR 385.31(c), the Secretary uses 
the following additional selection criteria to evaluate an application:
    (a) Relevance to State-Federal vocational rehabilitation service 
program. (1) The Secretary reviews each application for information that 
shows that the proposed project appropriately relates to the mission of 
the State-Federal vocational rehabilitation service program.
    (2) The Secretary looks for information that shows that the project 
can be expected either--
    (i) To increase the supply of trained personnel available to State 
and other public or nonprofit agencies involved in the rehabilitation of 
individuals with disabilities through degree or certificate granting 
programs; or
    (ii) To improve the skills and quality of professional personnel in 
the rehabilitation field in which the training is to be provided through 
the granting of a degree or certificate.
    (b) Nature and scope of curriculum. (1) The Secretary reviews each 
application for information that demonstrates the adequacy of the 
proposed curriculum.
    (2) The Secretary looks for information that shows--
    (i) The scope and nature of the coursework reflect content that can 
be expected to enable the achievement of the established project 
objectives;
    (ii) The curriculum and teaching methods provide for an integration 
of theory and practice relevant to the educational objectives of the 
program;
    (iii) For programs whose curricula require them, there is evidence 
of educationally focused practical and other field experiences in 
settings that ensure student involvement in the provision of vocational 
rehabilitation, supported employment, customized employment, pre-
employment transition services, transition services, or independent 
living rehabilitation services to individuals with disabilities, 
especially individuals with significant disabilities;
    (iv) The coursework includes student exposure to vocational 
rehabilitation, supported employment, customized employment, employer 
engagement, and independent living rehabilitation processes, concepts, 
programs, and services; and
    (v) If applicable, there is evidence of current professional 
accreditation by the designated accrediting agency in the professional 
field in which grant support is being requested.

(Authority: Section 12(c) and 302 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 772)

[[Page 468]]



Sec.  386.21  What are the application procedures for these programs?

    (a) Application. No grant shall be awarded or contract entered into 
under the Rehabilitation Long-Term Training program unless the applicant 
has submitted to the Secretary an application at such time, in such 
form, in accordance with such procedures identified by the Secretary 
and, and including such information as the Secretary may require, 
including--
    (1) A description of how the designated State unit or units will 
participate in the project to be funded under the grant or contract, 
including, as appropriate, participation on advisory committees, as 
practicum sites, in curriculum development, and in other ways so as to 
build closer relationships between the applicant and the designated 
State unit and to encourage students to pursue careers in public 
vocational rehabilitation programs;
    (2) The identification of potential employers that provide 
employment that meets the requirements in Sec.  386.33(c); and
    (3) An assurance that data on the employment of graduates or 
trainees who participate in the project is accurate.
    (b) The Secretary gives the designated State agency an opportunity 
to review and comment on applications submitted from within the State 
that it serves. The procedures to be followed by the applicant and the 
State are in 34 CFR 75.155-75.159.

(Authority: Sections 12(c) and 302(b)(2) and (d) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 772(b)(2) and (d))



          Subpart D_What Conditions Must Be Met After an Award?



Sec.  386.30  What are the matching requirements?

    The grantee is required to contribute at least ten percent of the 
total cost of a project under this program. However, if the grantee can 
demonstrate that it has insufficient resources to contribute the entire 
match but that it can fulfill all other requirements for receiving an 
award, the Secretary may waive part of the non-Federal share of the cost 
of the project after negotiations with Department staff.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))



Sec.  386.31  What are the requirements for directing grant funds?

    (a) A grantee must use at least 65 percent of the total cost of a 
project under this program for scholarships as defined in Sec.  386.4.
    (b) The Secretary may waive the requirement in (a) and award grants 
that use less than 65 percent of the total cost of the project for 
scholarships based upon the unique nature of the project, such as the 
establishment of a new training program or long-term training in an 
emerging field that does not award degrees or certificates.
    (c) Before providing a scholarship to a scholar, a grantee must make 
good faith efforts to determine that the scholar is not concurrently 
receiving more than one scholarship under this program for the same 
academic term.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 772)



Sec.  386.32  What are allowable costs?

    In addition to those allowable costs established in the Education 
Department General Administrative Regulations in 34 CFR 75.530 through 
75.562, the following items are allowable under long-term training 
projects:
    (a) Student stipends.
    (b) Tuition and fees.
    (c) Books and supplies.
    (d) Student travel in conjunction with training assignments.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 772)



Sec.  386.33  What are the requirements for grantees in disbursing
scholarships?

    Before disbursement of scholarship assistance to an individual, a 
grantee--
    (a)(1) Must obtain documentation that the individual is--
    (i) A U.S. citizen or national; or
    (ii) A permanent resident of the Commonwealth of Puerto Rico, the 
United States Virgin Islands, Guam, American Samoa, or the Commonwealth 
of the Northern Mariana Islands;

[[Page 469]]

    (2) Must confirm from documentation issued to the individual by the 
U.S. Department of Homeland Security that he or she--
    (i) Is a lawful permanent resident of the United States; or
    (ii) Is in the United States for other than a temporary purpose with 
the intention of becoming a citizen or permanent resident; and
    (b) Must confirm that the applicant has expressed interest in a 
career in clinical practice, administration, supervision, teaching, or 
research in the vocational rehabilitation, supported employment, or 
independent living rehabilitation of individuals with disabilities, 
especially individuals with significant disabilities;
    (c) Must obtain documentation, as described in Sec.  386.40(a)(7), 
that the individual expects to seek and maintain employment in a 
designated State agency or in a related agency as defined in Sec.  386.4 
where
    (1) The employment is in the field of study in which the training 
was received or
    (2) Where the job functions are directly relevant to the field of 
study in which the training was received.
    (d) Must ensure that the scholarship, when added to the amount of 
financial aid the scholar receives for the same academic year under 
title IV of the Higher Education Act, does not exceed the scholar's cost 
of attendance;
    (e) Must limit scholarship assistance to no more than four academic 
years, unless the grantee provides an extension consistent with the 
institution's accommodations under section 504 of the Act; and
    (f) Must obtain a Certification of Eligibility for Federal 
Assistance from each scholar as prescribed in 34 CFR 75.60, 75.61, and 
75.62.

(Approved by the Office of Management and Budget under control number 
1820-0018)

(Authority: Sections 12(c) and 302(b) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 772(b))



Sec.  386.34  What assurances must be provided by a grantee that 
intends to provide scholarships?

    A grantee under this part that intends to grant scholarships for any 
academic year must provide the following assurances before an award is 
made:
    (a) Requirement for agreement. No individual will be provided a 
scholarship without entering into a written agreement containing the 
terms and conditions required by this section. An individual will sign 
and date the agreement prior to the initial disbursement of scholarship 
funds to the individual for payment of the individual's expenses. An 
agreement must be executed between the grantee and scholar for each 
subsequent year that scholarship funds are disbursed and must contain 
the terms and conditions required by this section.
    (b) Disclosure to applicants. The terms and conditions of the 
agreement between the grantee and a scholar will be fully disclosed in 
the application for scholarship.
    (c) Form and terms of agreement. Prior to granting each year of a 
scholarship, the grantee will require each scholar to enter into a 
signed written agreement in which the scholar agrees to the terms and 
conditions set forth in Sec.  386.40. This agreement must be in the form 
and contain any additional terms and conditions that the Secretary may 
require.
    (d) Executed agreement. The grantee will provide an original signed 
executed payback agreement upon request to the Secretary.
    (e) Standards for satisfactory progress. The grantee will establish, 
publish, and apply reasonable standards for measuring whether a scholar 
is maintaining satisfactory progress in the scholar's course of study. 
The Secretary considers an institution's standards to be reasonable if 
the standards--
    (1) Conform with the standards of satisfactory progress of the 
nationally recognized accrediting agency that accredits the 
institution's program of study, if the institution's program of study is 
accredited by such an agency, and if the agency has those standards;
    (2) For a scholar enrolled in an eligible program who is to receive 
assistance under the Rehabilitation Act, are the same as or stricter 
than the institution's standards for a student enrolled in the same 
academic program who is not receiving assistance under the 
Rehabilitation Act; and

[[Page 470]]

    (3) Include the following elements:
    (i) Grades, work projects completed, or comparable factors that are 
measurable against a norm.
    (ii) A maximum timeframe in which the scholar must complete the 
scholar's educational objective, degree, or certificate.
    (iii) Consistent application of standards to all scholars within 
categories of students; e.g., full-time, part-time, undergraduates, 
graduate students, and students attending programs established by the 
institution.
    (iv) Specific policies defining the effect of course incompletes, 
withdrawals, repetitions, and noncredit remedial courses on satisfactory 
progress.
    (v) Specific procedures for appeal of a determination that a scholar 
is not making satisfactory progress and for reinstatement of aid.
    (f) Exit certification. (1) At the time of exit from the program, 
the grantee will provide the following information to the scholar:
    (i) The name of the institution and the number of the Federal grant 
that provided the scholarship.
    (ii) the total amount of scholarship assistance received subject to 
Sec.  386.40(a)(7).
    (iii) The scholar's field of study and the obligation of the scholar 
to perform the service obligation with employment that meets the 
requirements in Sec.  386.40(a)(7)(i).
    (iv) The number of years the scholar needs to work to satisfy the 
work requirements in Sec.  386.40(a)(7)(ii).
    (v) The time period during which the scholar must satisfy the work 
requirements in Sec.  386.40(a)(8).
    (vi) As applicable, all other obligations of the scholar in Sec.  
386.40.
    (2) Upon receipt of this information from the grantee, the scholar 
must provide written and signed certification to the grantee that the 
information is correct.
    (g) Tracking system. The grantee has established policies and 
procedures to determine compliance of the scholar with the terms of the 
signed payback agreement. In order to determine whether a scholar has 
met the terms and conditions set forth in Sec.  386.40, the tracking 
system must include for each employment position maintained by the 
scholar--
    (1) Documentation of the employer's name, address, dates of the 
scholar's employment, name of supervisor, position title, a description 
of the duties the scholar performed, and whether the employment is full- 
or part-time;
    (2) Documentation of how the employment meets the requirements in 
Sec.  386.40(a)(7); and
    (3) In the event a grantee is experiencing difficulty locating a 
scholar, documentation that the grantee has checked with existing 
tracking systems operated by alumni organizations.
    (h) Reports. The grantee will make annual reports to the Secretary, 
unless more frequent reporting is required by the Secretary, that are 
necessary to carry out the Secretary's functions under this part.
    (i) Repayment status. The grantee will immediately report to the 
Secretary whenever a scholar has entered repayment status under Sec.  
386.43(e) and provide all necessary documentation in support thereof.
    (j) Records. The grantee will maintain accurate and complete records 
as outlined in paragraphs (g) and (h) of this section for a period of 
time not less than one year beyond the date that all scholars provided 
financial assistance under the grant--
    (1) Have completed their service obligation or
    (2) Have entered into repayment status pursuant to Sec.  386.43(e).

(Approved by the Office of Management and Budget under control number 
1820-0018)

(Authority: Sections 12(c) and 302(b) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 772(b))



Sec.  386.35  What information must be provided by a grantee that is
an institution of higher education to assist designated State agencies?

    A grantee that is an institution of higher education provided 
assistance under this part must cooperate with the following requests 
for information from a designated State agency:
    (a) Information required by section 101(a)(7) of the Act which may 
include, but is not limited to--

[[Page 471]]

    (1) The number of students enrolled by the grantee in rehabilitation 
training programs; and
    (2) The number of rehabilitation professionals trained by the 
grantee who graduated with certification or licensure, or with 
credentials to qualify for certification or licensure, during the past 
year.
    (b) Information on the availability of rehabilitation courses 
leading to certification or licensure, or the credentials to qualify for 
certification or licensure, to assist State agencies in the planning of 
a program of staff development for all classes of positions that are 
involved in the administration and operation of the State vocational 
rehabilitation program.

(Approved by the Office of Management and Budget under control number 
1820-0018)

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 772)



Sec.  386.36  What is a grantee's liability for failing to provide
accurate and complete scholar information to the Department?

    The Department may recover, in whole or in part, from the grantee 
the debt amount and any collection costs described in Sec. Sec.  
386.40(d) and 386.43, if the Department:
    (a) Is unable to collect, or improperly collected, some or all of 
these amounts or costs from a scholar and
    (b) Determines that the grantee failed to provide to the Department 
accurate and complete documentation described in Sec.  386.34.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 772)



           Subpart E_What Conditions Must Be Met by a Scholar?



Sec.  386.40  What are the requirements for scholars?

    (a) A scholar must--
    (1) Be enrolled in a course of study leading to a certificate or 
degree in one of the fields designated in Sec.  386.1(b);
    (2) Receive the training at the educational institution or agency 
designated in the scholarship;
    (3) Not accept payment of educational allowances from any other 
entity if that allowance conflicts with the scholar's obligation under 
section 302 of the Act and this part;
    (4) Not receive concurrent scholarships for the same academic term 
from more than one project under this program;
    (5) Enter into a signed written agreement with the grantee, prior to 
the receipt of scholarship funds, as required in Sec.  386.34(c);
    (6) Maintain satisfactory progress toward the certificate or degree 
as determined by the grantee;
    (7) Upon exiting the training program under paragraph (a)(1) of this 
section, subsequently maintain employment on a full- or part-time basis 
subject to the provisions in paragraph (b) of this section--
    (i)(A) In a State vocational rehabilitation agency or related agency 
as defined in Sec.  386.4; and
    (B)(1) In the field of study for which training was received, or
    (2) Where the field of study is directly relevant to the job 
functions performed; and
    (ii) For a period of at least the full-time equivalent of two years 
for every academic year for which assistance under this section was 
received subject to the provisions in paragraph (c) of this section for 
part-time coursework;
    (8) Complete the service obligation within a period, beginning after 
the recipient exits the training program for which the scholarship was 
awarded, of not more than the sum of the number of years in the period 
described in paragraph (a)(7)(ii) of this section and two additional 
years;
    (9) Repay all or part of any scholarship received, plus interest, if 
the individual does not fulfill the requirements of this section, except 
as provided for in Sec.  386.41 for exceptions and deferrals; and
    (10) Provide the grantee all requested information necessary for the 
grantee to meet the exit certification requirements in Sec.  386.34(f) 
and, as necessary, thereafter for any changes necessary for the grantee 
to monitor the scholar's service obligation under this section.
    (b)(1) The period of qualifying employment that meets the 
requirements

[[Page 472]]

of paragraph (a)(7) of this section may begin--
    (i) For courses of study of at least one year, only subsequent to 
the completion of one academic year of the training for which the 
scholarship assistance was received.
    (ii) For courses of study of less than one year, only upon 
completion of the training for which the scholarship assistance was 
received.
    (2) The work completed as part of an internship, practicum, or any 
other work-related requirement necessary to complete the educational 
program is not considered qualifying employment.
    (c) If the scholar is pursuing coursework on a part-time basis, the 
service obligation for these part-time courses is based on the 
equivalent total of actual academic years of training received.
    (d) If a scholar fails to provide the information in paragraph 
(a)(10) of this section or otherwise maintain contact with the grantee 
pursuant to the terms of the signed payback agreement and enters into 
repayment status pursuant to Sec.  386.43, the scholar will be held 
responsible for any costs assessed in the collection process under that 
section even if that information is subsequently provided.

(Authority: Sections 12(c) and 302(b) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 772(b))



Sec.  386.41  Under what circumstances does the Secretary grant a deferral
or exception to performance or repayment under a scholarship agreement?

    Based upon sufficient evidence to substantiate the grounds as 
detailed in Sec.  386.42, a repayment exception to or deferral of the 
requirements of Sec.  386.40(a)(7) may be granted, in whole or in part, 
by the Secretary as follows:
    (a) Repayment is not required if the scholar--
    (1) Is unable to continue the course of study or perform the work 
obligation because of a permanent disability that meets one of the 
following conditions:
    (i) The disability had not been diagnosed at the time the scholar 
signed the agreement in Sec.  386.34(c); or
    (ii) The disability did not prevent the scholar from performing the 
requirements of the course of study or the work obligation at the time 
the scholar signed the agreement in Sec.  386.34(c) but subsequently 
worsened; or
    (2) Has died.
    (b) Repayment of a scholarship may be deferred during the time the 
scholar is--
    (1) Engaging in a full-time course of study in the field of 
rehabilitation at an institution of higher education;
    (2) Serving on active duty as a member of the armed services of the 
United States for a period not in excess of four years;
    (3) Serving as a volunteer under the Peace Corps Act;
    (4) Serving as a full-time volunteer under title I of the Domestic 
Volunteer Service Act of 1973;
    (5) Experiencing a temporary disability that affects the scholar's 
ability to continue the course of study or perform the work obligation, 
for a period not to exceed three years; or
    (c) Under limited circumstances as determined by the Secretary and 
based upon credible evidence submitted on behalf of the scholar, the 
Secretary may grant an exception to, or deferral of, the requirement to 
repay a scholarship in instances not specified in this section. These 
instances could include, but are not limited to, the care of a disabled 
spouse, partner, or child or the need to accompany a spouse or partner 
on active duty in the Armed Forces.

