[Federal Register Volume 62, Number 12 (Friday, January 17, 1997)]
[Rules and Regulations]
[Pages 2565-2579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-888]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 57

[DoD Instruction 1342.12]


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

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: Prior to 1991, the Department of Defense Dependents Schools 
(DoDDS) was required by the ``Defense Dependent's 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 Amendments of 1991,'' the Department of 
Defense was required to modify its existing special education program 
for children with disabilities, ages 3 through 21, and to provide early 
intervention services to children birth through 2 years. This final 
rule assigns responsibility for the implementation of the Act to the 
Under Secretary of Defense for Personnel and Readiness, reflecting a 
reorganization of the Department of Defense; assigns responsibilities 
for duties previously assigned to Regional Directors to Area 
Superintendents, reflecting a reorganization of the DoDDS; requires DoD 
to provide early intervention services to children with disabilities 
from birth through 2 years of age, requires DoDDS to extend special 
education services to students from 3 through 21 years of age rather 
than from 5 through 21; 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 definition section to include terminology not 
contained in the previous part; and transfers the administrative 
responsibility for conducting hearings pursuant to this rule to the 
Defense Office of Hearings and Appeals.

EFFECTIVE DATE: March 12, 1996.

FOR FURTHER INFORMATION CONTACT: Dr. Rebecca Posante, DOD, Office of 
Family Policy, 4015 Wilson Blvd, BCT #3, Arlington, VA 22203-5190, 703-
696-5734.

SUPPLEMENTARY INFORMATION: On May 31, 1995 (60 FR 28362), the 
Department of Defense published a proposed rule. Written comments were 
invited and due by July 31, 1995. In response to this invitation, six 
individuals and organizations submitted comments. In addition, pursuant 
to a notice appearing in the Federal Register on July 13, 1995 (60 FR 
36081), DoD conducted a public hearing concerning the proposed rule on 
August 4, 1995. All written comments and the transcript of the public 
hearing are available for public inspection in the DoD Office of Family 
Policy at the above address.
    The Office of the Secretary of Defense has carefully considered the 
views of the public as reflected in the written comments and testimony 
at the public hearing. A description of these views and a discussion of 
the Department's response to them follow.
    General. One commenter noted that the proposed rule did not contain 
a reference to 29 U.S.C. 794, Section 504 of the Rehabilitation Act of 
1973, as amended. This section does not apply to persons outside of the 
United States. Therefore, the final rule will not include a reference 
to it.
    The same commenter noted that reference should be made to the 
Architectural Barriers Act of 1968. This act is implemented in other 
regulatory guidance, and therefore does not require reference in this 
final rule.
    One commenter recommended that consideration be given to 
consolidating the DoD Instructions that pertain to the

[[Page 2566]]

