[Federal Register Volume 60, Number 104 (Wednesday, May 31, 1995)]
[Proposed Rules]
[Pages 28362-28376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13177]



 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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 

  Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / 
Proposed Rules  

[[Page 28362]]

DEPARTMENT OF DEFENSE

Office of the Secretary
[DoD Instruction 1342.12]

32 CFR Part 57


Provision of Early Intervention and Special Education Services to 
Eligible DoD Dependents in Overseas Areas

AGENCY: Department of Defense.

ACTION: Proposed rule.

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SUMMARY: Prior to 1991, the Department of Defense Dependents Schools 
(DoDDS) was required by ``Defense Dependents' Education Act of 1978,'' 
as amended, to adhere to the provisions of the ``Education of All 
Handicapped Children Act. With the enactment of ``Individuals With 
Disabilities Education Act Amendment of 1991,'' the Department of 
Defense was required to modify the Department's existing special 
education program for children with disabilities, ages 3 through 21, 
and to provide early intervention services to children birth through 2 
years. The provision of early intervention services will be phased in, 
with all services in place by the beginning of school year 1995-96. 
This proposed rule includes the following revisions: Assigns 
responsibility for the implementation of the rule to the Under 
Secretary for Personnel and Readiness, reflecting a reorganization of 
the Department of Defense; requires the Department of Defense to 
provide early intervention services to children with disabilities from 
birth through 2 years of age, effective at the start of school year 
1995-96; requires the Department of Defense Dependents Schools (DoDDS) 
to extend special education services to students from 3 through 21 
years of age rather than from 5 through 21 years of age; expands the 
categories of disability to include both autism and traumatic brain 
injury; expands special education services to include both assistive 
technology and transition; expands the role of the DoD Coordinating 
Committee to include early intervention as well as special education 
and related services; establishes a DoD Inter-Component Coordinating 
Council on Early Intervention; expands the enclosure on definitions to 
include terminology not contained in the original rule; and transfers 
the administrative responsibility for conducting hearings pursuant to 
this rule to the Defense Office of Hearings and Appeals.

DATES: Comments must be postmarked by July 31, 1995.

ADDRESSES: Forward comments to the Department of Defense Dependents 
Schools, 4040 North Fairfax Drive, Arlington, VA 22203-1635.

FOR FURTHER INFORMATION CONTACT:
Dr. Rebecca Posante, (703) 696-4493.

SUPPLEMENTARY INFORMATION: It is necessary to revise 32 CFR Part 57 to 
reflect updated policy, responsibilities, and procedures of early 
intervention and special education services to eligible DoD Dependents 
overseas.

Executive Order 12866, ``Regulatory Planning and Review''

    It has been determined that this proposed rule will not, if issued 
as a final rule, be significant as defined by Executive Order 12866.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 
6)

    It has been determined that this proposed rule will not, if issued 
as a final rule, have a significant economic impact on substantial 
numbers of small entities because it affects only eligible DoD 
dependents in overseas areas.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 
44)
    It has been certified that this proposed rule will not, if issued 
as a final rule, impose any reporting or recordkeeping requirements 
under the Paperwork Reducation Act of 1980.

List of Subjects in 32 CFR Part 57

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

    Accordingly, 32 CFR part 57 is revised to read as follows:

PART 57--PROVISION OF EARLY INTERVENTION AND SPECIAL EDUCATION 
SERVICES TO ELIGIBLE DOD DEPENDENTS IN OVERSEAS AREAS

Sec.
57.1  Purpose.
57.2  Applicability and scope.
57.3  Definitions.
57.4  Policy.
57.5  Responsibilities.
57.6  Procedures.

Appendix A to Part 57--Procedures for the Provision of Early 
Intervention Services for Infants and Toddlers With Disabilities and 
their Families

Appendix B to Part 57--Procedures for Educational Programs and Services 
for Children With Disabilities, Aged 3 to 21, Inclusive

Appendix C to Part 57--The National Advisory Panel (NAP) on the 
Education of Dependents With Disabilities

Appendix D to Part 57--DoD Coordinating Committee on Early 
Intervention, Special Education, and Medically Related Services

Appendix E to Part 57--DoD Inter-Component Coordinating Council (ICC) 
on Early Intervention

Appendix F to Part 57--Mediation and Hearing Procedures

    Authority: 20 U.S.C. 921 and 1400.


Sec. 57.1  Purpose.

    This part:
    (a) Implements policy and updates responsibilities and procedures 
under 20 U.S.C. 921-932, 20 U.S.C. 1400 et seq., 32 CFR part 347, and 
32 CFR part 71 for providing the following:
    (1) A free appropriate public education (FAPE) for children with 
disabilities who are eligible to enroll in the Department of Defense 
Dependents Schools (DoDDS).
    (2) Early intervention services for infants and toddlers birth 
through age 2 years who, but for their age, would be eligible to enroll 
in the DoDDS under 32 CFR part 71.
    (3) A comprehensive and multidisciplinary program of early 
intervention services for infants and toddlers with disabilities and 
their families.
    (b) Establishes a National Advisory Panel (NAP) on Education for 
Children with Disabilities, aged 3 to 21, inclusive, and a DoD Inter-
Component Coordinating Council (ICC) on Early 
[[Page 28363]] Intervention, in accordance with DoD Directive 
5105.4.\1\

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (c) Establishes a DoD Coordinating Committee (DoD-CC) on Early 
Intervention, Special Education, and Medically Related Services (MRS).
    (d) Authorizes implementation instructions consistent with DoD 
5025.1-M,\2\ and DoD forms consistent with DoD 8320.1-M,\3\ DoD 8910.1-
M,\4\ and DoD Instruction 7750.7.\5\

    \2\ See footnote 1 to Sec. 57.1(b).
    \3\ See footnote 1 to Sec. 57.1(b).
    \4\ See footnote 1 to Sec. 57.1(b).
    \5\ See footnote 1 to Sec. 57.1(b).
---------------------------------------------------------------------------


Sec. 57.2  Applicability and scope.

    This part:
    (a) Applies to the Office of the Secretary of Defense, the Military 
Departments, the Chairman of the Joint Chiefs of Staff, the Unified 
Combatant Commands, the Inspector General of the Department of Defense, 
the Defense Agencies, and the DoD Field Activities (hereafter referred 
to collectively as ``the DoD Components'').
    (b) Does not apply to schools operated by the Department of Defense 
in the United States, the District of Columbia, the Commonwealth of 
Puerto Rico, the Commonwealth of the Northern Marianna Islands, and the 
possessions of the United States (excluding the Trust Territory of the 
Pacific Islands and Midway Islands).
    (c) Applies to infants, toddlers, and children receiving or 
entitled to receive early intervention services or special educational 
instruction and related services from the Department of Defense, and 
their parents.


Sec. 57.3  Definitions.

