[Federal Register Volume 64, Number 48 (Friday, March 12, 1999)]
[Rules and Regulations]
[Pages 12406-12672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5754]



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Part II





Department of Education





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34 CFR Parts 300 and 303



Assistance to States for the Education of Children With Disabilities 
and the Early Intervention Program for Infants and Toddlers With 
Disabilities; Final Regulations

  Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules 
and Regulations  

[[Page 12406]]



DEPARTMENT OF EDUCATION

34 CFR Parts 300 and 303

RIN 1820-AB40


Assistance to States for the Education of Children With 
Disabilities and the Early Intervention Program for Infants and 
Toddlers With Disabilities

AGENCY: Office of Special Education and Rehabilitative Services, 
Department of Education.

ACTION: Final regulations.

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

SUMMARY: The Secretary issues final regulations for the Assistance to 
States for Education of Children with Disabilities program under Part B 
of the Individuals with Disabilities Education Act (IDEA; Part B) and 
the Early Intervention Program for Infants and Toddlers with 
Disabilities under Part C of the Act (Part C). These regulations are 
needed to implement changes made to Part B by the IDEA Amendments of 
1997; make other changes to the part B regulations based on relevant, 
longstanding policy guidance; and revise the requirements on State 
complaint procedures under both the Part B and Part C programs.

DATES: These regulations take effect on May 11, 1999. However, 
compliance with these regulations will not be required until the date 
the State receives FY 1999 funding (expected to be available for 
obligation to States on July 1, 1999) under the program or October 1, 
1999, whichever is earlier. Affected parties do not have to comply with 
the information collection requirements contained in the regulations 
listed under the Paperwork Reduction Act of 1995 section of this 
preamble until the Department publishes in the Federal Register the 
control number assigned by the Office of Management and Budget (OMB) to 
these information collection requirements. Publication of the control 
numbers notifies the public that OMB has approved these information 
collection requirements under the Paperwork Reduction Act of 1995.

FOR FURTHER INFORMATION CONTACT: Thomas Irvin or JoLeta Reynolds (202) 
205-5507. Individuals who use a telecommunications device for the deaf 
(TDD) may call (202) 205-5465.
    Individuals with disabilities may obtain this document in an 
alternate format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to Katie Mincey, Director of the Alternate Formats 
Center. Telephone: (202) 205-8113.

SUPPLEMENTARY INFORMATION: On October 22, 1997, the Secretary published 
a notice of proposed rulemaking (NPRM) in the Federal Register (62 FR 
55026) to amend the regulations governing the Assistance to States for 
Education of Children with Disabilities program (part 300), the 
Preschool Grants for Children with Disabilities program (part 301), and 
the Early Intervention Program for Infants and Toddlers with 
Disabilities (part 303). A key purpose of the NPRM was to implement 
changes made by the IDEA Amendments of 1997 (Pub. L. 105-17).
    Since that time, the Department has published final regulations for 
both the Preschool Grants program (63 FR 29928, June 1, 1998) and the 
Early Intervention program for Infants and Toddlers with Disabilities 
(63 FR 18297, April 14, 1998), to incorporate the requirements added to 
those programs by Pub. L. 105-17. On April 14, 1998, a document was 
published in the Federal Register inviting comment on whether the 
regulations for the Early Intervention program for Infants and Toddlers 
with Disabilities should be further amended (63 FR 18297). (A 
subsequent document reopening the comment period was published on 
August 14, 1998 (63 FR 43866)).
    The final regulations in this publication are needed to conform the 
existing regulations under Part B of the Act to the new statutory 
requirements added by Pub. L. 105-17, including (1) amending 
requirements under prior law related to areas such as State and local 
eligibility, evaluation, and individualized education programs (IEPs), 
and (2) incorporating new requirements in the Act (e.g., those relating 
to discipline, performance goals and indicators, participation of 
children with disabilities in State and district-wide assessments, 
procedural safeguards notice, and mediation).
    The regulations have also been amended to incorporate relevant 
longstanding interpretations of the Act that have been addressed in 
nonregulatory guidance in the past and are needed to ensure a more 
meaningful implementation of the Act and its regulations for children 
with disabilities, parents, and public agencies. These interpretations 
are based on the statutory provisions of the IDEA that were in effect 
prior to the IDEA Amendments of 1997 and that were not changed by those 
Amendments. Examples of provisions of the regulations that incorporate 
prior Department interpretations of the statute include:
    Section 300.7(c)(9)--recognizing that some children with attention 
deficit disorder (ADD) may be identified under the category of other 
health impairment;
    Section 300.19--recognizing that foster parents may, under certain 
circumstances and if permitted under State law, qualify as a ``parent';
    Section 300.121(c)--recognizing that if a child's third birthday is 
in the summer, the child's IEP team determines the date when services 
begin under the child's IEP or IFSP. (The team must develop the IEP or 
IFSP by the child's third birthday.);
    Section 300.122(a)(3)--recognizing that graduation with a regular 
high school diploma ends the child's eligibility under Part B;
    Section 300.309--recognizing that extended school year services 
must be provided if necessary for the provision of a free appropriate 
public education to the child; and
    Section 300.519--identifying what constitutes a change of placement 
for disciplinary purposes under these regulations.
    In addition, changes have been made to the requirements on State 
complaint procedures in the regulations for Part B (Secs. 300.660-
300.662), and conforming changes have been made in the Part C 
regulations (Secs. 303.510-303.512).

Analysis of Comments and Changes

    In response to the Secretary's invitation to comment on the NPRM 
published in the Federal Register on October 22, 1997 (62 FR 55026), 
about 6,000 individuals, public agencies, and organizations submitted 
written or oral comments. An analysis of the public comments received, 
including a description of the changes made in the proposed regulations 
since publication of the NPRM, is published as Attachment 1 to these 
final regulations. The perspectives of individuals and groups of 
parents, teachers, related service providers, State and local 
officials, individuals with disabilities and members of Congress were 
very important in helping to identify where changes were necessary in 
the proposed regulations, and in formulating many of those changes. The 
detailed, thoughtful comments of so many individuals and organizations 
clearly demonstrated a high level of commitment to making sure that the 
IDEA and its regulations make a real difference in the day-to-day 
education of our children. In light of the comments received, a number 
of significant changes are reflected in these final regulations.

Effective Date of These Regulations

    These regulations take effect on May 11, 1999. As these regulations 
were not in effect at the time Federal fiscal year

[[Page 12407]]

(FY) 1998 funds (funds for use during school year 1998-99) became 
available for obligation to States, compliance with the requirements of 
these regulations, that are not statutory requirements or provisions of 
pre-existing regulations, will not be mandatory for this grant year. 
When either the FY 1998 funds that are unobligated by States and school 
districts become carryover funds (October 1, 1999) or, if earlier, the 
State receives FY 1999 funding (expected to be available for obligation 
to States July 1, 1999) compliance with these final regulations is 
required. This will enable all parties to become familiar with the new 
regulations without requiring changes that could interrupt school or 
program operations in the middle of a grant year. However, States and 
school districts may adopt and use these regulations when they are 
effective, and are encouraged, to the greatest extent possible, to 
start to implement them as soon as possible during this school year. In 
any case, the statutory requirements of the Individuals with 
Disabilities Education Act Amendments of 1997 (IDEA Amendments of 1997) 
are in effect and must be complied with throughout the 1998-99 school 
year. In addition, States and school districts must comply with all 
requirements of the Part 300 regulations that were in effect at the 
beginning of this school year unless inconsistent with the IDEA 
Amendments of 1997 or these final regulations. Applications for grants 
for FY 1999 funds must be consistent with the requirements of these 
final regulations.
    Most of the provisions of the IDEA Amendments of 1997 relating to 
Parts B and C of the Act have been in effect since enactment, June 4, 
1997, with a few provisions, such as the new Part B provisions 
concerning individualized education programs and the comprehensive 
system of personnel development, taking effect on July 1, 1998. 
Therefore, States and school districts already are familiar with the 
statutory provisions of the IDEA Amendments of 1997 to which they must 
comply.

Major Changes in the Regulations

    The following is a summary of the major substantive changes from 
the NPRM in these final regulations:

1. General Changes

     All notes in the NPRM related to the sections or subparts 
covered in these final regulations have been removed. The substance of 
any note that should be required for proper implementation of the Act 
has been added to the text of these final regulations. Information in 
notes considered to be directly relevant to the ``Notice of 
Interpretation'' on IEP requirements has been added to the text of that 
notice in Appendix A to these final regulations. The substance of any 
note considered to provide clarifying information or useful guidance 
has been incorporated into the discussion of the applicable comments in 
the ``Analysis of Comments and Changes'' (see Attachment 1 to these 
final regulations). All other notes have been deleted.
     Appendix C in the NPRM (``Notice of Interpretation on 
IEPs) has been redesignated as ``Appendix A'' in these final 
regulations; and a new Appendix B--Index to IDEA Part B Regulations has 
been added.
     Three attachments have also been added: Attachment 1--
Analysis of Comments and Changes; Attachment 2--Final Regulatory 
Flexibility Analysis; and Attachment 3--Table showing ``Disposition of 
NPRM Notes in Final Part 300 and 303 Regulations.'' However, these 
attachments will not be codified in the Code of Federal Regulations.

2. Changes in Subpart A--General

     Proposed Sec. 300.2 (Applicability of this part to State, 
local, and private agencies) has been revised to include ``public 
charter schools that are not otherwise included as local educational 
agencies (LEAs) or educational service agencies (ESAs) and are not a 
school of an LEA or ESA'' and to specify that the rules of Part 300 
apply to all public agencies in the State providing special education 
and related services.
     Consistent with the general decision to not use notes in 
these final regulations, proposed Note 1 immediately preceding 
Sec. 300.4 in the NPRM, (which included a list of terms defined in 
specific subparts and sections of the regulations) has been deleted and 
the terms included as part of an index to these regulations (see 
Appendix B).
     The proposed definition of ``child with a disability'' 
(Sec. 300.7(a)) has been revised to clarify that if a child with a 
disability needs only a related service and not special education, the 
child is not eligible under this part; but if the related service is 
considered to be special education under State standards, the child 
would be eligible.
     The proposed definition of ``other health impairment'' 
(``OHI''), at Sec. 300.7(c)(9), has been amended to (1) add ``attention 
deficit disorder'' (ADD) and ``attention deficit hyperactivity 
disorder'' (ADHD) to the list of conditions that could render a child 
eligible under OHI, and (2) clarify that, with respect to children with 
ADD/ADHD, the phrase ``limited strength, vitality, or alertness'' 
includes ``a child's heightened alertness to environmental stimuli that 
results in limited alertness with respect to the educational 
environment.''
     The proposed definition of ``Day'' (Sec. 300.9) has been 
retitled ``Day; business day; school day,'' and definitions of 
``business day'' and ``school day'' have been added.
     The proposed definition of ``educational service agency'' 
(Sec. 300.10) has been revised to clarify that the term ``[i]ncludes 
entities that meet the definition of ``intermediate educational unit'' 
in section 602(23) of IDEA as in effect prior to June 4, 1997.''
     The proposed definition of ``general curriculum'' in 
Sec. 300.12 of the NPRM and the explanatory note following that section 
have been deleted. The term is explained where it is used in 
Sec. 300.347 and in Appendix A regarding IEP requirements.
     The proposed definition of ``local educational agency'' 
(Sec. 300.18) has been amended to clarify, consistent with new 
statutory language concerning public charter schools, that the term 
includes public charter schools that are established as an LEA under 
State law.
     The proposed definition of ``native language'' 
(Sec. 300.19) has been amended to specify that (1) in all direct 
contact with a child (including evaluation of the child), the native 
language is the language normally used by the child in the home or 
learning environment, and (2) for an individual with deafness or 
blindness, or with no written language, the mode of communication is 
that normally used by the individual (such as sign language, braille, 
or oral communication).
     The proposed definition of ``parent'' has been amended to 
(1) add language clarifying that the term means a natural or adoptive 
parent of a child and a person acting in the place of a parent (such as 
a grandparent or stepparent with whom the child lives, or a person who 
is legally responsible for the child's welfare), and (2) permit States 
in certain circumstances to use foster parents as parents under the Act 
unless prohibited by State law.
     The proposed definition of ``public agency'' (Sec. 300.22) 
has been amended to add to the list of examples of a public agency 
``public charter schools that are not otherwise included as LEAs or 
ESAs and are not a school of an LEA or ESA'', consistent with new 
statutory language concerning public charter schools.
     The proposed definition of ``parent counseling and 
training,'' under the definition of ``related services,'' 
(Sec. 300.24(b)(7)) has been amended to

[[Page 12408]]

add that the term also means ``helping parents to acquire the necessary 
skills that will allow them to support the implementation of their 
child's IEP or IFSP.''
     The proposed definition of ``special education'' 
(Sec. 300.26) has been amended to add ``travel training'' as a special 
education service and to include a definition of the term.

3. Changes in Subpart B--State and Local Eligibility

State Eligibility
     Proposed Sec. 300.110 (Condition of assistance) has been 
amended to more explicitly state what is required for compliance with 
the State eligibility requirements.
     Proposed Sec. 300.121 (FAPE) has been amended to specify 
(1) requirements for providing FAPE for children with disabilities 
beginning at age 3; (2) that services need not be provided during 
periods of removal under Sec. 300.520(a)(1) to a child with a 
disability who has been removed from his or her current placement for 
10 school days or less in that school year, if services are not 
provided to a child without disabiliities who has been similarly 
removed; (3) the standards that are used to determine appropriate 
services for children with disabilities who have been removed from 
their current placement for more than 10 school days in a school year; 
(4) that LEAs must ensure that FAPE is available to any child with a 
disability who needs special education and related services, even 
though the child is advancing from grade to grade; and (5) that the 
determination that a child who is advancing from grade to grade is 
eligible under this part must be made on an individual basis by the 
group within the LEA responsible for making eligibility determinations.
     Proposed Sec. 300.122 (Exception to FAPE for certain ages) 
has been amended to (1) specify situations in which the exception to 
FAPE for students with disabilities in adult prisons does not apply, 
and (2) make clear that graduation from high school with a regular 
diploma is a change in placement requiring notice in accordance with 
Sec. 300.503. (A related change to Sec. 300.534(c) makes clear that a 
reevaluation is not required for graduation with a regular high school 
diploma or termination of eligibility for exceeding the age eligibility 
for FAPE under State law.)
     Proposed Sec. 300.125 (Child find) has been revised to (1) 
clarify that the child find requirements apply to highly mobile 
children (e.g., migrant and homeless children), and to children who are 
suspected of being a child with a disability under this part, even 
though they are advancing from grade to grade, and (2) add needed 
clarifications of requirements relating to child find for children from 
birth through age 2 when the SEA and lead agency for the Part C program 
are different.
     Proposed Sec. 300.136 (Personnel standards) has been 
amended as follows:
    (1) The proposed definition of ``profession or discipline'' in 
Sec. 300.136(a)(3) has been revised to clarify that the term ``specific 
occupational category'' is not limited to traditional categories.
    (2) The policies and procedures in proposed Sec. 300.136(b) have 
been expanded to provide that (A) each State may determine the specific 
occupational categories required in the State and revise or expand them 
as needed; (B) nothing in these regulations requires a State to 
establish a specific training standard (e.g., a masters degree); and 
(C) a State with only one entry-level academic degree for employment of 
personnel in a specific profession or discipline may modify that 
standard, as necessary, to ensure the provision of FAPE to all eligible 
children.
    (3) Proposed Sec. 300.136(g) (State policy to address shortage of 
personnel) has been amended by adding provisions that (A) if a State 
has reached its established date for a specific profession or 
discipline, it may still exercise the option in redesignated 
Sec. 300.136(g)(1); and (B) each State must have a mechanism for 
serving children with disabilities if instructional needs exceed 
available (qualified) personnel, including addressing those shortages 
in its comprehensive system of personnel development if the shortages 
continue.
      Proposed Sec. 300.138 (Participation in assessments) has 
been amended to require appropriate modifications in the administration 
of the assessments, if necessary.
      Proposed Sec. 300.142 (Methods of ensuring services) has 
been amended as follows:
    (1) Proposed Sec. 300.142(b) (Obligation of noneducational public 
agencies) has been revised to specify that those agencies may not 
disqualify an eligible service for Medicaid reimbursement because the 
service is provided in an educational context.
    (2) Proposed Sec. 300.142(b)(2) (Reimbursement for services by 
noneducational public agency) has been revised to require that an LEA 
must provide services in a timely manner if a public noneducational 
agency fails to provide or pay for the services.
    (3) Proposed Sec. 300.142(e) has been added to make clear that a 
public agency may use a child's public insurance to provide or pay for 
services required under Part B, with certain limitations. The public 
agency (A) may not require parents to sign up for public insurance in 
order for the child to receive FAPE, (B) may not require parents to 
incur out-of-pocket expenses in order to file the claim for services 
under Part B, and (C) may not use the child's benefits under a public 
insurance program if that use would decrease available lifetime 
coverage or any other insured benefit, result in the family paying for 
services that would have been covered by the public insurance and are 
required for the child outside of the time the child is in school, 
increase premiums or lead to discontinuation of services or risk loss 
of eligibility for home and community-based waivers due to aggregate 
health-related expenditures.
    (4) The proposed provisions on children covered by private 
insurance have been redesignated as Sec. 300.142(f), and revised to 
provide that a public agency (A) may access a parent's private 
insurance proceeds only if the parent provides informed consent, and 
(B) must obtain consent each time it proposes to access those proceeds, 
and inform the parents that their refusal to permit such access does 
not relieve the public agency of its responsibility to provide all 
required services at no cost to the parents.
    (5) A new Sec. 300.142(g) has been added to permit the use of part 
B funds to ensure FAPE for (A) the cost of required services under 
these regulations if the parents refuse consent to use public or 
private insurance, and (B) the costs of using the parents' insurance, 
such as paying deductible or co-pay amounts.
    (6) Proposed Sec. 300.142(f) (Proceeds from public or private 
insurance) has been redesignated as paragraph (h), and revised to 
clarify that (A) the insurance proceeds received by a public agency do 
not have to be returned to the Department or dedicated to the part B 
program; and (B) funds expended by a public agency from reimbursements 
of Federal funds will not be considered State or local funds for 
purposes of State or local maintenance of effort.
    (7) A new Sec. 300.142(i) has been added to specify that nothing in 
Part B should be construed to alter the requirements imposed on a State 
medicaid agency, or any other agency administering a public insurance 
program by Federal statute, regulations or policy under Title XIX or 
Title XXI of the Social Security Act, or any other public insurance 
program.