Department's overseas and domestic schools' special education and 
related services programs. The underlying statutory bases are different 
for the DoD domestic and overseas schools and their service delivery 
models are different. Therefore, the Department will maintain separate 
regulatory guidance.
    Section 57.3. One commenter recommended that the final rule include 
the term ``psychotherapy'' in the definition of psychological services. 
The final rule uses the definition from the U.S. Department of 
Education regulation regarding special education. That definition does 
not contain the term ``psychotherapy;'' therefore, this recommendation 
was not accepted.
    Section 57.3. One commenter requested that the reference to early 
intervention provided under the supervision of a military health 
department be changed to acknowledge that early intervention services 
are not necessarily health or medical in nature. The final rule will 
not incorporate this suggestion since the assignment of early 
intervention to the military medical departments was accomplished for 
organizational efficiency.
    The same commenter recommended that reference in the definitions to 
``medically related services'' might confuse the supportive and 
educational nature of occupational therapy in schools and perpetuate a 
medical model of services. The final rule will not incorporate this 
recommendation. Present practice in the DoD includes occupational 
therapy and some other types of related services under the heading of 
medically related services because these responsibilities were assigned 
to the military medical departments. The Department does not believe 
that this has resulted in the use of the medical model in the provision 
of medically related services.
    Appendix A, Section C.1.M. One commenter noted that the definition 
for ``developmental delay'' contained in the proposed rule included two 
criteria that were not equivalent. In order to clarify the intent of 
the criteria, the definition was changed to the following. ``C.1. The 
child is experiencing a developmental delay as measured by diagnostic 
instruments and procedures of 2 standard deviations below the mean in 
at least one area, or by a 25 percent delay in at least one area on 
assessment instruments that yield scores in months, or a developmental 
delay of 1.5 standard deviations below the mean in two or more areas, 
or by a 20 percent delay on assessment instruments that yield scores in 
months in two or more of the following areas of development: cognitive, 
physical, communication, social or emotional, or adaptive.''
    Appendix B, Section B.1.(e). One commenter recommended that the 
term ``education'' be defined for students with disabilities to 
delineate clearly that this is a broad concept including socialization 
and life skills for more involved students. The Final Rule will not 
further define this term since DoD guidance and practice include the 
concept of education in the broadest sense of the term.
    Appendix B, Section 4. A commenter noted that the frequency of the 
reevaluation process should not be limited to every three years, but 
should occur each year. This section in the proposed rule states that 
``a reevaluation for eligibility must occur at least every three years, 
or more frequently.'' Evaluations to determine the need for services 
may be completed at any time, and progress reports on goals and 
objectives must be developed at each annual review. The final rule 
follows the U.S. Department of Education regulation regarding 
reevaluation. Therefore, this recommendation will not be incorporated 
in the final rule.
    Appendix C, Appendix D, and Appendix E. One commenter recommended 
expanding the membership on the National Advisory Panel on the 
Education of Dependents with Disabilities, the DoD Coordinating 
Committee on Early Intervention, Special Education and Related 
Services, and the DoD Inter-Component Coordinating Council on Early 
Intervention to include individuals who are knowledgeable of early 
intervention, special education, and related services in the States and 
who have experience in providing those services to children and their 
families. The proposed rule conformed to the statutory requirements of 
membership. Therefore, the membership of the committees and panel has 
not been changed in the final rule.

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

    It has been determined that this final rule will not 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 final rule will not 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 final rule will not impose any 
reporting and recordkeeping requirements under the Paperwork Reduction 
Act of 1995.

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 Education 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) Implement policy and update responsibilities and procedures 
under 20 U.S.C. 921-932, 20 U.S.C. 1400 et seq., DoD Directive 1342.6 
\1\, and DoD Directive 1342.13 \2\ for providing the following:
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    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
    \2\ See footnote 1 to Sec. 57.1(a).
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    (1) A free appropriate public education (FAPE) for children with 
disabilities who are eligible to enroll in the Department of Defense 
Dependent 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 DoD Directive 1342.13.

[[Page 2567]]

    (3) A comprehensive and multidisciplinary program for 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, ages 3 to 21, inclusive, and a DoD Inter-
Component Council (ICC) on Early Intervention, in accordance with DoD 
Directive 5105.4 \3\.
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    \3\ See footnote 1 to Sec. 57.1(a).
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    (c) Establishes a DoD Coordinating Committee (DoD-CC) on Early 
Intervention, Special Education, and Medically Related Services (MRS).
    (d) Authorizes implementing instructions consistent with DoD 
5025.1-M \4\, and DoD forms consistent with DoD 83201-M \5\, DoD 
8910.1-M \6\, and DoD Instruction 7750.7 \7\.
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    \4\ See footnote 1 to Sec. 57.1(a).
    \5\ See footnote 1 to Sec. 57.1(a).
    \6\ See footnote 1 to Sec. 57.1(a).
    \7\ See footnote 1 to Sec. 57.1(a).
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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.