    Asessment. Techniques, procedures, and/or instruments used to 
measure the individual components of an evaluation.
    Assistive technology device. Any item, piece of equipment, or 
product system that is used to increase, maintain, or improve 
functional capabilities of children with disabilities.
    Assistive technology service. Any service that directly assists an 
individual with a disability in the selection, acquisition, or use of 
an assistive technology device. That term includes the following:
    (1) The evaluation of the needs of an individual with a disability, 
including a functional evaluation in the individual's customary 
environment.
    (2) Purchasing, leasing, or otherwise providing for the acquisition 
of assistive technology devices by individuals with disabilities.
    (3) Selecting, designing, fitting, customizing, adapting, applying, 
maintaining, repairing, or replacing assistive technology devices.
    (4) Coordinating and using other therapies, interventions, or 
services with assistive technology devices, such as those associated 
with existing educational and rehabilitative plans and programs.
    (5) Training or technical assistance for an individual with 
disabilities, or, where appropriate, the family of an individual with 
disabilities.
    (6) Training or technical assistance for professionals (including 
individuals providing educational rehabilitative services), employers, 
or other individuals who provide services to employ, or are otherwise 
substantially involved in the major life functions of an individual 
with a disability.
    Audiology. A service that includes the following:
    (1) Identification of children with auditory impairments.
    (2) Determination of the range, nature, and degree of hearing loss, 
and communication functions including referral for medical or other 
professional attention for the habilitation of hearing.
    (3) Provision of habilitative activities, such as language 
habilitation, auditory training, speech-reading (lip-reading), hearing 
evaluation, and speech conservation.
    (4) Creation and administration of programs for the prevention of 
hearing loss.
    (5) Counseling and guidance of pupils for the prevention of hearing 
loss.
    (6) Determination of the child's need for group and individual 
amplification, selecting and fitting an aid, and evaluating the 
effectiveness of amplification.
    Autism. A developmental disability significantly affecting verbal 
and nonverbal communication and social interaction generally evident 
before age 3 that adversely affects educational performance. That term 
does not include a child with characteristics of the disability termed 
``serious emotional disturbance.''
    Case study committee (CSC). A school-level team comprised of, among 
others, the principal, other educators, parents, and MRS providers who 
do the following:
    (1) Oversee screening and referral of children who may require 
special education.
    (2) Oversee the multidisciplinary evaluation of such children.
    (3) Determine the eligibility of the student for special education 
and related services.
    (4) Formulate an individualized education curriculum reflected in 
an Individualized Education Program (IEP), in accordance with this 
part.
    (5) Monitor the development, review, and revision of IEPs. In 
addition to the required members of the CSC, other membership will vary 
depending on the purpose of the meeting. A regional CSC, appointed by 
the DoDDS regional director, acts in the absence of a school CSC. 
Members of a regional CSC may be assigned to augment a school CSC. The 
regional CSC must have at least two members in addition to the parent. 
One of the DoDDS members must have the authority to commit DoDDS 
resources; one shall be qualified to provide, or supervise the 
provision of special education. Other members may be selected from the 
following groups:
    (i) DoDDS regular education personnel.
    (ii) DoDDS special education personnel.
    (iii) MRS personnel.
    Child-find. The ongoing process used by the DoDDS, the Military 
Departments, and the other DoD Components to seek and identify children 
from birth to age 21, inclusive, who may require early intervention 
services or special education and related services. Child-find 
activities include the dissemination of information to the public, the 
identification and screening of children, and the use of referral 
procedures.
    Children with disabilities (aged 3 to 21, inclusive). Children, 
before graduation from high school or completion of the General 
Education Degree, who have one or more impairments, as determined by a 
CSC and who need special education and related services.
    Consent. That term means the following:
    (1) The parent is fully informed of all information about the 
activity for which consent is sought in the native language or in 
another mode of communication.
    (2) The parent understands and agrees in writing to the 
implementation of the activity for which permission is sought. That 
consent describes the activity, lists the child's records (if any) to 
be released outside the Department of Defense, and specifies to whom 
the records shall be sent. The signed consent acknowledges the parent's 
understanding that the parental consent is voluntary and may be revoked 
at any time.
    Counseling service. A service provided by a qualified social 
worker, psychologist, guidance counselor, or other qualified personnel.
    Deaf-blindness. Concomitant hearing and visual impairments. That 
disability caused such severe communication, developmental, and 
educational [[Page 28364]] problems that it cannot be accommodated in 
special education programs solely for children with deafness or 
blindness.
    Deafness. A severe hearing loss or deficit that impairs a child's 
ability to process linguistic information through hearing, with or 
without amplification, and affects the educational performance 
adversely.
    Developmental delay. That terms means the following:
    (1) A significant discrepancy in the actual functioning of an 
infant; toddler; or child, birth through age 5, when compared with the 
functioning of a nondisabled infant, toddler, or child of the same 
chronological age in any of the following areas: physical, cognitive, 
communication, social or emotional, and adaptive development as 
measured using standardized evaluation instruments and confirmed by 
clinical observation and judgment.
    2. High probability for developmental delay. An infant or toddler, 
birth through age 2, with a diagnosed physical or mental condition, 
such as chromosomal disorders and genetic syndromes, that places the 
infant or toddler at substantial risk of evidencing a developmental 
delay without the benefit of early intervention services.
    Early identification. The implementation of a formal plan for 
identifying a disability as early as possible in a child's life.
    Early intervention services.
    (1) Developmental services that meet the following criteria:
    (i) Are provided under the supervision of a military medical 
department.
    (ii) Are provided using Military Health Services System resources 
at no cost to the parents. Parents may be charged in those instances 
where Federal law provides for a system of payments by families 
including a schedule of sliding fees, if any, (and incidental fees; 
identified in Service guidance) that are normally charged to infants, 
toddlers, and children without disabilities or to their parents.
    (iii) Are designed to meet the developmental needs of an infant or 
toddler with a disability in any one or more of the following areas:
    (A) Physical.
    (B) Cognitive.
    (C) Communication.
    (D) Social or emotional.
    (E) Adaptive development.
    (iv) Meet the standards developed or adopted by the Department of 
Defense.
    (v) Are provided by qualified personnel including early childhood 
special educators, speech and language pathologists and audiologists, 
occupational therapists, physical therapists, psychologists, social 
workers, nurses, nutritionists, family therapists, orientation and 
mobility specialists, and pediatricians and other physicians.
    (vi) Maximally, are provided in natural environments including the 
home and community settings where infants and toddlers without 
disabilities participate.
    (vii) Are provided in conformity with an Individualized Family 
Service Plan (IFSP).
    (2) Developmental services include, but are not limited to, the 
following services: family training, counseling, and home visits; 
special instruction; speech pathology and audiology; occupational 
therapy; physical therapy; psychological services; service coordination 
services; medical services only for diagnostic or evaluation purposes; 
early identification, screening and assessment services; vision 
services; and social work services. Also included are assistive 
technology devices and assistive technology services; health services 
necessary to enable the infant or toddler to benefit from the above 
early intervention services; and transportation and related costs 
necessary to enable an infant or toddler and the family to receive 
early intervention services.
    Eligible. That term refers to children who meet the age, command 
sponsorship, and dependency requirements established by the DDEA, as 
amended, 20 U.S.C. Sec. 921 et seq., and 32 CFR part 71. When those 
conditions are met, children without disabilities, aged 5 to 21, and 
children with disabilities, aged 3 to 21, inclusive, are authorized to 
receive educational instruction from the DoDDS. Additionally, an 
eligible infant or toddler with disabilities is a child from birth 
through age 2 years who meets all of the DoDDS eligibility requirements 
except for the age requirement. In school year 1994-95, multi-
disciplinary assessments, IFSPs, and case management services shall be 
required and beginning in school year 1995-96, an eligible infant or 
toddler is entitled to receive early intervention services, in 
accordance with 20 U.S.C., Sec. 1400 et seq.
    Evaluation. The synthesis of assessment information by a multi-
disciplinary team used to determine whether a particular child has a 
disability, the nature and extent of the disability, and the child's 
eligibility to receive early intervention or special education and/or 
related services.
    Family training, counseling and home visits. Services provided by 
social workers, psychologists, and other qualified personnel to assist 
the family of an infant or toddler eligible for early intervention 
services. Those services assist a family in understanding the special 
needs of the child and enhancing the child's development.
    Free appropriate public education (FAPE). Special education and 
related services that:
    (1) Are provided at no cost to parents of a child with a 
disability, and are under the general supervision and direction of the 
DoDDS.
    (2) Are provided in the least restrictive environment at a 
preschool, elementary, or secondary school.
    (3) Are provided in conformity with an IEP.
    (4) Meet the requirements of this part.
    Functional vocational evaluation. A student-centered appraisal 
process for vocational development and career decision-making. It 
allows students, educators, and others to gather information about such 
development and decision making, Functional vocational evaluation 
activities are directly related to transitional, vocational, and career 
planning; instructional goals; objectives; and implementation.
    Health services. Services necessary to enable an infant or toddler 
to benefit from the other early intervention services being received 
under this part. That term includes the following:
    (1) Services such as clean intermittent catheterization, 
tracheotomy care, tube feeding, changing of dressings or colostomy 
collection bags, and other health services.
    (2) Consultation by physicians with other service providers about 
the special healthcare needs of infants and toddlers with disabilities 
that shall need to be addressed in the course of providing other early 
intervention services.
    (3) That term does not include the following:
    (i) Services that are surgical in nature or solely medical.
    (ii) Devices necessary to control or treat a medical condition.
    (iii) Medical or health services routinely recommended for all 
infants or toddlers.
    Hearing impairment. An impairment in hearing, whether permanent or 
fluctuating, which adversely affects a child's educational performance, 
but is not included under deafness.
    Independent evaluation. An evaluation conducted by a qualified 
examiner who is not employed by the DoDDS.
    Individualized education program (IEP). A written document defining 
specially designed instruction for a [[Page 28365]] student with a 
disability, aged 3 to 21, inclusive. That document is developed and 
implemented, in accordance with this part.
    Individualized family service plan (IFSP). A written document for 
an infant or toddler, ages birth through 2, with a disability and the 
family of such infant or toddler that is based on a multidisciplinary 
assessment of the unique needs of the child and concerns and priorities 
of the family, and identifies the early intervention and other services 
appropriate to meet such needs, concerns, and priorities.
    Infants and toddlers with disabilities. Children, age birth through 
2, who need early intervention services because they:
    (1) Are experiencing a developmental delay; or
    (2) Have a diagnosed physical or mental condition that has high 
probability of resulting in a developmental delay.
    Inter-component. Cooperation among DoD organizations and programs, 
ensuring coordination and integration of services to infants, toddlers, 
children with disabilities and to their families.
    Medically related services.
    (1) Medical services (as defined in definition ``Medical 
services'') are those services provided under professional medical 
supervision, which are required by a CSC to determine a student's 
eligibility for special education and, if the student is eligible, the 
special education and related services required by the student under 
this part.
    (2) Direct or indirect services pursuant to the development or 
implementation of an IEP necessary for the student to benefit from the 
educational curriculum. Those services may include: medical services 
for diagnostic or evaluative purpose, social work, community health 
nursing, dietary, occupational therapy, physical therapy, audiology, 
ophthalmology, and psychological testing and therapy.
    Medical services. Those evaluative, diagnostic, therapeutic, and 
supervisory services provided by a licensed and/or credentialed 
physician to assist CSCs and to implement IEPs. Medical services 
include diagnosis, evaluation, and medical supervision of related 
services that, by statute, regulation, or professional tradition, are 
the responsibility of a licensed and credentialed physician.
    Meetings. All parties attending a meeting to determine eligibility 
or placement of a child shall appear personally at the meeting site on 
issuance of written notice and establishment of a date convenient to 
the concerned parties. When a necessary participant is unable to 
attend, electronic communication suitable to the occasion may be used 
to involve the unavailable party. Parents generally shall be 
responsible for the cost of travel to personally attend meetings bout 
the eligibility or placement of their child.
    Mental retardation. Significantly subaverage general intellectual 
functioning, existing concurrently with deficits in adaptive behavior. 
That disability is manifested during the developmental period and 
adversely affects a child's educational performance.
    Multidisciplinary. The involvement of two or more disciplines or 
professions in the integration and coordination of services, including 
evaluation and assessment activities, and development of an IFSP or an 
IEP.
    Native language. When used with reference to an individual of 
limited English proficiency, the home language normally used by such 
individuals, or in the case of a child, the language normally used by 
the parent of the child.
    Natural environments. Settings that are natural or normal (e.g., 