[[Page 12409]]

     Proposed Sec. 300.148 (Public participation) has been 
amended to clarify that a State will be considered to be in compliance 
with this section if the State has subjected the policy or procedure to 
a public participation process that is required by the State for other 
purposes and is comparable to and consistent with the requirements of 
Secs. 300.280-300.284.
     Proposed Sec. 300.154 (Maintenance of State financial 
support) has been amended to clarify that maintenance of State 
financial support can be demonstrated on either a total or per-capita 
basis.

LEA Eligibility--Specific Conditions

     Proposed Sec. 300.231 (Maintenance of effort) has been 
amended to set out the standard for meeting the maintenance of effort 
requirement.
     Proposed Sec. 300.232 (Exception to maintenance of effort) 
has been amended to specify that the exception related to voluntary 
retirement or resignation of personnel must be in full conformity with 
existing school board policies, any applicable collective bargaining 
agreement, and applicable State statutes.
     Proposed Sec. 300.234 (Schoolwide programs under title I 
of the ESEA) has been amended to make clear that an LEA that uses Part 
B funds in schoolwide program schools must ensure that children with 
disabilities in those schools receive services in accordance with a 
properly developed IEP and are afforded all applicable rights and 
services guaranteed under the IDEA.

4. Changes in Subpart C--Services

Free Appropriate Public Education
     Proposed Sec. 300.300 (Provision of FAPE) has been amended 
to specify that the State must ensure that the child find requirements 
of Sec. 300.125 are implemented by public agencies throughout the 
State. Proposed Sec. 300.300 also has been amended to specify that (1) 
the services provided to the child under this part address all of the 
child's identified special education and related services needs, and 
(2) are based on the child's identified needs and not the child's 
disability category.
     Proposed Sec. 300.301 (FAPE--methods and payments) has 
been amended to add a provision requiring that the State must ensure 
that there is no delay in implementing a child's IEP, including any 
case in which the payment source for providing or paying for the 
special education and related services to the child is being 
determined.
     Proposed Sec. 300.308 (Assistive technology) has been 
amended to clarify that, on a case-by-case basis, the use of school-
purchased assistive technology devices in a child's home or in other 
settings is required if the child's IEP team determines that the child 
needs access to those devices in order to receive FAPE.
     Proposed Sec. 300.309 (Extended school year (ESY) 
services) has been amended to specify that (1) ESY services must be 
provided only if a child's IEP team determines, on an individual basis, 
that the services are necessary for the provision of FAPE to the child, 
and (2) an LEA may not limit ESY services to particular categories of 
disability, or unilaterally limit the type, amount, or duration of 
those services.
     A new Sec. 300.312 (Children with disabilities in public 
charter schools) has been added to (1) specify that these children and 
their parents retain all rights under these regulations, and that 
compliance with part B is required regardless of whether a public 
charter school receives Part B funds; and (2) address the 
responsibilities of the following: public charter schools that are 
LEAs; LEAs if the charter school is a school in the LEA; and the SEA if 
the charter school is not an LEA or a school of an LEA.
     A new Sec. 300.313 (Children experiencing developmental 
delays) has been added to (1) clarify the circumstances under which the 
designation ``developmental delay'' may be used by a State or an LEA in 
the State; (2) permit a State or LEA that elects to use that term to 
also use one or more of the disability categories described in 
Sec. 300.7 for any child aged 3 through 9 who has been determined to 
have a disability and who, by reason thereof, needs special education; 
and (3) permit a State to adopt a common definition of developmental 
delay under Parts B and C of the Act.

Individualized Education Programs (IEPs)

     Proposed Sec. 300.341 (retitled ``Responsibility of SEA 
and other public agencies for IEPs) has been revised to (1) consistent 
with provisions regarding parentally-placed children with disabilities 
in religious or other private schools (see changes to Subpart D), and 
(2) to clarify that the section also applies to the SEA if it provides 
direct services to children with disabilities as well as other public 
agencies that provide special education either directly, by contract, 
or through other means.
     Proposed Sec. 300.342(b) has been revised to provide that 
the child's IEP must be accessible to each of the child's teachers and 
service providers and that teacher and service provider with 
responsibility for its implementation be informed of his or her 
specific responsibilities under the IEP and of the specific 
accommodations, modifications, and supports that must be provided for 
the child under that IEP.
     Proposed Sec. 300.342(d) has been revised to state that 
all IEPs developed, reviewed, or revised on or after July 1, 1998 must 
meet the requirements of Secs. 300.340-300.350.
     Proposed Sec. 300.343 (IEP meetings) has been revised to 
clarify that special education and related services must be available 
to the child within a reasonable period of time following receipt of 
parent consent to an initial evaluation.
     Proposed Sec. 300.344 (IEP Team) has been amended to (1) 
clarify that the determination of knowledge or special expertise of 
``other individuals'' under Sec. 300.344(a)(6) is made by the party who 
has invited the individual to be a member of the IEP team; and (2) 
permit a public agency to designate another public agency member of the 
IEP team to also serve as the agency representative, if the criteria in 
Sec. 300.344(a)(4) are satisfied.
     Proposed Sec. 300.345 (Parent participation) has been 
revised to clarify that (1) the public agency's notice to parents about 
the IEP meeting must inform them about the ability of either party to 
invite individuals with knowledge or special expertise to the meeting, 
consistent with Sec. 300.344(a)(6) and (c); and (2) the agency must 
give the parents a copy of their child's IEP.
     Proposed Sec. 300.346 (Development, review, and revision 
of IEP) has been revised to clarify that, in developing each child's 
IEP, the IEP team also must consider ``as appropriate, the results of 
the child's performance on any general State or district-wide 
assessment programs.
     Proposed Sec. 300.347 (Content of IEP) has been amended to 
(1) clarify that ``general curriculum'' is the same curriculum as for 
nondisabled children, and (2) delete the requirement that, if the IEP 
team determines that services are not needed in one or more of the 
areas specified in the definition of transition services (Sec. 300.29), 
the IEP must include a statement to that effect and the basis upon 
which the determination was made.
     Proposed Sec. 300.350 (Children with disabilities in 
religiously-affiliated or other private schools) has been deleted. A 
new Sec. 300.455(c) has been added to specify LEA responsibilities 
regarding the development of ``services plans'' for private school 
children.

[[Page 12410]]

     Proposed Sec. 300.351 (IEP--accountability) has been 
redesignated as Sec. 300.350, and revised to provide that (1) each 
public agency must make a good faith effort to assist the child to 
achieve the goals and objectives or benchmarks listed in the IEP; (2) a 
State or public agency is not prohibited from establishing its own 
accountability systems regarding teacher, school, or agency 
performance; and (3) ``[n]othing in this section limits a parent's 
right to ask for revisions of the child's IEP or to invoke due process 
procedures if the parent feels that efforts required in paragraph (a) 
of this section are not being met.''

Direct Services by SEA

     Proposed Sec. 300.360 (Use of LEA allocation for direct 
services) has been amended to clarify that (1) if an LEA does not elect 
to apply for its Part B funds, the SEA must use those funds to ensure 
that FAPE is available to all eligible children residing in the 
jurisdiction of the LEA; (2) if the local allotment is not sufficient 
to ensure FAPE to all eligible children within the LEA, the SEA must 
ensure that FAPE is available to those children; and (3) the SEA may 
use whatever funding sources are available in the State to ensure that 
all eligible children within each LEA receive FAPE (see Sec. 300.301).
     Proposed Sec. 300.370 (Use of SEA allocations) has been 
amended to clarify that, of the Part B funds it retains for other than 
administration, the SEA may use the funds either directly, or 
distribute them to LEAs on a competitive, targeted, or formula basis.

5. Changes in Subpart D--Children in Private Schools

Children With Disabilities in Private Schools Placed or Referred by 
Public Agencies
     Proposed Sec. 300.401 (``Responsibility of SEA'') has been 
revised to provide that a child with a disability placed by a public 
agency as the means of providing FAPE to the child must receive an 
education that meets the standards that apply to the SEA and LEA.
Children With Disabilities Enrolled by Their Parents in Private Schools 
When FAPE Is at Issue
     Proposed Sec. 300.403 (``Placement of children by parent 
if FAPE is at issue'') has been revised to clarify that (1) the 
provisions of Secs. 300.450-300.462 apply to children with disabilities 
placed voluntarily in private schools, even though the public agency 
made FAPE available to those children; (2) private school placement by 
the parents must be appropriate (as determined by a court or hearing 
officer) in order to be eligible for reimbursement, (3) a parental 
placement does not need to meet State standards that apply to education 
provided by the SEA and LEAs in order to be appropriate; and (4) the 
reimbursement provisions of Sec. 300.403 also apply if parents of a 
child with a disability who previously received special education and 
related services under the authority of a public agency enroll the 
child in a private preschool program.
Children With Disabilities Enrolled by Their Parents in Private Schools
     Proposed Sec. 300.451 (``Child find for private school 
children with disabilities'') has been revised to specify that (1) 
child find activities for those children must be comparable to child 
find activities for children with disabilities in public schools, and 
(2) LEAs must consult with representatives of parentally-placed private 
school students with disabilities on how to conduct child find 
activities for that population in a manner that is comparable to those 
activities for public school children.
     Proposed Sec. 300.452 (retitled ``Provision of services--
basic requirement'') has been amended to add a new provision related to 
the SEA's responsibility for ensuring that a services plan is developed 
for each private school child with a disability who has been designated 
to receive services under these regulations.
     Proposed Sec. 300.453 (``Expenditures'') has been revised 
to specify that (1) each LEA must consult with representatives of 
private school children with disabilities to decide how to conduct the 
annual count of the number of those children; (2) the LEA must ensure 
that the count is conducted by specified dates, and that the data are 
used to determine the amount of Part B funds to be earmarked for 
private school children in the next fiscal year; (3) the costs of child 
find activities for private school children with disabilities may not 
be considered in determining whether the LEA met the expenditures 
requirement of this section; and (4) SEAs and LEAs are not prohibited 
from providing services to private school children with disabilities 
beyond those required by this part, consistent with State law or local 
policy.
     Proposed Sec. 300.454 (Services determined) has been 
revised to specify that each LEA must (1) consult with private school 
representatives on where services will be provided; (2) conduct 
meetings to develop, review, and revise a ``services plan,'' in 
accordance with Sec. 300.455, for each private school child with a 
disability who has been designated to receive services under this part; 
and (3) ensure that a representative of the private school participates 
in the meetings.
     Proposed Sec. 300.455 (Services provided) has been revised 
to specify that (1) each private school child with a disability who has 
been designated to receive Part B services must have a services plan, 
and (2) the plan must, to the extent appropriate, meet the requirements 
of Sec. 300.347 with respect to the services provided, and be 
developed, reviewed and revised consistent with Secs. 300.342-300.346.
     Proposed Sec. 300.456 (Location of services) has been 
revised to make clear that, while transportation might be provided 
between a child's home or private school and a service site if 
necessary for the child to benefit from or participate in the services 
offered, LEAs are not required to provide transportation between the 
child's home and private school.
     Proposed Sec. 300.457 (Complaints) has been revised to 
specify that the due process procedures under this part apply to child 
find activities for private school children with disabilities, 
including evaluations.

6. Changes in Subpart E--Procedural Safeguards

Due Process Procedures for Parents and Children
     Proposed Sec. 300.500 (General responsibility of public 
agencies; definitions) has been amended as follows:
    (1) The proposed definition of ``consent'' (300.500(b)(1)) has been 
revised to clarify that a revocation of consent does not have a 
retroactive effect if the action consented to has already occurred.
    (2) The proposed definition of ``evaluation'' (Sec. 300.500(b)(2)) 
has been revised by deleting the last sentence of the definition, to 
ensure that evaluations may include a review of a child's performance 
on a test or procedures used for all children in a school, grade, or 
class.
     Proposed Sec. 300.501 (Opportunity to examine records; 
parent participation in meetings) has been amended to (1) delete the 
word ``all'' from Sec. 300.501(a)(2); (2) delete the definition of 
``meetings'' but provide that the term does not include certain 
conversations or preparation for a meeting and (3) clarify that each 
public agency must ``make reasonable efforts'' related to parental 
participation in group