    Area superintendent. The Superintendent of a DoDDS area, or 
designee.
    Assessment. 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, 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 development 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). (1) A school-level team comprised of, 
among others, the principal, other educators, parents, and MRS 
providers who do the following:
    (i) Oversee screening and referral of children who may require 
special education.
    (ii) Oversee the multidisciplinary evaluation of such children.
    (iii) Determine the eligibility of the student for special 
education and related services.
    (iv) Formulate an individualized education curriculum reflected in 
an Individualized Education Program (IEP), in accordance with this 
part.
    (v) Monitor the development, review, and revision of IEPs.
    (2) In addition to the required members of the CSC, other 
membership will vary depending on the purpose of the meeting. An area 
CSC, appointed by the DoDDS Area Superintendent, acts in the absence of 
a school CSC. Members of an area CSC may be assigned to augment a 
school CSC. The area CSC must have at least two members besides 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 (ages 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, if necessary.
    (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

[[Page 2568]]

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 causes such severe communication, developmental, and 
educational 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 term 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 developmental 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. The term refers to children who meet the age, command 
sponsorship, and dependency requirements established by the DDEA, as 
amended, 20 U.S.C. 921 et seq. and DoD Directive 1342.13. When those 
conditions are met, children without disabilities, ages 5 to 21, and 
children with disabilities, ages 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 through 1995, 
multidisciplinary assessments, IFSPs, and case management services 
shall be required and beginning in school year 1995 through 1996, an 
eligible infant or toddler is entitled to receive early intervention 
services, in accordance with 20 U.S.C. 1400 et seq.
    Evaluation. The synthesis of assessment information by a 
multidisciplinary team used to determine whether a particular child has 
a disability, the type 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 do the following:
    (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 for 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 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

[[Page 2569]]

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 student with a disability, ages 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, age 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, ages 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.
    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.
    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 under 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.
    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 about 
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 or 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) Adaption of the environment and selection, design, and 
fabrication of assistive and orthotic devices to help 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 or absence of some member; 
impairments caused by disease, such as poliomyelitis and bone 
tuberculosis, and impairments from other causes such as cerebra palsy, 
amputations, and fractures or burns causing contractures.
    Other health impairment. Limited strength, vitality, or alterness 
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, if 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 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,

[[Page 2570]]

cardiopulmonary status, and effective environmental adaption. Those 
services include the following:
    (1) Screening, evaluation, and assessment to identify movement 
dysfunction.
    (2) Obtaining, interpreting, and integrating information to 
appropriate program planning to prevent, alleviate, or compensate for 
movement 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 to 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.
    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, age 3 to 21, inclusive, with a disability to benefit from 
special education under the child's IEP. The 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. That 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 affect 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:
    (1) Coordinating the performance of evaluation and assessments.
    (2) Assisting families to identify their resources, concerns, and 
priorities.
    (3) Facilitating and participating in the development, review, and 
evaluation of IFSPs.
    (4) Assisting in identifying available service providers.
    (5) Coordinating and monitoring the delivery of available services.
    (6) Informing the family of support or advocacy services.
    (7) Coordinating with medical and health providers.
    (8) 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 a 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, age 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 designed instruction, at no cost 
to the parents, to meet the unique needs of a child with a disability.
    (3) That 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. For a child eligible to attend the DoDDS without 
paying

[[Page 2571]]

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.
    (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. That 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, preschool, 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 postschool 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 
postschool 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 include 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 open 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, ages 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 
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

[[Page 2572]]

services through the DoD-CC, in accordance with DoD Instruction 1342.14 
\8\ and other appropriate guidances.
---------------------------------------------------------------------------

    \8\ See footnote 1 to Sec. 57.1(a).
---------------------------------------------------------------------------

    (5) In consultation with the General Counsel of the Department of 
Defense (GC, DoD) and the Secretaries of the Military Departments, do 
the following:
    (i) Ensure that eligible infants and toddlers with disabilities and 
their families are provided early intervention services under 20 U.S.C. 
921 et seq. and 1400 et seq.
    (ii) Ensure the coordination of early intervention, special 
education, and related services.
    (iii) Ensure the development of a DoD-wide comprehensive child-find 
system to identify eligible infants, toddlers, and children ages birth 
to age 21, inclusive, under 20 U.S.C 921 et seq. and 1400 et seq. who 
may require early intervention or special education services.
    (iv) Ensure that DoD personnel are trained to provide the mediation 
services specified in Appendix F to this part.
    (v) Ensure that transition services are available to promote 
movement from early intervention, preschool, and other educational 
programs into different educational settings and postsecondary 
environments.
    (vi) 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.
    (vii) Assign functions and geographic regions of responsibility to 
the Military Departments for providing MRS and early intervention 
services.
    (viii) Ensure that the Military Departments deliver the following:
    (A) A comprehensive, coordinated and multidisciplinary program 
of early intervention services for eligible infants and toddlers 
with disabilities.
    (B) MRS for eligible children with disabilities, ages 3 to 21, 
inclusive.
    (ix) Ensure that qualified personnel participate in providing 
transition services for eligible infants, toddlers, and children 
with disabilities from birth to age 21, inclusive.
    (x) 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:
    (A) Implementing innovative strategies and activities for the 
recruitment and retention of providers of early intervention 
services, special education, and MRS.
    (B) 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.
    (C) Ensuring that training is provided in and across 
disciplines.
    (D) Training providers of early intervention services, special 
education, and MRS to work overseas.
    (xi) 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 DoD 
Directives 5400.7 and 5400.11.\9\ Those data elements shall include 
the following:
---------------------------------------------------------------------------