home, day care setting) for the infant, toddler, or child's same-age 
peers who have no disability.
    Non-DoDDS placement. An assignment by the DoDDS of a child with a 
disability to a non-DoDDS school or facility.
    Non-DoDDS school or facility. A public or private school or other 
institution not operated by the DoDDS.
    Nutrition services. Those services to infants and toddlers include 
the following:
    (1) Conducting individual assessments in nutritional history and 
dietary intake; anthropometric, biochemical, and clinical variables; 
feeding skills and feeding problems; and food habits and food 
preferences.
    (2) Developing and monitoring plans to address the nutritional 
needs of infants and toddlers eligible for early intervention services.
    (3) Making referrals to community resources to carry out nutrition 
goals.
    Occupational therapy. That term includes services to address the 
functional needs of children (birth to age 21, inclusive) related to 
adaptive development, adaptive behavior and play; and sensory, motor, 
and postural development. Those services are designed to improve the 
child's functional ability to perform tasks in home, school, and 
community settings, and include the following:
    (1) Identification, assessment, and intervention.
    (2) Adaptation of the environment and selection, design, and 
fabrication of assistive and orthotic devices to facilitate development 
and promote the acquisition of functional skills.
    (3) Prevention or minimization of the impact of initial or future 
impairment, delay in development, or loss of functional ability.
    Orthopedic impairment. A severe physical impairment that adversely 
affects a child's educational performance. That term includes 
congenital impairments such as club foot and absence of some member; 
impairments caused by disease, such as poliomyelitis and bone 
tuberculosis; and impairments from other causes such as cerebral palsy, 
amputations, and fractures or burns causing contractures.
    Other health impairment. Limited strength, vitality, or alertness 
due to chronic or acute health problems that adversely affect a child's 
educational performance. Such impairments include heart condition, 
tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, 
hemophilia, seizure disorder, lead poisoning, leukemia, diabetes, or 
attention deficit disorder.
    Parent. The biological father or mother of a child; a person who, 
by order of a court of competent jurisdiction, has been declared the 
father or mother of a child by adoption; the legal guardian of a child; 
or a person in whose household a child resides, provided that such 
person stands in loco parentis to that child and contributes at least 
one-half of the child's support.
    Parent counseling and training. A service to assist parents in 
understanding the special needs of their child's development and by 
providing them with information on child development and special 
education.
    Personally identifiable information. Information that would make it 
possible to identify the infant, toddler, or child with reasonable 
certainty. Examples include name, parent's or guardian's name, address, 
social security number, or a list of personal characteristics.
    Physical therapy. That term includes services to children (birth to 
age 21, inclusive) to address the promotion of sensorimotor function 
through enhancement of musculoskeletal status, neurobehavioral 
organization, perceptual and motor development, cardiopulmonary status, 
and effective environmental adaptation. Those services include the 
following:
    (1) Screening, evaluation, and assessment to identify movement 
dysfunction.
    (2) Obtaining, interpreting, and integrating information 
appropriate to program planning to prevent, alleviate, or compensate 
for movement [[Page 28366]] dysfunction and related functional 
problems.
    (3) Providing individual and group services or treatment to 
prevent, alleviate, or compensate for movement dysfunction and related 
functional problems.
    Primary referral source. Parents and the DoD Components, including 
child development centers, pediatric clinics, and newborn nurseries, 
that suspect an infant or toddler has a disability and brings the child 
to the attention of the EIP.
    Psychological services. A service that includes the following:
    (1) Administering psychological and educational tests and other 
assessment procedures.
    (2) Interpreting test and assessment results.
    (3) Obtaining, integrating, and interpreting information about a 
child's behavior and conditions relating to the learning.
    (4) Consulting with other staff members, including service 
providers, to plan programs to meet the special needs of children, as 
indicated by psychological tests, interviews, and behavioral 
evaluations.
    (5) 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.
    Public awareness program. Activities or print materials focusing on 
early identification of infants and toddlers with disabilities. 
Materials may include information prepared and disseminated by a 
military medical department to all primary referral sources and 
information for parents on the availability of early intervention 
services. Procedures to determine the availability of information on 
early intervention services to parents are also included in that 
program.
    Qualified. A person who meets the DoD-approved or recognized 
certification, licensing, or registration requirements or other 
comparable requirements in the area in which the person provides 
special education or related services or early intervention services to 
an infant, toddler, or child with a disability.
    Recreation. A related service that includes the following:
    (1) Assessment of leisure activities.
    (2) Therapeutic recreational activities.
    (3) Recreational programs in schools and community agencies.
    (4) Leisure education.
    Regional director. The Director of a DoDDS region, or designee.
    Rehabilitation counseling. Services provided by a rehabilitation 
counselor or other 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 the student with a disability.
    Related services. Transportation and such developmental, 
corrective, and other supportive services as required to assist a 
child, aged 3 to 21, inclusive, with a disability to benefit from 
special education under the child's IEP. That term includes: speech 
therapy and audiology, psychological services, physical and 
occupational therapy, recreation, early identification and assessment 
of disabilities in children, counseling services, and medical services 
for diagnostic or evaluative purposes. The term also includes: 
rehabilitation counseling services, school health services, social work 
services in schools, and parent counseling. The sources for those 
services are school, community, and medical treatment facilities 
(MTFs).
    School health services. Services provided by a qualified school 
nurse or other qualified person.
    Separate facility. A school or a portion of a school, regardless of 
whether it is operated by the DoDDS, attended exclusively by children 
with disabilities.
    Serious emotional disturbance. A condition confirmed by clinical 
evaluation and diagnosis and that, over a long period of time and to a 
marked degree, adversely affects educational performance, and exhibits 
one or more of the following characteristics:
    (1) Inability to learn that cannot be explained by intellectual, 
sensory, or health factors.
    (2) Inability to build or maintain satisfactory interpersonal 
relationships with peers and teachers.
    (3) Inappropriate types of behavior under normal circumstances.
    (4) A tendency to develop physical symptoms or fears associated 
with personal or school problems.
    (5) A general pervasive mood of unhappiness or depression. Includes 
children who are schizophrenic, but does not include children who are 
socially maladjusted unless it is determined they are seriously 
emotionally disturbed.
    Service coordination. Activities of a service coordinator to assist 
and enable an infant or toddler and the family to receive the rights, 
procedural safeguards, and services that are authorized to be provided 
under the DoD EIP. Those activities include the following: coordinating 
the performance of evaluations and assessments; assisting families to 
identify their resources, concerns, and priorities; facilitating and 
participating in the development, review, and evaluation of IFSPs; 
assisting in identifying available service providers; coordinating and 
monitoring the delivery of available services; informing the family of 
support or advocacy services; coordinating with medical and health 
providers and facilitating the development of a transition plan to 
preschool services.
    Service provider. Any individual who provides services listed in an 
IEP or an IFSP.
    Social work services in schools. A service that includes the 
following:
    (1) Preparing a social or developmental history on an child with a 
disability.
    (2) Counseling a child and the family on a group or individual 
basis.
    (3) Working with those problems in a child's home, school, or 
community that adversely affect adjustment in school.
    (4) Using school and community resources to enable a child to 
receive maximum benefit from the educational program.
    Special education. Instruction and related services for which a 
child, aged 3 to 21, inclusive, becomes entitled when a CSC determines 
a child's educational performance is adversely affected by one or more 
disabling conditions.
    (1) Special education is specially designed instruction, including 
physical education, which is provided at no cost to the parent or 
guardians to meet the unique needs of a child with a disability, 
including instruction conducted in the classroom, in the home, in 
hospitals and institutions, and in other settings.
    (2) That term includes speech therapy or any other related service 
if the service consists of specially designated instruction, at no cost 
to the parents, to meet the unique needs of a child with a disability.
    (3) The term also includes vocational education if it consists of 
specially designed instruction, at no cost to the parents, to meet the 
unique needs of a child with a disability.
    (4) At no cost. With regard to a child eligible to attend the DoDDS 
without paying tuition, specially designed instruction and related 
services are provided without charge. Incidental fees normally charged 
to nondisabled students or their parents as a part of the regular 
educational program may be imposed. [[Page 28367]] 
    (5) Physical education. The development of the following:
    (i) Physical and motor fitness.
    (ii) Fundamental motor skills and patterns.
    (iii) Skills in aquatics, dance, and individual and group games and 
sports, including intramural and lifetime sports.
    (iv) A program that includes special physical education, adapted 
physical education, movement education, and motor development.
    (6) Vocational education. Organized educational programs for the 
preparation of individuals for paid or unpaid employment or for 
additional preparation for a career requiring other than a 
baccalaureate or advanced degree.
    Special instruction. That term includes the following:
    (1) The design of learning environments and activities to promote 
acquisition of skills in a variety of developmental areas, including 
cognitive processes and social interaction.
    (2) Curriculum planning, including the planned interaction of 
personnel, materials, time, and space, that leads to achieving the 
outcomes in an IEP or an IFSP.
    (3) Providing families with information, skills, and support to 
enhance skill development.
    (4) Working with a child to enhance development and cognitive 
processes.
    Specific learning impairment. A disorder in one or more of the 
basic psychological processes involved in understanding or in using 
spoken or written language that may manifest itself as an imperfect 
ability to listen, think, speak, read, write, spell, remember, or do 
mathematical calculations. The term includes such conditions as 
perceptual disabilities, brain injury, minimal brain dysfunction, 
dyslexia, and developmental aphasia. The term, commonly called, 
``specific learning disability,'' does not include learning problems 
that are primarily the result of visual, hearing, or motor 
disabilities; mental retardation; emotional disturbance; or 
environmental, cultural, or economic differences.
    Speech and language impairments. A communication disorder, such as 
stuttering, impaired articulation, voice impairment, or a disorder in 
the receptive or expressive areas of language that adversely affects a 
child's educational performance.
    Speech therapy. That related service includes the following:
    (1) Identification of children with communicative or oropharyngeal 
disorders and delays in development of communication skills.
    (2) Diagnosis and appraisal of specific speech or language 
impairments.
    (3) Referral for medical or other professional attention to correct 
or habilitate speech or language impairments.
    (4) Provision of speech and language services for the correction, 
habilitation, and prevention of communicative impairments.
    (5) Counseling and guidance of children, parents, and teachers for 
speech and language impairments.
    Transition services. That term means the following:
    (1) A coordinated set of activities for a student that may be 
required to promote movement from early intervention, pre-school, and 
other educational programs into different educational settings or 
programs.
    (2) For students 14 years of age and older, transition services are 
designed in an outcome-oriented process which promotes movement from 
school to post-school activities; including, post-secondary education, 
vocational training, integrated employment; and including supported 
employment, continuing and adult education, adult services, independent 
living, or community participation. The coordinated set of activities 
shall be based on the individual student's needs, considering the 
student's preferences and interests, and shall include instruction, 
community experiences, the development of employment and other post-
school adult living objectives, and acquisition of daily living skills 
and functional vocational evaluation.
    Transportation. A service that includes the following:
    (1) Services rendered under the IEP of a child with a disability:
    (i) Travel to and from school and between schools, including travel 
necessary to permit participation in educational and recreational 
activities and related services.
    (ii) Travel in and around school buildings.
    (iii) Specialized equipment, including special or adapted buses, 
lifts, and ramps, if required to provide transportation for a child 
with a disability.
    (2) Transportation and related costs for early intervention 
services includes the cost of travel (e.g., mileage or travel by taxi, 
common carrier, or other means) and other costs (e.g., tolls and 
parking expenses) that are necessary to enable an eligible child and 
the family to receive early intervention services.
    Traumatic brain injury. An acquired injury to the brain caused by 
an external physical force resulting in total or partial functional 
disability or psychosocial impairment that adversely affects 
educational performance. That term includes upon or closed head 
injuries resulting in mild, moderate, or severe impairments in one or 
more areas including cognition, language, memory, attention, reasoning, 
abstract thinking, judgment, problem solving, sensory, perceptual and 
motor abilities, psychosocial behavior, physical function, information 
processing, and speech. That term does not include brain injuries that 
are congenital or degenerative, or brain injuries that are induced by 
birth trauma.
    Vision services. Services necessary to habilitate or rehabilitate 
the effects of sensory impairment resulting from a loss of vision.
    Visual impairment. An impairment of vision that, even with 
correction, adversely affects a child's educational performance. That 
term includes both partially seeing and blind children.