[[Page 12411]]

discussions relating to the educational placements of their child.
     Proposed Sec. 300.502 (Independent educational evaluation 
(IEE)) has been amended to (1) add that, upon request for an IEE, 
parents must be given information about agency criteria applicable for 
IEEs; (2) clarify, in Sec. 300.502(e)(1), that the criteria under which 
an IEE is obtained must be the same as that of the public agency ``to 
the extent such criteria are consistent with the parent's right to an 
IEE,'' and (3) explain that an explanation of parent disagreement with 
an agency evaluation may not be required and the public agency may not 
delay either providing the IEE at public expense or, alternatively, 
initiating a due process hearing.
     Proposed Sec. 300.503 (Prior notice by the public agency; 
content of notice) has been amended to delete the provision in 
Sec. 300.503(b)(8) (related to informing parents about the State 
complaint procedures). (See Sec. 300.504(b).)
     Proposed Sec. 300.504 (Procedural safeguards notice) has 
been amended to add State complaint procedures under Secs. 300.660-
300.662 to the items included in the notice.
     Proposed Sec. 300.505 (Parental consent) has been amended 
to (1) refer to ``informed parent consent;'' (2) add ``all 
reevaluations'' to the list of actions requiring consent (see 
Sec. 300.505(a)(1)(i)); (3) delete paragraph (a)(1)(iii), and add a new 
paragraph (a)(3) to specify that parental consent is not required 
before reviewing existing evaluation data as a part of an evaluation or 
reevaluation or for administering a test used with all children unless 
consent is required of all parents; and (4) specify, in paragraph (e), 
that a public agency may not use a parental refusal to consent to one 
service or benefit under paragraphs (a) and (d) to deny the parent or 
child another service or benefit.
     Proposed Sec. 300.506 (Mediation) has been revised to (1) 
add a new Sec. 300.506(b)(2) to specify that the mediator must be 
selected from a list of mediators on a random basis (e.g., a rotation), 
or that both parties are involved in selecting the mediator and agree 
with the selection of the individual who will mediate; and (2) add a 
new Sec. 300.506(c)(2) to clarify that payment for mediation services 
by the State does not make the mediator an employee of the State agency 
for purposes of impartiality.
     Proposed Sec. 300.507 (Impartial due process hearing; 
parent notice) has been amended to clarify that, in the content of the 
parent notice, the description of the nature of the problem applies to 
the action ``refused'' as well as that proposed by the public agency.
     Proposed Sec. 300.509 (Hearing rights) has been revised to 
clarify that, in paragraph (a)(3), the disclosure is required at least 
5 ``business'' days before the hearing.
     Proposed Sec. 300.510 (Finality of decision; impartiality 
of review) has been amended to (1) make the reference to written 
findings and decision in Sec. 300.510(b)(2)(vi) consistent with 
Sec. 300.509(a)(5), and (2) allow the choice of ``electronic or written 
findings of fact and decision.''
     Proposed Sec. 300.513 (Attorneys' fees) has been amended 
to include all of the provisions of section 615(i)(3)(C)-(G) of the 
Act.
     Proposed Sec. 300.514(c) has been amended to provide that 
a decision by a State hearing or review officer that is in agreement 
with the parents constitutes an agreement for purposes of pendency.
     Proposed Sec. 300.515 (Surrogate parents) has been revised 
to permit employees of nonpublic agencies that have no role in 
educating a child to serve as surrogate parents.
    Discipline Procedures
     A new Sec. 300.519 (Change of placement for disciplinary 
removals) has been added regarding change of placement in the context 
of removals under Secs. 300.520-300.529.
     Proposed Sec. 300.520 (Authority of school personnel) has 
been amended as follows:
    (1) Proposed Sec. 300.520(a)(1) has been revised to specify that to 
the extent removal would be applied to children without disabilities, 
school personnel may order the removal of a child with a disability 
from the child's current placement for not more than 10 consecutive 
school days and additional removals of not more than 10 consecutive 
school days in that same school year for separate incidents of 
misconduct as long as they do not constitute a change in placement 
under Sec. 300.519, and to make clear that after a child with a 
disability has been removed from his or her current placement for more 
than 10 school days in the same school year, during any subsequent days 
of removal the public agency must provide services to the extent 
necessary under Sec. 300.121(d).
    (2) Proposed Sec. 300.520(b) has been revised to replace 
``suspension'' with ``removal,'' and to specify that when first 
removing a child for more than 10 school days in a school year, or 
commencing a removal that constitutes a change of placement, the LEA 
must within 10 business days, convene an IEP meeting. If the agency had 
not already conducted a functional behavioral assessment and 
implemented a behavioral intervention plan for the child the purpose of 
the IEP meeting is to develop an assessment plan. As soon as 
practicable after completion of the plan, the LEA must then convene an 
IEP meeting to develop appropriate behavioral interventions to address 
the child's behavior. If a child already has a behavioral intervention 
plan, the purpose of the IEP meeting is to review the plan and its 
implementation.
    (3) Proposed Sec. 300.520(c) has been deleted and replaced with a 
provision that requires that if a child with a disability who has a 
behavioral intervention plan and has been removed for more than 10 
school days in a school year subsequently is subjected to a removal 
that is not a change of placement, the child's IEP team members shall 
review the behavioral intervention plan, and meet to modify it or its 
implementation if one or more team members think modifications are 
needed.
     Proposed Sec. 300.521(d) has been modified to make clear 
that the hearing officer determines the appropriateness of the interim 
alternative educational setting proposed by school personnel who have 
consulted with the child's special education teacher.
     Proposed Sec. 300.522 (Determination of setting) has been 
amended to (1) specify that the interim alternative educational setting 
referred to in Sec. 300.520(a)(2) must be determined by the IEP team; 
and (2) clarify that the services and modifications to address the 
child's behavior are designed to prevent the behavior from recurring.
     Proposed Sec. 300.523 (Manifestation determination review) 
has been amended as follows:
    (1) Proposed Sec. 300.523(a) has been revised to (1) specify that 
the manifestation determination review is done regarding behavior 
described in Secs. 300.520(a)(2) and 300.521, or if a removal is 
contemplated that constitutes a change of placement under Sec. 300.519; 
and (2) require that parents be provided notice of procedural 
safeguards consistent with Sec. 300.504.
    (2) Proposed Sec. 300.523(b) (exception to conducting a 
manifestation determination review) has been removed.
    (3) Proposed Sec. 300.523(c) has been redesignated as 
Sec. 300.523(b) and revised to specify that the manifestation 
determination review is conducted at a meeting.
    (4) Proposed Sec. 300.523(d) and (e) have been redesignated as 
Sec. 300.523(c) and (d) and revised by adding ``and other

[[Page 12412]]

qualified personnel'' after ``IEP team'' each time it is used.
    (5) Proposed paragraph (f) has been redesignated as paragraph (e) 
and a new paragraph (f) has been added to clarify that if in the 
manifestation review deficiencies are identified in the child's IEP or 
placement or in their implementation, the public agency must act to 
correct those deficiencies.
     Proposed Sec. 300.524 (Determination that behavior was not 
a manifestation of disability) has been amended to (1) replace, in 
paragraph (a), the reference to ``section 612 of the Act'' with 
``Sec. 300.121(c);'' and (2) refer, in paragraph (c), to the placement 
rules of Sec. 300.526.
     Proposed Sec. 300.525 (Parent appeal) has been revised to 
refer to any decision regarding placement under Secs. 300.520-300.528.
     Proposed Sec. 300.526(c)(3) has been revised to clarify 
that extensions of 45 day removals by a hearing officer because 
returning the child to the child's current placement would be 
dangerous, may be repeated, if necessary.
     Proposed Sec. 300.527 (Protections for children not yet 
eligible for special education and related services) has been amended 
as follows:
    (1) Proposed Sec. 300.527(b)(1) has been revised to refer to not 
knowing how to write rather than illiteracy in English.
    (2) Proposed Sec. 300.527(b)(2) has been revised to clarify that 
the behavior or performance is in relation to the categories of 
disability identified in Sec. 300.7.
    (3) Proposed Sec. 300.527(b)(4) has been revised to refer to other 
personnel who have responsibilities for child find or special education 
referrals in the agency.
    (4) Proposed Sec. 300.527(c) has been redesignated as paragraph 
(d), and a new paragraph (c) has been added to provide that if an 
agency acts on one of the bases identified in paragraph (b), determines 
that the child is not eligible, and provides proper notice to the 
parents, and there are no additional bases of knowledge under paragraph 
(b) that were not considered, the agency would not be held to have a 
basis of knowledge under Sec. 300.527(b).
    (5) Proposed Sec. 300.527(d)(2)(ii) has been revised to clarify 
that an educational placement under that provision can include 
suspension or expulsion without educational services.
     Proposed Sec. 300.528 (Expedited due process hearings) has 
been amended as follows:
    (1) Proposed Sec. 300.528(a)(1) (requiring a decision within 10 
business days) has been deleted. (Paragraphs (a)(2) and (a)(3) are 
redesignated as (a)(1) and (a)(2) and paragraphs (b) and (c) are 
redesignated as (c) and (d).)
    (2) A new Sec. 300.528(b) has been added to require that (A) each 
State establish a timeline for expedited due process hearings that 
results in a written decision being mailed to the parties within 45 
days, with no extensions permitted that result in decisions being 
issued more than 45 days after the hearing request is received by the 
public agency; and (B) decisions be issued in the same period of time, 
whether the hearing is requested by a parent or an agency.
    (3) Redesignated Sec. 300.528(d) has been revised to specify that 
expedited due process hearings are appealable consistent with the 
Sec. 300.510.
     Proposed Sec. 300.529 (Referral to and action by law 
enforcement and judicial authorities) has been amended to make clear 
that copies of a child's special education and disciplinary records may 
be transmitted only to the extent that such transmission is permitted 
under FERPA. (Section 300.571 has been amended to note the relationship 
of this section.)
Procedures for Evaluation and Determination of Eligibility
     Proposed Sec. 300.532 (Evaluation procedures) has been 
amended to (1) require that assessments of children with limited 
English proficiency must be selected and administered to ensure that 
they measure the extent to which a child has a disability and needs 
special education, and do not, instead, measure the child's English 
language skills (Sec. 300.532(a)2); (2) provide that the information 
gathered include information related to enabling the child to be 
involved and progress in the general curriculum or appropriate 
activities if the child is a preschool child (Sec. 300.532(b)); (3) 
provide that if an assessment is not conducted under standard 
conditions, information about the extent to which the assessment varied 
from standard conditions, such as the qualifications of the person 
administering the test or the method of test administration, must be 
included in the evaluation report (Sec. 300.532(c)(2)); and (4) provide 
that each public agency ensure that the evaluation of each child with a 
disability under Secs. 300.531-300.536 is sufficiently comprehensive to 
identify all of the child's special education and related services 
needs, whether or not commonly linked to the disability category in 
which the child has been classified.
     Proposed Sec. 300.533 (Determination of needed evaluation 
data) has been revised to clarify that the group reviewing existing 
data may conduct that review without a meeting (Sec. 300.533(b)).
     Proposed Sec. 300.534 (Determination of eligibility) has 
been amended to clarify that (1) children are not eligible if they need 
specialized instruction because of limited English proficiency or lack 
of instruction in reading or math, but do not need such instruction 
because of a disability, as defined in Sec. 300.7; and (2) the 
evaluation required in Sec. 300.534(c)(1) is not required before 
termination of a child's eligibility under Part B of the Act due to 
graduation with a regular high school diploma, or ceasing to meet the 
age requirement for FAPE under State law.
     Proposed Sec. 300.535 (Procedures for determining 
eligibility and placement) has been revised to add ``parent input'' to 
the variety of sources from which the public agency will draw in 
interpreting evaluation data for the purpose of determining a child's 
eligibility under this part.
Least Restrictive Environment (LRE)
     Proposed Sec. 300.550 (General LRE requirements) has been 
amended to add a cross reference to Sec. 300.311(b) and (c), to clarify 
that the LRE provisions do not apply to students with disabilities who 
are convicted as adults under State law and incarcerated in adult 
prisons.
     Proposed Sec. 300.552 (Placements) has been amended to (1) 
include a reference to preschool children with disabilities in the 
introductory paragraph of this section, and (2) to add a new 
Sec. 300.552(e) prohibiting the removal of child with a disability from 
an age-appropriate regular classroom solely because of needed 
modifications in the general curriculum.
Confidentiality of Information
     Proposed Sec. 300.562 (Access rights) has been revised to 
make it clear that expedited due process hearing procedures under 
Secs. 300.521-300.529 are also covered under this section.
     Proposed Sec. 300.571 (Consent) has been amended to permit 
disclosures without parental consent to the agencies identified in 
Sec. 300.529, to the extent permitted under the Family Educational 
Rights and Privacy Act (FERPA).
     Proposed Sec. 300.574 (Children's rights) has been revised 
by incorporating into the regulations the substance of the two notes 
following the section (relating to transfer of educational records to 
the student at age 18).
Department Procedures
     Proposed Sec. 300.589 (Waiver of requirement regarding 
supplementing

[[Page 12413]]

and not supplanting with Part B funds) has been revised to conform to 
the statutory provision that the Secretary provides a waiver ``in whole 
or in part.''

7. Changes in Subpart F--State Administration

     Proposed Sec. 300.652 (Advisory panel functions) has been 
revised to clarify that one of the duties of the advisory panel is 
advising the State agency that has general responsibility for students 
who have been convicted as adults and incarcerated in adult prisons.
     Proposed Sec. 300.653 (Advisory panel procedures) has been 
amended to specify that all advisory panel meetings and agenda items 
must be ``announced enough in advance of the meeting to afford 
interested parties a reasonable opportunity to attend.''
     Proposed Sec. 300.660 (Adoption of State complaint 
procedures) has been revised to clarify that if an SEA, in resolving a 
complaint, finds a failure to provide appropriate services to a child 
with a disability, the SEA must address (1) how to remediate the denial 
of those services, including, as appropriate, the awarding of monetary 
reimbursement or other corrective action appropriate to the needs of 
the child; and (2) appropriate future provision of services for all 
children with disabilities.
     Proposed Sec. 300.661 (Minimum State complaint procedures) 
has been revised to clarify that (1) if an issue in a complaint is the 
subject of a due process hearing, that issue (but not any issue outside 
of the hearing) would be set aside until the conclusion of the hearing, 
(2) the decision on an issue in a due process hearing would be binding 
in a State complaint resolution, and (3) a public agency's failure to 
implement a due process decision would have to be resolved by the SEA.

8. Changes in Subpart G--Allocation of Funds; Reports

     Proposed Sec. 300.712 (Allocations to LEAs) has been 
revised to clarify that, if LEAs are created, combined, or otherwise 
reconfigured subsequent to the base year (i.e. the year prior to the 
year in which the appropriation under section 611(j) of the Act exceeds 
$4,924,672,200), the State is required to provide the LEAs involved 
with revised base allocations calculated on the basis of the relative 
numbers of children with disabilities aged 3 through 21, or 6 through 
21, depending on whether the State serves all children with 
disabilities aged 3 through 5 currently provided special education by 
each of the affected LEAs. The section also has been expanded to state 
that, for the purpose of making grants under this section, States must 
apply, on a uniform basis across all LEAs, the best data that are 
available to them on the numbers of children enrolled in public and 
private elementary and secondary schools and the numbers of children 
living in poverty.
     Proposed Sec. 300.713 (Former Chapter 1 State agencies) 
has been revised to clarify that the amount each former Chapter 1 State 
agency must receive is the minimum amount.
     Proposed Sec. 300.751 (Annual report of children served) 
has been revised to clarify that the Secretary may permit States to 
collect certain data through sampling.

9. Changes to Part 303

     Proposed Sec. 303.510 (Adopting State complaint 
procedures) has been revised to clarify that if a lead agency, in 
resolving a complaint, finds a failure to provide appropriate services, 
it must address (1) how to remediate the denial of those services, 
including, as appropriate, the awarding of monetary reimbursement or 
other corrective action appropriate to the needs of the child and the 
child's family, as well as (2) appropriate future provision of services 
for all infants and toddlers with disabilities and their families.
     Proposed Sec. 303.512 (Minimum State complaint procedures) 
has been revised to clarify that (1) if an issue in a complaint is the 
subject of a due process hearing, that issue (but not any issue outside 
of the hearing) would be set aside until the conclusion of the hearing, 
(2) the decision on an issue in a due process hearing would be binding 
in a State complaint resolution, and (3) a public agency's or private 
service provider's failure to implement a due process decision must be 
resolved by the lead agency.
Role of the Regular Education Teacher on the IEP Team
    The regulations at Secs. 300.344(a)(2) and 300.346(d) repeat the 
statutory provisions regarding the role of the regular education 
teacher in developing, reviewing, and revising IEPs. The extent of the 
regular education teacher's involvement in the IEP process would be 
determined on a case by case basis and is addressed in question 24 in 
Appendix A.