(Authority: Sections 12(c) and 302(b) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 772(b))



Sec.  386.42  What must a scholar do to obtain an exception or a deferral
to performance or repayment under a scholarship agreement?

    To obtain an exception or a deferral to performance or repayment 
under a scholarship agreement under Sec.  386.41, a scholar must provide 
the following:
    (a) Written application. A written application must be made to the 
Secretary to request a deferral or an exception to performance or 
repayment of a scholarship.
    (b) Documentation. Sufficient documentation must be provided to 
substantiate the grounds for all deferrals or exceptions, including the 
following, as appropriate.

[[Page 473]]

    (1) Documentation necessary to substantiate an exception under Sec.  
386.41(a)(1) or a deferral under Sec.  386.41(b)(5) must include a 
letter from a qualified physician or other medical professional, on 
official stationery, attesting how the disability affects the scholar in 
completing the course of study or performing the work obligation. The 
documentation must be less than three months old and include the 
scholar's diagnosis and prognosis and ability to complete the course of 
study or work with accommodations.
    (2) Documentation to substantiate an exception under Sec.  
386.41(a)(2) must include a death certificate or other evidence 
conclusive under State law.
    (3) Documentation necessary to substantiate a deferral or exception 
under 386.41(c) based upon the disability of a spouse, partner, or child 
must meet the criteria, as relevant, in paragraph (b)(1) of this 
section.

(Approved by the Office of Management and Budget under control number 
1820-0018)

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 772)



Sec.  386.43  What are the consequences of a scholar's failure to meet
the terms and conditions of a scholarship agreement?

    In the event of a failure to meet the terms and conditions of a 
scholarship agreement or to obtain a deferral or an exception as 
provided in Sec.  386.41, the scholar must repay all or part of the 
scholarship as follows:
    (a) Amount. The amount of the scholarship to be repaid is 
proportional to the employment obligation not completed.
    (b) Interest rate. The Secretary charges the scholar interest on the 
unpaid balance owed in accordance with 31 U.S.C. 3717.
    (c) Interest accrual. (1) Interest on the unpaid balance accrues 
from the date the scholar is determined to have entered repayment status 
under paragraph (e) of this section.
    (2) Any accrued interest is capitalized at the time the scholar's 
repayment schedule is established.
    (3) No interest is charged for the period of time during which 
repayment has been deferred under Sec.  386.41.
    (d) Collection costs. Under the authority of 31 U.S.C. 3717, the 
Secretary may impose reasonable collection costs.
    (e) Repayment status. A scholar enters repayment status on the first 
day of the first calendar month after the earliest of the following 
dates, as applicable:
    (1) The date the scholar informs the Secretary he or she does not 
plan to fulfill the employment obligation under the agreement.
    (2) Any date when the scholar's failure to begin or maintain 
employment makes it impossible for that individual to complete the 
employment obligation within the number of years required in Sec.  
386.40(a)(8).
    (f) Amounts and frequency of payment. The scholar shall make 
payments to the Secretary that cover principal, interest, and collection 
costs according to a schedule established by the Secretary.

(Authority: Sections 12(c) and 302(b) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 772(b))



PART 387_INNOVATIVE REHABILITATION TRAINING--Table of Contents



                            Subpart A_General

Sec.
387.1 What is the Innovative Rehabilitation Training program?
387.2 Who is eligible for assistance under this program?
387.3 What regulations apply to this program?
387.4 What definitions apply to this program?
387.5 What types of projects are authorized under this program?

Subparts B-C [Reserved]

             Subpart D_How Does the Secretary Make a Grant?

387.30 What additional selection criteria are used under this program?

           Subpart E_What Conditions Must Be Met by a Grantee?

387.40 What are the matching requirements?
387.41 What are allowable costs?

    Authority: Sections 12(c) and 302 of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c), and 772, unless otherwise noted.

[[Page 474]]


    Source: 81 FR 55623, Aug. 19, 2016, unless otherwise noted.



                            Subpart A_General



Sec.  387.1  What is the Innovative Rehabilitation Training program?

    This program is designed--
    (a) To develop new types of training programs for rehabilitation 
personnel and to demonstrate the effectiveness of these new types of 
training programs for rehabilitation personnel in providing 
rehabilitation services to individuals with disabilities;
    (b) To develop new and improved methods of training rehabilitation 
personnel so that there may be a more effective delivery of 
rehabilitation services to individuals with disabilities by designated 
State rehabilitation agencies and designated State rehabilitation units 
or other public or non-profit rehabilitation service agencies or 
organizations; and
    (c) To develop new innovative training programs for vocational 
rehabilitation professionals and paraprofessionals to have a 21st 
century understanding of the evolving labor force and the needs of 
individuals with disabilities so they can more effectively provide 
vocational rehabilitation services to individuals with disabilities.

(Authority: Sections 12(c), 121(a)(7), and 302 of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c), 721(a)(7), and 772)



Sec.  387.2  Who is eligible for assistance under this program?

    Those agencies and organizations eligible for assistance under this 
program are described in 34 CFR 385.2.

(Authority: Section 12(c) and 302 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 772)



Sec.  387.3  What regulations apply to this program?

    (a) 34 CFR part 385 (Rehabilitation Training); and
    (b) The regulations in this part 387.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 772)



Sec.  387.4  What definitions apply to this program?

    The definitions in 34 CFR part 385 apply to this program.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 772))



Sec.  387.5  What types of projects are authorized under this program?

    The Innovative Rehabilitation Training Program supports time-limited 
pilot projects through which new types of rehabilitation workers may be 
trained or through which innovative methods of training rehabilitation 
personnel may be demonstrated.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 772))

Subparts B-C [Reserved]



             Subpart D_How Does the Secretary Make a Grant?



Sec.  387.30  What additional selection criteria are used under this
program?

    In addition to the criteria in 34 CFR 385.31(c), the Secretary uses 
the following additional selection criteria to evaluate an application:
    (a) Relevance to State-Federal rehabilitation service program. (1) 
The Secretary reviews each application for information that shows that 
the proposed project appropriately relates to the mission of the State-
Federal rehabilitation service program.
    (2) The Secretary looks for information that shows that the project 
can be expected either--
    (i) To increase the supply of trained personnel available to public 
and private agencies involved in the rehabilitation of individuals with 
disabilities; or
    (ii) To maintain and improve the skills and quality of 
rehabilitation personnel.
    (b) Nature and scope of curriculum. (1) The Secretary reviews each 
application for information that demonstrates the adequacy and scope of 
the proposed curriculum.
    (2) The Secretary looks for information that shows that--

[[Page 475]]

    (i) The scope and nature of the training content can be expected to 
enable the achievement of the established project objectives of the 
training project;
    (ii) The curriculum and teaching methods provide for an integration 
of theory and practice relevant to the educational objectives of the 
program;
    (iii) There is evidence of educationally focused practicum or other 
field experiences in settings that assure student involvement in the 
provision of vocational rehabilitation or independent living 
rehabilitation services to individuals with disabilities, especially 
individuals with significant disabilities; and
    (iv) The didactic coursework includes student exposure to vocational 
rehabilitation processes, concepts, programs, and services.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 772)



           Subpart E_What Conditions Must Be Met by a Grantee?



Sec.  387.40  What are the matching requirements?

    A grantee must contribute to the cost of a project under this 
program in an amount satisfactory to the Secretary. The part of the 
costs to be borne by the grantee is determined by the Secretary at the 
time of the grant award.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 772)



Sec.  387.41  What are allowable costs?

    In addition to those allowable costs established under 34 CFR 
75.530-75.562, the following items are allowable under Innovative 
Rehabilitation training projects--
    (a) Student stipends;
    (b) Tuition and fees; and
    (c) Student travel in conjunction with training assignments.

(Authority: Sections 12(c) and 302 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 772)

                        PARTS 388	389 [RESERVED]



PART 390_REHABILITATION SHORT-TERM TRAINING--Table of Contents



                            Subpart A_General

Sec.
390.1 What is the Rehabilitation Short-Term Training program?
390.2 Who is eligible for assistance under this program?
390.3 What regulations apply to this program?
390.4 What definitions apply to this program?

Subpart B_What Kinds of Projects Does the Department of Education Assist 
                           Under This Program?

390.10 What types of projects are authorized under this program?

Subpart C [Reserved]

             Subpart D_How Does the Secretary Make a Grant?

390.30 What additional selection criterion is used under this program?

           Subpart E_What Conditions Must Be Met by a Grantee?

390.40 What are the matching requirements?
390.41 What are allowable costs?

    Authority: Sections 12(a) and (c) and 302 of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(a) and (c) and 772, unless otherwise 
noted.

    Source: 81 FR 55624, Aug. 19, 2016, unless otherwise noted.



                            Subpart A_General



Sec.  390.1  What is the Rehabilitation Short-Term Training program?

    This program is designed for the support of special seminars, 
institutes, workshops, and other short-term courses in technical matters 
relating to the vocational, medical, social, and psychological 
rehabilitation programs, independent living services programs, and 
client assistance programs.

(Authority: Sections 12(a)(2) and 302 of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(a)(2) and 772)

[[Page 476]]



Sec.  390.2  Who is eligible for assistance under this program?

    Those agencies and organizations eligible for assistance under this 
program are described in 34 CFR 385.2.

(Authority: Section 302 of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 772)



Sec.  390.3  What regulations apply to this program?

    (a) 34 CFR part 385 (Rehabilitation Training); and
    (b) The regulations in this part 390.

(Authority: Section 302 of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 772)



Sec.  390.4  What definitions apply to this program?

    The definitions in 34 CFR part 385 apply to this program.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c)



Subpart B_What Kinds of Projects Does the Department of Education Assist 
                           Under This Program?



Sec.  390.10  What types of projects are authorized under this program?

    (a) Projects under this program are designed to provide short-term 
training and technical instruction in areas of special significance to 
the vocational, medical, social, and psychological rehabilitation 
programs, supported employment programs, independent living services 
programs, and client assistance programs.
    (b) Short-term training projects may be of regional or national 
scope.
    (c) Conferences and meetings in which training is not the primary 
focus may not be supported under this program.

(Authority: Section 12(a)(2) and 302 of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(a)(2) and 772)

Subpart C [Reserved]



             Subpart D_How Does the Secretary Make a Grant?



Sec.  390.30  What additional selection criterion is used under this
program?

    In addition to the criteria in 34 CFR 385.31(c), the Secretary uses 
the following additional selection criterion to evaluate an application:
    (a) Relevance to State-Federal rehabilitation service program. (1) 
The Secretary reviews each application for information that shows that 
the proposed project appropriately relates to the mission of the State-
Federal rehabilitation service programs.
    (2) The Secretary looks for information that shows that the proposed 
project can be expected to improve the skills and competence of--
    (i) Personnel engaged in the administration or delivery of 
rehabilitation services; and
    (ii) Others with an interest in the delivery of rehabilitation 
services.
    (b) Evidence of training needs. The Secretary reviews each 
application for evidence of training needs as identified through 
training needs assessment conducted by the applicant or by designated 
State agencies or designated State units or any other public and private 
nonprofit rehabilitation service agencies or organizations that provide 
rehabilitation services and other services authorized under the Act, 
whose personnel will receive the training.

(Authority: Section 12(c) of the Rehabilitation Act of 1973, as amended; 
29 U.S.C. 709(c))



           Subpart E_What Conditions Must Be Met by a Grantee?



Sec.  390.40  What are the matching requirements?

    A grantee must contribute to the cost of a project under this 
program in an amount satisfactory to the Secretary. The part of the 
costs to be borne by the grantee is determined by the Secretary at the 
time of the award.

(Authority: Section 12(c) and 302 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 772)



Sec.  390.41  What are allowable costs?

    (a) In addition to those allowable costs established in 34 CFR 
75.530-

[[Page 477]]

75.562, the following items are allowable under short-term training 
projects:
    (1) Trainee per diem costs;
    (2) Trainee travel in connection with a training course;
    (3) Trainee registration fees; and
    (4) Special accommodations for trainees with handicaps.
    (b) The preparation of training materials may not be supported under 
a short-term training grant unless the materials are essential for the 
conduct of the seminar, institute, workshop or other short course for 
which the grant support has been provided.

(Authority: Section 12(c) and 302 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 772)



PART 395_VENDING FACILITY PROGRAM FOR THE BLIND ON FEDERAL AND
OTHER PROPERTY--Table of Contents



                          Subpart A_Definitions

Sec.
395.1 Terms.

                  Subpart B_The State Licensing Agency

395.2 Application for designation as a State licensing agency; general.
395.3 Application for designation as State licensing agency; content.
395.4 State rules and regulations.
395.5 Approval of application for designation as State licensing agency.
395.6 Vendor ownership of vending facilities.
395.7 The issuance and conditions of licenses.
395.8 Distribution and use of income from vending machines on Federal 
          property.
395.9 The setting aside of funds by the State licensing agency.
395.10 The maintenance and replacement of vending facility equipment.
395.11 Training program for blind individuals.
395.12 Access to program and financial information.
395.13 Evidentiary hearings and arbitration of vendor complaints.
395.14 The State Committee of Blind Vendors.
395.15 Use of nominee agreements.
395.16 Permit for the establishment of vending facilities.
395.17 Suspension of designation as State licensing agency.

                  Subpart C_Federal Property Management

395.30 The location and operation of vending facilities for blind 
          vendors on Federal property.
395.31 Acquisition and occupation of Federal property.
395.32 Collection and distribution of vending machine income from 
          vending machines on Federal property.
395.33 Operation of cafeterias by blind vendors.
395.34 Application for permits.
395.35 Terms of permit.
395.36 Enforcement procedures.
395.37 Arbitration of State licensing agency complaints.
395.38 Reports.

    Authority: Sec. 2, 49 Stat. 1559, as amended; 20 U.S.C. 107a.

    Source: 42 FR 15802, Mar. 23, 1977, unless otherwise noted. 
Redesignated at 45 FR 77369, Nov. 21, 1980, and further redesignated at 
46 FR 5417, Jan. 19, 1981.



                          Subpart A_Definitions



Sec.  395.1  Terms.

    Unless otherwise indicated in this part, the terms below are defined 
as follows:
    (a) Act means the Randolph-Sheppard Vending Stand Act (Pub. L. 74-
732), as amended by Pub. L. 83-565 and Pub. L. 93-516, 20 U.S.C., ch. 
6A, Sec 107.
    (b) Blind licensee means a blind person licensed by the State 
licensing agency to operate a vending facility on Federal or other 
property.
    (c) Blind person means a person who, after examination by a 
physician skilled in diseases of the eye or by an optometrist, whichever 
such person shall select, has been determined to have
    (1) Not more than 20/200 central visual acuity in the better eye 
with correcting lenses, or
    (2) An equally disabling loss of the visual field as evidenced by a 
limitation to the field of vision in the better eye to such a degree 
that its widest diameter subtends an angle of no greater than 20[deg].
    (d) Cafeteria means a food dispensing facility capable of providing 
a broad variety of prepared foods and beverages (including hot meals) 
primarily

[[Page 478]]

through the use of a line where the customer serves himself from 
displayed selections. A cafeteria may be fully automatic or some limited 
waiter or waitress service may be available and provided within a 
cafeteria and table or booth seating facilities are always provided.
    (e) Secretary means the Secretary of the Rehabilitation Services 
Administration.
    (f) Direct competition means the presence and operation of a vending 
machine or a vending facility on the same premises as a vending facility 
operated by a blind vendor, except that vending machines or vending 
facilities operated in areas serving employees the majority of whom 
normally do not have direct access (in terms of uninterrupted ease of 
approach and the amount of time required to patronize the vending 
facility) to the vending facility operated by a blind vendor shall not 
be considered to be in direct competition with the vending facility 
operated by a blind vendor.
    (g) Federal property means any building, land, or other real 
property owned, leased, or occupied by any department, agency or 
instrumentality of the United States (including the Department of 
Defense and the U.S. Postal Service), or any other instrumentality 
wholly owned by the United States, or by any department or agency of the 
District of Columbia or any territory or possession of the United 
States.
    (h) Individual location installation or facility means a single 
building or a self-contained group of buildings. In order for two or 
more buildings to be considered to be a self-contained group of 
buildings, such buildings must be located in close proximity to each 
other, and a majority of the Federal employees housed in any such 
building must regularly move from one building to another in the course 
of official business during normal working days.
    (i) License means a written instrument issued by the State licensing 
agency to a blind person, authorizing such person to operate a vending 
facility on Federal or other property.
    (j) Management services means supervision, inspection, quality 
control, consultation, accounting, regulating, in-service training, and 
other related services provided on a systematic basis to support and 
improve vending facilities operated by blind vendors. Management 
services does not include those services or costs which pertain to the 
on-going operation of an individual facility after the initial 
establishment period.
    (k) Net proceeds means the amount remaining from the sale of 
articles or services of vending facilities, and any vending machine or 
other income accruing to blind vendors after deducting the cost of such 
sale and other expenses (excluding set-aside charges required to be paid 
by such blind vendors).
    (l) Nominee means a nonprofit agency or organization designated by 
the State licensing agency through a written agreement to act as its 
agent in the provision of services to blind licensees under the State's 
vending facility program.
    (m) Normal working hours means an eight hour work period between the 
approximate hours of 8:00 a.m., to 6:00 p.m., Monday through Friday.
    (n) Other property means property which is not Federal property and 
on which vending facilities are established or operated by the use of 
any funds derived in whole or in part, directly or indirectly, from the 
operation of vending facilities on any Federal property.
    (o) Permit means the official approval given a State licensing 
agency by a department, agency or instrumentality in control of the 
maintenance, operation, and protection of Federal property, or person in 
control of other property, whereby the State licensing agency is 
authorized to establish a vending facility.
    (p) Program means all the activities of the licensing agency under 
this part related to vending facilities on Federal and other property.
    (q) Satisfactory site means an area fully accessible to vending 
facility patrons and having:
    (1) Effective on March 23, 1977 a minimum of 250 square feet 
available for the vending and storage of articles necessary for the 
operation of a vending facility; and
    (2) Sufficient electrical plumbing, heating, and ventilation outlets 
for the