Sec. 57.4  Policy.

    It is DoD policy that:
    (a) Eligible infants and toddlers with disabilities and their 
families shall be entitled to receive early intervention services 
consistent with Appendix A to this part.
    (b) Eligible children with disabilities, aged 3 to 21, inclusive, 
shall be provided a FAPE in the least restrictive environment, 
consistent with Appendix B to this part.
    (c) Parents of eligible infants, toddlers, and children with 
disabilities from birth to age 21, inclusive, shall be full 
participants in early intervention and special education services.


Sec. 57.5  Responsibilities.

    (a) The Under Secretary of Defense for Personnel and Readiness 
(USD(P&R)) shall:
    (1) Establish a NAP consistent with Appendix C to this part.
    (2) Establish and chair, or designate a ``Chair'', of the DoD-CC on 
Early Intervention, Special Education, and MRS consistent with Appendix 
D to this part.
    (3) Establish and chair, or designate a ``Chair'', of the DoD 
Inter-Component Coordinating Council (ICC) on Early Intervention 
consistent with Appendix E to this part.
    (4) Ensure compliance with this part in the provision of early 
intervention services, special education, and related services through 
the DoD-CC in accordance with DoD Instruction [[Page 28368]] 1342.14 
\6\ and other appropriate guidances.

    \6\ See footnote 1 to Sec. 57.1(b).
---------------------------------------------------------------------------

    (b) The USD(P&R), in consultation with the General Counsel of the 
Department of Defense (GC, DoD) and the Secretaries of the Military 
Departments, shall:
    (1) Ensure that eligible infants and toddlers with disabilities and 
their families are provided early intervention services under IDEA, 20 
U.S.C. 921 et seq., and 20 U.S.C. 1400 et seq.
    (2) Ensure the coordination of early intervention, special 
education, and related services.
    (3) Ensure the development of a DoD-wide comprehensive child-find 
system to identify eligible infants, toddlers, and children age birth 
to age 21, inclusive, under 20 U.S.C. 921 and 1400 who may require 
early intervention or special education services.
    (4) Ensure that DoD personnel are trained to provide the mediation 
services specified in Appendix F to this part.
    (5) Ensure that transition services are available to promote 
movement from early intervention, preschool, and other educational 
programs into different educational settings and postsecondary 
environments.
    (6) Ensure that DoD personnel who provide services (e.g., child 
care, medical care, and recreation) to infants and toddlers and their 
families are participants in a comprehensive inter-Component system for 
early intervention services.
    (7) Assign functions and geographic regions of responsibility to 
the Military Departments for providing MRS and early intervention 
services.
    (8) Ensure that the Military Departments deliver the following:
    (i) A comprehensive, coordinated and multidisciplinary program of 
early intervention services for eligible infants and toddlers with 
disabilities.
    (ii) MRS for eligible children with disabilities, age 3 to 21, 
inclusive.
    (9) Ensure that qualified personnel participate in providing 
transition services for eligible infants, toddlers, and children with 
disabilities from birth to age 21, inclusive.
    (10) Ensure the development and implementation of a comprehensive 
system of personnel development for the DoDDS and the Military 
Departments. That system shall include professionals, 
paraprofessionals, and primary referral source personnel in the areas 
of early intervention, special education, and MRS. That system may 
include the following:
    (i) Implementing innovative strategies and activities for the 
recruitment and retention of providers of early intervention services, 
special education, and MRS.
    (ii) Ensuring that personnel requirements are established 
consistent with recognized certification, licensing, registration, or 
other comparable requirements for personnel providing early 
intervention services, special education, or MRS.
    (iii) Ensuring that training is provided in and across disciplines.
    (iv) Training providers of early intervention services, special 
education, and MRS to work overseas.
    (11) Develop procedures to compile data on the numbers of eligible 
infants and toddlers with disabilities and their families in need of 
early intervention services in accordance with 32 CFR parts 285 and 
310. Those data elements shall include the following:
    (i) The number of infants and toddlers and their families served.
    (ii) The types of services provided.
    (iii) Other information required to evaluate the implementation of 
early intervention programs (EIPs).
    (12) Resolve disputes in the DoD Components arising under Appendix 
A to this part.
    (c) The Secretaries of the military departments shall:
    (1) Provide MRS for eligible children with disabilities, aged 3 to 
21, inclusive.
    (2) Plan, develop, and implement a comprehensive, coordinated, 
intra-Component, and community-based system of early intervention 
services for eligible infants and toddlers with disabilities and their 
families.
    (3) Design and implement activities to ensure compliance through 
technical assistance and program evaluation for early intervention and 
MRS.
    (d) The Director, Department of Defense Education Activity (DoDEA), 
shall ensure that the Director DoDDS, does the following:
    (1) Ensures that eligible children with disabilities, aged 3 to 21, 
inclusive, are provided a FAPE.
    (2) Ensures that the educational needs of children with and without 
disabilities are met comparably, consistent with Appendix B to this 
part.
    (3) Ensures that educational facilities and services operated by 
the DoDDS for children with and without disabilities are comparable.
    (4) Maintains records on special education and related services 
provided to eligible children with disabilities, aged 3 to 21, 
inclusive, consistent with 32 CFR part 310.
    (5) Provides any or all special education and related services 
required by a child with a disability, aged 3 to 21, inclusive, other 
than those furnished by the Secretaries of the Military Departments. 
The Director, DoDDS, may act through inter-agency, intra-agency, and 
inter-service arrangements, or through contracts with private parties 
when funds are authorized and appropriated.
    (6) Participates in the development and implementation of a 
comprehensive system of personnel development.
    (7) Undertakes activities to ensure compliance by the DoDDS with 
this part through monitoring, technical assistance, and program 
evaluation of special education and those related services provided by 
the DoDDS.
    (e) The Director, Defense Office of Hearings and Appeals (DOHA) 
shall ensure impartial due process hearings are provided consistent 
with Appendix F to this part.


Sec. 57.6  Procedures.

    (a) The procedures for early intervention services for infants and 
toddlers with disabilities and their families are prescribed in 
Appendix A to this part.
    (b) The procedures for educational programs and services for 
children with disabilities, aged 3 to 21, inclusive, are prescribed in 
Appendix B to this part.
    (c) The procedures for conducting hearings are prescribed in 
Appendix F to this part.

Appendix A to Part 57--Procedures for the Provision of Early 
Intervention Services for Infants and Toddlers With Disabilities and 
Their Families

A. Requirements for an Early Intervention Program (EIP)

    (1) All eligible infants and toddlers with disabilities from birth 
through age 2 and their families shall receive early intervention 
services, as follows:
    a. In school years 1991 through 1994, the Department of Defense 
planned and continues to develop a comprehensive, coordinated, 
multidisciplinary program of early intervention services for infants 
and toddlers with disabilities among DoD entities involved in providing 
such services.
    b. In school year 1994 through 1995, the Department of Defense 
shall implement the following program components described in paragraph 
A.1.a., of this Appendix:
    (1) Multidisciplinary assessments.
    (2) IFSPs.
    (3) Service coordination.
    C. In school year 1995 through 1996, the Department of Defense will 
implement the program described in paragraph A.1.a. of this Appendix.
    2. Early intervention services shall be provided in the natural 
environment. [[Page 28369]] 
    3. Parents of infants and toddlers with disabilities are to be full 
and meaningful participants in the EIP.

B. Military Department Responsibilities

    Each Military Department shall develop and implement in its 
assigned geographic area a system to provide for the following:
    1. A comprehensive Child-Find procedure coordinated with the DoDDS 
Child-Find system and primary referral sources such as the child 
development center and the pediatric clinic.
    2. Administration and supervision of EIPs and services.
    3. Identification of available resources and coordination with 
those resource providers, including the DoD Components, who routinely 
provide services to infants and toddlers without disabilities and their 
families.
    4. Procedures to provide timely services for infants and toddlers 
with disabilities and their families.
    5. Procedures to resolve inter-Component disputes regarding the 
delivery of early intervention services.
    6. Procedures to collect and report data reflecting the number of 
infants and toddlers and their families served, the types of services 
provided, and other information required by the USD(P&R) implementation 
of early intervention services.
    7. Multidisciplinary, comprehensive, and functional assessment of 
the unique strengths and needs of infants or toddlers and the 
identification of services to meet those needs.
    8. Procedures for a family-directed assessment to determine 
resources, priorities, and concerns of a family and to identify 
services necessary to enhance a family's capacity to meet the child's 
needs.
    9. An IFSP that details the early intervention services and the 
coordination of those services.
    10. A public awareness program focusing on early identification of 
infants and toddlers with disabilities.
    11. A central directory that includes a description of the early 
intervention services and other relevant resources available in each 
military community overseas.
    12. Information to parents about their EIP procedural safeguards.
    13. Establishment of ICCs at appropriate levels. Memberships shall 
include parents and the DoD Components who are involved in the delivery 
of early intervention services.
    14. Policies and procedures for the establishment and maintenance 
of standards to ensure that personnel necessary to carry out the EIP 
are prepared and trained.

C. Eligibility

    Infants and toddlers with disabilities from birth through age 2 are 
eligible for early intervention services because they meet one of the 
following criteria:
    1. The child is experiencing a developmental delay as measured by 
diagnostic instruments and procedures of 25 percent (or 2 standard 
deviations below the mean) in one or more areas, or 20 percent (or 1\1/
2\ standard deviations below the mean) in two or more of the following 
areas of development; cognitive, physical, communication, social or 
emotional, or adaptive.
    2. The child has a diagnosed physical or mental condition which has 
a high probability of resulting in developmental delay; e.g., 
chromosomal disorders or genetic syndromes.