Discipline for Children With Disabilities

Some Key Changes in the Regulations Regarding Discipline for Children 
With Disabilities

    One of the major areas of concern in public comment on the NPRM was 
the issue of discipline for children with disabilities under the Act. 
The previous list of major changes briefly describes the major changes 
from the NPRM that are reflected in these final regulations regarding 
discipline under Secs. 300.121(d), and 300.519-529. These changes 
reflect very serious consideration of the concerns of school 
administrators and teachers regarding preserving school safety and 
order without unduly burdensome requirements, while helping schools 
respond appropriately to a child's behavior, promoting the use of 
appropriate behavioral interventions, and increasing the likelihood of 
success in school and school completion for some of our most at-risk 
students.
    The comments also revealed some confusion about several of the 
provisions of the Act and the NPRM regarding discipline. Limitations in 
the statute and regulations about the amount of time that a child can 
be removed from his or her current placement only come into play when 
schools are not able to work out an appropriate placement with the 
parents of a child who has violated a school code of conduct. In many, 
many cases involving discipline for children with disabilities, schools 
and parents are able to reach an agreement about how to respond to the 
child's behavior. In addition, neither the statute or the proposed or 
final regulations impose absolute limits on the number of days that a 
child can be removed from his or her current placement in a school 
year. As was the case in the past, school personnel have the ability to 
remove a child for short periods of time as long as the removal does 
not constitute a change of placement. To help make this point, the 
regulations include a new provision (Sec. 300.519) that reflects the 
Department's longstanding definition of what constitutes a ``change of 
placement'' in the disciplinary context. In this regulation, a 
disciplinary ``change of placement'' occurs when a child is removed for 
more than 10 consecutive school days or when the child is subjected to 
a series of removals that constitute a pattern because they cumulate to 
more than 10 school days in a school year, and because of factors such 
as the length of the removal, the total amount of time the child is 
removed, and the proximity of the removals to one another. 
(Sec. 300.519). Changes also have been made to Sec. 300.520(a)(1) to 
make clear that multiple short-term removals (i.e., 10 consecutive days 
or less) for separate incidents of misconduct are permitted, to the 
extent removals would be applied

[[Page 12414]]

to children without disabilities as long as those removals do not 
constitute a change of placement, as defined in Sec. 300.519.
    Instead of requiring that services begin on the eleventh day in a 
school year that a child is removed from his or her current educational 
placement, as was proposed in the NPRM, the regulations take a more 
flexible approach. If the removal is pursuant to school personnel's 
authority to remove for not more than 10 consecutive days 
(Sec. 300.520(a)(1)) or for behavior that is not a manifestation of the 
child's disability, consistent with Sec. 300.524 services must be 
provided to the extent necessary to enable the child to continue to 
appropriately progress in the general curriculum and appropriately 
advance toward the goals in his or her IEP. (Sec. 300.121(d)).
    If the removal is by school personnel under their authority to 
remove for not more than 10 school days at a time (Sec. 300.520(a)(1)), 
school personnel, in consultation with the child's special education 
teacher, make the determination regarding the extent to which services 
are necessary to meet this standard. (Sec. 300.121(d)(3)(i)). On the 
other hand, if the removal constitutes a change in placement, the 
child's IEP team must be involved. If the removal is pursuant to the 
authority to discipline a child with a disability to the same extent as 
a nondisabled child for behavior that has been determined to not be a 
manifestation of the child's disability (Sec. 300.524), the child's IEP 
team makes the determination regarding the extent to which services are 
necessary to meet this standard. (Sec. 300.121(d)(3)(ii)). If the child 
is being placed in an interim alternative educational setting for up to 
45 days because of certain weapon or drug offenses (Sec. 300.520(a)(2)) 
or because a hearing officer has determined that there is a substantial 
likelihood of injury to the child or others if the child remains in his 
or her current placement (Sec. 300.521), the services to be provided to 
the child are determined based on Sec. 300.522. In these cases, the 
interim alternative educational setting must be selected so as to 
enable the child to continue to progress in the general curriculum, 
although in another setting, and to continue to receive those services 
and modifications, including those described in the child's current 
IEP, that will enable the child to meet the goals set out in that IEP 
and include services and modifications to address the behavior. 
(Secs. 300.121(d)(2)(ii) and 300.522).
    Under these regulations, IEP team meetings regarding functional 
behavioral assessments and behavioral intervention plans will only be 
required within 10 business days of (1) when the child is first removed 
for more than 10 school days in a school year, and (2) whenever the 
child is subjected to a disciplinary change of placement. 
(Sec. 300.520(b)(1)). In other subsequent removals in a school year of 
a child who already has a functional behavioral assessment and 
behavioral intervention plan, the IEP team members can review the 
behavioral intervention plan and its implementation in light of the 
child's behavior, without a meeting, and only meet if one or more of 
the team members believe that the plan or its implementation need 
modification. (Sec. 300.520(c)).
    These final regulations also provide that manifestation 
determinations, and the IEP team meetings to make these determinations, 
are only required when a child is subjected to a disciplinary change of 
placement. (Sec. 300.523(a)). These changes should eliminate the need 
for unnecessary, repetitive IEP team meetings. The discussion of 
comments regarding the disciplinary sections of the regulations in 
Attachment 1 provides a fuller explanation of the regulatory provisions 
regarding discipline.

Answers to Some Commonly Asked Questions About Discipline Under IDEA

    Prior to the amendments to the Education of the Handicapped Act 
(EHA) in 1975, (the EHA is today known as IDEA), the special 
educational needs of children with disabilities were not being met. 
More than half of the children with disabilities in the United States 
did not receive appropriate educational services, and a million 
children with disabilities were excluded entirely from the public 
school system. All too often, school officials used disciplinary 
measures to exclude children with disabilities from education simply 
because they were different or more difficult to educate than 
nondisabled children.
    It is against that backdrop that Pub. L. 94-142 was developed, with 
one of its primary goals being the elimination of any exclusion of 
children with disabilities from education. In the IDEA reauthorization 
of 1997, Congress recognized that in certain instances school districts 
needed increased flexibility to deal with safety issues while 
maintaining needed due process protections in the IDEA. The following 
questions and answers address: (1) the proactive requirements of the 
IDEA designed to ensure that children with disabilities will be able to 
adhere to school rules; (2) IDEA provisions regarding removal of 
students from their current placement when their behavior significantly 
violates school discipline codes; and (3) the requirement of the IDEA 
for the continuation of services for children with disabilities who are 
disciplined.
1. Why are there special rules about discipline for children with 
disabilities?
    The protections in the IDEA regarding discipline are designed to 
prevent the type of often speculative and subjective decision making by 
school officials that led to widespread abuses of the rights of 
children with disabilities to an appropriate education in the past. For 
example, in Mills v. Board of Education of the District of Columbia 
(1972) the court recognized that many children were being excluded 
entirely from education merely because they had been identified as 
having a behavior disorder. It is important to keep in mind, however, 
that these protections do not prevent school officials from maintaining 
a learning environment that is safe and conducive to learning for all 
children. Well run schools that have good leadership, well-trained 
teachers and high standards for all students have fewer discipline 
problems than schools that do not.
    It is also extremely important to keep in mind that the provisions 
of the statute and regulation concerning the amount of time a child 
with a disability can be removed from his or her regular placement for 
disciplinary reasons are only called into play if the removal 
constitutes a change of placement and the parent objects to proposed 
action by school officials (or objects to a refusal by school officials 
to take an action) and requests a due process hearing. The discipline 
rules concerning the amount of time a child can be removed from his or 
her current placement essentially are exceptions to the generally 
applicable requirement that a child remains in his or her current 
placement during the pendency of due process, and subsequent judicial, 
proceedings. (See, section 615(j) of the Act and Sec. 300.514.) If 
school officials believe that a child's placement is inappropriate they 
can work with the child's parent through the IEP and placement 
processes to come up with an appropriate placement for the child that 
will meet the needs of the child and result in his or her improved 
learning and the learning of others and ensure a safe environment. In 
addition to the other measures discussed in the following questions, 
the discipline provisions of the IDEA allow responsible and appropriate 
changes in placement of children with disabilities when their parents 
do not object.

[[Page 12415]]

2. Does IDEA contain provisions that promote proactive up-front 
measures that will help prevent discipline problems?
    Yes. Research has shown that if teachers and other school personnel 
have the knowledge and expertise to provide appropriate behavioral 
interventions, future behavior problems can be greatly diminished if 
not totally avoided. Appropriate staff development activities and 
improved pre-service training programs at the university level with 
emphasis in the area of early identification of reading and behavior 
problems and appropriate interventions can help to ensure that regular 
and special education teachers and other school personnel have the 
needed knowledge and skills. Changes in the IDEA emphasize the need of 
State and local educational agencies to work to ensure that 
superintendents, principals, teachers and other school personnel are 
equipped with the knowledge and skills that will enable them to 
appropriately address behavior problems when they occur.
    In addition, the IDEA includes provisions that focus on individual 
children. If a child has behavior problems that interfere with his or 
her learning or the learning of others, the IEP team must consider 
whether strategies, including positive behavioral interventions, 
strategies, and supports are needed to address the behavior. If the IEP 
team determines that such services are needed, they must be added to 
the IEP and must be provided. The Department has supported a number of 
activities such as training institutes, conferences, clearinghouses and 
other technical assistance and research activities on this topic to 
help school personnel appropriately address behavioral concerns for 
children with disabilities.
3. Can a child with a disability who is experiencing significant 
disciplinary problems be removed to another placement?
    Yes. Even when school personnel are appropriately trained and are 
proactively addressing children's behavior issues through positive 
behavioral intervention supports, interventions, and strategies, there 
may be instances when a child must be removed from his or her current 
placement. When there is agreement between school personnel and the 
child's parents regarding a change in placement (as there frequently 
is), there will be no need to bring into play the discipline provisions 
of the law. Even if agreement is not possible, in general, school 
officials can remove any child with a disability from his or her 
regular school placement for up to 10 school days at a time, even over 
the parents' objections, whenever discipline is appropriate and is 
administered consistent with the treatment of nondisabled children. 
Sec. 300.520(a)(1). However, school officials cannot use this authority 
to repeatedly remove a child from his or her current placement if that 
series of removals means the child is removed for more than 10 school 
days in a school year and factors such as the length of each removal, 
the total amount of time that the child is removed, and the proximity 
of the removals to one another lead to the conclusion that there has 
been a change in placement. Secs. 300.519-300.520(a)(1). There is no 
specific limit on the number of days in a school year that a child with 
a disability can be removed from his or her current placement. After a 
child is removed from his or her current placement for more than 10 
cumulative school days in a school year, services must be provided to 
the extent required under Sec. 300.121(d), which concerns the provision 
of FAPE for children suspended or expelled from school.
    If the child's parents do not agree to a change of placement, 
school authorities can unilaterally remove a child with a disability 
from the child's regular placement for up to 45 days at a time if the 
child has brought a weapon to school or to a school function, or 
knowingly possessed or used illegal drugs or sold or solicited the sale 
of controlled substances while at school or a school function. 
Sec. 300.520(a)(2). In addition, if school officials believe that a 
child with a disability is substantially likely to injure self or 
others in the child's regular placement, they can ask an impartial 
hearing officer to order that the child be removed to an interim 
alternative educational setting for a period of up to 45 days. 
Sec. 300.521. If at the end of an interim alternative educational 
placement of up to 45 days, school officials believe that it would be 
dangerous to return the child to the regular placement because the 
child would be substantially likely to injure self or others in that 
placement, they can ask an impartial hearing officer to order that the 
child remain in an interim alternative educational setting for an 
additional 45 days. Sec. 300.526(c). If necessary, school officials can 
also request subsequent extensions of these interim alternative 
educational settings for up to 45 days at a time if school officials 
continue to believe that the child would be substantially likely to 
injure self or others if returned to his or her regular placement. 
Sec. 300.526(c)(4).
    Additionally, at any time, school officials may seek to obtain a 
court order to remove a child with a disability from school or to 
change a child's current educational placement if they believe that 
maintaining the child in the current educational placement is 
substantially likely to result in injury to the child or others.
    Finally, school officials can report crimes committed by children 
with disabilities to appropriate law enforcement authorities to the 
same extent as they do for crimes committed by nondisabled students. 
Sec. 300.529.
4. Do the IDEA regulations mean that a child with a disability cannot 
be removed from his or her current placement for more than ten school 
days in a school year?
    No. School authorities may unilaterally suspend a child with a 
disability from the child's regular placement for not more than 10 
school days at a time for any violation of school rules if nondisabled 
children would be subjected to removal for the same offense. They also 
may implement additional suspensions of up to ten school days at a time 
in that same school year for separate incidents of misconduct if 
educational services are provided for the remainder of the removals, to 
the extent required under Sec. 300.121(d). (See the next question 
regarding the provision of educational services during periods of 
removal.) However, school authorities may not remove a child in a 
series of short-term suspensions (up to 10 school days at a time), if 
these suspensions constitute a pattern that is a change of placement 
because the removals cumulate to more than 10 school days in a school 
year and because of factors such as the length of each removal, the 
total amount of time the child is removed, and the proximity of the 
removals to one another. But not all series of removals that cumulate 
to more than 10 school days in a school year would constitute a pattern 
under Sec. 300.519(b).
    Of course, in the case of less serious infractions, schools can 
address the misconduct through appropriate instructional and/or related 
services, including conflict management, behavior management 
strategies, and measures such as study carrels, time-outs, and 
restrictions in privileges, so long as they are not inconsistent with 
the child's IEP. If a child's IEP or behavior intervention plan 
addresses a particular behavior, it generally would be inappropriate to 
utilize some other

[[Page 12416]]

response, such as suspension, to that behavior.
5. What must a school district do when removing a child with a 
disability from his or her current placement for the eleventh 
cumulative day in a school year?
    Beginning on the eleventh cumulative day in a school year that a 
child with a disability is removed from his or her current placement, 
the school district must provide those services that school personnel 
(for example, the school administrator or other appropriate school 
personnel) in consultation with the child's special education teacher 
determine to be necessary to enable the child to appropriately progress 
in the general curriculum and appropriately advance toward achieving 
the goals set out in the child's IEP. School personnel would determine 
where those services would be provided. This means that for the 
remainder of the removal that includes the eleventh day, and for any 
subsequent removals, services must be provided to the extent determined 
necessary, while the removal continues. Sec. 300.121(d)(2) and (3).
    Not later than 10 business days after removing a child with a 
disability for more than 10 school days in a school year, the school 
district must convene an IEP team meeting to develop a behavioral 
assessment plan if the district has not already conducted a functional 
behavioral assessment and implemented a behavioral intervention plan 
for the child. If a child with a disability who is being removed for 
the eleventh cumulative school day in a school year already has a 
behavioral intervention plan, the school district must convene the IEP 
team (either before or not later than 10 business days after first 
removing the child for more than 10 school days in a school year) to 
review the plan and its implementation, and modify the plan and its 
implementation as necessary to address the behavior. Sec. 300.520(b).
    A manifestation determination would not be required unless the 
removal that includes the eleventh cumulative school day of removal in 
a school year is a change of placement. Sec. 300.523(a).
6. Does the IDEA or its regulations mean that a child with a disability 
can never be suspended for more than 10 school days at a time or 
expelled for behavior that is not a manifestation of his or her 
disability?
    No. If the IEP team concludes that the child's behavior was not a 
manifestation of the child's disability, the child can be disciplined 
in the same manner as nondisabled children, except that appropriate 
educational services must be provided. Sec. 300.524(a). This means that 
if nondisabled children are long-term suspended or expelled for a 
particular violation of school rules, the child with disabilities may 
also be long-term suspended or expelled. Educational services must be 
provided to the extent the child's IEP team determines necessary to 
enable the child to appropriately progress in the general curriculum 
and appropriately advance toward the goals set out in the child's IEP. 
Sec. 300.121(d)(2).
7. Does the statutory language ``carries a weapon to school or to a 
school function'' cover instances in which the child acquires a weapon 
at school?
    Yes. Although the statutory language ``carries a weapon to school 
or to a school function'' could be viewed as ambiguous on this point, 
in light of the clear intent of Congress in the Act to expand the 
authority of school personnel to immediately address school weapons 
offenses, the Department's opinion is that this language also covers 
instances in which the child is found to have a weapon that he or she 
obtained while at school.

Goals 2000: Educate America Act

    The Goals 2000: Educate America Act (Goals 2000) focuses the 
Nation's education reform efforts on the eight National Education Goals 
and provides a framework for meeting them. Goals 2000 promotes new 
partnerships to strengthen schools and expands the Department's 
capacities for helping communities to exchange ideas and obtain 
information needed to achieve the goals.
    These final regulations address the following National Education 
Goals:
     All children in America will start school ready to learn.
     The high school graduation rate will increase to at least 
90 percent.
     All students will leave grades 4, 8, and 12 having 
demonstrated competency in challenging subject matter, including 
English, mathematics, science, foreign languages, civics and 
government, economics, arts, history, and geography; and every school 
in America will ensure that all students learn to use their minds well, 
so they may be prepared for responsible citizenship, further learning, 
and productive employment in our Nation's modern economy.
     United States students will be first in the world in 
mathematics and science achievement.
     Every adult American will be literate and will possess the 
knowledge and skills necessary to compete in a global economy and 
exercise the rights and responsibilities of citizenship.
     Every school in the United States will be free of drugs, 
violence, and the unauthorized presence of firearms and alcohol and 
will offer a disciplined environment conducive to learning.
     The Nation's teaching force will have access to programs 
for the continued improvement of their professional skills and the 
opportunity to acquire the knowledge and skills needed to instruct and 
prepare all American students for the next century.
     Every school will promote partnerships that will increase 
parental involvement and participation in promoting the social, 
emotional, and academic growth of children.