[[Page 479]]

location and operation of a vending facility in accordance with 
applicable health laws and building codes.
    (r) Secretary means the Secretary of Education.
    (s) Set-aside funds means funds which accrue to a State licensing 
agency from an assessment against the net proceeds of each vending 
facility in the State's vending facility program and any income from 
vending machines on Federal property which accrues to the State 
licensing agency.
    (t) State means a State, territory, possession, Puerto Rico, or the 
District of Columbia.
    (u) State vocational rehabilitation agency means that agency in the 
State providing vocational rehabilitation services to the blind as the 
sole State agency under a State plan for vocational rehabilitation 
services approved pursuant to the provisions of the Rehabilitation Act 
of 1973 (29 U.S.C., ch. 16).
    (v) State licensing agency means the State agency designated by the 
Secretary under this part to issue licenses to blind persons for the 
operation of vending facilities on Federal and other property.
    (w) United States includes the several States, territories, and 
possessions of the United States, Puerto Rico, and the District of 
Columbia.
    (x) Vending facility means automatic vending machines, cafeterias, 
snack bars, cart service, shelters, counters, and such other appropriate 
auxiliary equipment which may be operated by blind licensees and which 
is necessary for the sale of newspapers, periodicals, confections, 
tobacco products, foods, beverages, and other articles or services 
dispensed automatically or manually and prepared on or off the premises 
in accordance with all applicable health laws, and including the vending 
or exchange of changes for any lottery authorized by State law and 
conducted by an agency of a State within such State.
    (y) Vending machine, for the purpose of assigning vending machine 
income under this part, means a coin or currency operated machine which 
dispenses articles or services, except that those machines operated by 
the United States Postal Service for the sale of postage stamps or other 
postal products and services, machines providing services of a 
recreational nature, and telephones shall not be considered to be 
vending machines.
    (z) Vending machine income means receipts (other than those of a 
blind vendor) from vending machine operations on Federal property, after 
deducting the cost of goods sold (including reasonable service and 
maintenance costs in accordance with customary business practices of 
commercial vending concerns, where the machines are operated, serviced, 
or maintained by, or with the approval of, a department, agency, or 
instrumentality of the United States, or commissions paid (other than to 
a blind vendor) by a commercial vending concern which operates, 
services, and maintains vending machines on Federal property for, or 
with the approval of, a department, agency, or instrumentality of the 
United States.
    (aa) Vendor means a blind licensee who is operating a vending 
facility on Federal or other property.
    (bb) Vocational rehabilitation services means those services as 
defined in Sec.  1361.1(ee) (1) and (2) of this chapter.



                  Subpart B_The State Licensing Agency



Sec.  395.2  Application for designation as a State licensing
agency; general.

    (a) An application for designation as a State licensing agency may 
be submitted only by the State vocational rehabilitation agency 
providing vocational rehabilitation services to the blind under an 
approved State plan for vocational rehabilitation services under part 
1361 of this chapter.
    (b) Such application shall be:
    (1) Submitted in writing to the Secretary;
    (2) Approved by the chief executive of the State; and
    (3) Transmitted over the signature of the administrator of the State 
agency making application.



Sec.  395.3  Application for designation as State licensing agency; content.

    (a) An application for designation as a State licensing agency under 
Sec.  395.2 shall indicate:

[[Page 480]]

    (1) The State licensing agency's legal authority to administer the 
program, including its authority to promulgate rules and regulations to 
govern the program;
    (2) The State licensing agency's organization for carrying out the 
program, including a description of the methods for coordinating the 
State's vending facility program and the State's vocational 
rehabilitation program, with special reference to the provision of such 
post-employment services necessary to assure that the maximum vocational 
potential of each blind vendor is achieved;
    (3) The policies and standards to be employed in the selection of 
suitable locations for vending facilities;
    (4) The methods to be used to ensure the continuing and active 
participation of the State Committee of Blind Vendors in matters 
affecting policy and program development and administration.
    (5) The policies to be followed in making suitable vending facility 
equipment and adequate initial stock available to a vendor;
    (6) The sources of funds for the administration of the program;
    (7) The policies and standards governing the relationship of the 
State licensing agency to the vendors, including their selection, 
duties, supervision, transfer, promotion, financial participation, 
rights to a full evidentiary hearing concerning a State licensing agency 
action, and, where necessary, rights for the submittal of complaints to 
an arbitration panel;
    (8) The methods to be followed in providing suitable training, 
including on-the-job training and, where appropriate, upward mobility 
training, to blind vendors;
    (9) The arrangements made or contemplated, if any, for the 
utilization of the services of any nominee under Sec.  395.15; the 
agreements therefor and the services to be provided; the procedures for 
the supervision and control of the services provided by such nominee and 
the methods used in evaluating services received, the basis for 
remuneration, and the fiscal controls and accounting procedures;
    (10) The arrangements made or contemplated, if any, for the vesting 
in accordance with the laws of the State, of the right, title to, and 
interest in vending facility equipment or stock (including vending 
machines), used in the program, in a nominee to hold such right, title 
to, and interest for program purposes; and
    (11) The assurances of the State licensing agency that it will:
    (i) Cooperate with the Secretary in applying the requirements of the 
Act in a uniform manner;
    (ii) Take effective action, including the termination of licenses, 
to carry out full responsibility for the supervision and management of 
each vending facility in its program in accordance with its established 
rules and regulations, this part, and the terms and conditions governing 
the permit;
    (iii) Submit promptly to the Secretary for approval a description of 
any changes in the legal authority of the State licensing agency, its 
rules and regulations, blind vendor agreements, schedules for the 
setting aside of funds, contractual arrangements for the furnishing of 
services by a nominee, arrangements for carrying general liability and 
product liability insurance, and any other matters which form a part of 
the application;
    (iv) If it intends to set aside, or cause to be set aside, funds 
from the net proceeds of the operation of vending facilities, obtain a 
prior determination by the Secretary that the amount of such funds to be 
set aside is reasonable;
    (v) Establish policies against discrimination of any blind vendor on 
the basis of sex, age, physical or mental impairment, creed, color, 
national origin, or political affiliation;
    (vi) Furnish each vendor a copy of its rules and regulations and a 
description of the arrangements for providing services, and take 
adequate steps to assure that each vendor understands the provisions of 
the permit and any agreement under which he operates, as evidenced by 
his signed statements:
    (vii) Submit to an arbitration panel those grievances of any vendor 
unresolved after a full evidentiary hearing;
    (viii) Adopt accounting procedures and maintain financial records in 
a manner necessary to provide for each vending facility and for the 
State's

[[Page 481]]

vending facility program a classification of financial transactions in 
such detail as is sufficient to enable evaluation of performance; and
    (ix) Maintain records and make reports in such form and containing 
such information as the Secretary may require, make such records 
available for audit purposes, and comply with such provisions as the 
Secretary may find necessary to assure the correctness and verification 
of such reports.
    (b) An application submitted under Sec.  395.2 shall be accompanied 
by a copy of State rules and regulations affecting the administration 
and operation of the State's vending facility program.



Sec.  395.4  State rules and regulations.

    (a) The State licensing agency shall promulgate rules and 
regulations which have been approved by the Secretary and which shall be 
adequate to assure the effective conduct of the State's vending facility 
program (including State licensing agency procedures covering the 
conduct of full evidentiary hearings) and the operation of each vending 
facility in accordance with this part and with the requirements and 
conditions of each department, agency, and instrumentality in control of 
the maintenance, operation, and protection of Federal property, 
including the conditions contained in permits, as well as in all 
applicable Federal and State laws, local ordinances and regulations.
    (b) Such rules and regulations and amendments thereto shall be filed 
or published in accordance with State law.
    (c) Such rules and regulations shall include provisions adequate to 
insure that the right, title to, and interest in each vending facility 
used in the program and the stock will be vested in accordance with the 
laws of the State in only the following:
    (1) The State licensing agency; or
    (2) Its nominee, subject to the conditions specified in Sec.  
395.15(b); or
    (3) The vendor, in accordance with State determination.
    (d) Notwithstanding the provisions of paragraph (c) of this section, 
any right, title to, or interest which existed on June 30, 1955, in 
stock may continue so long as:
    (1) The interest is in the stock of a facility established under the 
program prior to July 1, 1955, and
    (2) The vendor was licensed in the program (whether or not for the 
operation of the vending facility in question) prior to July 1, 1955.



Sec.  395.5  Approval of application for designation as State 
licensing agency.

    When the Secretary determines that an application submitted by a 
State vocational rehabilitation agency under Sec.  395.2, and the 
accompanying rules and regulations indicate a plan of program operations 
which will stimulate and enlarge the economic opportunities for the 
blind, and which will meet all other requirements of this part, he shall 
approve the application and shall designate the applying State 
vocational rehabilitation agency as the State licensing agency.



Sec.  395.6  Vendor ownership of vending facilities.

    (a) If a State licensing agency determines under Sec.  395.4(c) that 
the right, title to, and interest in a vending facility may be vested in 
the blind vendor, the State licensing agency shall enter into a written 
agreement with each vendor who is to have such ownership. Such agreement 
shall contain in full the terms and conditions governing such ownership 
in accordance with criteria in the State licensing agency's regulations, 
this part, and the terms and conditions of the permit. The criteria 
established to govern the determination that the title may be so vested 
shall contain reasonable provisions to enable a vendor to purchase 
vending facility equipment and to ensure that no individual will be 
denied the opportunity to become a vendor because of his inability to 
purchase the vending facility equipment or the initial stock;
    (b) The State licensing agency shall establish in writing and 
maintain policies determining whether the vendor-owner or the State 
licensing agency shall be required to maintain the vending facility in 
good repair and in an attractive condition and replace worn-out or 
obsolete equipment; and if the former, such policies shall provide that 
upon such vendor-owner's failure to do so, the State licensing agency 
may

[[Page 482]]

make the necessary maintenance, replacement, or repairs and make 
equitable arrangements for reimbursement;
    (c) Where the vendor owns such equipment and is required to maintain 
the vending facility in good repair and in an attractive condition and 
replace worn-out or obsolete equipment, or agrees to purchase additional 
new equipment, service charges for such purposes shall be equitably 
reduced and the method for determining such amount shall be established 
by the State licensing agency in writing;
    (d) Where the vendor owns such equipment, the State licensing agency 
shall retain a first option to repurchase such equipment, and in the 
event the vendor-owner dies, or for any other reason ceases to be a 
licensee, or transfers to another vending facility, ownership of such 
equipment shall become vested in the State licensing agency for transfer 
to a successor licensee subject to an obligation on its part to pay to 
such vendor-owner or his estate, the fair value therein; and
    (e) The vendor-owner, his personal representative or next of kin 
shall be entitled to an opportunity for a full evidentiary hearing with 
respect to the determination of the amount to be paid by the State 
licensing agency for a vendor's ownership in the equipment. When the 
vendor-owner is dissatisfied with any decision rendered as a result of 
such hearing, he may file a complaint with the Secretary under Sec.  
395.13 to request the convening of an ad hoc arbitration panel.



Sec.  395.7  The issuance and conditions of licenses.

    (a) The State licensing agency shall establish in writing and 
maintain objective criteria for licensing qualified applicants, 
including a provision for giving preference to blind persons who are in 
need of employment. Such criteria shall also include provisions to 
assure that licenses will be issued only to persons who are determined 
by the State licensing agency to be:
    (1) Blind;
    (2) Citizens of the United States; and
    (3) Certified by the State vocational rehabilitation agency as 
qualified to operate a vending facility.
    (b) The State licensing agency shall provide for the issuance of 
licenses for an indefinite period but subject to suspension or 
termination if, after affording the vendor an opportunity for a full 
evidentiary hearing, the State licensing agency finds that the vending 
facility is not being operated in accordance with its rules and 
regulations, the terms and conditions of the permit, and the terms and 
conditions of the agreement with the vendor.
    (c) The State licensing agency shall further establish in writing 
and maintain policies which have been developed with the active 
participation of the State Committee of Blind Vendors and which govern 
the duties, supervision, transfer, promotion, and financial 
participation of the vendors. The State licensing agency shall also 
establish procedures to assure that such policies have been explained to 
each blind vendor.



Sec.  395.8  Distribution and use of income from vending machines
on Federal property.

    (a) Vending machine income from vending machines on Federal property 
which has been disbursed to the State licensing agency by a property 
managing department, agency, or instrumentality of the United States 
under Sec.  395.32 shall accrue to each blind vendor operating a vending 
facility on such Federal property in each State in an amount not to 
exceed the average net income of the total number of blind vendors 
within such State, as determined each fiscal year on the basis of each 
prior year's operation, except that vending machine income shall not 
accrue to any blind vendor in any amount exceeding the average net 
income of the total number of blind vendors in the United States. No 
blind vendor shall receive less vending machine income than he was 
receiving during the calendar year prior to January 1, 1974, as a direct 
result of any limitation imposed on such income under this paragraph. No 
limitation shall be imposed on income from vending machines, combined to 
create a vending facility, when such facility is maintained, serviced, 
or operated by a blind vendor. Vending machine income

[[Page 483]]

disbursed by a property managing department, agency or instrumentality 
of the United States to a State licensing agency in excess of the 
amounts eligible to accrue to blind vendors in accordance with this 
paragraph shall be retained by the appropriate State licensing agency.
    (b) The State licensing agency shall disburse vending machine income 
to blind vendors within the State on at least a quarterly basis.
    (c) Vending machine income which is retained under paragraph (a) of 
this section by a State licensing agency shall be used by such agency 
for the establishment and maintenance of retirement or pension plans, 
for health insurance contributions, and for the provision of paid sick 
leave and vacation time for blind vendors in such State, if it is so 
determined by a majority vote of blind vendors licensed by the State 
licensing agency, after such agency has provided to each such vendor 
information on all matters relevant to such purposes. Any vending 
machine income not necessary for such purposes shall be used by the 
State licensing agency for the maintenance and replacement of equipment, 
the purchase of new equipment, management services, and assuring a fair 
minimum return to vendors. Any assessment charged to blind vendors by a 
State licensing agency shall be reduced pro rata in an amount equal to 
the total of such remaining vending machine income.



Sec.  395.9  The setting aside of funds by the State licensing agency.

    (a) The State licensing agency shall establish in writing the extent 
to which funds are to be set aside or caused to be set aside from the 
net proceeds of the operation of the vending facilities and, to the 
extent applicable, from vending machine income under Sec.  395.8(c) in 
an amount determined by the Secretary to be reasonable.
    (b) Funds may be set aside under paragraph (a) of this section only 
for the purposes of:
    (1) Maintenance and replacement of equipment;
    (2) The purchase of new equipment;
    (3) Management services;
    (4) Assuring a fair minimum of return to vendors; or
    (5) The establishment and maintenance of retirement or pension 
funds, health insurance contributions, and provision for paid sick leave 
and vacation time, if it is so determined by a majority vote of blind 
vendors licensed by the State licensing agency, after such agency 
provides to each such vendor information on all matters relevant to such 
proposed purposes.
    (c) The State licensing agency shall further set out the method of 
determining the charge for each of the above purposes listed in 
paragraph (b) of this section, which will be determined with the active 
participation of the State Committee of Blind Vendors and which will be 
designed to prevent, so far as is practicable, a greater charge for any 
purpose than is reasonably required for that purpose. The State 
licensing agency shall maintain adequate records to support the 
reasonableness of the charges for each of the purposes listed in this 
section, including any reserves necessary to assure that such purposes 
can be achieved on a consistent basis.



Sec.  395.10  The maintenance and replacement of vending facility
equipment.

    The State licensing agency shall maintain (or cause to be 
maintained) all vending facility equipment in good repair and in an 
attractive condition and shall replace or cause to be replaced worn-out 
and obsolete equipment as required to ensure the continued successful 
operation of the facility.