D. IFSP

    1. Each military medical department shall develop and implement 
procedures to ensure that an IFSP is developed by a multidisciplinary 
team including the parents of each infant or toddler with a disability 
who meets the eligibility criteria in section C.1. of this Appendix.
    2. Meetings to develop and review the IFSP must include the 
following participants:
    a. The parent or parents of the child.
    b. Other family members, as requested by the parent, if feasible.
    c. An advocate outside of the family if the parent requests that 
person's participation.
    d. The EIP services coordinator who has worked with the family 
since the initial referral of the child or who has been designated as 
``responsible for the implementation of the IFSP.''
    e. The person(s) directly involved in conducting the evaluations 
and assessments.
    f. As appropriate, persons who will provide services to the child 
or family.
    3. if a person listed in section D.2. of this Appendix, is unable 
to attend a meeting, arrangements must be made for the person's 
involvement through other means, including the following:
    a. Participating in a telephone conference call.
    b. Having a knowledgeable representative attend the meeting.
    c. Making pertinent records available at the meeting.
    4. The IFSP shall be written within a reasonable time after 
assessment and shall contain the following:
    a. A statement of the child's current developmental levels 
including physical, cognitive, communication, social or emotional, and 
adaptive behaviors based on acceptable objective criteria.
    b. A statement of the family's resources, priorities, and concerns 
relating to enhancing the child's development.
    c. A statement of the major outcomes expected to be achieved for 
the child and the family. Additionally,the statement shall contain the 
criteria,procedures,and timelines used to determine the degree to which 
progress toward achieving the outcomes is being made and whether 
modification or revision of the outcomes and services are necessary.
    d. A statement of the specific early intervention services 
necessary to meet the unique needs of the child and the family 
including the frequency, intensity, and method of delivering services.
    e. A statement of the natural environments in which early 
intervention services shall be provided.
    f. The projected dates for initiation of services and the 
anticipated duration of those services.
    g. The name of the EIP service coordinator.
    h. The steps to be taken supporting the transition of the toddler 
with a disability to reschool or other services.
    5. The IFSP shall be evaluated at least once a year and the family 
shall be provided an opportunity to review the plan at 6-month 
intervals (or more frequently, based on the child and family needs).
    6. The contents of the IFSP shall be explained to the parents and 
an informed, written consent from the parents shall be obtained before 
providing early intervention services described in that plan.
    7. With the parent's consent, early intervention services may begin 
prior to completion of the evaluation and assessment when it has been 
determined by a multidisciplinary team that a service is needed 
immediately by the child and/or the child's family. An IFSP must be 
developed prior to the start of services and the remaining assessments 
must be completed in a timely manner.
    8. If a parent does not provide consent for participation in all 
early intervention services, the services shall be provided for those 
interventions to which a parent does give consent.

E. Procedural Safeguards in the EIP

    1. Parents of infants and toddlers with disabilities are afforded 
the following procedural safeguards to ensure that their children 
receive appropriate early intervention services: [[Page 28370]] 
    a. Timely administrative resolution of parental complaints, 
including hearing procedures in Appendix F to this part.
    b. The right to confidentiality of personally identifiable 
information under 32 CFR part 310.
    c. The right to written notice and consent to the release of 
relevant information outside the Department of Defense.
    d. The right to determine whether they, their child, or other 
family members shall accept or decline any early intervention services 
without jeopardizing the other early intervention services.
    e. The opportunity to examine records relating to assessment, 
screening, eligibility determinations, and the development and 
implementation of the IFSP.
    f. The right to prior written notice when the EIP multidisciplinary 
team proposes, or refuses to initiate or change the identification, 
evaluation, placement, or provision of early intervention services to 
the infant or toddler with a disability.
    g. The right to prior written notice in their native language, 
unless it clearly is not feasible to do so, which informs them of all 
procedural safeguards.
    h. During the pendency of any proceeding or action involving a 
complaint, unless the EIP and the parents otherwise agree, the child 
shall continue to receive the appropriate early intervention services 
currently being provided, or, if applying for initial services, shall 
receive the services not in dispute.
    2. Parents shall be advised of their rights to due process, as 
defined in Appendix F to this part.

Appendix B to Part 57--Procedures for Educational Programs and Services 
for Children With Disabilities, Aged 3 to 21, Inclusive

A. Identification and Screening
    It is the responsibility of school officials of the DoDDS to 
locate, identify, and with the consent of a child's parent, evaluate 
all children who are eligible to enroll in the DoDDS under 32 CFR part 
71 who may require special education and related services.
    1. Procedures for Identification and Screening. The DoDDS officials 
shall conduct the following activities to determine if a child needs 
special education and related services:
    a. Screen educational records.
    b. Screen students using system-wide or other basic skill tests in 
the areas of reading, math, and language arts.
    c. Screen school health data such as reports of hearing, vision, 
speech, or language tests and reports from healthcare personnel 
regarding the health status of a child.
    d. Analyze school records to obtain pertinent information regarding 
the basis for suspensions, exclusions, withdrawals, and disciplinary 
actions.
    e. In cooperation with the Military Departments, conduct on-going 
child-find activities and publish, periodically, any information, 
guidelines, and direction regarding child-find activities for eligible 
children with disabilities, aged 3 to 21, inclusive.
    f. Coordinate the transition of children from early intervention to 
preschool with the Military Services.
    2. Referral of a Child for Special Education or Related Services. 
The DoDDS officials, MRS providers, or others who suspect that a child 
has a possible disabling condition shall refer that child to the CSC.

B. Assessment and Evaluation

    Any eligible child who is referred to a CSC shall receive a full 
and comprehensive diagnostic evaluation of educational needs. An 
evaluation shall be conducted before an IEP is developed or placement 
is made in a special education program.
    1. Procedures for Assessment and Evaluation. A CSC shall ensure 
that the following elements are included in a comprehensive assessment 
and evaluation of a child:
    a. Assessment of visual and auditory acuity.
    b. A plan to assess the nature and extent of the disability. A 
child shall be assessed in all areas related to the suspected 
disability. When necessary, the assessment plan shall include the 
following:
    (1) Assessment of the level of functioning academically, 
intellectually, emotionally, socially, and in the family.
    (2) Observation in an educational environment.
    (3) Assessment of physical status including perceptual and motor 
abilities.
    (4) Assessment of the need for transition services for students 14 
years and older, the acquisition of daily living skills, and functional 
vocational assessment.
    c. The involvement of parents, as provided in this part.
    d. The use of all locally available community, medical, and school 
resources to accomplish the assessment. At least one specialist with 
knowledge in the area of the suspected disability shall be a member of 
the multidisciplinary assessment team.
    e. The requirement that each assessor prepare an individual 
assessment report that describes the instruments and techniques used, 
the results of the testing, and the relationship of those findings to 
educational functioning.
    f. The inclusion of a description of the problem area constituting 
the basis for an MRS referral.
    2. Standards for Assessment Selection and Procedures. All DoD 
elements, including the CSC and MRS providers, shall ensure that 
assessment materials and evaluation procedures comply, as follows:
    a. Selected and administered so as not to be racially or culturally 
discriminatory.
    b. Administered in the native language or mode of communication of 
the child, unless it clearly is not feasible to do so.
    c. Validated for the specific purpose for which they are used or 
intended to be used.
    d. Administered by trained personnel in compliance with the 
instructions of the testing instrument.
    e. Administered such that no single procedure is the sole criterion 
for determining an appropriate educational program for a child with a 
disability.
    f. Selected to assess specific areas of educational needs and 
strengths and not merely to provide a single general intelligence 
quotient.
    g. Administered to a child with impaired sensory, motor, or 
communication skills so that the results reflect a child's actual 
ability or level of achievement, and simply not the impaired skill 
itself.
    3. Determination of Eligibility for Special Education and Related 
Services. The CSC shall be convened to determine the eligibility of a 
child for special education and related services. The CSC shall do the 
following:
    a. Ensure that the full comprehensive evaluation of a child is 
accomplished by a multidisciplinary team. The team shall be comprised 
of teachers or other specialists with knowledge in the area of the 
suspected disability.
    b. Meet as soon as possible after a child has been assessed to 
determine the eligibility of the child for services.
    c. Afford the child's parents the opportunity to participate in the 
CSC eligibility meeting.
    d. Issue a written eligibility report that contains the following:
    (1) A description of the nature of the child's disabling condition.
    (2) A synthesis of the formal and informal finding of the 
multidisciplinary assessment team as they relate to the child's current 
academic progress.
    (3) A summary of information from the parents, the child, or other 
persons [[Page 28371]] having significant previous contact with the 
child.
    (4) A determination of eligibility statement.
    (5) A list of the educational areas affected by a child's 
disability and a description of a child's educational needs.
    4. Reevaluation for eligibility for Special Education and Related 
Services. School officials shall provide a comprehensive reevaluation 
of a child with a disability every 3 years, or more frequently, if 
conditions warrant. The scope and nature of the comprehensive 
reevaluation shall be determined individually based on a child's 
performance, behavior, and needs at the time of the reevaluation.