Executive Order 12866

    This is a significant regulatory action under section 3(f)(1) of 
Executive Order 12866 and, therefore, these final regulations have been 
reviewed by the Office of Management and Budget in accordance with that 
order. Because it has been determined that these regulations are 
economically significant under the order, the Department has conducted 
an economic analysis, which is provided in Attachment 2. This 
regulation has also been determined to be a major rule under the Small 
Business Regulatory Enforcement Fairness Act of 1996.
    These final regulations implement changes made to the Individuals 
with Disabilities Education Act by the IDEA Amendments of 1997 and make 
other changes determined by the Secretary as necessary for 
administering this program effectively and efficiently.
    The IDEA Amendments of 1997 made a number of significant changes to 
the law. While retaining the basic rights and protections that have 
been in the law since 1975, the amendments strengthened the focus of 
the law on improving results for children with disabilities. The 
amendments accomplished this through changes that promote the early 
identification of, and provision of services to, children with 
disabilities, the development of individualized education programs that 
enhance the participation of children with disabilities in the general 
curriculum, the education of children with disabilities with 
nondisabled children, higher expectations for children with 
disabilities and accountability for their educational results, the 
involvement of parents in their children's education, and reducing 
unnecessary paperwork and other burdens to better direct resources to 
improved teaching and learning.

[[Page 12417]]

    All of these objectives are reflected in these final regulations, 
which largely reflect the changes to the statute made by IDEA 
Amendments of 1997.
    In assessing the potential costs and benefits--both quantitative 
and qualitative--of these final regulations, the Secretary has 
determined that the benefits of these final regulations justify the 
costs.
    The Secretary has also determined that this regulatory action does 
not unduly interfere with State, local, and tribal governments in the 
exercise of their governmental functions.

Paperwork Reduction Act of 1995

    Sections 300.110, 300.121, 300.123-300.130, 300.133, 300.135-
300.137, 300.141-300.145, 300.155-300.156, 300.180, 300.192, 300.220-
300.221, 300.240, 300.280-300.281, 300.284, 300.341, 300.343, 300.345, 
300.347, 300.380-300.382, 300.402, 300.482-300.483, 300.503-300.504, 
300.506, 300.508, 300.510-300.511, 300.532, 300.535, 300.543, 300.561-
300.563, 300.565, 300.569, 300.571-300.572, 300.574-300.575, 300.589, 
300.600, 300.653, 300.660-300.662, 300.750-300.751, 300.754, 303.403, 
303.510-303.512, and 303.520 contain information collection 
requirements. As required by the Paperwork Reduction Act of 1995 (44 
U.S.C. 3507(d)), the Department of Education has submitted a copy of 
these sections to the Office of Management and Budget (OMB) for its 
review.
    Collection of Information: Assistance for Education of All Children 
with Disabilities: Complaint Procedures, Secs. 300.600-300.662 and 
303.510-303.512. Each SEA is required to adopt written procedures for 
resolving any complaint that meets the requirements in these proposed 
regulations.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 10 hours to issue a written 
decision to a complaint. There is an estimated average annual total of 
1079 complaints submitted for processing. Thus, the total annual 
reporting and recordkeeping burden for this collection is estimated to 
be 10,790 hours.
    Collection of Information: Assistance for Education of All Children 
with Disabilities: State Eligibility, Secs. 300.110, 300.121, 300.123-
300.130, 300.133, 300.135-300.137, 300.141-300.145, 300.155-300.156, 
300.280-300.281, 300.284, 300.380-300.382, 300.402, 300.482-300.483, 
300.510-300.511, 300.589, 300.600, 300.653, 303.403, and 303.520. Each 
State must have on file with the Secretary policies and procedures to 
demonstrate to the satisfaction of the Secretary that the State meets 
the specified conditions for assistance under this part. In the past, 
States were required to submit State plans every three years with one-
third of the entities submitting plans to the Secretary each year. With 
the new statute, States will no longer be required to submit State 
plans. Rather, the policies and procedures currently approved by, and 
on file with, the Secretary that are not inconsistent with the IDEA 
Amendments of 1997 will remain in effect unless amended.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 30 hours for each response for 58 
respondents, including the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection of information. Thus, the total 
annual reporting and recordkeeping burden for this collection is 
estimated to be 1740 hours.
    Collection of Information: Assistance for Education of All Children 
with Disabilities: LEA Eligibility, Secs. 300.180, 300.192, 300.220-
300.221, 300.240, 300.341, 300.343, 300.345, 300.347, 500.503-300.504, 
300.532, 300.535, 300.543, 300.561-300.563, 300.565, 300.569, 300.571-
300.572, and 300.574-300.575. Each local educational agency (LEA) and 
each State agency must have on file with the State educational agency 
(SEA) information to demonstrate that the agency meets the specified 
requirements for assistance under this part. In the past, each LEA was 
required to submit a periodic application to the SEA in order to 
establish its eligibility for assistance under this part. Under the new 
statutory changes, LEAs are no longer required to submit such 
applications. Rather, the policies and procedures currently approved 
by, and on file with, the SEA that are not inconsistent with the IDEA 
Amendments of 1997 will remain in effect unless amended.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 2 hours for each response for 
15,376 respondents, including the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. 
Thus, the total annual reporting and recordkeeping burden for this 
collection is estimated to be 30,752 hours. The Secretary invites 
comment on the estimated time it will take for LEAs to meet this 
reporting and recordkeeping requirement.
    Collection of Information: Assistance for Education of All Children 
with Disabilities: List of Hearing Officers and Mediators, 
Secs. 300.506 and 300.508. Each State must maintain a list of 
individuals who are qualified mediators and knowledgeable in laws and 
regulations relating to the provision of special education and related 
services. Each public agency must, also, keep a list of the persons who 
serve as hearing officers.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 25 hours for each response for 58 
respondents, including the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection of information. Thus, the total 
annual reporting and recordkeeping burden for this collection is 
estimated to be 3050 hours.
    Collection of Information: Assistance for Education of All Children 
with Disabilities: Report of Children and Youth with Disabilities 
Receiving Special Education, Secs. 300.750-300.751, and 300.754. Each 
SEA must submit an annual report of children served.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 262 hours for each response for 58 
respondents, including the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection of information. Thus, the total 
annual reporting and recordkeeping burden for this collection is 
estimated to be 15,196 hours.
    Organizations and individuals desiring to submit comments on the 
information collection requirements should direct them to the Office of 
Information and Regulatory Affairs, OMB, room 10235, New Executive 
Office Building, Washington, DC 20503; Attention: Desk Officer for U.S. 
Department of Education.
    The Department considers comments by the public on these proposed 
collections of information in--
     Evaluating whether the proposed collections of information 
are necessary for the proper performance of the functions of the 
Department, including whether the information will have practical 
utility;
     Evaluating the accuracy of the Department's estimate of 
the burden of the proposed collections of information, including the 
validity of the methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and

[[Page 12418]]

     Minimizing the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology; e.g., permitting 
electronic submission of responses.
    OMB is required to make a decision concerning the collections of 
information contained in these proposed regulations between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. This does not affect 
the deadline for the public to comment to the Department on the 
proposed regulations.

Regulatory Flexibility Act Certification

    The Secretary certifies that these final regulations will not have 
a significant economic impact on a substantial number of small 
entities. The small entities that would be affected by these 
regulations are small local educational agencies receiving Federal 
funds under this program. These regulations would not have a 
significant economic impact on the small LEAs affected because these 
regulations impose minimal requirements beyond those that would 
otherwise be required by the statute. In addition, increased costs 
imposed by these regulations on LEAs are expected to be offset by 
savings to be realized by LEAs.

Intergovernmental Review

    This program is subject to the requirements of Executive Order 
12372 and the regulations in 34 CFR part 79. The objective of the 
Executive order is to foster an intergovernmental partnership and a 
strengthened federalism by relying on processes developed by State and 
local governments for coordination and review of proposed Federal 
financial assistance.
    In accordance with the order, this document is intended to provide 
early notification of the Department's specific plans and actions for 
this program.

Assessment of Educational Impact

    In the NPRM published on October 22, 1997, the Secretary requested 
comments on whether the proposed regulations would require transmission 
of information that is being gathered by or is available from any other 
agency or authority of the United States.
    Based on the response to the NPRM and on its own review, the 
Department has determined that the regulations in this document do not 
require transmission of information that is being gathered by or is 
available from any other agency or authority of the United States.

Electronic Access to This Document

    Anyone may also view this document, as well as all other Department 
of Education documents published in the Federal Register, in text or 
portable document format (pdf) on the World Wide Web at either of the 
following sites:
http://gcs.ed.gov/fedreg.htm

http://www.ed.gov/news.html

    To use the pdf you must have the Adobe Acrobat Reader Program with 
Search, which is available free at either of the previous sites. If you 
have questions about using the pdf, call the U.S. Government Printing 
Office toll free at 1-888-293-6498.
    Anyone may also view these documents in text copy only on an 
electronic bulletin board of the Department. Telephone: (202) 219-1511 
or, toll free, 1-800-222-4922. The documents are located under Option 
G--Files/Announcements, Bulletins and Press Releases.

    Note: The official version of this document is the document 
published in the Federal Register.

List of Subjects

34 CFR Part 300

    Administrative practice and procedure, Education of individuals 
with disabilities, Elementary and secondary education, Equal 
educational opportunity, Grant programs-- education, Privacy, Private 
schools, Reporting and recordkeeping requirements.

34 CFR Part 303

    Education of individuals with disabilities, Grant programs-- 
education, Infants and children, Reporting and recordkeeping 
requirements.

    Dated: March 4, 1999.
Richard W. Riley,
Secretary of Education.

(Catalog of Federal Domestic Assistance Number: 84.027 Assistance to 
States for the Education of Children with Disabilities, and 84.181 
Early Intervention Program for Infants and Toddlers with 
Disabilities)

    The Secretary amends Title 34 of the Code of Federal Regulations by 
revising part 300 and amending part 303 as follows:
    1. Part 300 is revised to read as follows:

PART 300--ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH 
DISABILITIES

Subpart A--General

Purposes, Applicability, and Regulations That Apply to This Program

Sec.
300.1 Purposes.
300.2 Applicability of this part to State, local, and private 
agencies.

Definitions Used in This Part

300.3  Regulations that apply.
300.4  Act.
300.5  Assistive technology device.
300.6  Assistive technology service.
300.7  Child with a disability.
300.8  Consent.
300.9  Day; business day; school day.
300.10  Educational service agency.
300.11  Equipment.
300.12  Evaluation.
300.13  Free appropriate public education.
300.14  Include.
300.15  Individualized education program.
300.16  Individualized education program team.
300.17  Individualized family service plan.
300.18  Local educational agency.
300.19  Native language.
300.20  Parent.
300.21  Personally identifiable.
300.22  Public agency.
300.23  Qualified personnel.
300.24  Related services.
300.25  Secondary school.
300.26  Special education.
300.27  State.
300.28  Supplementary aids and services.
300.29  Transition services.
300.30  Definitions in EDGAR.

Subpart B--State and Local Eligibility

State Eligibility--General

300.110  Condition of assistance.
300.111  Exception for prior State policies and procedures on file 
with the Secretary.
300.112  Amendments to State policies and procedures.
300.113  Approval by the Secretary.
300.114--300.120  [Reserved]

State Eligibility--Specific Conditions

300.121  Free appropriate public education (FAPE).
300.122  Exception to FAPE for certain ages.
300.123  Full educational opportunity goal (FEOG).
300.124  FEOG--timetable.
300.125  Child find.
300.126  Procedures for evaluation and determination of eligibility.
300.127  Confidentiality of personally identifiable information.
300.128  Individualized education programs.
300.129  Procedural safeguards.
300.130  Least restrictive environment.
300.131  [Reserved]
300.132  Transition of children from Part C to preschool programs.
300.133  Children in private schools.
300.134  [Reserved]

[[Page 12419]]

300.135  Comprehensive system of personnel development.
300.136  Personnel standards.
300.137  Performance goals and indicators.
300.138  Participation in assessments.
300.139  Reports relating to assessments.
300.140  [Reserved]
300.141  SEA responsibility for general supervision.
300.142  Methods of ensuring services.
300.143  SEA implementation of procedural safeguards.
300.144  Hearings relating to LEA eligibility.
300.145  Recovery of funds for misclassified children.
300.146  Suspension and expulsion rates.
300.147  Additional information if SEA provides direct services.
300.148  Public participation.
300.149  [Reserved]
300.150  State advisory panel.
300.151  [Reserved]
300.152  Prohibition against commingling.
300.153  State-level nonsupplanting.
300.154  Maintenance of State financial support.
300.155  Policies and procedures for use of Part B funds.
300.156  Annual description of use of Part B funds.

LEA and State Agency Eligibility--General

300.180  Condition of assistance.
300.181  Exception for prior LEA or State agency policies and 
procedures on file with the SEA.
300.182  Amendments to LEA policies and procedures.
300.183  [Reserved]
300.184  Excess cost requirement.
300.185  Meeting the excess cost requirement.
300.186--300.189  [Reserved]
300.190  Joint establishment of eligibility.
300.191  [Reserved]
300.192  Requirements for establishing eligibility.
300.193  [Reserved]
300.194  State agency eligibility.
300.195  [Reserved]
300.196   Notification of LEA or State agency in case of 
ineligibility.
300.197  LEA and State agency compliance.

LEA and State Agency Eligibility--Specific Conditions

300.220  Consistency with State policies.
300.221  Implementation of CSPD.
300.222--300.229  [Reserved]
300.230  Use of amounts.
300.231  Maintenance of effort.
300.232  Exception to maintenance of effort.
300.233  Treatment of federal funds in certain fiscal years.
300.234  Schoolwide programs under title I of the ESEA.
300.235  Permissive use of funds.
300.236--300.239  [Reserved]
300.240  Information for SEA.
300.241  Treatment of charter schools and their students.
300.242  Public information.
300.243  [Reserved]
300.244  Coordinated services system.

School-Based Improvement Plan

300.245  School-based improvement plan.
300.246  Plan requirements.
300.247  Responsibilities of the LEA.
300.248  Limitation.
300.249  Additional requirements.
300.250  Extension of plan.

Secretary of the Interior--Eligibility

300.260  Submission of information.
300.261  Public participation.
300.262  Use of Part B funds.
300.263  Plan for coordination of services.
300.264  Definitions.
300.265  Establishment of advisory board.
300.266  Annual report by advisory board.
300.267  Applicable regulations.

Public Participation

300.280  Public hearings before adopting State policies and 
procedures.
300.281  Notice.
300.282  Opportunity to participate; comment period.
300.283  Review of public comments before adopting policies and 
procedures.
300.284  Publication and availability of approved policies and 
procedures.

Subpart C--Services

Free Appropriate Public Education

300.300  Provision of FAPE.
300.301  FAPE--methods and payments.
300.302  Residential placement.
300.303  Proper functioning of hearing aids.
300.304  Full educational opportunity goal.
300.305  Program options.
300.306  Nonacademic services.
300.307  Physical education.
300.308  Assistive technology.
300.309  Extended school year services.
300.310  [Reserved]
300.311  FAPE requirements for students with disabilities in adult 
prisons.
300.312  Children with disabilities in public charter schools.
300.313  Children experiencing developmental delays.

Evaluations and Reevaluations

300.320  Initial evaluations.
300.321   Reevaluations.
300.322--300.324  [Reserved]

Individualized Education Programs

300.340  Definitions related to IEPs.
300.341  Responsibility of SEA and other public agencies for IEPs.
300.342  When IEPs must be in effect.
300.343  IEP Meetings.
300.344  IEP team.
300.345  Parent participation.
300.346  Development, review, and revision of IEP.
300.347  Content of IEP.
300.348  Agency responsibilities for transition services.
300.349  Private school placements by public agencies.
300.350  IEPs--accountability.