Sec.  395.11  Training program for blind individuals.

    The State licensing agency shall ensure that effective programs of 
vocational and other training services, including personal and 
vocational adjustment, books, tools, and other training materials, shall 
be provided to blind individuals as vocational rehabilitation services 
under the Rehabilitation Act of 1973 (Pub. L. 93-112), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516). Such programs 
shall include on-the-job training in all aspects of vending facility 
operation for blind persons with the capacity to operate a vending 
facility, and upward mobility training (including further education and 
additional training or

[[Page 484]]

retraining for improved work opportunities) for all blind licensees. The 
State licensing agency shall further ensure that post-employment 
services shall be provided to blind vendors as vocational rehabilitation 
services as necessary to assure that the maximum vocational potential of 
such vendors is achieved and suitable employment is maintained within 
the State's vending facility program.



Sec.  395.12  Access to program and financial information.

    Each blind vendor under this part shall be provided access to all 
financial data of the State licensing agency relevant to the operation 
of the State vending facility program, including quarterly and annual 
financial reports, provided that such disclosure does not violate 
applicable Federal or State laws pertaining to the disclosure of 
confidential information. Insofar as practicable, such data shall be 
made available in braille or recorded tape. At the request of a blind 
vendor State licensing agency staff shall arrange a convenient time to 
assist in the interpretation of such financial data.



Sec.  395.13  Evidentiary hearings and arbitration of vendor complaints.

    (a) The State licensing agency shall specify in writing and maintain 
procedures whereby such agency affords an opportunity for a full 
evidentiary hearing to each blind vendor (which procedures shall also 
apply to cases under Sec.  395.6(e)) dissatisfied with any State 
licensing agency action arising from the operation or administration of 
the vending facility program. When such blind vendor is dissatisfied 
with any action taken or decision rendered as a result of such hearing, 
he may file a complaint with the Secretary. Such complaint shall be 
accompanied by all available supporting documents, including a statement 
of the decision which was rendered and the reasons in support thereof.
    (b) The filing of a complaint under paragraph (a) of this section 
with either the State licensing agency or the Secretary shall indicate 
consent by the blind vendor for the release of such information as is 
necessary for the conduct of a full evidentiary hearing or the hearing 
of an ad hoc arbitration panel.
    (c) Upon receipt of a complaint filed by a blind vendor which meets 
the requirements established by the Secretary, the Secretary shall 
convene an ad hoc arbitration panel which shall, in accordance with the 
provisions of 5 U.S.C. chapter 5, subchapter II, give notice, conduct a 
hearing, and render its decision which shall be final and binding on the 
parties except that such decision shall be subject to appeal and review 
as a final agency action for purposes of the provisions of 5 U.S.C. 
chapter 7.
    (d) The arbitration panel convened by the Secretary to hear the 
grievances of blind vendors shall be composed of three members appointed 
as follows:
    (1) One individual designated by the State licensing agency;
    (2) One individual designated by the blind vendor; and
    (3) One individual not employed by the State licensing agency or, 
where appropriate, its parent agency, who shall be jointly designated by 
the other members of the panel and who shall serve as chairman of the 
panel.
    (e) If either the State licensing agency or the blind vendor fails 
to designate a member of an arbitration panel, the Secretary shall 
designate such member on behalf of such party.
    (f) The decisions of an arbitration panel convened by the Secretary 
under this section shall be matters of public record and shall be 
published in the Federal Register.
    (g) The Secretary shall pay all reasonable costs of arbitration 
under this section in accordance with a schedule of fees and expenses 
which shall be published in the Federal Register.
    (h) The provisions of this section shall not require the 
participation of grantors of permits for the operation of vending 
facilities on property other than Federal property.



Sec.  395.14  The State Committee of Blind Vendors.

    (a) The State licensing agency shall provide for the biennial 
election of a State Committee of Blind Vendors which, to the extent 
possible, shall be fully representative of all blind vendors in the 
State program on the basis

[[Page 485]]

of such factors as geography and vending facility type with a goal of 
providing for proportional representation of blind vendors on Federal 
property and blind vendors on other property. Participation by any blind 
vendor in any election shall not be conditioned upon the payment of dues 
or any other fees.
    (b) The State Committee of Blind Vendors shall:
    (1) Actively participate with the State licensing agency in major 
administrative decisions and policy and program development decisions 
affecting the overall administration of the State's vending facility 
program;
    (2) Receive and transmit to the State licensing agency grievances at 
the request of blind vendors and serve as advocates for such vendors in 
connection with such grievances;
    (3) Actively participate with the State licensing agency in the 
development and administration of a State system for the transfer and 
promotion of blind vendors;
    (4) Actively participate with the State licensing agency in the 
development of training and retraining programs for blind vendors; and
    (5) Sponsor, with the assistance of the State licensing agency, 
meetings and instructional conferences for blind vendors within the 
State.



Sec.  395.15  Use of nominee agreements.

    (a) The State licensing agency may enter into an agreement whereby 
another agency or organization undertakes to furnish services to blind 
vendors. Such agreement shall be in writing and shall contain provisions 
which:
    (1) Clearly insure the retention by the State licensing agency of 
full responsibility for the administration and operation of all phases 
of the program;
    (2) Specify the type and extent of the services to be provided under 
such agreement;
    (3) Provide that no set-aside charges will be collected from blind 
vendors except as specified in such agreement;
    (4) Specify that no nominee will be allowed to exercise any function 
with respect to funds for the purchase of new equipment or for assuring 
a fair minimum of return to vendors, except to collect and hold solely 
for disposition in accordance with the order of the State licensing 
agency any charges authorized for those purposes by the licensing 
agency; and
    (5) Specify that only the State licensing agency shall have control 
with respect to selection, placement, transfer, financial participation 
and termination of the vendors, and the preservation, utilization, and 
disposition of program assets.
    (b) If the State licensing agency permits any agency or organization 
other than a vendor to hold any right, title to, or interest in vending 
facilities or stock, the arrangement shall be one permitted by State law 
and shall specify in writing that all such right, title to, or interest 
is held by such agency or organization as the nominee of the State 
licensing agency for program purposes and subject to the paramount right 
of the State licensing agency to direct and control the use, transfer, 
and disposition of such vending facilities or stock.



Sec.  395.16  Permit for the establishment of vending facilities.

    Prior to the establishment of each vending facility, other than a 
cafeteria, the State licensing agency shall submit an application for a 
permit setting forth the location, the amount of space necessary for the 
operation of the vending facility; the type of facility and equipment, 
the number, location and type of vending machines and other terms and 
conditions desired to be included in the permit. Such application shall 
be submitted for the approval of the head of the Federal property 
managing department, agency, or instrumentality. When an application is 
not approved, the head of the Federal property managing department, 
agency, or instrumentality shall advise the State licensing agency in 
writing and shall indicate the reasons for the disapproval.



Sec.  395.17  Suspension of designation as State licensing agency.

    (a) If the Secretary has reason to believe that, in the 
administration of the program, there is a failure on the part of any 
State licensing agency to comply substantially with the Act and this 
part, he shall so inform such agency in

[[Page 486]]

writing, setting forth, in detail, the areas in which there is such 
failure and giving it a reasonable opportunity to comply.
    (b) If, after the lapse of a reasonable time, the Secretary is of 
the opinion that such failure to comply still continues and that the 
State licensing agency is not taking the necessary steps to comply, he 
shall offer to such agency, by reasonable notice in writing thereto and 
to the chief executive of the State, an opportunity for a hearing before 
the Secretary (or person designated by the Secretary) to determine 
whether there is a failure on the part of such agency to comply 
substantially with the provisions of the Act and of this part.
    (c) If it is thereupon determined that there is a failure on the 
part of such agency to comply substantially with the Act and this part, 
appropriate written notice shall be given to such agency and to the 
chief executive of the State suspending such agency's designation as 
licensing agency effective 90 days from the date of such notice. A copy 
of such written notice shall be given to each department, agency, or 
instrumentality of the United States responsible for the maintenance, 
operation, and protection of Federal property on which vending machines 
subject to the requirements of Sec.  395.32 are located in the State. 
Upon the suspension of such designation, vending machine income from 
vending machines on Federal property due for accrual to the State 
licensing agency under Sec.  395.32 shall be retained in escrow by such 
department, agency, or instrumentality of the United States responsible 
for the maintenance, operation and protection of the Federal property on 
which such vending machines are located, pending redesignation of the 
State licensing agency or rescission of the suspension under paragraph 
(e) of this section.
    (d) If, before the expiration of such 90 days, the Secretary (or 
person designated by him) determines that the State licensing agency is 
taking the necessary steps to comply, he may postpone the effective date 
of such suspension for such time as he deems necessary in the best 
interest of the program.
    (e) If, prior to the effective date of such suspension, the 
Secretary (or person designated by him) finds that there is no longer a 
failure on the part of the State licensing agency to comply 
substantially with the provisions of the Act and this part, he shall so 
notify the agency, the chief executive of the State, and each Federal 
department, agency, or instrumentality required to place funds in escrow 
under paragraph (c) of this section, in which event the suspension of 
the designation shall not become effective and the requirement to place 
funds in escrow shall be terminated.



                  Subpart C_Federal Property Management



Sec.  395.30  The location and operation of vending facilities for
blind vendors on Federal property.

    (a) Each department, agency, or instrumentality of the United States 
in control of the maintenance, operation, and protection of Federal 
property shall take all steps necessary to assure that, wherever 
feasible, in light of appropriate space and potential patronage, one or 
more vending facilities for operation by blind licensees shall be 
located on all Federal property Provided that the location or operation 
of such facility or facilities would not adversely affect the interests 
of the United States. Blind persons licensed by State licensing agencies 
shall be given priority in the operation of vending facilities on any 
Federal property.
    (b) Any limitation on the location or operation of a vending 
facility for blind vendors by a department, agency or instrumentality of 
the United States based on a finding that such location or operation or 
type of location or operation would adversely affect the interests of 
the United States shall be fully justified in writing to the Secretary 
who shall determine whether such limitation is warranted. A 
determination made by the Secretary concerning such limitation shall be 
binding on any department, agency, or instrumentality of the United 
States affected by such determination. The Secretary shall publish such 
determination in the Federal Register along

[[Page 487]]

with supporting documents directly relating to the determination.
    (c) Priority in the operation of vending facilities in areas 
administered by the National Park Service or the National Aeronautics 
and Space Administration shall be given to blind vendors. Priority in 
the awarding of contracts for the operation of concessions in such areas 
when such concessions provide accommodations, facilities, and services 
of a scope or of a character not generally available in vending 
facilities operated by blind vendors shall be given in accordance with 
the provisions of the Concession Policy Act (Pub. L. 98-249, 16 U.S.C. 
1) or the National Aeronautics and Space Act of 1958, as amended (Pub. 
L. 85-568, 42 U.S.C. 2473). The provisions of this part shall not apply 
when all accommodations, facilities, or services in such areas are 
operated by a single responsible concessioner.



Sec.  395.31  Acquisition and occupation of Federal property.

    (a) Effective January 2, 1975, no department, agency, or 
instrumentality of the United States shall undertake to acquire by 
ownership, rent, or lease, or to otherwise occupy, in whole or in part, 
any building unless it is determined that such building includes a 
satisfactory site or sites for the location and operation of a vending 
facility by a blind vendor. In those cases where a purchase contract, an 
agreement to lease, or other similar commitment was entered into prior 
to January 2, 1975, the provisions of this paragraph shall not apply.
    (b) Effective January 2, 1975, no department, agency, or 
instrumentality of the United States, shall undertake to occupy, in 
whole or in part, any building which is to be constructed, substantially 
altered, or renovated, or in the case of a building which is occupied on 
January 2, 1975 by a department, agency, or instrumentality of the 
United States, no such department, agency, or instrumentality shall 
undertake to substantially alter or renovate such building, unless it is 
determined that the design for such construction, substantial 
alteration, or renovation includes a satisfactory site or sites for the 
location and operation of a vending facility by a blind vendor. In those 
cases where a design contract or other similar commitment was entered 
into prior to January 2, 1975, the provisions of this paragraph shall 
not apply. For purposes of this paragraph, substantial alteration or 
renovation of a building means a permanent material change in the floor 
area of such building which would render such building appropriate for 
the location and operation of a vending facility by a blind vendor.
    (c) The determination that a building contains a satisfactory site 
or sites under paragraph (a) or (b) of this section shall be made after 
consultation between the State licensing agency and the head of the 
department, agency, or instrumentality of the United States which is 
planning to acquire or otherwise occupy such building. In order to make 
such determination, effective on the publication date of this part each 
such department, agency, or instrumentality shall provide to the 
appropriate State licensing agency written notice of its intention to 
acquire or otherwise occupy such building. Such written notice shall be 
by certified or registered mail with return receipt and shall be 
provided as early as practicable but no later than 60 days prior to such 
intended action. The written notice shall indicate that a satisfactory 
site or sites for the location and operation of a vending facility by 
blind persons is included in the plans for the building to be acquired 
or otherwise occupied and shall further assure that the State licensing 
agency shall be afforded the opportunity to determine whether such 
building includes a satisfactory site or sites for a vending facility. 
The written notice shall further assure that the State licensing agency, 
subject to the approval of the head of the Federal property managing 
department, agency, or instrumentality, shall be offered the opportunity 
to select the location and type of vending facility to be operated by a 
blind vendor prior to the completion of the final space layout of the 
building. The receipt of such written notice shall be acknowledged in 
writing promptly by the State licensing agency but no later than within 
30 days and the State licensing agency shall indicate at that time 
whether

[[Page 488]]

it is interested in establishing a vending facility. A copy of the 
written notice to the State licensing agency and the State licensing 
agency's acknowledgement shall be provided to the Secretary.
    (d) When, after a written notice has been provided under paragraph 
(c) of this section, the State licensing agency determines that the 
number of persons using the Federal property is or will be insufficient 
to support a vending facility, and the Secretary concurs with such 
determination, the provisions of paragraphs (a) and (b) of this section 
shall not apply. The provisions of paragraphs (a) and (b) of this 
section shall also not apply when fewer than 100 Federal Government 
employees are or will be located during normal working hours in the 
building to be acquired or otherwise occupied or when such building 
contains less than 15,000 square feet of interior space to be utilized 
for Federal Government purposes in the case of buildings in which 
services are to be provided to the public.
    (e) The operation of a vending facility established under pre-
existing arrangements shall not be affected by the provisions of this 
section. The provisions of this section shall further not preclude 
future arrangements under which vending facilities to be operated by 
blind vendors may be established in buildings of a size or with an 
employee population less than that specified in paragraph (d) of this 
section: Provided, That both the State licensing agency and the Federal 
property managing department, agency or instrumentality concur in such 
establishment.
    (f) Each department, agency, and instrumentality of the United 
States, when leasing property in privately owned buildings, shall make 
every effort to lease property capable of accommodating a vending 
facility. When, however, such department, agency, or instrumentality is 
leasing part of a privately owned building in which prior to the 
execution of the lease, the lessor or any of his tenants had in 
operation or had entered into a contract for the operation of a 
restaurant or other food facility in a part of the building not included 
in such lease and the operation of a vending facility by a blind vendor 
would be in proximate and substantial direct competition with such 
restaurant or other food facility, the provisions of paragraphs (a), 
(b), and (c) of this section shall not apply.



Sec.  395.32  Collection and distribution of vending machine income
from vending machines on Federal property.