C. Individualized Education Program (IEP)

    The DoDDS officials shall ensure that the CSC develops and 
implements an IEP for each child with a disability who is enrolled in 
the DoDDS or is placed in another institution by the DoDDS.
    1. The CSC Meeting for the Development and Implementation of an 
IEP. The CSC shall establish and convene at meeting to develop, review, 
or revise the IEP of a child with a disability. The meeting shall be 
scheduled as soon as possible following a determination by the school 
or regional CSC that the child is eligible for special education and 
related services. The meeting participants shall, minimally, include 
the following:
    a. A principal or school representative other than the child's 
teacher who is qualified to provide or supervise the provision of 
special education.
    b. The child's teacher.
    c. A special education teacher.
    d. One or both of the child's parents.
    e. The child, if appropriate.
    f. For a child with a disability who has been evaluated for the 
first time, a representative of the evaluation team who is 
knowledgeable about the evaluation procedures used and is familiar with 
the results of the evaluation.
    g. Other individuals invited at the discretion of the parent or 
school.
    2. Requirements for the Development of the IEP. The CSC shall 
prepare the IEP with the following:
    a. A statement of the child's present levels of educational 
performance.
    b. A statement of annual goals including short-term instructional 
objectives.
    c. Objective criteria for determining, at least annually, whether 
the educational objectives are being achieved.
    d. A statement of the physical education program provided in one of 
the following settings:
    (1) In the regular education program.
    (2) In the regular education program with adaptations, 
modifications, or the use of assistive technology.
    (3) Through specially designed instruction based on the goals and 
objectives included in the IEP.
    e. A statement of the transition services beginning at age 14 and 
annually, thereafter. When appropriate, include a statement of the 
inter-Agency responsibilities or linkages (or both) before the student 
leaves the school setting. If a specially designed instructional 
program is required, include the goals and objectives in the IEP.
    f. A statement of special transportation requirement.
    g. A statement of the amount of time per week that each special 
education and related service shall be provided to the child.
    h. The extent to which the child shall participate in regular 
educational programs, including the following:
    (1) The projected date for the initiation and the anticipated 
length of IEP activities and services.
    (2) Any statements requiring an adjusted school day or an extended 
school year program.
    i. A statement of the vocational education program for secondary 
students. If a specially designed instructional program is required, 
the necessary goals and objectives in the IEP shall be included.
    3. Requirements for the Implementation of the IEP. The DoDDS CSC 
shall:
    a. Obtain parental agreement and signature before implementation of 
the IEP.
    b. Provide a copy of the child's IEP to the parents.
    c. Ensure that the IEP is in effect before a child receives special 
education and related services.
    d. Review and revise the IEP for each child at least annually in a 
CSC meeting.
    e. Accept a child's current IEP when he or she transfers to the 
DoDDS provided that the CSC of the gaining school or the regional CSC 
does the following:
    (1) Notifies and obtains consent of the parents to the use the 
current IEP and all elements contained in it.
    (2) Involves the local DoD Component responsible for the delivery 
of the MRS of the medical requirements in the IEP.
    (3) Initiates a CSC meeting to revise the current IEP.
    (4) If necessary, initiates an evaluation of the child.
    f. Afford the child's parents the opportunity to participate in 
every CSC meeting to determine their child's initial or continuing 
eligibility for special education and related services, or to prepare 
or change the child's IEP or to determine or change the child's 
placement.
    g. Ensure that at least one parent understands the special 
education procedures including the due process procedures described in 
Appendix F of this part and the importance of the parent's 
participation in those processes. School officials will use devices or 
hire interpreters or other intermediaries who might be necessary to 
foster effective communications between the school and the parent 
concerning the child.
    h. Provide special education and related services, in accordance 
with the IEP. The Department of Defense and its constituent elements 
and personnel are not accountable if a child does not achieve the 
growth projected in the IEP.
    i. Ensure that all provisions developed for any child entitled to 
an education by the DoDDS are fully implemented in schools or in non-
DoDDS schools or facilities including those requiring special 
facilities, other adaptations, or assistive devices.

D. Placement Procedures and Least Restrictive Environment

    1. A child shall not be placed by the DoDDS in any special 
education program unless the CSC has developed an IEP. If a child with 
a disability is applying for initial admission to a school, the child 
shall enter on the same basis as a child without a disability. However, 
a child with a disability and with the consent of a parent and school 
officials may receive an initial placement in a special education 
program under procedures listed in paragraph C.3.e. of this Appendix.
    2. A placement decision requires the following:
    a. A parent consent to the placement before actual placement of the 
child, except as otherwise provided herein.
    b. Delivery of educational instruction and related services in the 
least restrictive environment. To the maximum extent, a child with a 
disability should be placed with children who are not disabled. Special 
classes, separate schooling, or other removal of a child with a 
disability from the regular education environment shall occur only when 
the nature or severity of the disability is such that the child cannot 
be educated satisfactorily in regular cases with the use of 
supplementary aids and services.

[[Page 28372]]

    c. The CSC to base placements on the IEP and to review the IEP at 
least annually.
    d. A child shall participate, to the maximum extent, in school 
activities including meals, assemblies, recess periods, and field trips 
with children who are not disabled.
    e. Consideration of factors affecting the child's well-being 
including the effects of separation from parents.
    f. A child attends a DoDDS school that is located as close as 
possible to the residence of the parent who is sponsoring the child's 
attendance. Unless otherwise required by the IEP, the school should be 
the same school that the child would have attended had he or she not 
been disabled.

E. Children With Disabilities Who Are Placed in a Non-DoD School or 
Facility

    Children with disabilities who are eligible to receive a DoDDS 
education, but are placed in a non-DoDDS school or facility by the 
DoDDS, shall have all the rights of children with disabilities who are 
enrolled in a DoDDS school. A child with a disability may be placed in 
a non-DoDDS school or facility only if required by the IEP.
    1. Requirements For a Non-DoDDS School or Facility Placement
    a. Placement in a non-DoDDS school or facility shall be made under 
the host-nation requirements.
    b. Placement in a non-DoDDS school or facility is subject to all 
treaties, Executive agreements, and status of forces agreements between 
the United States and the host nations, and all DoD and DoDDS 
regulations.
    c. If the DoDDS places a child with a disability in a non-DoDDS 
school or facility as a means of providing special education and 
related services, the program of that institution including nonmedical 
care and room and board, as in the child's IEP, must be provided at no 
cost to the child or the child's parents. The DoDDS or the responsible 
DoD Component shall pay the costs in accordance with DoD Instruction 
1010.13.\1\

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal, Springfield, VA 22161.
---------------------------------------------------------------------------

    d. Local school officials shall initiate and conduct a meeting to 
develop an IEP for the child before placement. A representative of the 
non-DoDDS school or facility should attend the meeting. If the 
representative cannot attend, the DoDDS officials shall communicate in 
other ways to ensure participation including individual or conference 
telephone calls. The IEP must meet the following standards:
    (1) Be signed by an authorized DoDDS official before it becomes 
valid.
    (2) Include a determination that the DoDDS does not currently have 
or cannot reasonably create an educational program appropriate to meet 
the needs of the child with a disability.
    (3) Include a determination that the non-DoDDS school or facility 
and its educational program and related services conform to the 
requirements of this Instruction.
    2. Cost of Tuition For Non-DoDDS School or Facility. The Department 
of Defense is not authorized to fund a non-DoDDS placement unless it is 
directed by the DoDDS Regional Director in coordination with the 
Director, DoDDS; or it is directed by an impartial hearing officer or 
court of competent jurisdiction. A valid IEP must document the 
necessity of the placement in a non-DoDDS school or facility.

F. Procedural Safeguards for Children and Parents

    Parents of children with disabilities are afforded procedural 
safeguards to ensure that their children receive a free public 
education consistent with Appendix F of this part.
1. Notice of Procedural Safeguards
    a. Parents shall be provided a written notice in a reasonable time 
before one of the following:
    (1) Receiving a proposal to initiate or change the identification, 
evaluation, or educational placement of the child or the provision of 
free public education to the child.
    (2) Receiving refusal from the DoDDS to initiate or change the 
identification, evaluation, or educational placement of the child or 
the provision of a free public education.
    b. The notice shall inform the parent of the following:
    (1) Parental procedural rights detailed in Appendix F of this part.
    (2) A description of the action proposed or refused by the DoDDS 
with a brief explanation for the decision.
    c. The notice shall be provided so as to ensure the parent's 
understanding. That may be achieved by using simplified language, 
delivering the notice in the parent's native language, or using an 
interpreter or other person selected by the parents.
2. Parental Consent
    a. The consent of a parent of a child with a disability or 
suspected of having a disability shall be obtained before any of the 
following:
    (1) Initiation of formal evaluation procedures.
    (2) Initial educational placement.
    (3) Change in educational placement.
    b. If the parent refuses consent to any formal evaluation or 
initial placement in a special education program, the DoDDS or the 
parent may do the following:
    (1) Request a conference between the school and parents.
    (2) Request mediation.
    (3) Initiate an impartial due process hearing under Appendix F of 
this part to show cause as to why an evaluation or placement in a 
special education program should or should not occur without such 
consent. If the hearing officer sustains the DoDDS position in the 
impartial due process hearing, the DoDDS may evaluate or provide 
special education and related services to the child without the consent 
of a parent, subject to the further exercise of due process rights.
3. Independent Evaluation
    a. A parent is entitled to an independent evaluation at the expense 
of the DoDDS if the parent disagrees with the DoDDS evaluation of the 
child and successfully challenges the evaluation in an impartial due 
process hearing. An independent evaluation provided at the DoDDS 
expense must do the following:
    (1) Conform to the requirements of this part.
    (2) Be conducted, when possible, in the area where the child 
resides.
    (3) Follow all DoD Regulations regarding the host nation.
    (4) Meet DoD standards governing persons qualified to conduct an 
educational evaluation including an evaluation for MRS.
    b. If the final decision rendered in an impartial due process 
hearing sustains the DoDDS evaluation, the parent has the right to an 
independent evaluation, but not at the DoDDS expense.
    c. The DoDDS, the CSC, and a hearing officer appointed under this 
part shall consider any evaluation report presented by a parent.
4. Access to Records
    The parents of a child with a disability shall be afforded an 
opportunity to inspect and review educational records concerning the 
identification, evaluation, and educational placement of the child, and 
the provision of a free public education for the child.
5. Due Process Rights
    a. The parent of a child with a disability or the DoDDS has the 
opportunity to file a written petition for an impartial due process 
hearing at the DoDDS expense under Appendix F of this part. The dispute 
may concern [[Page 28373]] issues affecting a particular child's 
identification, evaluation, or placement, or the provision of a free, 
appropriate, public education.
    b. While an impartial due process hearing or judicial proceeding is 
pending, unless the DoDDS and a parent of the child agree otherwise, 
the child shall remain in the present educational setting, subject to 
the disciplinary procedures prescribed in section H of this Appendix.
6. Dispute Resolution--Other Complaints
    A parent, teacher, or other person covered by this part may file a 
written complaint concerning any aspect of this part that is not a 
proper subject for adjudication by a due process hearing officer, in 
accordance with DSR 2500.10.\2\

    \2\ Copies of the appropriate forms are available at every 
school office.
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G. Confidentiality of Records

    The DoDDS officials shall maintain all student records in 
accordance with 32 CFR part 310.