Direct Services by the Sea

300.360  Use of LEA allocation for direct services.
300.361  Nature and location of services.
300.362--300.369  [Reserved]
300.370  Use of SEA allocations.
300.371  [Reserved]
300.372  Nonapplicability of requirements that prohibit commingling 
and supplanting of funds.

Comprehensive System of Personnel Development (CSPD)

300.380  General CSPD requirements.
300.381  Adequate supply of qualified personnel.
300.382  Improvement strategies.
300.383--300.387  [Reserved]

Subpart D--Children in Private Schools

Children With Disabilities in Private Schools Placed or Referred by 
Public Agencies

300.400  Applicability of Secs. 300.400-300.402.
300.401  Responsibility of State educational agency.
300.402  Implementation by State educational agency.

Children With Disabilities Enrolled by Their Parents in Private Schools 
When FAPE is at Issue

300.403  Placement of children by parents if FAPE is at issue.

Children With Disabilities Enrolled by Their Parents in Private Schools

300.450  Definition of ``private school children with 
disabilities.''
300.451  Child find for private school children with disabilities.
300.452  Provision of services--basic requirement.
300.453  Expenditures.
300.454  Services determined.
300.455  Services provided.
300.456  Location of services; transportation.
300.457  Complaints.
300.458  Separate classes prohibited.
300.459  Requirement that funds not benefit a private school.
300.460  Use of public school personnel.
300.461  Use of private school personnel.
300.462  Requirements concerning property, equipment, and supplies 
for the benefit of private school children with disabilities.

Procedures for By-Pass

300.480  By-pass--general.
300.481  Provisions for services under a by-pass.
300.482  Notice of intent to implement a by-pass.
300.483  Request to show cause.
300.484  Show cause hearing.
300.485  Decision.
300.486  Filing requirements.
300.487  Judicial review.

Subpart E--Procedural Safeguards

Due Process Procedures for Parents and Children

300.500  General responsibility of public agencies; definitions.
300.501  Opportunity to examine records; parent participation in 
meetings.
300.502  Independent educational evaluation.

[[Page 12420]]

300.503  Prior notice by the public agency; content of notice.
300.504  Procedural safeguards notice.
300.505  Parental consent.
300.506  Mediation.
300.507  Impartial due process hearing; parent notice.
300.508  Impartial hearing officer.
300.509  Hearing rights.
300.510  Finality of decision; appeal; impartial review.
300.511  Timelines and convenience of hearings and reviews.
300.512  Civil action.
300.513  Attorneys' fees.
300.514  Child's status during proceedings.
300.515  Surrogate parents.
300.516  [Reserved]
300.517  Transfer of parental rights at age of majority.

Discipline Procedures

300.519  Change of placement for disciplinary removals.
300.520  Authority of school personnel.
300.521  Authority of hearing officer.
300.522  Determination of setting.
300.523  Manifestation determination review.
300.524  Determination that behavior was not manifestation of 
disability.
300.525  Parent appeal.
300.526  Placement during appeals.
300.527  Protections for children not yet eligible for special 
education and related services.
300.528  Expedited due process hearings.
300.529  Referral to and action by law enforcement and judicial 
authorities.

Procedures for Evaluation and Determination of Eligibility

300.530  General.
300.531  Initial evaluation.
300.532  Evaluation procedures.
300.533  Determination of needed evaluation data.
300.534  Determination of eligibility.
300.535  Procedures for determining eligibility and placement.
300.536  Reevaluation.

Additional Procedures for Evaluating Children With Specific Learning 
Disabilities

300.540  Additional team members.
300.541  Criteria for determining the existence of a specific 
learning disability.
300.542  Observation.
300.543  Written report.

Least Restrictive Environment (LRE)

300.550  General LRE requirements.
300.551  Continuum of alternative placements.
300.552  Placements.
300.553  Nonacademic settings.
300.554  Children in public or private institutions.
300.555  Technical assistance and training activities.
300.556  Monitoring activities.

Confidentiality of Information

300.560  Definitions.
300.561  Notice to parents.
300.562  Access rights.
300.563  Record of access.
300.564  Records on more than one child.
300.565  List of types and locations of information.
300.566  Fees.
300.567  Amendment of records at parent's request.
300.568  Opportunity for a hearing.
300.569  Result of hearing.
300.570  Hearing procedures.
300.571  Consent.
300.572  Safeguards.
300.573  Destruction of information.
300.574  Children's rights.
300.575  Enforcement.
300.576  Disciplinary information.
300.577  Department use of personally identifiable information.

Department Procedures

300.580  Determination by the Secretary that a State is eligible.
300.581  Notice and hearing before determining that a State is not 
eligible.
300.582  Hearing official or panel.
300.583  Hearing procedures.
300.584  Initial decision; final decision.
300.585  Filing requirements.
300.586  Judicial review.
300.587  Enforcement.
300.588  [Reserved]
300.589  Waiver of requirement regarding supplementing and not 
supplanting with Part B funds.

Subpart F--State Administration

General

300.600  Responsibility for all educational programs.
300.601  Relation of Part B to other Federal programs.
300.602  State-level activities.

Use of Funds

300.620  Use of funds for State administration.
300.621  Allowable costs.
300.622  Subgrants to LEAs for capacity-building and improvement.
300.623  Amount required for subgrants to LEAs.
300.624  State discretion in awarding subgrants.

State Advisory Panel

300.650  Establishment of advisory panels.
300.651  Membership.
300.652  Advisory panel functions.
300.653  Advisory panel procedures.

State Complaint Procedures

300.660  Adoption of State complaint procedures.
300.661  Minimum State complaint procedures.
300.662  Filing a complaint.

Subpart G--Allocation of Funds; Reports

Allocations

300.700  Special definition of the term ``State.''
300.701  Grants to States.
300.702  Definition.
300.703  Allocations to States.
300.704-300.705  [Reserved]
300.706  Permanent formula.
300.707  Increase in funds.
300.708  Limitation.
300.709  Decrease in funds.
300.710  Allocation for State in which by-pass is implemented for 
private school children with disabilities.
300.711  Subgrants to LEAs.
300.712  Allocations to LEAs.
300.713  Former Chapter 1 State agencies.
300.714  Reallocation of LEA funds.
300.715  Payments to the Secretary of the Interior for the education 
of Indian children.
300.716  Payments for education and services for Indian children 
with disabilities aged 3 through 5.
300.717  Outlying areas and freely associated States.
300.718  Outlying area--definition.
300.719  Limitation for freely associated States.
300.720  Special rule.
300.721  [Reserved]
300.722  Definition.

Reports

300.750  Annual report of children served--report requirement.
300.751  Annual report of children served--information required in 
the report.
300.752  Annual report of children served--certification.
300.753  Annual report of children served--criteria for counting 
children.
300.754  Annual report of children served--other responsibilities of 
the SEA.
300.755  Disproportionality.
300.756  Acquisition of equipment; construction or alteration of 
facilities.
Appendix A to Part 300--Notice of Interpretation
Appendix B to Part 300--Index for IDEA--Part B Regulations

    Authority: 20 U.S.C. 1411-1420, unless otherwise noted.

Subpart A--General

Purposes, Applicability, and Regulations That Apply to This Program


Sec. 300.1  Purposes.

    The purposes of this part are--
    (a) To ensure that all children with disabilities have available to 
them a free appropriate public education that emphasizes special 
education and related services designed to meet their unique needs and 
prepare them for employment and independent living;
    (b) To ensure that the rights of children with disabilities and 
their parents are protected;
    (c) To assist States, localities, educational service agencies, and 
Federal agencies to provide for the education of all children with 
disabilities; and
    (d) To assess and ensure the effectiveness of efforts to educate 
children with disabilities.

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

[[Page 12421]]

Sec. 300.2  Applicability of this part to State, local, and private 
agencies.

    (a) States. This part applies to each State that receives payments 
under Part B of the Act.
    (b) Public agencies within the State. The provisions of this part--
    (1) Apply to all political subdivisions of the State that are 
involved in the education of children with disabilities, including--
    (i) The State educational agency (SEA);
    (ii) Local educational agencies (LEAs), educational service 
agencies (ESAs), and public charter schools that are not otherwise 
included as LEAs or ESAs and are not a school of an LEA or ESA;
    (iii) Other State agencies and schools (such as Departments of 
Mental Health and Welfare and State schools for children with deafness 
or children with blindness); and
    (iv) State and local juvenile and adult correctional facilities; 
and
    (2) Are binding on each public agency in the State that provides 
special education and related services to children with disabilities, 
regardless of whether that agency is receiving funds under Part B.
    (c) Private schools and facilities. Each public agency in the State 
is responsible for ensuring that the rights and protections under Part 
B of the Act are given to children with disabilities--
    (1) Referred to or placed in private schools and facilities by that 
public agency; or
    (2) Placed in private schools by their parents under the provisions 
of Sec. 300.403(c).

(Authority: 20 U.S.C. 1412)


Sec. 300.3  Regulations that apply.

    The following regulations apply to this program:
    (a) 34 CFR part 76 (State-Administered Programs) except for 
Secs. 76.125-76.137 and 76.650-76.662.
    (b) 34 CFR part 77 (Definitions).
    (c) 34 CFR part 79 (Intergovernmental Review of Department of 
Education Programs and Activities).
    (d) 34 CFR part 80 (Uniform Administrative Requirements for Grants 
and Cooperative Agreements to State and Local Governments).
    (e) 34 CFR part 81 (General Education Provisions Act--Enforcement).
    (f) 34 CFR part 82 (New Restrictions on Lobbying).
    (g) 34 CFR part 85 (Government-wide Debarment and Suspension 
(Nonprocurement) and Government-wide Requirements for Drug-Free 
Workplace (Grants)).
    (h) The regulations in this part--34 CFR part 300 (Assistance for 
Education of Children with Disabilities).

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

Definitions Used in This Part


Sec. 300.4  Act.

    As used in this part, Act means the Individuals with Disabilities 
Education Act (IDEA), as amended.

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


Sec. 300.5  Assistive technology device.

    As used in this part, Assistive technology device means any item, 
piece of equipment, or product system, whether acquired commercially 
off the shelf, modified, or customized, that is used to increase, 
maintain, or improve the functional capabilities of a child with a 
disability.

(Authority: 20 U.S.C. 1401(1))


Sec. 300.6  Assistive technology service.

    As used in this part, Assistive technology service means any 
service that directly assists a child with a disability in the 
selection, acquisition, or use of an assistive technology device.
    The term includes--
    (a) The evaluation of the needs of a child with a disability, 
including a functional evaluation of the child in the child's customary 
environment;
    (b) Purchasing, leasing, or otherwise providing for the acquisition 
of assistive technology devices by children with disabilities;
    (c) Selecting, designing, fitting, customizing, adapting, applying, 
maintaining, repairing, or replacing assistive technology devices;
    (d) Coordinating and using other therapies, interventions, or 
services with assistive technology devices, such as those associated 
with existing education and rehabilitation plans and programs;
    (e) Training or technical assistance for a child with a disability 
or, if appropriate, that child's family; and
    (f) Training or technical assistance for professionals (including 
individuals providing education or rehabilitation services), employers, 
or other individuals who provide services to, employ, or are otherwise 
substantially involved in the major life functions of that child.

(Authority: 20 U.S.C. 1401(2))


Sec. 300.7  Child with a disability.

    (a) General. (1) As used in this part, the term child with a 
disability means a child evaluated in accordance with Secs. 300.530-
300.536 as having mental retardation, a hearing impairment including 
deafness, a speech or language impairment, a visual impairment 
including blindness, serious emotional disturbance (hereafter referred 
to as emotional disturbance), an orthopedic impairment, autism, 
traumatic brain injury, an other health impairment, a specific learning 
disability, deaf-blindness, or multiple disabilities, and who, by 
reason thereof, needs special education and related services.
    (2)(i) Subject to paragraph (a)(2)(ii) of this section, if it is 
determined, through an appropriate evaluation under Secs. 300.530-
300.536, that a child has one of the disabilities identified in 
paragraph (a)(1) of this section, but only needs a related service and 
not special education, the child is not a child with a disability under 
this part.
    (ii) If, consistent with Sec. 300.26(a)(2), the related service 
required by the child is considered special education rather than a 
related service under State standards, the child would be determined to 
be a child with a disability under paragraph (a)(1) of this section.
    (b) Children aged 3 through 9 experiencing developmental delays. 
The term child with a disability for children aged 3 through 9 may, at 
the discretion of the State and LEA and in accordance with 
Sec. 300.313, include a child--
    (1) Who is experiencing developmental delays, as defined by the 
State and as measured by appropriate diagnostic instruments and 
procedures, in one or more of the following areas: physical 
development, cognitive development, communication development, social 
or emotional development, or adaptive development; and
    (2) Who, by reason thereof, needs special education and related 
services.
    (c) Definitions of disability terms. The terms used in this 
definition are defined as follows:
    (1)(i) Autism means a developmental disability significantly 
affecting verbal and nonverbal communication and social interaction, 
generally evident before age 3, that adversely affects a child's 
educational performance. Other characteristics often associated with 
autism are engagement in repetitive activities and stereotyped 
movements, resistance to environmental change or change in daily 
routines, and unusual responses to sensory experiences. The term does 
not apply if a child's educational performance is adversely affected 
primarily because the child has an emotional disturbance, as defined in 
paragraph (b)(4) of this section.
    (ii) A child who manifests the characteristics of ``autism'' after 
age 3 could be diagnosed as having ``autism'' if the criteria in 
paragraph (c)(1)(i) of this section are satisfied.

[[Page 12422]]

    (2) Deaf-blindness means concomitant hearing and visual 
impairments, the combination of which causes such severe communication 
and other developmental and educational needs that they cannot be 
accommodated in special education programs solely for children with 
deafness or children with blindness.
    (3) Deafness means a hearing impairment that is so severe that the 
child is impaired in processing linguistic information through hearing, 
with or without amplification, that adversely affects a child's 
educational performance.
    (4) Emotional disturbance is defined as follows:
    (i) The term means a condition exhibiting one or more of the 
following characteristics over a long period of time and to a marked 
degree that adversely affects a child's educational performance:
    (A) An inability to learn that cannot be explained by intellectual, 
sensory, or health factors.
    (B) An inability to build or maintain satisfactory interpersonal 
relationships with peers and teachers.
    (C) Inappropriate types of behavior or feelings under normal 
circumstances.
    (D) A general pervasive mood of unhappiness or depression.
    (E) A tendency to develop physical symptoms or fears associated 
with personal or school problems.
    (ii) The term includes schizophrenia. The term does not apply to 
children who are socially maladjusted, unless it is determined that 
they have an emotional disturbance.
    (5) Hearing impairment means an impairment in hearing, whether 
permanent or fluctuating, that adversely affects a child's educational 
performance but that is not included under the definition of deafness 
in this section.
    (6) Mental retardation means significantly subaverage general 
intellectual functioning, existing concurrently with deficits in 
adaptive behavior and manifested during the developmental period, that 
adversely affects a child's educational performance.
    (7) Multiple disabilities means concomitant impairments (such as 
mental retardation-blindness, mental retardation-orthopedic impairment, 
etc.), the combination of which causes such severe educational needs 
that they cannot be accommodated in special education programs solely 
for one of the impairments. The term does not include deaf-blindness.
    (8) Orthopedic impairment means a severe orthopedic impairment that 
adversely affects a child's educational performance. The term includes 
impairments caused by congenital anomaly (e.g., clubfoot, absence of 
some member, etc.), impairments caused by disease (e.g., poliomyelitis, 
bone tuberculosis, etc.), and impairments from other causes (e.g., 
cerebral palsy, amputations, and fractures or burns that cause 
contractures).
    (9) Other health impairment means having limited strength, vitality 
or alertness, including a heightened alertness to environmental 
stimuli, that results in limited alertness with respect to the 
educational environment, that--
    (i) Is due to chronic or acute health problems such as asthma, 
attention deficit disorder or attention deficit hyperactivity disorder, 
diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, 
leukemia, nephritis, rheumatic fever, and sickle cell anemia; and
    (ii) Adversely affects a child's educational performance.
    (10) Specific learning disability is defined as follows:
    (i) General. The term means a disorder in one or more of the basic 
psychological processes involved in understanding or in using language, 
spoken or written, that may manifest itself in an imperfect ability to 
listen, think, speak, read, write, spell, or to do mathematical 
calculations, including conditions such as perceptual disabilities, 
brain injury, minimal brain dysfunction, dyslexia, and developmental 
aphasia.
    (ii) Disorders not included. The term does not include learning 
problems that are primarily the result of visual, hearing, or motor 
disabilities, of mental retardation, of emotional disturbance, or of 
environmental, cultural, or economic disadvantage.
    (11) Speech or language impairment means a communication disorder, 
such as stuttering, impaired articulation, a language impairment, or a 
voice impairment, that adversely affects a child's educational 
performance.
    (12) Traumatic brain injury means an acquired injury to the brain 
caused by an external physical force, resulting in total or partial 
functional disability or psychosocial impairment, or both, that 
adversely affects a child's educational performance. The term applies 
to open or closed head injuries resulting in impairments in one or more 
areas, such as cognition; language; memory; attention; reasoning; 
abstract thinking; judgment; problem-solving; sensory, perceptual, and 
motor abilities; psychosocial behavior; physical functions; information 
processing; and speech. The term does not apply to brain injuries that 
are congenital or degenerative, or to brain injuries induced by birth 
trauma.
    (13) Visual impairment including blindness means an impairment in 
vision that, even with correction, adversely affects a child's 
educational performance. The term includes both partial sight and 
blindness.