    (a) The on-site official responsible for the Federal property of 
each property managing department, agency, or instrumentality of the 
United States, in accordance with established procedures of such 
department, agency, or instrumentality, shall be responsible for the 
collection of, and accounting for, vending machine income from vending 
machines on Federal property under his control and shall otherwise 
ensure compliance with the provisions of this section.
    (b) Effective January 2, 1975, 100 per centum of all vending machine 
income from vending machines on Federal property which are in direct 
competition with a vending facility operated by a blind vendor shall 
accure to the State licensing agency which shall disburse such income to 
such blind vendor operating such vending facility on such property 
provided that the total amount of such income accruing to such blind 
vendor does not exceed the maximum amount determined under Sec.  
395.8(a). In the event that there is income from such vending machines 
in excess of the maximum amount which may be disbursed to the blind 
vendor under Sec.  395.8(a), such additional income shall accrue to the 
State licensing agency for purposes determined in accordance with Sec.  
395.8(c).
    (c) Effective January 2, 1975, 50 per centum of all vending machine 
income from vending machines on Federal property which are not in direct 
competition with a vending facility operated by a blind vendor shall 
accrue to the State licensing agency which shall disburse such income to 
the blind vendor operating such vending facility on such property. In 
the event that there is no blind vendor, such income shall accrue to the 
State licensing agency, except as indicated under paragraph (d) of this 
section. The total amount of such income disbursed to such blind vendor 
shall not exceed the maximum

[[Page 489]]

amount determined under Sec.  395.8(a). In the event that there is 
income from such vending machines in excess of the maximum amount which 
may accrue to the blind vendor under Sec.  395.8(a), such additional 
income shall accrue to the State licensing agency for purposes 
determined in accordance with Sec.  395.8(c).
    (d) Effective January 2, 1975, 30 per centum of all vending machine 
income from vending machines, which are not in direct competition with a 
vending facility operated by a blind vendor and which are on Federal 
property at which at least 50 per centum of the total hours worked on 
the premises occurs during a period other than normal working hours, 
shall accrue to the State licensing agency which shall disburse such 
income to the blind vendor operating a vending facility on such 
property. In the event that there is no blind vendor on such property, 
such income shall accrue to the State licensing agency. The total amount 
of such income disbursed to such blind vendor shall not exceed the 
maximum amount determined under Sec.  395.8(a). In the event that there 
is income from such vending machines in excess of the maximum amount 
which may be disbursed to the blind vendor under Sec.  395.8(a), such 
additional income shall accrue to the State licensing agency for 
purposes determined in accordance with Sec.  395.8(c).
    (e) The determination that a vending machine on Federal property is 
in direct competition with a vending facility operated by a blind vendor 
shall be the responsibility of the on-site official responsible for the 
Federal property of each property managing department, agency or 
instrumentality of the United States, subject to the concurrence of the 
State licensing agency.
    (f) In the case of vending machine income which, prior to the 
effective date of this part, has been disbursed to a blind vendor by a 
property managing department, agency, or instrumentality from proceeds 
which accrued from operations subsequent to January 2, 1975, pursuant to 
agreements in effect prior to such time, such income may be deducted, at 
the discretion of such property managing department, agency or 
instrumentality, from vending machine income due to the State licensing 
agency under paragraphs (b), (c), or (d) of this section.
    (g) The collection of vending machine income and its disbursement to 
the appropriate State licensing agency shall be conducted on at least a 
quarterly basis.
    (h) All arrangements pertaining to the operation of vending machines 
on Federal property not covered by contract with, or by permits issued 
to, State licensing agencies, shall be renegotiated upon the expiration 
of the existing contract or other arrangement for consistency with the 
provisions of this section.
    (i) The provisions of this section shall not apply to income from 
vending machines within operated retail sales outlets under the control 
of post exchange or ships' stores systems authorized under title 10 
U.S.C.; to income from vending machines operated by the Veterans Canteen 
Service; or to income from vending machines not in direct competition 
with a blind vending facility at individual locations, installations, or 
facilities on Federal property the total of which at such individual 
locations, installations, or facilities does not exceed $3,000 annually.
    (j) The provisions of this section shall not operate to preclude 
pre-existing or future arrangements, or regulations of departments, 
agencies, or instrumentalities of the United States, under which blind 
vendors or State licensing agencies may:
    (1) Receive a greater percentage or amount of vending machine income 
than that specified in paragraphs (b), (c), and (d) of this section, or
    (2) Receive vending machine income from individual locations, 
installations, or facilities on Federal property the total of which at 
such individual locations, installations, or facilities does not exceed 
$3,000 annually.



Sec.  395.33  Operation of cafeterias by blind vendors.

    (a) Priority in the operation of cafeterias by blind vendors on 
Federal property shall be afforded when the Secretary determines, on an 
individual basis, and after consultation with the appropriate property 
managing department, agency, or instrumentality, that

[[Page 490]]

such operation can be provided at a reasonable cost, with food of a high 
quality comparable to that currently provided employees, whether by 
contract or otherwise. Such operation shall be expected to provide 
maximum employment opportunities to blind vendors to the greatest extent 
possible.
    (b) In order to establish the ability of blind vendors to operate a 
cafeteria in such a manner as to provide food service at comparable cost 
and of comparable high quality as that available from other providers of 
cafeteria services, the appropriate State licensing agency shall be 
invited to respond to solicitations for offers when a cafeteria contract 
is contemplated by the appropriate property managing department, agency, 
or instrumentality. Such solicitations for offers shall establish 
criteria under which all responses will be judged. Such criteria may 
include sanitation practices, personnel, staffing, menu pricing and 
portion sizes, menu variety, budget and accounting practices. If the 
proposal received from the State licensing agency is judged to be within 
a competitive range and has been ranked among those proposals which have 
a reasonable chance of being selected for final award, the property 
managing department, agency, or instrumentality shall consult with the 
Secretary as required under paragraph (a) of this section. If the State 
licensing agency is dissatisfied with an action taken relative to its 
proposal, it may file a complaint with the Secretary under the 
provisions of Sec.  395.37.
    (c) All contracts or other existing arrangements pertaining to the 
operation of cafeterias on Federal property not covered by contract 
with, or by permits issued to, State licensing agencies shall be 
renegotiated subsequent to the effective date of this part on or before 
the expiration of such contracts or other arrangements pursuant to the 
provisions of this section.
    (d) Notwithstanding the requirements of paragraphs (a) and (b) of 
this section, Federal property managing departments, agencies, and 
instrumentalities may afford priority in the operation of cafeterias by 
blind vendors on Federal property through direct negotiations with State 
licensing agencies whenever such department, agency, or instrumentality 
determines, on an individual basis, that such operation can be provided 
at a reasonable cost, with food of a high quality comparable to that 
currently provided employees: Provided, however, That the provisions of 
paragraphs (a) and (b) of this section shall apply in the event that the 
negotiations authorized by this paragraph do not result in a contract.



Sec.  395.34  Application for permits.

    Applications for permits for the operation of vending facilities 
other than cafeterias shall be made in writing on the appropriate form, 
and submitted for the review and approval of the head of the Federal 
property managing department, agency, or instrumentality.



Sec.  395.35  Terms of permit.

    Every permit shall describe the location of the vending facility 
including any vending machines located on other than the facility 
premises and shall be subject to the following provisions:
    (a) The permit shall be issued in the name of the applicant State 
licensing agency which shall:
    (1) Prescribe such procedures as are necessary to assure that in the 
selection of vendors and employees for vending facilities there shall be 
no discrimination because of sex, race, age, creed, color, national 
origin, physical or mental disability, or political affiliation; and
    (2) Take the necessary action to assure that vendors do not 
discriminate against any person or persons in furnishing, or by refusing 
to furnish, to such person or persons the use of any vending facility, 
including any and all services, privileges, accommodations, and 
activities provided thereby, and comply with title VI of the Civil 
Rights Act of 1964 and regulations issued pursuant thereto.
    (b) The permit shall be issued for an indefinite period of time 
subject to suspension or termination on the basis of compliance with 
agreed upon terms.
    (c) The permit shall provide that:
    (1) No charge shall be made to the State licensing agency for normal 
cleaning, maintenance, and repair of the building structure in and 
adjacent to the vending facility areas;

[[Page 491]]

    (2) Cleaning necessary for sanitation, and the maintenance of 
vending facilities and vending machines in an orderly condition at all 
times, and the installation, maintenance, repair, replacement, 
servicing, and removal of vending facility equipment shall be without 
cost to the department, agency, or instrumentality responsible for the 
maintenance of the Federal property; and
    (3) Articles sold at vending facilities operated by blind licensees 
may consist of newspapers, periodicals, publications, confections, 
tobacco products, foods, beverages, chances for any lottery authorized 
by State law and conducted by an agency of a State within such State, 
and other articles or services as are determined by the State licensing 
agency, in consultation with the on-site official responsible for the 
Federal property of the property managing department, agency or 
instrumentality, to be suitable for a particular location. Such articles 
and services may be dispensed automatically or manually and may be 
prepared on or off the premises in accordance with all applicable health 
laws.
    (d) The permit shall further provide that vending facilities shall 
be operated in compliance with applicable health, sanitation, and 
building codes or ordinances.
    (e) The permit shall further provide that installation, 
modification, relocation, removal, and renovation of vending facilities 
shall be subject to the prior approval and supervision of the on-site 
official responsible for the Federal property of the property managing 
department, agency, or instrumentality, and the State licensing agency; 
that costs of relocations initiated by the State licensing agency shall 
be paid by the State licensing agency; and that costs of relocations 
initiated by the department, agency, or instrumentality shall be borne 
by such department, agency, or instrumentality.
    (f) The operation of a cafeteria by a blind vendor shall be covered 
by a contractual agreement and not by a permit.



Sec.  395.36  Enforcement procedures.

    (a) The State licensing agency shall attempt to resolve day-to-day 
problems pertaining to the operation of the vending facility in an 
informal manner with the participation of the blind vendor and the on-
site official responsible for the property of the property managing 
department, agency, or instrumentality as necessary.
    (b) Unresolved disagreements concerning the terms of the permit, the 
Act, or the regulations in this part and any other unresolved matters 
shall be reported in writing to the State licensing agency supervisory 
personnel by the Regional or other appropriate official of the Federal 
property managing department, agency, or instrumentality in an attempt 
to resolve the issue.



Sec.  395.37  Arbitration of State licensing agency complaints.

    (a) Whenever any State licensing agency determines that any 
department, agency, or instrumentality of the United States which has 
control of the maintenance, operation, and protection of Federal 
property is failing to comply with the provisions of the Act or of this 
part and all informal attempts to resolve the issues have been 
unsuccessful, such licensing agency may file a complaint with the 
Secretary.
    (b) Upon receipt of a complaint filed under paragraph (a) of this 
section, the Secretary shall convene an ad hoc arbitration panel which 
shall, in accordance with the provisions of 5 U.S.C. ch. 5, subchapter 
II, give notice, conduct a hearing and render its decision which shall 
be final and binding on the parties except that such decision shall be 
subject to appeal and review as a final agency action for purposes of 
the provisions of 5 U.S.C. ch. 7. The arbitration panel convened by the 
Secretary to hear complaints filed by a State licensing agency shall be 
composed of three members appointed as follows:
    (1) One individual designated by the State licensing agency;
    (2) One individual designated by the head of the Federal department, 
agency, or instrumentality controlling the Federal property over which 
the dispute arose; and
    (3) One individual, not employed by the Federal department, agency, 
or instrumentality controlling the Federal

[[Page 492]]

property over which the dispute arose, who shall be jointly designated 
by the other members of the panel and who shall serve as chairman of the 
panel.
    (c) If either the State licensing agency or the head of the Federal 
department, agency, or instrumentality fails to designate a member of an 
arbitration panel, the Secretary shall designate such member on behalf 
of such party.
    (d) If the panel finds that the acts or practices of any department, 
agency, or instrumentality are in violation of the Act or of this part, 
the head of any such department, agency, or instrumentality (subject to 
any appeal under paragraph (b) of this section) shall cause such acts or 
practices to be terminated promptly and shall take such other action as 
may be necessary to carry out the decision of the panel.
    (e) The decisions of an arbitration panel convened by the Secretary 
under this section shall be matters of public record and shall be 
published in the Federal Register.
    (f) The Secretary shall pay all reasonable costs of arbitration 
under this section in accordance with a schedule of fees and expenses 
which shall be published in the Federal Register.



Sec.  395.38  Reports.

    At the end of each fiscal year, each property managing department, 
agency, or instrumentality of the United States shall report to the 
Secretary the total number of applications for vending facility 
locations received from State licensing agencies, the number accepted, 
the number denied, the number still pending, the total amount of vending 
machine income collected and the amount of such vending machine income 
disbursed to the State licensing agency in each State.



PART 396_TRAINING OF INTERPRETERS FOR INDIVIDUALS WHO ARE DEAF OR
HARD OF HEARING AND INDIVIDUALS WHO ARE DEAF BLIND--Table of Contents



                            Subpart A_General

Sec.
396.1 What is the Training of Interpreters for Individuals Who Are Deaf 
          or Hard of Hearing and Individuals Who Are Deaf-Blind program?
396.2 Who is eligible for an award?
396.3 What regulations apply?
396.4 What definitions apply?
396.5 What activities may the Secretary fund?

Subpart B [Reserved]

               Subpart C_How Does One Apply for an Award?

396.20 What must be included in an application?

             Subpart D_How Does the Secretary Make an Award?

396.30 How does the Secretary evaluate an application?
396.31 What additional selection criteria are used under this program?
396.32 What additional factors does the Secretary consider in making 
          awards?
396.33 What priorities does the Secretary apply in making awards?
396.34 What are the matching requirements?

    Authority: Sections 12(c) and 302(a) and (f) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 709(c) and 772(a) and (f), unless 
otherwise noted.

    Source: 81 FR 55625, Aug. 19, 2016, unless otherwise noted.



                            Subpart A_General



Sec.  396.1  What is the Training of Interpreters for Individuals 
Who Are Deaf or Hard of Hearing and Individuals Who Are Deaf-Blind 
program?

    The Training of Interpreters for Individuals Who Are Deaf or Hard of 
Hearing and Individuals Who Are Deaf-Blind program is designed to 
establish interpreter training programs or to provide financial 
assistance for ongoing interpreter programs to train a sufficient number 
of qualified interpreters throughout the country in order to meet the 
communication needs of individuals who are deaf or hard of hearing and 
individuals who are deaf-blind by--
    (a) Training interpreters to effectively interpret and transliterate 
between spoken language and sign language and to transliterate between 
spoken language and oral or tactile modes of communication;
    (b) Ensuring the maintenance of the interpreting skills of qualified 
interpreters; and

[[Page 493]]

    (c) Providing opportunities for interpreters to raise their skill 
level competence in order to meet the highest standards approved by 
certifying associations.

(Authority: Sections 12(c) and 302(a) and (f) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 772(a) and (f))



Sec.  396.2  Who is eligible for an award?

    Public and private nonprofit agencies and organizations, including 
institutions of higher education, are eligible for assistance under this 
program.

(Authority: Section 302(f) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 772(f))



Sec.  396.3  What regulations apply?

    The following regulations apply to the Training of Interpreters for 
Individuals Who Are Deaf or Hard of Hearing and Individuals Who Are 
Deaf-Blind program:
    (a) 34 CFR part 385 (Rehabilitation Training), sections--
    (1) 385.3(a) and (d);
    (2) 385.40 through 385.46; and
    (b) The regulations under this part 396.

(Authority: Sections 12(c) and 302(f) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 772(f))



Sec.  396.4  What definitions apply?

    (a) Definitions in EDGAR. The following terms defined in 34 CFR 77.1 
apply to this part:

Applicant
Application
Award
Equipment
Grant
Nonprofit
Private
Project
Public
Secretary
Supplies

    (b) Definitions in the rehabilitation training regulations. The 
following terms defined in 34 CFR 385.4(b) apply to this part:
    Individual With a Disability
    Institution of Higher Education
    (c) Other definitions. The following definitions also apply to this 
part:
    Existing program that has demonstrated its capacity for providing 
interpreter training services means an established program with--
    (i) A record of training qualified interpreters who are serving the 
deaf, hard of hearing, and deaf-blind communities; and
    (ii) An established curriculum that uses evidence-based practices in 
the training of interpreters and promising practices when evidence-based 
practices are not available.
    Individual who is deaf means an individual who, in order to 
communicate, depends primarily upon visual modes, such as sign language, 
speech reading, and gestures, or reading and writing.
    Individual who is deaf-blind means an individual--
    (i)(A) Who has a central visual acuity of 20/200 or less in the 
better eye with corrective lenses, or a field defect such that the 
peripheral diameter of visual field subtends an angular distance no 
greater than 20 degrees, or a progressive visual loss having a prognosis 
leading to one or both of these conditions;
    (B) Who has a chronic hearing impairment so severe that most speech 
cannot be understood with optimum amplification, or a progressive 
hearing loss having a prognosis leading to this condition; and
    (C) For whom the combination of impairments described in paragraphs 
(i)(A) and (B) of this definition causes extreme difficulty in attaining 
independence in daily life activities, achieving psychosocial 
adjustment, or obtaining a vocation;
    (ii) Who, despite the inability to be measured accurately for 
hearing and vision loss due to cognitive or behavioral constraints, or 
both, can be determined through functional and performance assessment to 
have severe hearing and visual disabilities that cause extreme 
difficulty in attaining independence in daily life activities, achieving 
psychosocial adjustment, or obtaining vocational objectives; or
    (iii) Who meets any other requirements that the Secretary may 
prescribe.
    Individual who is hard of hearing means an individual who, in order 
to communicate, needs to supplement auditory information by depending 
primarily upon visual modes, such as sign

[[Page 494]]

language, speech reading, and gestures, or reading and writing.
    Interpreter for individuals who are deaf or hard of hearing means a 
qualified professional who uses sign language skills, cued speech, or 
oral interpreting skills, as appropriate to the needs of individuals who 
are deaf or hard of hearing, to facilitate communication between 
individuals who are deaf or hard of hearing and other individuals.
    Interpreter for individuals who are deaf-blind means a qualified 
professional who uses tactile or other manual language or fingerspelling 
modes, as appropriate to the needs of individuals who are deaf-blind, to 
facilitate communication between individuals who are deaf-blind and 
other individuals.
    Novice Interpreter means an interpreter who has graduated from an 
interpreter education program or enters the field through an alternate 
pathway, is at the start of his or her professional career with some 
level of proficiency in American Sign Language, and is working toward 
becoming a qualified professional.
    Qualified professional means an individual who has--
    (i) Met existing certification or evaluation requirements equivalent 
to the highest standards approved by certifying associations; and
    (ii) Successfully demonstrated interpreting skills that reflect the 
highest standards approved by certifying associations through prior work 
experience.
    Related agency means--
    (i) An American Indian rehabilitation program; or
    (ii) Any of the following agencies that provide services to 
individuals with disabilities under an agreement or other arrangement 
with a designated State agency in the area of specialty for which 
training is provided:
    (A) A Federal, State, or local agency.
    (B) A nonprofit organization.
    (C) A professional corporation or professional practice group.