    \9\ See footnote 1 to Sec. 57.1(a).
---------------------------------------------------------------------------

    (A) The number of infants and toddlers and their families 
served.
    (B) The types of services provided.
    (C) Other information required to evaluate the implementation of 
early intervention programs (EIPs).
    (xii) Resolve disputes in the DoD Components arising under 
Appendix A to this part.
    (b) The Secretaries of the Military Departments shall:
    (1) Provide MRS for eligible children with disabilities, ages 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.
    (c) The Director, Department of Defense Education Activity, 
shall ensure that the Director, DoDDS, does the following:
    (1) Ensures that eligible children with disabilities, ages 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, ages 3 to 21, 
inclusive, consistent with DoD Directive 5400.11.
    (5) Provides any or all special education and related services 
required by a child with a disability, ages 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.
    (d) The Director, Defense Office of Hearings and Appeals, under 
the General Counsel of the Department of Defense, 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, ages 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 
implemented and shall continue to 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 
shall implement the program described in paragraph A.1.a. of this 
Appendix. \1\
---------------------------------------------------------------------------

    \1\ The EIP shall be continuously implemented.
---------------------------------------------------------------------------

    2. Early intervention services shall be provided in the natural 
environment.
    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,

[[Page 2573]]

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 about 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 2 standard deviations 
below the mean in at least one area, or by a 25 percent delay in at 
least one area on assessment instruments that yield scores in 
months, or a developmental delay of 1.5 standard deviations below 
the mean in two or more areas, or by a 20 percent delay on 
assessment instruments that yield scores in months 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 
possible.
    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 shall 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 in 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 on 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 timeliness 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 preschool 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 before the 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. Although 
all assessments have not been completed, an IFSP must be developed 
before the start of services. The remaining assessments must then be 
completed in a timely manner.
    8. If a parent does not provide consent for participation in all 
early intervention services, the services shall still 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:
    a. The 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 DoD Directive 5400.11.\2\
---------------------------------------------------------------------------

    \2\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    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 other early intervention services.
    e. The opportunity to examine records on 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 possible 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, Ages 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

[[Page 2574]]

DoDDS under DoD Directive 1342.13 \1\ who may require special 
education and related services.
---------------------------------------------------------------------------

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

    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 
about the health status of a child.
    d. Analyze school records to obtain pertinent information about 
the basis for suspensions, exclusions, withdrawals, and disciplinary 
actions.
    e. In cooperation with the Military Departments, conduct on-
going child-finding activities and publish, periodically, any 
information, guidelines, and direction on child-find activities for 
eligible children with disabilities, ages 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 type 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, under 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 possible 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 sensor, 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 findings of the 
multidisciplinary assessment team of the child's academic progress.
    (3) A summary of information from the parents, the child, or 
other persons 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 type of the 
comprehensive reevaluation shall be determined individually based on 
a child's performance, behavior, and needs during 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 a meeting to develop, 
review, or revise the IEP of a child with a disability. That meeting 
shall be scheduled as soon as possible following a determination by 
the school or area 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 a 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.