(Authority: 20 U.S.C. 1401(3)(A) and (B); 1401(26))


Sec. 300.8  Consent.

    As used in this part, the term consent has the meaning given that 
term in Sec. 300.500(b)(1).

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


Sec. 300.9  Day; business day; school day.

    As used in this part, the term--
    (a) Day means calendar day unless otherwise indicated as business 
day or school day;
    (b) Business day means Monday through Friday, except for Federal 
and State holidays (unless holidays are specifically included in the 
designation of business day, as in Sec. 300.403(d)(1)(ii)); and
    (c)(1) School day means any day, including a partial day, that 
children are in attendance at school for instructional purposes.
    (2) The term school day has the same meaning for all children in 
school, including children with and without disabilities.

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


Sec. 300.10  Educational service agency.

    As used in this part, the term educational service agency--
    (a) Means a regional public multiservice agency--
    (1) Authorized by State law to develop, manage, and provide 
services or programs to LEAs; and
    (2) Recognized as an administrative agency for purposes of the 
provision of special education and related services provided within 
public elementary and secondary schools of the State;
    (b) Includes any other public institution or agency having 
administrative control and direction over a public elementary or 
secondary school; and
    (c) Includes entities that meet the definition of intermediate 
educational unit in section 602(23) of IDEA as in effect prior to June 
4, 1997.

(Authority: 20 U.S.C. 1401(4))


Sec. 300.11  Equipment.

    As used in this part, the term equipment means--
    (a) Machinery, utilities, and built-in equipment and any necessary

[[Page 12423]]

enclosures or structures to house the machinery, utilities, or 
equipment; and
    (b) All other items necessary for the functioning of a particular 
facility as a facility for the provision of educational services, 
including items such as instructional equipment and necessary 
furniture; printed, published and audio-visual instructional materials; 
telecommunications, sensory, and other technological aids and devices; 
and books, periodicals, documents, and other related materials.

(Authority: 20 U.S.C. 1401(6))


Sec. 300.12  Evaluation.

    As used in this part, the term evaluation has the meaning given 
that term in Sec. 300.500(b)(2).

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


Sec. 300.13  Free appropriate public education.

    As used in this part, the term free appropriate public education or 
FAPE means special education and related services that--
    (a) Are provided at public expense, under public supervision and 
direction, and without charge;
    (b) Meet the standards of the SEA, including the requirements of 
this part;
    (c) Include preschool, elementary school, or secondary school 
education in the State; and
    (d) Are provided in conformity with an individualized education 
program (IEP) that meets the requirements of Secs. 300.340-300.350.

(Authority: 20 U.S.C. 1401(8))


Sec. 300.14  Include.

    As used in this part, the term include means that the items named 
are not all of the possible items that are covered, whether like or 
unlike the ones named.

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


Sec. 300.15  Individualized education program.

    As used in this part, the term individualized education program or 
IEP has the meaning given the term in Sec. 300.340(a).

(Authority: 20 U.S.C. 1401(11))


Sec. 300.16  Individualized education program team.

    As used in this part, the term individualized education program 
team or IEP team means a group of individuals described in Sec. 300.344 
that is responsible for developing, reviewing, or revising an IEP for a 
child with a disability.

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


Sec. 300.17  Individualized family service plan.

    As used in this part, the term individualized family service plan 
or IFSP has the meaning given the term in 34 CFR 303.340(b).

(Authority: 20 U.S.C. 1401(12))


Sec. 300.18  Local educational agency.

    (a) As used in this part, the term local educational agency means a 
public board of education or other public authority legally constituted 
within a State for either administrative control or direction of, or to 
perform a service function for, public elementary or secondary schools 
in a city, county, township, school district, or other political 
subdivision of a State, or for a combination of school districts or 
counties as are recognized in a State as an administrative agency for 
its public elementary or secondary schools.
    (b) The term includes--
    (1) An educational service agency, as defined in Sec. 300.10;
    (2) Any other public institution or agency having administrative 
control and direction of a public elementary or secondary school, 
including a public charter school that is established as an LEA under 
State law; and
    (3) An elementary or secondary school funded by the Bureau of 
Indian Affairs, and not subject to the jurisdiction of any SEA other 
than the Bureau of Indian Affairs, but only to the extent that the 
inclusion makes the school eligible for programs for which specific 
eligibility is not provided to the school in another provision of law 
and the school does not have a student population that is smaller than 
the student population of the LEA receiving assistance under this Act 
with the smallest student population.

(Authority: 20 U.S.C. 1401(15))


Sec. 300.19  Native language.

    (a) As used in this part, the term native language, if used with 
reference to an individual of limited English proficiency, means the 
following:
    (1) The language normally used by that individual, or, in the case 
of a child, the language normally used by the parents of the child, 
except as provided in paragraph (a)(2) of this section.
    (2) In all direct contact with a child (including evaluation of the 
child), the language normally used by the child in the home or learning 
environment.
    (b) For an individual with deafness or blindness, or for an 
individual with no written language, the mode of communication is that 
normally used by the individual (such as sign language, braille, or 
oral communication).

(Authority: 20 U.S.C. 1401(16))


Sec. 300.20  Parent.

    (a) General. As used in this part, the term parent means--
    (1) A natural or adoptive parent of a child;
    (2) A guardian but not the State if the child is a ward of the 
State;
    (3) A person acting in the place of a parent (such as a grandparent 
or stepparent with whom the child lives, or a person who is legally 
responsible for the child's welfare); or
    (4) A surrogate parent who has been appointed in accordance with 
Sec. 300.515.
    (b) Foster parent. Unless State law prohibits a foster parent from 
acting as a parent, a State may allow a foster parent to act as a 
parent under Part B of the Act if--
    (1) The natural parents' authority to make educational decisions on 
the child's behalf has been extinguished under State law; and
    (2) The foster parent--
    (i) Has an ongoing, long-term parental relationship with the child;
    (ii) Is willing to make the educational decisions required of 
parents under the Act; and
    (iii) Has no interest that would conflict with the interests of the 
child.

(Authority: 20 U.S.C. 1401(19))


Sec. 300.21  Personally identifiable

    As used in this part, the term personally identifiable has the 
meaning given that term in Sec. 300.500(b)(3).

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


Sec. 300.22  Public agency.

    As used in this part, the term public agency includes the SEA, 
LEAs, ESAs, public charter schools that are not otherwise included as 
LEAs or ESAs and are not a school of an LEA or ESA, and any other 
political subdivisions of the State that are responsible for providing 
education to children with disabilities.

(Authority: 20 U.S.C. 1412(a)(1)(A), (a)(11))


Sec. 300.23  Qualified personnel.

    As used in this part, the term qualified personnel means personnel 
who have met SEA-approved or SEA-recognized certification, licensing, 
registration, or other comparable requirements that apply to the area 
in which the individuals are providing special education or related 
services.

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


Sec. 300.24  Related services.

    (a) General. As used in this part, the term related services means 
transportation and such developmental, corrective, and other supportive 
services as are required to assist a child with a

[[Page 12424]]

disability to benefit from special education, and includes speech-
language pathology and audiology services, psychological services, 
physical and occupational therapy, recreation, including therapeutic 
recreation, early identification and assessment of disabilities in 
children, counseling services, including rehabilitation counseling, 
orientation and mobility services, and medical services for diagnostic 
or evaluation purposes. The term also includes school health services, 
social work services in schools, and parent counseling and training.
    (b) Individual terms defined. The terms used in this definition are 
defined as follows:
    (1) Audiology includes--
    (i) Identification of children with hearing loss;
    (ii) Determination of the range, nature, and degree of hearing 
loss, including referral for medical or other professional attention 
for the habilitation of hearing;
    (iii) Provision of habilitative activities, such as language 
habilitation, auditory training, speech reading (lip-reading), hearing 
evaluation, and speech conservation;
    (iv) Creation and administration of programs for prevention of 
hearing loss;
    (v) Counseling and guidance of children, parents, and teachers 
regarding hearing loss; and
    (vi) Determination of children's needs for group and individual 
amplification, selecting and fitting an appropriate aid, and evaluating 
the effectiveness of amplification.
    (2) Counseling services means services provided by qualified social 
workers, psychologists, guidance counselors, or other qualified 
personnel.
    (3) Early identification and assessment of disabilities in children 
means the implementation of a formal plan for identifying a disability 
as early as possible in a child's life.
    (4) Medical services means services provided by a licensed 
physician to determine a child's medically related disability that 
results in the child's need for special education and related services.
    (5) Occupational therapy--
    (i) Means services provided by a qualified occupational therapist; 
and
    (ii) Includes--
    (A) Improving, developing or restoring functions impaired or lost 
through illness, injury, or deprivation;
    (B) Improving ability to perform tasks for independent functioning 
if functions are impaired or lost; and
    (C) Preventing, through early intervention, initial or further 
impairment or loss of function.
    (6) Orientation and mobility services--
    (i) Means services provided to blind or visually impaired students 
by qualified personnel to enable those students to attain systematic 
orientation to and safe movement within their environments in school, 
home, and community; and
    (ii) Includes teaching students the following, as appropriate:
    (A) Spatial and environmental concepts and use of information 
received by the senses (such as sound, temperature and vibrations) to 
establish, maintain, or regain orientation and line of travel (e.g., 
using sound at a traffic light to cross the street);
    (B) To use the long cane to supplement visual travel skills or as a 
tool for safely negotiating the environment for students with no 
available travel vision;
    (C) To understand and use remaining vision and distance low vision 
aids; and
    (D) Other concepts, techniques, and tools.
    (7) Parent counseling and training means--
    (i) Assisting parents in understanding the special needs of their 
child;
    (ii) Providing parents with information about child development; 
and
    (iii) Helping parents to acquire the necessary skills that will 
allow them to support the implementation of their child's IEP or IFSP.
    (8) Physical therapy means services provided by a qualified 
physical therapist.
    (9) Psychological services includes--
    (i) Administering psychological and educational tests, and other 
assessment procedures;
    (ii) Interpreting assessment results;
    (iii) Obtaining, integrating, and interpreting information about 
child behavior and conditions relating to learning;
    (iv) Consulting with other staff members in planning school 
programs to meet the special needs of children as indicated by 
psychological tests, interviews, and behavioral evaluations;
    (v) Planning and managing a program of psychological services, 
including psychological counseling for children and parents; and
    (vi) Assisting in developing positive behavioral intervention 
strategies.
    (10) Recreation includes--
    (i) Assessment of leisure function;
    (ii) Therapeutic recreation services;
    (iii) Recreation programs in schools and community agencies; and
    (iv) Leisure education.
    (11) Rehabilitation counseling services means services provided by 
qualified personnel in individual or group sessions that focus 
specifically on career development, employment preparation, achieving 
independence, and integration in the workplace and community of a 
student with a disability. The term also includes vocational 
rehabilitation services provided to a student with disabilities by 
vocational rehabilitation programs funded under the Rehabilitation Act 
of 1973, as amended.
    (12) School health services means services provided by a qualified 
school nurse or other qualified person.
    (13) Social work services in schools includes--
    (i) Preparing a social or developmental history on a child with a 
disability;
    (ii) Group and individual counseling with the child and family;
    (iii) Working in partnership with parents and others on those 
problems in a child's living situation (home, school, and community) 
that affect the child's adjustment in school;
    (iv) Mobilizing school and community resources to enable the child 
to learn as effectively as possible in his or her educational program; 
and
    (v) Assisting in developing positive behavioral intervention 
strategies.
    (14) Speech-language pathology services includes--
    (i) Identification of children with speech or language impairments;
    (ii) Diagnosis and appraisal of specific speech or language 
impairments;
    (iii) Referral for medical or other professional attention 
necessary for the habilitation of speech or language impairments;
    (iv) Provision of speech and language services for the habilitation 
or prevention of communicative impairments; and
    (v) Counseling and guidance of parents, children, and teachers 
regarding speech and language impairments.
    (15) Transportation includes--
    (i) Travel to and from school and between schools;
    (ii) Travel in and around school buildings; and
    (iii) Specialized equipment (such as special or adapted buses, 
lifts, and ramps), if required to provide special transportation for a 
child with a disability.

(Authority: 20 U.S.C. 1401(22))


Sec. 300.25  Secondary school.

    As used in this part, the term secondary school means a nonprofit 
institutional day or residential school that provides secondary 
education, as determined under State law, except that

[[Page 12425]]

it does not include any education beyond grade 12.

(Authority: 20 U.S.C. 1401(23))


Sec. 300.26  Special education.

    (a) General. (1) As used in this part, the term special education 
means specially designed instruction, at no cost to the parents, to 
meet the unique needs of a child with a disability, including--
    (i) Instruction conducted in the classroom, in the home, in 
hospitals and institutions, and in other settings; and
    (ii) Instruction in physical education.
    (2) The term includes each of the following, if it meets the 
requirements of paragraph (a)(1) of this section:
    (i) Speech-language pathology services, or any other related 
service, if the service is considered special education rather than a 
related service under State standards;
    (ii) Travel training; and
    (iii) Vocational education.
    (b) Individual terms defined. The terms in this definition are 
defined as follows:
    (1) At no cost means that all specially-designed instruction is 
provided without charge, but does not preclude incidental fees that are 
normally charged to nondisabled students or their parents as a part of 
the regular education program.
    (2) Physical education--
    (i) Means the development of--
    (A) Physical and motor fitness;
    (B) Fundamental motor skills and patterns; and
    (C) Skills in aquatics, dance, and individual and group games and 
sports (including intramural and lifetime sports); and
    (ii) Includes special physical education, adapted physical 
education, movement education, and motor development.
    (3) Specially-designed instruction means adapting, as appropriate 
to the needs of an eligible child under this part, the content, 
methodology, or delivery of instruction--
    (i) To address the unique needs of the child that result from the 
child's disability; and
    (ii) To ensure access of the child to the general curriculum, so 
that he or she can meet the educational standards within the 
jurisdiction of the public agency that apply to all children.
    (4) Travel training means providing instruction, as appropriate, to 
children with significant cognitive disabilities, and any other 
children with disabilities who require this instruction, to enable them 
to--
    (i) Develop an awareness of the environment in which they live; and
    (ii) Learn the skills necessary to move effectively and safely from 
place to place within that environment (e.g., in school, in the home, 
at work, and in the community).
    (5) Vocational education means organized educational programs that 
are directly related to the preparation of individuals for paid or 
unpaid employment, or for additional preparation for a career requiring 
other than a baccalaureate or advanced degree.

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


Sec. 300.27  State.

    As used in this part, the term State means each of the 50 States, 
the District of Columbia, the Commonwealth of Puerto Rico, and each of 
the outlying areas.