(Authority: Sections 12(c) and 302(f) of the Rehabilitation Act of 1973, 
as amended and Section 206 of Pub. L. 98-221; 29 U.S.C. 709(c) and 
772(f) and 29 U.S.C 1905)



Sec.  396.5  What activities may the Secretary fund?

    The Secretary may award grants to public or private nonprofit 
agencies or organizations, including institutions of higher educations, 
to provide assistance for establishment of interpreter training programs 
or for projects that provide training in interpreting skills for persons 
preparing to serve, and persons who are already serving, as interpreters 
for individuals who are deaf or hard of hearing, and as interpreters for 
individuals who are deaf-blind in public and private agencies, schools, 
and other service-providing institutions.

(Authority: Section 302(f) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 772(f))

Subpart B [Reserved]



               Subpart C_How Does One Apply for an Award?



Sec.  396.20  What must be included in an application?

    Each applicant shall include in the application--
    (a) A description of the manner in which the proposed interpreter 
training program will be developed and operated during the five-year 
period following the award of the grant;
    (b) A description of the communication needs for training 
interpreters for the population(s) or in the geographical area(s) to be 
served by the project;
    (c) A description of the applicant's capacity or potential for 
providing training of interpreters for individuals who are deaf or hard 
of hearing and interpreters for individuals who are deaf-blind that is 
evidence-based, and based on promising practices when evidence-based 
practices are not available;
    (d) An assurance that any interpreter trained or retrained under 
this program shall meet those standards of competency for a qualified 
professional, that the Secretary may establish;
    (e) An assurance that the project shall cooperate or coordinate its 
activities, as appropriate, with the activities of other projects funded 
under this program;

[[Page 495]]

    (f) The descriptions required in 34 CFR 385.45 with regard to the 
training of individuals with disabilities, including those from minority 
groups, for rehabilitation careers; and
    (g) Such other information as the Secretary may require.

(Approved by the Office of Management and Budget under control number 
1820-0018)

(Authority: Sections 12(c), 21(c), and 302(f) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c), 718(c), and 772(f))



             Subpart D_How Does the Secretary Make an Award?



Sec.  396.30  How does the Secretary evaluate an application?

    (a) The Secretary evaluates applications under the procedures in 34 
CFR part 75.
    (b) The Secretary evaluates each application using selection 
criteria in Sec.  396.31.
    (c) In addition to the selection criteria described in paragraph (b) 
of this section, the Secretary evaluates each application using--
    (1) Selection criteria in 34 CFR 75.210;
    (2) Selection criteria established under 34 CFR 75.209; or
    (3) A combination of selection criteria established under 34 CFR 
75.209 and selection criteria in 34 CFR 75.210.

(Authority: Section 302(f) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 772(f))



Sec.  396.31  What additional selection criteria are used under
this program?

    In addition to the criteria in 34 CFR 396.30(c), the Secretary uses 
the following additional selection criterion to evaluate an application. 
The Secretary reviews each application to determine the extent to 
which--
    (a) The proposed interpreter training project was developed in 
consultation with State Vocational Rehabilitation agencies and their 
related agencies and consumers;
    (b) The training is appropriate to the needs of both individuals who 
are deaf or hard of hearing and individuals who are deaf-blind and to 
the needs of public and private agencies that provide services to either 
individuals who are deaf or hard of hearing or individuals who are deaf-
blind in the geographical area to be served by the training project;
    (c) Any curricula for the training of interpreters includes 
evidence-based practices and promising practices when evidence-based 
practices are not available;
    (d) There is a working relationship between the interpreter training 
project and State Vocational Rehabilitation agencies and their related 
agencies, and consumers; and
    (e) There are opportunities for individuals who are deaf or hard of 
hearing and individuals who are deaf-blind to provide input regarding 
the design and management of the training project.

(Authority: Sections 12(c) and 302(f) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 772(f))



Sec.  396.32  What additional factors does the Secretary consider
in making awards?

    In addition to the selection criteria listed in Sec.  396.31 and 34 
CFR 75.210, the Secretary, in making awards under this part, considers 
the geographical distribution of projects throughout the country, as 
appropriate, in order to best carry out the purposes of this program. To 
accomplish this, the Secretary may in any fiscal year make awards of 
regional or national scope.

(Authority: Sections 12(c) and 302(f) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 772(f))



Sec.  396.33  What priorities does the Secretary apply in making awards?

    (a) The Secretary, in making awards under this part, gives priority 
to public or private nonprofit agencies or organizations, including 
institutions of higher education, with existing programs that have 
demonstrated their capacity for providing interpreter training.
    (b) In announcing competitions for grants and contracts, the 
Secretary may give priority consideration to--
    (1) Increasing the skill level of interpreters for individuals who 
are deaf or hard of hearing and individuals who are deaf-blind in 
unserved or underserved populations or in unserved or underserved 
geographic areas;
    (2) Existing programs that have demonstrated their capacity for 
providing interpreter training services that raise

[[Page 496]]

the skill level of interpreters in order to meet the highest standards 
approved by certifying associations; and
    (3) Specialized topical training based on the communication needs of 
individuals who are deaf or hard of hearing and individuals who are 
deaf-blind.

(Authority: Sections 12(c) and 302(f)(1)(C) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 772(f)(1)(C))



Sec.  396.34  What are the matching requirements?

    A grantee must contribute to the cost of a project under this 
program in an amount satisfactory to the Secretary. The part of the 
costs to be borne by the grantee is determined by the Secretary at the 
time of the grant award.

(Authority: Section 12(c) and 302(f) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 772(f))



PART 397_LIMITATIONS ON USE OF SUBMINIMUM WAGE--Table of Contents



                      Subpart A_General Provisions

Sec.
397.1 Purpose.
397.2 What is the Department of Education's jurisdiction under this 
          part?
397.3 What rules of construction apply to this part?
397.4 What regulations apply?
397.5 What definitions apply?

  Subpart B_Coordinated Documentation Procedures Related to Youth with 
                              Disabilities

397.10 What documentation process must the designated State unit 
          develop?

  Subpart C_Designated State Unit Responsibilities Prior to Youth with 
            Disabilities Starting Subminimum Wage Employment

397.20 What are the responsibilities of a designated State unit to youth 
          with disabilities who are known to be seeking subminimum wage 
          employment?

Subpart D_Local Educational Agency Responsibilities Prior to Youth with 
            Disabilities Starting Subminimum Wage Employment

397.30 What are the responsibilities of a local educational agency to 
          youth with disabilities who are known to be seeking subminimum 
          wage employment?
397.31 What are the contracting limitations on educational agencies 
          under this part?

  Subpart E_Designated State Unit Responsibilities to Individuals with 
             Disabilities During Subminimum Wage Employment

397.40 What are the responsibilities of a designated State unit for 
          individuals with disabilities, regardless of age, who are 
          employed at subminimum wage?

                    Subpart F_Review of Documentation

397.50 What is the role of the designated State unit in the review of 
          documentation under this part?

    Authority: Section 511 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 794g, unless otherwise noted.

    Source: 81 FR 55785, Aug. 19, 2016, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  397.1  Purpose.

    (a) The purpose of this part is to set forth requirements the 
designated State units and State and local educational agencies must 
satisfy to ensure that individuals with disabilities, especially youth 
with disabilities, have a meaningful opportunity to prepare for, obtain, 
maintain, advance in, or regain competitive integrated employment, 
including supported or customized employment.
    (b) This part requires--
    (1) A designated State unit to provide youth with disabilities 
documentation demonstrating that they have completed certain 
requirements, as described in this part, prior to starting subminimum 
wage employment with entities (as defined in Sec.  397.5(d)) holding 
special wage certificates under section 14(c) of the Fair Labor 
Standards Act of 1938 (29 U.S.C. 214(c));
    (2) A designated State unit to provide, at certain prescribed 
intervals for the duration of such employment, career counseling and 
information and referral services, designed to promote opportunities for 
competitive integrated employment, to individuals with disabilities, 
regardless of age, who are known to be employed at subminimum wage; and

[[Page 497]]

    (3) A designated State unit, in consultation with the State 
educational agency, to develop a process or utilize an existing process, 
to document completion of required activities under this part by a youth 
with a disability known to be seeking employment at subminimum wage.
    (c) This part authorizes a designated State unit, or a 
representative of a designated State unit, to review individual 
documentation required to be maintained by these entities under this 
part.
    (d) The provisions in this part work in concert with requirements in 
34 CFR parts 300, 361, and 363, and do not alter any requirements under 
those parts.

(Authority: Sections 12(c) and 511 of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 709(c) and 794g)



Sec.  397.2  What is the Department of Education's jurisdiction under
this part?

    (a) The Department of Education has jurisdiction under this part to 
implement guidelines for--
    (1) Documentation requirements imposed on designated State units and 
local educational agencies, including the documentation process that the 
designated State unit must develop in consultation with the State 
educational agency;
    (2) Requirements related to the services that designated State units 
must provide to individuals regardless of age who are employed at 
subminimum wage; and
    (3) Requirements under Sec.  397.31.
    (b) Nothing in this part will be construed to grant to the 
Department of Education, or its grantees, jurisdiction over requirements 
set forth in the Fair Labor Standards Act, including those imposed on 
entities holding special wage certificates under section 14(c) of that 
Act, which is administered by the Department of Labor.

(Authority: Sections 12(c), 511(b)(3), 511(c), and 511(d) of the 
Rehabilitation Act of 1973, as amended; 709(c), 794g(b)(3), 794g(c), and 
794g(d))



Sec.  397.3  What rules of construction apply to this part?

    Nothing in this part will be construed to--
    (a) Change the purpose of the Rehabilitation Act, which is to 
empower individuals with disabilities to maximize opportunities for 
achieving competitive integrated employment;
    (b) Promote subminimum wage employment as a vocational 
rehabilitation strategy or employment outcome, as defined in 34 CFR 
361.5(c)(15); or
    (c) Be inconsistent with the provisions of the Fair Labor Standards 
Act, as amended before or after July 22, 2014.

(Authority: Sections 12(c) and 511(b) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 794g(b))



Sec.  397.4  What regulations apply?

    (a) The regulations in 34 CFR part 300 governing the definition of 
transition services, and the Individualized Education Program 
requirements related to the development of postsecondary goals and the 
transition services needed to assist the eligible child in reaching 
those goals (Sec. Sec.  300.320(b), 300.321(b), 300.324(c), and 300.43).
    (b) The regulations in 34 CFR part 361 governing the vocational 
rehabilitation program, especially those regarding protection and use of 
personal information in 34 CFR 361.38; eligibility determinations in 34 
CFR 361.42; individualized plans for employment in 34 CFR 361.45 and 34 
CFR 361.46; provision of vocational rehabilitation services, including 
pre-employment transition services, transition services, and supported 
employment services in 34 CFR 361.48; ineligibility determinations in 34 
CFR 361.43; informed choice in 34 CFR 361.52; and case closures in 34 
CFR 361.56.
    (c) The regulations in 29 CFR part 525 governing the employment of 
individuals with disabilities at subminimum wage rates pursuant to a 
certificate issued by the Secretary of Labor.
    (d) The regulations in this part 397.

(Authority: Sections 12(c), 102(a) and (b), 103(a), and 113 of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 722(a) and 
(b), 723(a), and 733; sections 601(34) and 614(d)(1)(A)(i)(VIII) of the 
Individuals with Disabilities Education Act (20 U.S.C. 1401(34) and 
1414(d)); and section 14(c) of the Fair Labor Standards Act (29 U.S.C. 
214(c))

[[Page 498]]



Sec.  397.5  What definitions apply?

    (a) The following terms have the meanings given to them in 34 CFR 
361.5(c):
    (1) Act;
    (2) Competitive integrated employment;
    (3) Customized employment;
    (4) Designated State unit;
    (5) Extended services;
    (6) Individual with a disability;
    (7) Individual with a most significant disability;
    (8) Individual's representative;
    (9) Individualized plan for employment;
    (10) Pre-employment transition services;
    (11) Student with a disability;
    (12) Supported employment;
    (13) Vocational rehabilitation services; and
    (14) Youth with a disability.
    (b) The following terms have the meanings given to them in 34 CFR 
part 300:
    (1) Local educational agency (Sec.  300.28);
    (2) State educational agency (Sec.  300.41); and
    (3) Transition services (Sec.  300.43).
    (c) The following terms have the meanings given to them in 29 CFR 
525.3 and section 6(a)(1) of the Fair Labor Standards Act (29 U.S.C. 
206(a)(1)):
    (1) Federal minimum wage has the meaning given to that term in 
section 6(a)(1) of the Fair Labor Standards Act (29 U.S.C. 206(a)(1)); 
and
    (2) Special wage certificate means a certificate issued to an 
employer under section 14(c) of the Fair Labor Standards Act (29 U.S.C. 
214(c)) and 29 CFR part 525 that authorizes payment of subminimum wages, 
wages less than the statutory minimum wage.
    (d) Entity means an employer, or a contractor or subcontractor of 
that employer, that holds a special wage certificate described in 
section 14(c) of the Fair Labor Standards Act (29 U.S.C. 214(c)).

(Authority: Sections 7, 12(c), and 511(a) and (f) of the Rehabilitation 
Act of 1973, as amended; 29 U.S.C. 705, 709(c), and 794g(a) and (f); 
sections 601 and 614(d) of the Individuals with Disabilities Education 
Act, 20 U.S.C. 1401 and 1414(d); section 901 of the Elementary and 
Secondary Education Act of 1965, 20 U.S.C. 7801; and sections 6(a)(1) 
and 14(c) of the Fair Labor Standards Act, 29 U.S.C. 206(a)(1) and 29 
U.S.C. 214(c))



  Subpart B_Coordinated Documentation Procedures Related to Youth with 
                              Disabilities



Sec.  397.10  What documentation process must the designated State
unit develop?

    (a) The designated State unit, in consultation with the State 
educational agency, must develop a new process, or utilize an existing 
process, to document the completion of the actions described in Sec.  
397.20 and Sec.  397.30 by a youth with a disability, as well as a 
process for the transmittal of that documentation from the educational 
agency to the designated State unit, consistent with confidentiality 
requirements of the Family Education Rights and Privacy Act (20 U.S.C. 
1232g(b) and 34 CFR 99.30 and 99.31) and the Individuals with 
Disabilities Education Act (20 U.S.C. 1417(c) and 34 CFR 300.622).
    (1) Such documentation must, at a minimum, contain the--
    (i) Youth's name;
    (ii) Determination made, including a summary of the reason for the 
determination, or description of the service or activity completed;
    (iii) Name of the individual making the determination or the 
provider of the required service or activity;
    (iv) Date determination made or required service or activity 
completed;
    (v) Signature of the designated State unit or educational personnel 
making the determination or documenting completion of the required 
services or activity;
    (vi) Date of signature described in paragraph (a)(1)(v) of this 
section;
    (vii) Signature of designated State unit personnel transmitting 
documentation to the youth with a disability; and

[[Page 499]]

    (viii) Date and method (e.g., hand-delivered, faxed, mailed, 
emailed, etc.) by which document was transmitted to the youth.
    (2) In the event a youth with a disability or, as applicable, the 
youth's parent or guardian, refuses, through informed choice, to 
participate in the activities required by this part, such documentation 
must, at a minimum, contain the--
    (i) Youth's name;
    (ii) Description of the refusal and the reason for such refusal;
    (iii) Signature of the youth or, as applicable, the youth's parent 
or guardian;
    (iv) Signature of the designated State unit or educational personnel 
documenting the youth's refusal;
    (v) Date of signatures; and
    (vi) Date and method (e.g., hand-delivered, faxed, mailed, emailed, 
etc.) by which documentation was transmitted to the youth.
    (3) The documentation process must include procedures for the 
designated State unit to retain a copy of all documentation required by 
this part in a manner consistent with the designated State unit's case 
management system and the requirements of 2 CFR 200.333.
    (b) The documentation process must ensure that--
    (1) A designated State unit provides, in the case of a student with 
a disability, documentation of completion of appropriate pre-employment 
transition services, in accordance with Sec.  361.48(a) of this chapter 
and as required by Sec.  397.20(a)(1);
    (2) In the case of a student with a disability, for actions 
described in Sec.  397.30--
    (i) The appropriate school official, responsible for the provision 
of transition services, must provide the designated State unit 
documentation of completion of appropriate transition services under the 
Individuals with Disabilities Education Act, including those provided 
under section 614(d)(1)(A)(i)(VIII) (20 U.S.C. 1414(d)(1)(A)(i)(VIII));
    (ii) The designated State unit must provide documentation of 
completion of the transition services, as documented and provided by the 
appropriate school official in accordance with paragraph (b)(2) of this 
section, to the youth with a disability.
    (c) The designated State unit must provide--
    (1) Documentation required by this part in a form and manner 
consistent with this part and in an accessible format for the youth; and
    (2)(i) Documentation required by paragraph (a)(1) of this section to 
a youth as soon as possible upon the completion of each of the required 
actions, but no later than--
    (A) 45 calendar days after the determination or completion of the 
required activity or service; or
    (B) 90 calendar days, if additional time is necessary due to 
extenuating circumstances, after the determination or completion of each 
of the required actions in Sec.  397.20 and Sec.  397.30(a). Extenuating 
circumstances should be interpreted narrowly to include circumstances 
such as the unexpected lengthy absence of the educational or designated 
State unit personnel necessary for the production of the documentation 
or the transmittal of that documentation due to illness or family 
emergency, or a natural disaster.
    (ii) Documentation required by paragraph (a)(2) of this section, 
when a youth has refused to participate in an action required by this 
part, must be provided to the youth within 10 calendar days of the 
youth's refusal to participate.
    (3) When transmitting documentation of the final determination or 
activity completed, as required by Sec.  397.20 and Sec.  397.30(a), the 
designated State unit must provide a coversheet that itemizes each of 
the documents that have been provided to the youth.