H. Disciplinary Procedures

    All regular disciplinary rules and procedures applicable to 
children receiving educational instruction in the DoDDS shall apply to 
children with disabilities who violate school rules and regulations or 
disrupt regular classroom activities, subject to the following 
provisions:
    1. Before suspending or expelling a child with a disability, the 
CSC or, in the case of a child with a disability in a non-DoDDS school, 
authorized DoDDS officials, shall determine the following:
    a. Whether the behavioral conduct is the result of the child's 
disability.
    b. If any change in the educational placement is needed.
    2. If it is determined that the child's conduct results in whole or 
part from the disability, the child may not be subject to any regular 
disciplinary rules and procedures and the following procedures must be 
followed:
    a. The child's parents shall be notified of the right to have an 
IEP meeting before any change in the child's educational placement.
    b. The CSC or authorized DoDDS officials shall ensure that a 
meeting is held to determine the appropriate educational placement for 
the child in consideration of the child's conduct.
    3. A child with a disability may be suspended on an emergency basis 
when it reasonably appears that the child's behavior may endanger the 
health, welfare, or safety of self or any other child, teacher, or 
school personnel. The following conditions apply:
    a. The child's parents shall be notified immediately of that 
suspension and of the time, purpose, and location of the CSC meeting 
and of their right to attend the meeting.
    b. That suspension remains in effect only for the duration of the 
emergency.
    4. If it is determined that the child requires a change in 
educational placement, the CSC or, in the case of a child with a 
disability in a non-DoDDS school, authorized DoDDS officials shall 
ensure that a meeting is held to determine the appropriate educational 
placement for the child in consideration of the child's conduct.

Appendix C to Part 57--The National Advisory Panel (NAP) on the 
Education of Dependents With Disabilities

A. Membership

    The NAP shall meet as needed in publicly announced, accessible 
meetings open to the general public and shall comply with DoD Directive 
5105.4.\1\ The NAP members, appointed by the Secretary of Defense, or 
designee, shall include at least one representative from each of the 
following groups:

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    1. Persons with disabilities.
    2. The DoDDS special education teachers.
    3. The DoDDS regular education teachers.
    4. Parents of children, aged 3 to 21, inclusive, who are receiving 
special education from the DoDDS.
    5. The staff personnel of the DoDDS headquarters.
    6. Special education program managers from the DoDDS field 
activities.
    7. Representatives of the Military Departments and overseas 
commands, including providers of related services.
    8. Providers of the DoD early intervention services.
    9. Other appropriate persons.

B. Activities

    1. The NAP shall perform the following activities:
    a. Review information regarding improvements in service provided to 
children with disabilities, aged 3 to 21, inclusive, in the Department 
of Defense.
    b. Receive and consider comments from parents, students, 
professional groups, and individuals with disabilities.
    c. When necessary establish committees for short-term purposes 
comprised of representatives from parent, student, professional groups, 
and individuals with disabilities.
    d. Review the findings of fact and decisions of each impartial due 
process hearing conducted under Appendix F to this part.
    e. Assist in developing and reporting such information and 
evaluations as may assist the Department of Defense.
    f. Make recommendations based on program and operational 
information for changes in policy and procedures and in the budget, 
organization, and general management of the special education program.
    g. Comment publicly on rules or standards regarding the education 
of children with disabilities, aged 3 to 21, inclusive.
    h. Perform such other tasks as may be requested by the USD(P&R) or 
the Director, DoDDs.
    2. The NAP members shall serve under appointments that shall be for 
a term not to exceed 3 years.

C. Reporting Requirements
    Submit an annual report of the NAP's activities and suggestions to 
the USD(P&R) and the Director, DoDDS, by July 31 of each year. That 
report is exempt from formal review and licensing under section E. of 
DoD Instruction 7750.7.\2\

    \2\ See footnote 1 to section A. of this Appendix.
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Appendix D to Part 57--DoD Coordinating Committee on Early 
Intervention, Special Education, and Medically Related Services

A. Committee Membership

    The committee shall meet at least twice yearly to facilitate 
collaboration in the provision of early intervention, special 
education, and MRS in the Department of Defense. The committee shall 
consist of the following members:
    1. A representative of the USD(P&R) or designee, who shall serve as 
the Chair.
    2. Representatives of the Secretaries of the Military Departments.
    3. Representatives of the Assistant Secretary of Defense (Health 
Affairs) (ASD(HA)).
    4. Representatives from the DoD school systems (domestic and 
overseas).
    5. Representatives from the GC, DoD.

B. Responsibilities

    1. Advise and assist the USD(P&R) in the performance of his or her 
responsibilities.
    2. At the direction of the USD(P&R), advise and assist the Military 
Departments, and the DoD school systems (overseas and domestic) in the 
coordination of services among [[Page 28374]] providers of early 
intervention, special education, and MRS.
    3. Ensure compliance in the provision of early intervention 
services for infants and toddlers and special education and related 
services for children aged 3 to 21, inclusive.
    4. Oversee the coordination of early intervention, special 
education, and related services.
    5. Review the recommendations of the NAP and the Early Intervention 
ICC to identify common concerns, ensure coordination of effort, and 
forward issues requiring resolution to the USD(P&R).
    6. Promote the coordination of services and information sharing 
among the providers of early intervention, special education, and MRS.
    7. Assist in the coordination of assignments of sponsors of 
children with disabilities who are or who may be eligible for special 
education and MRS in the DoDDS or the EIP through the Military 
Departments.

Appendix E to Part 57--DoD Inter-Component Coordinating Council (ICC) 
on Early Intervention

A. Committee Membership

    The USD(P&R) will appoint members to the ICC. The Council shall 
meet at least yearly in publicly announced, open meetings that are 
accessible to the general public and shall comply with DoD Directive 
5105.4.\1\ The Council shall be comprised of the following:

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    1. Parents. At least 20 percent of the members shall be parents 
with infants or toddlers with disabilities or children aged 12 or 
younger with disabilities, with knowledge of, or experience with, 
programs for infants and toddlers with disabilities. At least one such 
member shall be a parent of an infant or toddler or a child aged 6 or 
younger.
    2. Representatives of the Surgeons General of the Military 
Departments.
    3. Representatives of the family support programs of the Military 
Departments.
    4. Representatives from the ASD(HA)
    5. Representative(s) from the DoDDS.
    6. A representative from the GC, DoD.

B. Responsibilities

    1. Advise and assist the Military medical Departments in the 
performance of their responsibilities, particularly the identification 
of appropriate resources and Agencies for providing early intervention 
services and the promoting of inter-Component agreements.
    2. Advise and assist the DoDDS on the transition of toddlers with 
disabilities to preschool services.
    3. Identify strategies to address areas of conflict, overlap, 
duplication, or omission of early intervention services.
    4. Review policy memoranda on effective inter-Department and inter-
Component collaboration.
    5. Review reports of technical assistance and monitoring activities 
and make recommendations to improve the policies, procedures, programs, 
and delivery of early intervention services.
    6. Make recommendations based on program and operational 
information for changes in the policy, procedures, budget, 
organization, and general management of the EIPs.
    7. Provide advice and technical assistance in the establishment, 
membership, and operation of installation or command level ICCs.
    8. When necessary, establish committees for short-term purposes 
comprised of parents of children with disabilities, service providers, 
and representatives of professional groups.
    9. Submit an annual report of its activities and suggestions to the 
USD(P&R) by July 31 of each year. That report is exempt from formal 
review and licensing under section E. of DoD 7750.7.\2\

    \2\ See footnote 1 to section A. of this Appendix.
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C. Procedures

    1. The USD(P&R) shall nominate and select all members to the ICC to 
include those listed in paragraph A.1 of this Appendix.
    2. Appointments shall be for a term not to exceed 3 years except 
for DoD personnel who are not representing the parent category of 
membership.
    3, The USD(P&R), or designee, shall call and conduct the meeting of 
the Council.

Appendix F to Part 57--Mediation and Hearing Procedures

A. Purpose

    This Appendix establishes requirements for the resolution of 
conflicts through mediation and impartial due process hearings. Parents 
of infants, toddlers, and children who are covered by this part and, as 
the case may be, the cognizant Military Department or the DoDDS are 
afforded impartial mediation and/or impartial due process hearings and 
administrative appeals concerning the provision of early intervention 
services, or the identification, evaluation, educational placement of, 
and the FAPE provided to, such children by the Department of Defense, 
in accordance with 20 U.S.C., Sec. 921 et seq. and 20 U.S.C., Sec. 1400 
et seq.

B. Mediation

    1. Mediation may be initiated by either a parent or, as 
appropriate, the Military Department concerned, or the DoDDS to resolve 
informally a disagreement on the early intervention services for an 
infant or toddler or the identification, evaluation, educational 
placement of, or the FAPE provided to, a child aged 3 to 21, inclusive. 
The cognizant Military Department, rather than the DoDDS, shall 
participate in mediation involving early intervention services. 
Mediation shall consist of, but not be limited to, an informal 
discussion of the differences between the parties in an effort to 
resolve those differences. The parents and the appropriate school or 
Military Department officials may attend mediation sessions.
    2. Mediation must be conducted, attempted, or refused in writing by 
a parent of the infant, toddler, or child whose early intervention or 
special education services (including related services) are at issue 
before a request for, or initiation of, a formal due process hearing 
authorized by this Appendix. Any request by the DoDDS or the Military 
Department for a hearing under this Appendix shall state how that 
requirement has been satisfied. No stigma may be attached to the 
refusal of a parent to mediate or to an unsuccessful attempt to 
mediate.

C. Hearing Administration

    1. The Defense Office of Hearings and Appeals (DOHA) shall have 
administrative responsibility for the proceedings authorized by 
sections D. through G. of this Appendix.
    2. This Appendix shall be administered to ensure that the findings, 
judgments, and determinations made are prompt, fair, and impartial.
    3. Impartial hearing officers who shall be DOHA Administrative 
Judges, shall be appointed by the Director, DOHA, and shall be 
attorneys in good standing of the bar of any State, the District of 
Columbia, or a territory or possession of the United States who are 
independent of the DoDDS or the Military Department concerned in 
proceedings conducted under this Appendix. A parent shall have the 
right to be represented in such proceedings, at no cost to the 
Government, by counsel, and by persons with special knowledge or 
training with respect to the problems of individuals with disabilities. 
The DOHA Department counsel normally shall appear and represent the 
DoDDS in proceedings conducted under this [[Page 28375]] Appendix, when 
such proceedings involve a child aged 3 to 21, inclusive. When an 
infant or toddler is involved, the Military Department responsible 
under this Instruction for delivering early intervention services shall 
either provide its own counsel or request counsel from DOHA.