[[Page 2575]]

    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 if the CSC of the gaining school or the area CSC does the 
following:
    (1) Notifies and obtains consent of the parents to 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 shall use devices 
or hire interpreters or other intermediaries who might be necessary 
to foster effective communications between the school and the parent 
about 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. 
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 in section F.2. of this 
appendix.
    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 type or severity of the disability is such that 
education in regular classes with the use of supplementary aids and 
services cannot be achieved satisfactorily.
    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 shall attend 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 1010.13-R \2\.
---------------------------------------------------------------------------

    \2\ See footnote 1 to section A. of this appendix.
---------------------------------------------------------------------------

    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 part.
    2. Cost of Tuition For Non-DoDDS School or Facility. The 
Department of Defense is not authorized to fund non-DoDDS placement 
unless it is directed by the DoDDS Area Superintendent 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 to 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 to 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 
to this part, to show cause as to why an evaluation or placement in 
a special education program should or should not occur without such

[[Page 2576]]

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) 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 about 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 to this part. The 
dispute may concern issues effecting a partial child's 
identification, evaluation, or placement, or the provision of a free 
and 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 about 
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.\3\
---------------------------------------------------------------------------

    \3\ Copies of the appropriate forms are available at every 
school office.
---------------------------------------------------------------------------

G. Confidentiality of Records

    The DoDDS officials shall maintain all student records, in 
accordance with DoD Directive 5400.11.\4\
---------------------------------------------------------------------------

    \4\ See footnote 1 to section A. of this appendix.
---------------------------------------------------------------------------

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, 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.
    c. The child may not be suspended for more than 10 days during a 
school year.
    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, ages 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 about improvements in service provided to 
children with disabilities, ages 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 of 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 about the education of 
children with disabilities, ages 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.
---------------------------------------------------------------------------

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 early intervention, special education, and 
Medically Related Services (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)).

[[Page 2577]]

    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 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 ages 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 who 
have 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. Council Membership

    The USD(P&R) shall 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 ages 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 age 
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 Instruction 
7750.7.\2\
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    \2\ See footnote 1 to section A. of this appendix.
---------------------------------------------------------------------------

C. Procedures

    1. The USD(P&R) shall nominate and select all members to the ICC 
to include those listed in section 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 
Instruction 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 about 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. 
921 et seq. and 1400 et seq.

B. Mediation

    1. Mediation may be initiated by either a parent or 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 age 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 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 appendix, 
when such proceedings involve a child age 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 appendix.
    b. Should mediation be refused or otherwise fail to resolve the 
issues on the provision of a FAPE to a child with a disability, age 
3 to 21, inclusive, or the identification, evaluation, or 
educational placement of such an individual, the parent or the 
school principal, for the DoDDS, may

[[Page 2578]]

request and shall receive a hearing before a hearing officer to 
resolve the matter. The parents of a child age 3 to 21, inclusive, 
and the DoDDS shall be the only parties to a hearing conducted under 
this appendix.
    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, for the DoDDS, or the military MTF commander, 
for the Military Department), either in person or by first-class 
mail, postage prepaid. Delivery is complete on 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 appendix, and shall provide the other 
parties with a copy of this part.
    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 on 
mailing.
    e. In 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, if 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'' (Rules 1-
1102) of 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, if the parents have the right 
to an open hearing on 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 on request and without 
cost. The hearing officer may allow corrections to the written 
transcript or electronic recording for 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, if such matter is 
made available to all parties before the record is closed under 
paragraph D.1.m. of this appendix.
    m. The hearing officer shall make a full and complete record of 
a case presented for adjudication.
    n. The hearing officer shall decide when the record in a case is 
closed.
    o. 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 appendix, is pending.

2. Discovery

    a. Full and complete discovery shall be available to parties to 
the proceeding, with the ``Federal Rules of Civil Procedure,'' Rules 
26-37, codified at 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 in 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 on the hearing 
officer's own motion or, if good cause be shown, on motion of a 
party.
    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, on the certification provided for 
in paragraph D.3.d. of this appendix, 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. 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 
age 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 in the period fixed by paragraph D.1.o. 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.h. 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 on mailing.

[[Page 2579]]

    2. Within 10 calendar days of 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 on 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 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 Instruction 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 appendix 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 DoD Directive 
5400.11\1\.

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
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    Dated: January 9, 1997.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 97-888 Filed 1-16-97; 8:45 am]
BILLING CODE 5000-04-M