(Authority: Sections 12(c) and 511(d) of the Rehabilitation Act of 1973, 
as amended; 29 U.S.C. 709(c) and 794g(d))

[[Page 500]]



  Subpart C_Designated State Unit Responsibilities Prior to Youth With 
            Disabilities Starting Subminimum Wage Employment



Sec.  397.20  What are the responsibilities of a designated State
unit to youth with disabilities who are known to be seeking subminimum
wage employment?

    (a) A designated State unit must provide youth with disabilities 
documentation upon the completion of the following actions:
    (1)(i) Pre-employment transition services that are available to a 
student with a disability under 34 CFR 361.48; or
    (ii) Transition services under the Individuals with Disabilities 
Education Act (20 U.S.C. 1400 et seq.), such as transition services 
available to the individual under section 614(d) of that Act (20 U.S.C. 
1414(d));
    (2) Application for vocational rehabilitation services, in 
accordance with 34 CFR 361.41(b), with the result that the individual 
was determined--
    (i) Ineligible for vocational rehabilitation services, in accordance 
with 34 CFR 361.43; or
    (ii) Eligible for vocational rehabilitation services, in accordance 
with 34 CFR 361.42; and
    (A) The youth with a disability had an approved individualized plan 
for employment, in accordance with 34 CFR 361.46;
    (B) The youth with a disability was unable to achieve the employment 
outcome specified in the individualized plan for employment, as 
described in 34 CFR 361.5(c)(15) and 361.46, despite working toward the 
employment outcome with reasonable accommodations and appropriate 
supports and services, including supported employment services and 
customized employment services, for a reasonable period of time; and
    (C) The youth with a disability's case record, which meets all of 
the requirements of 34 CFR 361.47, is closed.
    (3)(i) Regardless of the determination made under paragraph (a)(2) 
of this section, the youth with a disability has received career 
counseling, and information and referrals from the designated State unit 
to Federal and State programs and other resources in the individual's 
geographic area that offer employment-related services and supports 
designed to enable the individual to explore, discover, experience, and 
attain competitive integrated employment.
    (ii) The career counseling and information and referral services 
provided in accordance with paragraph (a)(3)(i) of this section must--
    (A) Be provided by the designated State unit in a manner that 
facilitates informed choice and decision-making by the youth, or the 
youth's representative as appropriate;
    (B) Not be for subminimum wage employment by an entity defined in 
Sec.  397.5(d), and such employment-related services are not compensated 
at a subminimum wage and do not directly result in employment 
compensated at a subminimum wage provided by such an entity; and
    (C) Be provided within 30 calendar days of a determination under 
paragraph (a)(2)(i) or (a)(2)(ii)(C) of this section for a youth known 
by the designated State unit to be seeking employment at subminimum 
wage.
    (b) The following special requirements apply--
    (1) For purposes of this part, all documentation provided by a 
designated State unit must satisfy the requirements for such 
documentation, as applicable, under 34 CFR part 361.
    (2) The individualized plan for employment, required in paragraph 
(a)(2)(ii)(A) of this section, must include a specific employment goal 
consistent with competitive integrated employment, including supported 
or customized employment.
    (3)(i) For purposes of paragraph (a)(2)(ii)(B) of this section, a 
determination as to what constitutes a ``reasonable period of time'' 
must be consistent with the disability-related and vocational needs of 
the individual, as well as the anticipated length of time required to 
complete the services identified in the individualized plan for 
employment.
    (ii) For an individual whose specified employment goal is in 
supported employment, such reasonable period of time is up to 24 months, 
unless under special circumstances the individual

[[Page 501]]

and the rehabilitation counselor jointly agree to extend the time to 
achieve the employment outcome identified in the individualized plan for 
employment.

(Authority: Sections 7(5), 7(39), 12(c), 102(a) and (b), 103(a), 113, 
and 511(a) and (d) of the Rehabilitation Act of 1973, as amended; 29 
U.S.C. 705(5), 705(39), 709(c), 722(a) and (b), 723(a), 733, and 794g(a) 
and (d))



Subpart D_Local Educational Agency Responsibilities Prior to Youth With 
            Disabilities Starting Subminimum Wage Employment



Sec.  397.30  What are the responsibilities of a local educational
agency to youth with disabilities who are known to be seeking subminimum
wage employment?

    (a) Of the documentation to demonstrate a youth with a disability's 
completion of the actions described in Sec.  397.20(a), a local 
educational agency, as defined in Sec.  397.5(b)(1), must provide the 
designated State unit with documentation that the youth has received 
transition services under the Individuals with Disabilities Education 
Act (20 U.S.C. 1400 et seq.), such as transition services available to 
the individual under section 614(d) of that Act (20 U.S.C. 1414(d)). The 
documentation must be provided to the designated State unit in a manner 
that complies with confidentiality requirements of the Family Education 
Rights and Privacy Act (20 U.S.C. 1232g(b) and 34 CFR 99.30 and 99.31) 
and the Individuals with Disabilities Education Act (20 U.S.C. 1417(c) 
and 34 CFR 300.622).
    (b)(1) The documentation of completed services or activities 
required by paragraph (a) of this section must, at a minimum, contain 
the--
    (i) Youth's name;
    (ii) Description of the service or activity completed;
    (iii) Name of the provider of the required service or activity;
    (iv) Date required service or activity completed;
    (v) Signature of educational personnel documenting completion of the 
required service or activity;
    (vi) Date of signature described in paragraph (b)(1)(v) of this 
section; and
    (vii) Signature of educational personnel transmitting documentation 
to the designated State unit; and
    (viii) Date and method (e.g., hand-delivered, faxed, mailed, 
emailed, etc.) by which document was transmitted to the designated State 
unit.
    (2) In the event a youth with a disability or, as applicable, the 
youth's parent or guardian, refuses, through informed choice, to 
participate in the activities required by this part, such documentation 
must, at a minimum, contain the--
    (i) Youth's name;
    (ii) Description of the refusal and the reason for such refusal;
    (iii) Signature of the youth or, as applicable, the youth's parent 
or guardian;
    (iv) Signature of the educational personnel documenting the youth's 
refusal;
    (v) Date of signatures required by paragraphs (b)(2)(iii) and (iv) 
of this section;
    (vi) Signature of educational personnel transmitting documentation 
of the refusal to the designated State unit; and
    (vii) Date and method (e.g., hand-delivered, faxed, mailed, emailed, 
etc.) by which documentation was transmitted to the designated State 
unit.
    (c)(1)(i) The educational personnel must transmit the documentation 
required by paragraph (b)(1) of this section to the designated State 
unit as soon as possible upon the completion of each of the required 
actions, but no later than--
    (A) 30 calendar days after the completion of the required activity 
or service; or
    (B) 60 calendar days, if additional time is necessary due to 
extenuating circumstances, after the completion of each of the required 
actions in paragraph (a) of this section. Extenuating circumstances 
should be interpreted narrowly to include the unexpected lengthy absence 
due to illness or family emergency of the educational personnel 
necessary to produce or transmit the documentation, or a natural 
disaster.
    (ii) Documentation required by paragraph (b)(2) of this section, 
when a youth has refused to participate in an

[[Page 502]]

action required by this part, must be provided to the DSU within 5 
calendar days of the youth's refusal to participate.
    (2) When the educational personnel transmits the last documentation 
to the designated State unit regarding the services provided to the 
youth under paragraph (a) of this section, the educational personnel 
must provide a cover sheet that itemizes the documentation that has been 
provided to the designated State unit regarding that youth.
    (d) The educational agency must retain a copy of all documentation 
provided to the designated State unit under this section in a manner 
consistent with the requirements of 2 CFR 200.333.

(Authority: Sections 12(c), 511(a)(2)(A), and 511(d) of the 
Rehabilitation Act of 1973, as amended; 29 U.S.C. 709(c), 794g(a)(2)(A), 
and (d))



Sec.  397.31  What are the contracting limitations on educational 
agencies under this part?

    Neither a local educational agency, as defined in Sec.  397.5(b)(1), 
nor a State educational agency, as defined in Sec.  397.5(b)(2), may 
enter into a contract or other arrangement with an entity, as defined in 
Sec.  397.5(d), for the purpose of operating a program for a youth under 
which work is compensated at a subminimum wage.

(Authority: Section 511(b)(2) of the Rehabilitation Act of 1973, as 
amended; 29 U.S.C. 794g(b)(2))



  Subpart E_Designated State Unit Responsibilities to Individuals With 
             Disabilities During Subminimum Wage Employment



Sec.  397.40  What are the responsibilities of a designated State
unit for individuals with disabilities, regardless of age, who are
employed at a subminimum wage?

    (a) Counseling and information services. (1) A designated State unit 
must provide career counseling and information and referral services, as 
described in Sec.  397.20(a)(3), to individuals with disabilities, 
regardless of age, or the individual's representative as appropriate, 
who are known by the designated State unit to be employed by an entity, 
as defined in Sec.  397.5(d), at a subminimum wage level.
    (2) A designated State unit may know of an individual with a 
disability described in this paragraph through the vocational 
rehabilitation process, self-referral, or by referral from the client 
assistance program, another agency, or an entity, as defined in Sec.  
397.5(d).
    (3) The career counseling and information and referral services must 
be provided in a manner that--
    (i) Is understandable to the individual with a disability; and
    (ii) Facilitates independent decision-making and informed choice as 
the individual makes decisions regarding opportunities for competitive 
integrated employment and career advancement, particularly with respect 
to supported employment, including customized employment.
    (4) The career counseling and information and referral services 
provided under this section may include benefits counseling, 
particularly with regard to the interplay between earned income and 
income-based financial, medical, and other benefits.
    (b) Other services. (1) Upon a referral by an entity, as defined in 
Sec.  397.5(d), that has fewer than 15 employees, of an individual with 
a disability who is employed at a subminimum wage by that entity, a 
designated State unit must also inform the individual within 30 calendar 
days of the referral by the entity, of self-advocacy, self-
determination, and peer mentoring training opportunities available in 
the community.
    (2) The services described in paragraph (b)(1) of this section must 
not be provided by an entity as defined in Sec.  397.5(d).
    (c) Required intervals. (1) For individuals hired at subminimum wage 
on or after July 22, 2016, the services required by this section must be 
carried out once every six months for the first year of the individual's 
subminimum wage employment and annually thereafter for the duration of 
such employment.
    (2) For individuals already employed at subminimum wage prior to 
July 22, 2016, the services required by this section must be carried out 
once by July

[[Page 503]]

22, 2017, and annually thereafter for the duration of such employment.
    (3)(i) With regard to the intervals required by paragraphs (c)(1) 
and (2) of this section for purposes of the designated State unit's 
responsibilities to provide certain services to individuals employed at 
subminimum wage, the applicable intervals will be calculated based upon 
the date the individual becomes known to the designated State unit.
    (ii) An individual with a disability may become ``known'' to the 
designated State unit through self-identification by the individual with 
a disability, referral by a third-party (including an entity as defined 
in Sec.  397.5(d)), through the individual's involvement with the 
vocational rehabilitation process, or any other method.
    (d) Documentation. (1)(i) The designated State unit must provide 
documentation to the individual as soon as possible, but no later than--
    (A) 45 calendar days after completion of the activities required 
under this section; or
    (B) 90 calendar days, if additional time is necessary due to 
extenuating circumstances, after the completion of the required actions 
in this section. Extenuating circumstances should be interpreted 
narrowly to include circumstances such as the unexpected lengthy absence 
of the designated State unit personnel, due to illness or other family 
emergency, who is responsible for producing or transmitting the 
documentation to the individual with a disability, or a natural 
disaster.
    (ii) Documentation required by paragraph (d)(3) of this section, 
when an individual has refused to participate in an activity required by 
this section, must be provided to the individual within 10 calendar days 
of the individual's refusal to participate.
    (2) Such documentation must, at a minimum, contain the--
    (i) Name of the individual;
    (ii) Description of the service or activity completed;
    (iii) Name of the provider of the required service or activity;
    (iv) Date required service or activity completed;
    (v) Signature of individual documenting completion of the required 
service or activity;
    (vi) Date of signature described in paragraph (d)(2)(v) of this 
section;
    (vii) Signature of designated State unit personnel (if different 
from that in paragraph (d)(2)(v) of this section) transmitting 
documentation to the individual with a disability; and
    (viii) Date and method (e.g., hand-delivered, faxed, mailed, 
emailed, etc.) by which document was transmitted to the individual.
    (3) In the event an individual with a disability or, as applicable, 
the individual's representative, refuses, through informed choice, to 
participate in the activities required by this section, such 
documentation must, at a minimum, contain the--
    (i) Name of the individual;
    (ii) Description of the refusal and the reason for such refusal;
    (iii) Signature of the individual or, as applicable, the 
individual's representative;
    (iv) Signature of the designated State unit personnel documenting 
the individual's refusal;
    (v) Date of signatures; and
    (vi) Date and method (e.g., hand-delivered, faxed, mailed, emailed, 
etc.) by which documentation was transmitted to the individual.
    (4) The designated State unit must retain a copy of all 
documentation required by this part in a manner consistent with the 
designated State unit's case management system and the requirements of 2 
CFR 200.333.
    (e) Provision of services. Nothing in this section will be construed 
as requiring a designated State unit to provide the services required by 
this section directly. A designated State unit may contract with other 
entities, i.e., other public and private service providers, as 
appropriate, to fulfill the requirements of this section. The contractor 
providing the services on behalf of the designated State unit may not be 
an entity holding a special wage certificate under section 14(c) of the 
Fair Labor Standards Act (29 U.S.C. 214(c)) as defined in 397.5(d).

(Authority: Sections 12(c) and 511(c) and (d) of the Rehabilitation Act 
of 1973, as amended; 29 U.S.C. 709(c) and 794g(c) and (d))

[[Page 504]]



                    Subpart F_Review of Documentation



Sec.  397.50  What is the role of the designated State unit in the
review of documentation under this part?

    (a) The designated State unit, or a contractor working directly for 
the designated State unit, is authorized to engage in the review of 
individual documentation required under this part that is maintained by 
an entity, as defined in 397.5(d), under this part. The contractor 
referred in this section may not be an entity holding a special wage 
certificate under section 14(c) of the Fair Labor Standards Act (29 
U.S.C. 214(c)).
    (b) If deficiencies are noted during a documentation review 
conducted under paragraph (a) of this section, the designated State unit 
should report the deficiency to the U.S. Department of Labor's Wage and 
Hour Division.