D. Hearing Practice and Procedure

1. Hearing
    a. Should mediation be refused or otherwise fail to resolve the 
issues on the provision of early intervention services to an infant or 
toddler or the identification or evaluation of such an individual, the 
parent may request and shall receive a hearing before a hearing officer 
to resolve the matter. The parents of an infant or toddler and the 
Military Department concerned shall be the only parties to a hearing 
conducted under this enclosure.
    b. Should mediation be refused or otherwise fail to resolve the 
issues on the provision of a FAPE to a child with a disability, aged 3 
to 21, inclusive, or the identification, evaluation, or educational 
placement of such an individual, the parent or the school principal, on 
behalf of the DoDDS, may request and shall receive a hearing before a 
hearing officer to resolve the matter. The parents of a child aged 3 to 
21, inclusive, and the DoDDS shall be the only parties to a hearing 
conducted under this enclosure.
    c. The party seeking the hearing shall submit a written request, in 
the form of a petition, setting forth the facts, issues, and proposed 
relief, to the Director, DOHA. The petitioner shall deliver a copy of 
the petition to the opposing party (i.e., the parent or the school 
principal, on behalf of the DoDDS, or the military MTF commander, on 
behalf of the Military Department), either in person or by first-class 
mail, postage prepaid. Delivery is complete upon mailing. When the 
DoDDS or the Military Department petitions for a hearing, it shall 
inform the other parties of the deadline for filing an answer under 
paragraph D.1.c. of this section and shall provide the other parties 
with a copy of this appendix.
    d. An opposing party shall submit an answer to the petition to the 
Director, DOHA, with a copy to the petitioner, within 15 calendar days 
of receipt of the petition. The answer shall be as full and complete as 
possible, addressing the issues, facts, and proposed relief. The 
submission of the answer is complete upon mailing.
    e. Within 10 calendar days after receiving the petition, the 
Director, DOHA, shall assign a hearing officer, who then shall have 
jurisdiction over the resulting proceedings. The Director, DOHA, shall 
forward all pleadings to the hearing officer.
    f. The questions for adjudication shall be based on the petition 
and the answer, provided that a party may amend a pleading if the 
amendment is filed with the hearing officer and is received by the 
other parties at least 5 calendar days before the hearing.
    g. The Director, DOHA, shall arrange for the time and place of the 
hearing, and shall provide administrative support. Such arrangements 
shall be reasonably convenient to the parties.
    h. The purpose of a hearing is to establish the relevant facts 
necessary for the hearing officer to reach a fair and impartial 
determination of the case. Oral and documentary evidence that is 
relevant and material may be received. The technical rules of evidence 
shall be relaxed to permit the development of a full evidentiary 
record, with the Federal Rules of Evidence (28 U.S.C.) serving as a 
guide.
    i. The hearing officer shall be the presiding officer, with 
judicial powers to manage the proceeding and conduct the hearing. Those 
powers shall include the authority to order an independent evaluation 
of the child at the expense of the DoDDS or the Military Department 
concerned and to call and question witnesses.
    j. Those normally authorized to attend a hearing shall be the 
parents of the individual with disabilities, the counsel and personal 
representative of the parents, the counsel and professional employees 
of the DoDDS or the Military Department concerned, the hearing officer, 
and a person qualified to transcribe or record the proceedings. The 
hearing officer may permit other persons to attend the hearing, 
consistent with the privacy interests of the parents and the individual 
with disabilities, provided the parents have the right to an open 
hearing upon waiving in writing their privacy rights and those of the 
individual with disabilities.
    k. A verbatim transcription of the hearing shall be made in written 
or electronic form and shall become a permanent part of the record. A 
copy of the written transcript or electronic record of the hearing 
shall be made available to a parent upon request and without cost. The 
hearing officer may allow corrections to the written transcript or 
electronic recording for the purpose of conforming it to actual 
testimony after adequate notice of such changes is given to all 
parties.
    l. The hearing officer's decision of the case shall be based on the 
record, which shall include the petition, the answer, the written 
transcript or the electronic recording of the hearing, exhibits 
admitted into evidence, pleadings or correspondence properly filed and 
served on all parties, and such other matters as the hearing officer 
may include in the record, provided that such matter is made available 
to all parties before the record is closed under paragraph D.1.m. of 
this section.
    l. The hearing officer shall make a full and complete record of a 
case presented for adjudication.
    m. The hearing officer shall decide when the record in a case is 
closed.
    n. The hearing officer shall issue findings of fact and render a 
decision in a case not later than 50 calendar days after being assigned 
to the case, unless a discovery request under section D.2. of this 
section is pending.
2. Discovery
    a. Full and complete discovery shall be available to parties to the 
proceeding, with the ``Federal Rules of Civil Procedure'' (28 U.S.C.) 
serving as a guide.
    b. If voluntary discovery cannot be accomplished, a party seeking 
discovery may file a motion with the hearing officer to accomplish 
discovery, provided such motion is founded on the relevance and 
materiality of the proposed discovery to the issues. An order granting 
discovery shall be enforceable as is an order compelling testimony or 
the production of evidence.
    c. A copy of the written or electronic transcription of a 
deposition taken by the DoDDS or the Military Department concerned 
shall be made available free of charge to a parent.
3. Witnesses; Production of Evidence
    a. All witnesses testifying at the hearing shall be advised that it 
is a criminal offense knowingly and willfully to make a false statement 
or representation to a Department or Agency of the U.S. Government as 
to any matter within the jurisdiction of that Department or Agency. All 
witnesses shall be subject to cross-examination by the parties.
    b. A party calling a witness shall bear the witness' travel and 
incidental expenses associated with testifying at the hearing. The 
DoDDS or the Military Department concerned shall pay such expenses when 
a witness is called by the hearing officer.
    c. The hearing officer may issue an order compelling the attendance 
of witnesses or the production of evidence upon the hearing officer's 
own motion or, if good cause be shown, upon motion of a 
party. [[Page 28376]] 
    d. When the hearing officer determines that a person has failed to 
obey an order to testify or to produce evidence, and such failure is in 
knowing and willful disregard of the order, the hearing officer shall 
so certify.
    e. The party or the hearing officer seeking to compel testimony or 
the production of evidence may, upon the certification provide for in 
paragraph D.3.d. of this section, file an appropriate action in a court 
of competent jurisdiction to compel compliance with the hearing 
officer's order.
4. Hearing Officer's Findings of Fact and Decision
    a. The hearing officer shall make written findings of fact and 
shall issue a decision setting forth the questions presented, the 
resolution of those questions, and the rationale for the resolution. 
The hearing officer shall file the findings of fact and decision with 
the Director, DOHA, with a copy to the parties.
    b. The Director, DOHA, shall forward to the Director, DoDDS, or to 
the Military Department concerned, and to the NAP or the ICC, as 
appropriate, copies with all personally identifiable information 
deleted, of the hearing officer's findings of fact and decision or, in 
cases that are administratively appealed, of the final decision of the 
DOHA Appeal Board.
    c. The hearing officer shall have the authority to impose financial 
responsibility for early intervention services, educational placements, 
evaluations, and related services under his or her findings of fact and 
decision.
    d. The findings of fact and decision of the hearing officer shall 
become final unless a notice of appeal is filed under section F.1. of 
this Appendix. The DoDDS or the Military Department concerned shall 
implement a decision as soon as practicable after it becomes final.

E. Determination Without Hearing

    1. At the request of a parent of an infant, toddler, or child aged 
3 to 21, inclusive, when early intervention or special educational 
(including related) services are at issue, the requirement for a 
hearing may be waived, and the case may be submitted to the hearing 
officer on written documents filed by the parties. The hearing officer 
shall make findings of fact and issue a decision within the period 
fixed by paragraph D.1.n., of this Appendix.
    2. The DoDDS or the Military Department concerned may oppose a 
request to waive that hearing. In that event, the hearing officer shall 
rule on that request.
    3. Documents submitted to the hearing officer in a case determined 
without a hearing shall comply with paragraph D.1.g. of this appendix. 
A party submitting such documents shall provide copies to all other 
parties.

F. Appeal

    1. A party may appeal the hearing officer's findings of fact and 
decision by filing a written notice of appeal with the Director, DOHA, 
within 5 calendar days of receipt of the findings of fact and decision. 
The notice of appeal must contain the appellant's certification that a 
copy of the notice of appeal has been provided to all other parties. 
Filing is complete upon mailing.
    2. Within 10 calendar days of the filing the notice of appeal, the 
appellant shall submit a written statement of issues and arguments to 
the Director, DOHA, with a copy to the other parties. The other parties 
shall submit a reply or replies to the Director, DOHA, within 15 
calendar days of receiving the statement, and shall deliver a copy of 
each reply to the appellant. Submission is complete upon mailing.
    3. The Director, DOHA, shall refer the matter on appeal to the DOHA 
Appeal Board. It shall determine the matter, including the making of 
interlocutory rulings, within 60 calendar days of receiving timely 
submitted replies under section F.2. of this Appendix. The DOHA Appeal 
Board may require oral argument at a time and place reasonably 
convenient to the parties.
    4. The determination of the DOHA Appeal Board shall be a final 
administrative decision and shall be in written form. It shall address 
the issues presented and set forth a rationale for the decision 
reached. A determination denying the appeal of a parent in whole or in 
part shall state that the parent has the right under 20 U.S.C. 921 et 
seq. and 20 U.S.C., 1400 et seq. to bring a civil action on the matters 
in dispute in a district court of the United States without regard to 
the amount in controversy.
    5. No provision of this part or other DoD guidance may be construed 
as conferring a further right of administrative review. A party must 
exhaust all administrative remedies afforded by this Appendix before 
seeking judicial review of a determination made under this Appendix.

G. Publication and Indexing of Final Decisions

    The Director, DOHA, shall ensure that final decisions in cases 
arising under this Enclosure are published and indexed to protect the 
privacy rights of the parents who are parties in those cases and the 
children of such parents, in accordance with 32 CFR part 310.

    Dated: May 24, 1995.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 96-13177 Filed 5-30-95; 8:45 am]
BILLING CODE 5000-04-M