(Authority: Sections 12(c) and 511(e)(2)(B) of the Rehabilitation Act of 
1973, as amended; 29 U.S.C. 709(c) and 794g(e)(2)(B))

                        PARTS 398	399 [RESERVED]

[[Page 505]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters, and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 507]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2018)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
       III  Administrative Conference of the United States (Parts 
                300--399)
        IV  Miscellaneous Agencies (Parts 400--599)
        VI  National Capital Planning Commission (Parts 600--699)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 2--199)
        II  Office of Management and Budget Guidance (Parts 200--
                299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300--
                399)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
       VII  Agency for International Development (Parts 700--799)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
         X  Department of the Treasury (Parts 1000--1099)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1800--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Department of Housing and Urban Development (Parts 
                2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)

[[Page 508]]

     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
      XXIX  Department of Labor (Parts 2900--2999)
       XXX  Department of Homeland Security (Parts 3000--3099)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
     XXXIV  Department of Education (Parts 3400--3499)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
     XXXVI  Office of National Drug Control Policy, Executive 
                Office of the President (Parts 3600--3699)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)
       LIX  Gulf Coast Ecosystem Restoration Council (Parts 5900--
                5999)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--199)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
        IV  Office of Personnel Management and Office of the 
                Director of National Intelligence (Parts 1400--
                1499)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600--3699)

[[Page 509]]

    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Parts 4300--
                4399)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
      XXXV  Office of Personnel Management (Parts 4500--4599)
     XXXVI  Department of Homeland Security (Parts 4600--4699)
    XXXVII  Federal Election Commission (Parts 4700--4799)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
       LXX  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 8000--8099)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)

[[Page 510]]

     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 9000--9099)
   LXXXIII  Special Inspector General for Afghanistan 
                Reconstruction (Parts 9300--9399)
    LXXXIV  Bureau of Consumer Financial Protection (Parts 9400--
                9499)
    LXXXVI  National Credit Union Administration (Parts 9600--
                9699)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
    XCVIII  Council of the Inspectors General on Integrity and 
                Efficiency (Parts 9800--9899)
      XCIX  Military Compensation and Retirement Modernization 
                Commission (Parts 9900--9999)
         C  National Council on Disability (Parts 10000--10049)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 1--199)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)

[[Page 511]]

         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
       XXV  Office of Advocacy and Outreach, Department of 
                Agriculture (Parts 2500--2599)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  National Institute of Food and Agriculture (Parts 
                3400--3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

[[Page 512]]

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1300--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts 9400--9499)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
         X  Bureau of Consumer Financial Protection (Parts 1000--
                1099)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)

[[Page 513]]

      XIII  Financial Stability Oversight Council (Parts 1300--
                1399)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
       XVI  Office of Financial Research (Parts 1600--1699)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--1199)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)

[[Page 514]]

        XI  National Technical Information Service, Department of 
                Commerce (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399) [Reserved]

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  U.S. Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  U.S. Immigration and Customs Enforcement, Department 
                of Homeland Security (Parts 400--599) [Reserved]

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)

[[Page 515]]

       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millennium Challenge Corporation (Parts 1300--1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)

[[Page 516]]

        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XV  Emergency Mortgage Insurance and Loan Programs, 
                Department of Housing and Urban Development (Parts 
                2700--2799) [Reserved]
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)

[[Page 517]]

      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099) [Reserved]
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--899)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Parts 900--999)
        VI  Office of the Assistant Secretary, Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--End)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

[[Page 518]]

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Bureau of Safety and Environmental Enforcement, 
                Department of the Interior (Parts 200--299)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
         V  Bureau of Ocean Energy Management, Department of the 
                Interior (Parts 500--599)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)
       XII  Office of Natural Resources Revenue, Department of the 
                Interior (Parts 1200--1299)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)

[[Page 519]]

        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of Investment Security, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)
         X  Financial Crimes Enforcement Network, Department of 
                the Treasury (Parts 1000--1099)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army, Department 
                of Defense (Parts 200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)

[[Page 520]]

        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Career, Technical and Adult Education, 
                Department of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599) 
                [Reserved]
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799) 
                [Reserved]
            Subtitle C--Regulations Relating to Education
        XI  (Parts 1100--1199) [Reserved]
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  U.S. Copyright Office, Library of Congress (Parts 
                200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                300--399)
        IV  National Institute of Standards and Technology, 
                Department of Commerce (Parts 400--599)

[[Page 521]]

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--199)
        II  Armed Forces Retirement Home (Parts 200--299)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)
      VIII  Gulf Coast Ecosystem Restoration Council (Parts 1800--
                1899)

          Title 41--Public Contracts and Property Management

            Subtitle A--Federal Procurement Regulations System 
                [Note]
            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
   62--100  [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
  103--104  [Reserved]
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
  129--200  [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]

[[Page 522]]

            Subtitle E--Federal Information Resources Management 
                Regulations System [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
   II--III  [Reserved]
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--699)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1099)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 400--999)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)

[[Page 523]]

       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
        IX  Denali Commission (Parts 900--999)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Administration for Children and Families, Department 
                of Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission of Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Parts 2300--2399)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

[[Page 524]]

        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)
         V  The First Responder Network Authority (Parts 500--599)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399) 
                [Reserved]

[[Page 525]]

        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (Parts 6100--6199)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--1499) 
                [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)

[[Page 526]]

        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

[[Page 527]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2018)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Administrative Conference of the United States    1, III
Advisory Council on Historic Preservation         36, VIII
Advocacy and Outreach, Office of                  7, XXV
Afghanistan Reconstruction, Special Inspector     5, LXXXIII
     General for
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              2, VII; 22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture, Department of                        2, IV; 5, LXXIII
  Advocacy and Outreach, Office of                7, XXV
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, Office of           2, IX; 7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  National Institute of Food and Agriculture      7, XXXIV
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force, Department of                          32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII

[[Page 528]]

Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army, Department of                               32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase from People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Career, Technical and Adult Education, Office of  34, IV
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chemical Safety and Hazardous Investigation       40, VI
     Board
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X, XIII
Civil Rights, Commission on                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Council of the Inspectors General on Integrity    5, XCVIII
     and Efficiency
Court Services and Offender Supervision Agency    5, LXX
     for the District of Columbia
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce, Department of                           2, XIII; 44, IV; 50, VI
  Census Bureau                                   15, I
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, XI; 37, IV
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Technical Information Service          15, XI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Secretary of Commerce, Office of                15, Subtitle A
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Financial Protection Bureau              5, LXXXIV; 12, X
Consumer Product Safety Commission                5, LXXI; 16, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    5, LXX; 28, VIII
     for the District of Columbia
Customs and Border Protection                     19, I
Defense Contract Audit Agency                     32, I
Defense, Department of                            2, XI; 5, XXVI; 32, 
                                                  Subtitle A; 40, VII
  Advanced Research Projects Agency               32, I

[[Page 529]]

  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III; 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
Denali Commission                                 45, IX
Disability, National Council on                   5, C; 34, XII
District of Columbia, Court Services and          5, LXX; 28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          2, XXXIV; 5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Career, Technical and Adult Education, Office   34, IV
       of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
Educational Research and Improvement, Office of   34, VII
Election Assistance Commission                    2, LVIII; 11, II
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Policy, National Commission for        1, IV
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             2, IX; 5, XXIII; 10, II, 
                                                  III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   2, XV; 5, LIV; 40, I, IV, 
                                                  VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                2, Subtitle A; 5, III, 
                                                  LXXVII; 14, VI; 48, 99
  National Drug Control Policy, Office of         2, XXXVI; 21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3

[[Page 530]]

  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       5, XXXVII; 11, I
Federal Emergency Management Agency               44, I
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Agency                    5, LXXX; 12, XII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Financial Crimes Enforcement Network              31, X
Financial Research Office                         12, XVI
Financial Stability Oversight Council             12, XIII
Fine Arts, Commission of                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61

[[Page 531]]

  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Gulf Coast Ecosystem Restoration Council          2, LIX; 40, VIII
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 5, XLV; 45, 
                                                  Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X, XIII
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  2, XXX; 5, XXXVI; 6, I; 8, 
                                                  I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection                   19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing and Urban Development, Department of      2, XXIV; 5, LXV; 24, 
                                                  Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Immigration and Customs Enforcement Bureau        19, IV
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Independent Counsel, Offices of                   28, VI
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II

[[Page 532]]

Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII, XV
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior, Department of                           2, XIV
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Ocean Energy Management, Bureau of              30, V
  Reclamation, Bureau of                          43, I
  Safety and Enforcement Bureau, Bureau of        30, II
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
Investment Security, Office of                    31, VIII
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice, Department of                            2, XXVIII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Independent Counsel, Offices of                 28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor, Department of                              2, XXIX; 5, XLII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50

[[Page 533]]

  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I, VII
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Libraries and Information Science, National       45, XVII
     Commission on
Library of Congress                               36, VII
  Copyright Royalty Board                         37, III
  U.S. Copyright Office                           37, II
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Military Compensation and Retirement              5, XCIX
     Modernization Commission
Millennium Challenge Corporation                  22, XIII
Mine Safety and Health Administration             30, I
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   2, XXII; 45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV, VI
National Counterintelligence Center               32, XVIII
National Credit Union Administration              5, LXXXVI; 12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           2, XXXVI; 21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Geospatial-Intelligence Agency           32, I
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute of Food and Agriculture        7, XXXIV
National Institute of Standards and Technology    15, II; 37, IV
National Intelligence, Office of Director of      5, IV; 32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25

[[Page 534]]

National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III, IV, V
     Administration
National Transportation Safety Board              49, VIII
Natural Resources Conservation Service            7, VI
Natural Resource Revenue, Office of               30, XII
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy, Department of                               32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Ocean Energy Management, Bureau of                30, V
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       2, XXXVII; 22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 5, IV; 45, 
                                                  VIII
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory Commission                      5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Privacy and Civil Liberties Oversight Board       6, X
Procurement and Property Management, Office of    7, XXXII
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Safety and Environmental Enforcement, Bureau of   30, II
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                5, XXXIV; 17, II

[[Page 535]]

Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State, Department of                              2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 47, IV; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury, Department of                           2, X;5, XXI; 12, XV; 17, 
                                                  IV; 31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection                   19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Financial Crimes Enforcement Network            31, X
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, Office of                  31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
U.S. Copyright Office                             37, II
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs, Department of                   2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I, VII

[[Page 536]]

World Agricultural Outlook Board                  7, XXXVIII

[[Page 537]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations (CFR) that 
were made by documents published in the Federal Register since January 
1, 2013 are enumerated in the following list. Entries indicate the 
nature of the changes effected. Page numbers refer to Federal Register 
pages. The user should consult the entries for chapters, parts and 
subparts as well as sections for revisions.
For changes to this volume of the CFR prior to this listing, consult the 
annual edition of the monthly List of CFR Sections Affected (LSA). The 
LSA is available at www.fdsys.gov. For changes to this volume of the CFR 
prior to 2001, see the ``List of CFR Sections Affected, 1949-1963, 1964-
1972, 1973-1985, and 1986-2000'' published in 11 separate volumes. The 
``List of CFR Sections Affected 1986-2000'' is available at 
www.fdsys.gov.

                                  2013

34 CFR
                                                                   78 FR
                                                                    Page
Chapter III
Policy statement........22780, 22783, 26509, 26509, 26513, 27036, 27038, 
           29234, 29237, 29239, 33228, 34261, 34897, 34901, 35758, 35761
    Policy statement; eff. 7-19-13.................................36667
    Policy statement; eff. 7-29-13.................................38840
300.154 (d)(2)(iv) revised; (d)(2)(v) added........................10537

                                  2014

34 CFR
                                                                   79 FR
                                                                    Page
Chapter III
Chapter III Policy statement...38779, 38782, 42170, 42400, 42680, 43257, 
                         43650, 43653, 45346, 46700, 47575, 47579, 48983
300.154 (g)(1) revised; interim....................................76096
300.609 Revised; interim...........................................76097
303.3 (a)(2) revised; (a)(3) added; interim........................76097
303.121 (b) revised; interim.......................................76097
303.416 (a) revised; interim.......................................76097
303.520 (d)(1) and (e) revised; interim............................76097
303.521 (d)(1) amended; interim....................................76097
303.707 Revised; interim...........................................76097
350.4 (a)(1), (4) and (7) removed; (d) added; interim..............76097
361.4 (a)(1), (5) and (8) removed; (e) added; interim..............76097
361.60 (b)(1) and (2) amended; interim.............................76097
361.63 (c)(3)(i), (ii) and authority citation revised; interim.....76097
363.5 (a)(4) and (7) removed; (d) added; interim...................76098
364 Authority citation revised.....................................76098
364.3 (a)(1), (6) and (9) removed; (d) added; interim..............76098
364.5 (c)(2) revised; interim......................................76098
364.21 (l) revised; interim........................................76098
364.34 Introductory text amended; interim..........................76098
364.35 Introductory text amended; interim..........................76098
365.13 (a) introductory text revised; interim......................76098
365.15 (a) revised; interim........................................76098
365.23 (b) and (c) revised; interim................................76098
367.4 (a)(1), (6) and (9) removed; (e) added; interim..............76098
369.3 (a)(1), (5) and (8) removed; (d) added; interim..............76098
370.5 (a)(1), (5) and (8) removed; (c) note revised; (d) added; 
        interim....................................................76099
370.30 (c) revised; interim........................................76099
370.40 (a) and (c) revised; (b) removed; interim...................76099
370.44 Introductory text amended; interim..........................76099

[[Page 538]]

373.3 (a)(1), (5) and (8) removed; (d) added; interim..............76099
373.23 (b) revised; interim........................................76099
377 Authority citation revised.....................................76099
377.4 (a)(1), (5) and (8) removed; (d) added; interim..............76099
377.5 (b) revised; interim.........................................76099
380 Removed; interim...............................................76099
381.4 (a)(1), (6) and (9) removed; (d) added; interim..............76100
385 Authority citation revised.....................................76100
385.3 (a)(1), (5) and (8) removed; (d) added; interim..............76100
396 Authority citation revised.....................................76100
396.3 (a)(1), (5) and (8) removed; (d) added; interim..............76100

                                  2015

34 CFR
                                                                   80 FR
                                                                    Page
Chapter III
Chapter III Policy statement....26830, 45423, 46799, 48028, 48443, 48696
300 Authority citation revised.....................................23666
300.160 (c)(2)(ii) removed; (c)(2)(iii) redesignated as new 
        (c)(2)(ii); new (c)(2)(ii) amended; new (c)(2)(iii) and 
        (3) added; (d), (e), (f)(3) and (5) introductory text 
        revised....................................................50785
300.203 Revised....................................................23666
300.204 Introductory text amended..................................23667
300.205 (a) amended................................................23667
300.208 (a) amended................................................23667
300 Appendix E redesignated as Appendix F; new Appendix E added....23667
369 Authority citation revised......................................6455
369.4 (b) amended...................................................6455
371.4 (b) amended...................................................6455

                                  2016

34 CFR
                                                                   80 FR
                                                                    Page
Chapter III
Chapter III Policy statement..................47296, 48335, 50324, 53271
    Technical correction...........................................62631
300.646 Revised....................................................92463
300.647 Added......................................................92463
361 Revised........................................................55741
361.10 (d) added...................................................55779
361.23 Added.......................................................55779
361.40 (b) added...................................................55780
361.100--361.145 (Subpart D) Added.................................56022
361.150--361.240 (Subpart E) Revised...............................56026
361.300--361.900 (Subpart F) Added.................................56033
363 Revised........................................................55780
367 Revised........................................................55583
369 Removed........................................................55590
370 Revised........................................................55590
371 Revised........................................................55596
373 Revised........................................................55607
376 Removed........................................................55611
377 Removed........................................................55611
379 Removed........................................................55611
381 Revised........................................................55611
385 Revised........................................................55614
386 Revised........................................................55619
387 Revised........................................................55623
388 Removed........................................................55624
389 Removed........................................................55624
390 Revised........................................................55624
396 Revised........................................................55625
397 Added..........................................................55785

                                  2017

34 CFR
                                                                   82 FR
                                                                    Page
Chapter III
Chapter III Policy statement.......................................35443
300 Authority citation revised..............................29759, 31912
300.7 Amended......................................................29759
300.8 (a)(1), (c)(7), and (10)(ii) amended; (c)(6) revised; 
        authority citation removed.................................31912
300.10 Removed.....................................................29759
300.16 (a)(3) amended..............................................29759
300.18 Removed.....................................................29759
300.27 Amended.....................................................29759
300.35 Removed.....................................................29759
300.102 (a)(3)(iv) and authority citation revised..................29759
300.105 (a)(1) and (3) amended.....................................29759
300.115 (b)(1) amended.............................................29759
300.138 (a)(1) amended.............................................29759
300.146 (b) amended................................................29759
300.154 (b)(1)(i) amended..........................................29759
300.156 (c) revised; (d) and (e) amended...........................29759
300.157 (a)(2) revised; (b) amended................................29760
300.160 (c) through (f) amended....................................29760
300.207 Amended....................................................29761
300.306 (b)(1)(i) amended..........................................29761

[[Page 539]]

300.309 (a)(3)(ii) amended; authority citation removed.............31912
300.311 (a)(6) amended; authority citation removed.................31913
300.324 (d)(2)(ii) amended.........................................29761
300.704 (b)(4)(x) and (c)(3)(i)(A)(2) amended; (b)(4)(xi) revised 
                                                                   29761
300 Appendix F amended.............................................31913
303.32 Removed.....................................................29761
361 Authority citation revised.....................................31913
361.5 (c)(30) authority citation and (40) authority citation 
        removed....................................................31913
373 Authority citation revised.....................................31913
373.4 Amended......................................................31913
385 Authority citation revised.....................................31913
385.4 Authority citation removed...................................31913

                                  2018

   (Regulations published from January 1, 2018, through July 1, 2018)

34 CFR
                                                                   83 FR
                                                                    Page
Chapter III
350 Removed.........................................................1558
356 Removed.........................................................1558
359 Removed.........................................................1558
364 Removed.........................................................1558
365 Removed.........................................................1558
366 Removed.........................................................1558


                                  [all]