(Authority: 20 U.S.C. 1401(27))


Sec. 300.28  Supplementary aids and services.

    As used in this part, the term supplementary aids and services 
means, aids, services, and other supports that are provided in regular 
education classes or other education-related settings to enable 
children with disabilities to be educated with nondisabled children to 
the maximum extent appropriate in accordance with Secs. 300.550-
300.556.

(Authority: 20 U.S.C. 1401(29))


Sec. 300.29  Transition services.

    (a) As used in this part, transition services means a coordinated 
set of activities for a student with a disability that--
    (1) Is designed within an outcome-oriented process, that promotes 
movement from school to post-school activities, including postsecondary 
education, vocational training, integrated employment (including 
supported employment), continuing and adult education, adult services, 
independent living, or community participation;
    (2) Is based on the individual student's needs, taking into account 
the student's preferences and interests; and
    (3) Includes--
    (i) Instruction;
    (ii) Related services;
    (iii) Community experiences;
    (iv) The development of employment and other post-school adult 
living objectives; and
    (v) If appropriate, acquisition of daily living skills and 
functional vocational evaluation.
    (b) Transition services for students with disabilities may be 
special education, if provided as specially designed instruction, or 
related services, if required to assist a student with a disability to 
benefit from special education.

(Authority: 20 U.S.C. 1401(30))


Sec. 300.30  Definitions in EDGAR.

    The following terms used in this part are defined in 34 CFR 77.1:

Application
Award
Contract
Department
EDGAR
Elementary school
Fiscal year
Grant
Nonprofit
Project
Secretary
Subgrant
State educational agency

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

Subpart B--State and Local Eligibility

State Eligibility--General


Sec. 300.110  Condition of assistance.

    (a) A State is eligible for assistance under Part B of the Act for 
a fiscal year if the State demonstrates to the satisfaction of the 
Secretary that the State has in effect policies and procedures to 
ensure that it meets the conditions in Secs. 300.121-300.156.
    (b) To meet the requirement of paragraph (a) of this section, the 
State must have on file with the Secretary--
    (1) The information specified in Secs. 300.121-300.156 that the 
State uses to implement the requirements of this part; and
    (2) Copies of all applicable State statutes, regulations, and other 
State documents that show the basis of that information.

(Authority: 20 U.S.C. 1412(a))


Sec. 300.111  Exception for prior State policies and procedures on file 
with the Secretary.

    If a State has on file with the Secretary policies and procedures 
approved by the Secretary that demonstrate that the State meets any 
requirement of Sec. 300.110, including any policies and procedures 
filed under Part B of the Act as in effect before June 4, 1997, the 
Secretary considers the State to have met the requirement for purposes 
of receiving a grant under Part B of the Act.

(Authority: 20 U.S.C. 1412(c)(1))


Sec. 300.112  Amendments to State policies and procedures.

    (a) Modifications made by a State. (1) Subject to paragraph (b) of 
this section, policies and procedures submitted by a State in 
accordance with this subpart

[[Page 12426]]

remain in effect until the State submits to the Secretary the 
modifications that the State decides are necessary.
    (2) The provisions of this subpart apply to a modification to a 
State's policies and procedures in the same manner and to the same 
extent that they apply to the State's original policies and procedures.
    (b) Modifications required by the Secretary. The Secretary may 
require a State to modify its policies and procedures, but only to the 
extent necessary to ensure the State's compliance with this part, if--
    (1) After June 4, 1997, the provisions of the Act or the 
regulations in this part are amended;
    (2) There is a new interpretation of this Act or regulations by a 
Federal court or a State's highest court; or
    (3) There is an official finding of noncompliance with Federal law 
or regulations.

(Authority: 20 U.S.C. 1412(c)(2) and (3))


Sec. 300.113  Approval by the Secretary.

    (a) General. If the Secretary determines that a State is eligible 
to receive a grant under Part B of the Act, the Secretary notifies the 
State of that determination.
    (b) Notice and hearing before determining a State is not eligible. 
The Secretary does not make a final determination that a State is not 
eligible to receive a grant under Part B of the Act until after 
providing the State reasonable notice and an opportunity for a hearing 
in accordance with the procedures in Secs. 300.581-300.586.

(Authority: 20 U.S.C. 1412(d))


Secs. 300.114--300.120  [Reserved]

State Eligibility--Specific Conditions


Sec. 300.121  Free appropriate public education (FAPE).

    (a) General. Each State must have on file with the Secretary 
information that shows that, subject to Sec. 300.122, the State has in 
effect a policy that ensures that all children with disabilities aged 3 
through 21 residing in the State have the right to FAPE, including 
children with disabilities who have been suspended or expelled from 
school.
    (b) Required information. The information described in paragraph 
(a) of this section must--
    (1) Include a copy of each State statute, court order, State 
Attorney General opinion, and other State documents that show the 
source of the State's policy relating to FAPE; and
    (2) Show that the policy--
    (i)(A) Applies to all public agencies in the State; and
    (B) Is consistent with the requirements of Secs. 300.300-300.313; 
and
    (ii) Applies to all children with disabilities, including children 
who have been suspended or expelled from school.
    (c) FAPE for children beginning at age 3. (1) Each State shall 
ensure that--
    (i) The obligation to make FAPE available to each eligible child 
residing in the State begins no later than the child's third birthday; 
and
    (ii) An IEP or an IFSP is in effect for the child by that date, in 
accordance with Sec. 300.342(c).
    (2) If a child's third birthday occurs during the summer, the 
child's IEP team shall determine the date when services under the IEP 
or IFSP will begin.
    (d) FAPE for children suspended or expelled from school. (1) A 
public agency need not provide services during periods of removal under 
Sec. 300.520(a)(1) to a child with a disability who has been removed 
from his or her current placement for 10 school days or less in that 
school year, if services are not provided to a child without 
disabilities who has been similarly removed.
    (2) In the case of a child with a disability who has been removed 
from his or her current placement for more than 10 school days in that 
school year, the public agency, for the remainder of the removals, 
must--
    (i) Provide services to the extent necessary to enable the child to 
appropriately progress in the general curriculum and appropriately 
advance toward achieving the goals set out in the child's IEP, if the 
removal is--
    (A) Under the school personnel's authority to remove for not more 
than 10 consecutive school days as long as that removal does not 
constitute a change of placement under Sec. 300.519(b) 
(Sec. 300.520((a)(1)); or
    (B) For behavior that is not a manifestation of the child's 
disability, consistent with Sec. 300.524; and
    (ii) Provide services consistent with Sec. 300.522, regarding 
determination of the appropriate interim alternative educational 
setting, if the removal is--
    (A) For drug or weapons offenses under Sec. 300.520(a)(2); or
    (B) Based on a hearing officer determination that maintaining the 
current placement of the child is substantially likely to result in 
injury to the child or to others if he or she remains in the current 
placement, consistent with Sec. 300.521.
    (3)(i) School personnel, in consultation with the child's special 
education teacher, determine the extent to which services are necessary 
to enable the child to appropriately progress in the general curriculum 
and appropriately advance toward achieving the goals set out in the 
child's IEP if the child is removed under the authority of school 
personnel to remove for not more than 10 consecutive school days as 
long as that removal does not constitute a change of placement under 
Sec. 300.519 (Sec. 300.520(a)(1)).
    (ii) The child's IEP team determines the extent to which services 
are necessary to enable the child to appropriately progress in the 
general curriculum and appropriately advance toward achieving the goals 
set out in the child's IEP if the child is removed because of behavior 
that has been determined not to be a manifestation of the child's 
disability, consistent with Sec. 300.524.
    (e) Children advancing from grade to grade. (1) Each State shall 
ensure that FAPE is available to any individual child with a disability 
who needs special education and related services, even though the child 
is advancing from grade to grade.
    (2) The determination that a child described in paragraph (a)(1) of 
this section is eligible under this part, must be made on an individual 
basis by the group responsible within the child's LEA for making those 
determinations.

(Authority: 20 U.S.C. 1412(a)(1))


Sec. 300.122  Exception to FAPE for certain ages.

    (a) General. The obligation to make FAPE available to all children 
with disabilities does not apply with respect to the following:
    (1) Children aged 3, 4, 5, 18, 19, 20, or 21 in a State to the 
extent that its application to those children would be inconsistent 
with State law or practice, or the order of any court, respecting the 
provision of public education to children in one or more of those age 
groups.
    (2)(i) Students aged 18 through 21 to the extent that State law 
does not require that special education and related services under Part 
B of the Act be provided to students with disabilities who, in the last 
educational placement prior to their incarceration in an adult 
correctional facility--
    (A) Were not actually identified as being a child with a disability 
under Sec. 300.7; and
    (B) Did not have an IEP under Part B of the Act.
    (ii) The exception in paragraph (a)(2)(i) of this section does not 
apply to students with disabilities, aged 18 through 21, who--
    (A) Had been identified as a child with disability and had received 
services in accordance with an IEP, but

[[Page 12427]]

who left school prior to their incarceration; or
    (B) Did not have an IEP in their last educational setting, but who 
had actually been identified as a ``child with a disability'' under 
Sec. 300.7.
    (3)(i) Students with disabilities who have graduated from high 
school with a regular high school diploma.
    (ii) The exception in paragraph (a)(3)(i) of this section does not 
apply to students who have graduated but have not been awarded a 
regular high school diploma.
    (iii) Graduation from high school with a regular diploma 
constitutes a change in placement, requiring written prior notice in 
accordance with Sec. 300.503.
    (b) Documents relating to exceptions. The State must have on file 
with the Secretary--
    (1)(i) Information that describes in detail the extent to which the 
exception in paragraph (a)(1) of this section applies to the State; and
    (ii) A copy of each State law, court order, and other documents 
that provide a basis for the exception; and
    (2) With respect to paragraph (a)(2) of this section, a copy of the 
State law that excludes from services under Part B of the Act certain 
students who are incarcerated in an adult correctional facility.

(Authority: 20 U.S.C. 1412(a)(1)(B))


Sec. 300.123  Full educational opportunity goal (FEOG).

    The State must have on file with the Secretary detailed policies 
and procedures through which the State has established a goal of 
providing full educational opportunity to all children with 
disabilities aged birth through 21.

(Authority: 20 U.S.C. 1412(a)(2))


Sec. 300.124  FEOG--timetable.

    The State must have on file with the Secretary a detailed timetable 
for accomplishing the goal of providing full educational opportunity 
for all children with disabilities.

(Authority: 20 U.S.C. 1412(a)(2))


Sec. 300.125  Child find.

    (a) General requirement. (1) The State must have in effect policies 
and procedures to ensure that--
    (i) All children with disabilities residing in the State, including 
children with disabilities attending private schools, regardless of the 
severity of their disability, and who are in need of special education 
and related services, are identified, located, and evaluated; and
    (ii) A practical method is developed and implemented to determine 
which children are currently receiving needed special education and 
related services.
    (2) The requirements of paragraph (a)(1) of this section apply to--
    (i) Highly mobile children with disabilities (such as migrant and 
homeless children); and
    (ii) Children who are suspected of being a child with a disability 
under Sec. 300.7 and in need of special education, even though they are 
advancing from grade to grade.
    (b) Documents relating to child find. The State must have on file 
with the Secretary the policies and procedures described in paragraph 
(a) of this section, including--
    (1) The name of the State agency (if other than the SEA) 
responsible for coordinating the planning and implementation of the 
policies and procedures under paragraph (a) of this section;
    (2) The name of each agency that participates in the planning and 
implementation of the child find activities and a description of the 
nature and extent of its participation;
    (3) A description of how the policies and procedures under 
paragraph (a) of this section will be monitored to ensure that the SEA 
obtains--
    (i) The number of children with disabilities within each disability 
category that have been identified, located, and evaluated; and
    (ii) Information adequate to evaluate the effectiveness of those 
policies and procedures; and
    (4) A description of the method the State uses to determine which 
children are currently receiving special education and related 
services.
    (c) Child find for children from birth through age 2 when the SEA 
and lead agency for the Part C program are different. (1) In States 
where the SEA and the State's lead agency for the Part C program are 
different and the Part C lead agency will be participating in the child 
find activities described in paragraph (a) of this section, a 
description of the nature and extent of the Part C lead agency's 
participation must be included under paragraph (b)(2) of this section.
    (2) With the SEA's agreement, the Part C lead agency's 
participation may include the actual implementation of child find 
activities for infants and toddlers with disabilities.
    (3) The use of an interagency agreement or other mechanism for 
providing for the Part C lead agency's participation does not alter or 
diminish the responsibility of the SEA to ensure compliance with the 
requirements of this section.
    (d) Construction. Nothing in the Act requires that children be 
classified by their disability so long as each child who has a 
disability listed in Sec. 300.7 and who, by reason of that disability, 
needs special education and related services is regarded as a child 
with a disability under Part B of the Act.
    (e) Confidentiality of child find data. The collection and use of 
data to meet the requirements of this section are subject to the 
confidentiality requirements of Secs. 300.560-300.577.

(Authority: 20 U.S.C. 1412 (a)(3)(A) and (B))


Sec. 300.126  Procedures for evaluation and determination of 
eligibility.

    The State must have on file with the Secretary policies and 
procedures that ensure that the requirements of Secs. 300.530-300.536 
are met.

(Authority: 20 U.S.C. 1412(a)(6)(B), (7))


Sec. 300.127  Confidentiality of personally identifiable information.

    (a) The State must have on file in detail the policies and 
procedures that the State has undertaken to ensure protection of the 
confidentiality of any personally identifiable information, collected, 
used, or maintained under Part B of the Act.
    (b) The Secretary uses the criteria in Secs. 300.560-300.576 to 
evaluate the policies and procedures of the State under paragraph (a) 
of this section.

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


Sec. 300.128  Individualized education programs.

    (a) General. The State must have on file with the Secretary 
information that shows that an IEP, or an IFSP that meets the 
requirements of section 636(d) of the Act, is developed, reviewed, and 
revised for each child with a disability in accordance with 
Secs. 300.340-300.350.
    (b) Required information. The information described in paragraph 
(a) of this section must include--
    (1) A copy of each State statute, policy, and standard that 
regulates the manner in which IEPs are developed, implemented, 
reviewed, and revised; and
    (2) The procedures that the SEA follows in monitoring and 
evaluating those IEPs or IFSPs.

(Authority: 20 U.S.C. 1412(a)(4))


Sec. 300.129  Procedural safeguards.

    (a) The State must have on file with the Secretary procedural 
safeguards that ensure that the requirements of Secs. 300.500-300.529 
are met.
    (b) Children with disabilities and their parents must be afforded 
the procedural safeguards identified in paragraph (a) of this section.


[[Page 12428]]


(Authority: 20 U.S.C. 1412(a)(6)(A))


Sec. 300.130  Least restrictive environment.

    (a) General. The State must have on file with the Secretary 
procedures that ensure that the requirements of Secs. 300.550-300.556 
are met, including the provision in Sec. 300.551 requiring a continuum 
of alternative placements to meet the unique needs of each child with a 
disability.
    (b) Additional requirement. (1) If the State uses a funding 
mechanism by which the State distributes State funds on the basis of 
the type of setting where a child is served, the funding mechanism may 
not result in placements that violate the requirements of paragraph (a) 
of this section.
    (2) If the State does not have policies and procedures to ensure 
compliance with paragraph (b)(1) of this section, the State must 
provide the Secretary an assurance that the State will revise the 
funding mechanism as soon as feasible to ensure that the mechanism does 
not result in placements that violate that paragraph.

(Authority: 20 U.S.C. 1412(a)(5))


Sec. 300.131  [Reserved]


Sec. 300.132  Transition of children from Part C to preschool programs.

    The State must have on file with the Secretary policies and 
procedures to ensure that--
    (a) Children participating in early-intervention programs assisted 
under Part C of the Act, and who will participate in preschool programs 
assisted under Part B of the Act, experience a smooth and effective 
transition to those preschool programs in a manner consistent with 
section 637(a)(8) of the Act;
    (b) By the third birthday of a child described in paragraph (a) of 
this section, an IEP or, if consistent with Sec. 300.342(c) and section 
636(d) of the Act, an IFSP, has been developed and is being implemented 
for the child consistent with Sec. 300.121(c); and
    (c) Each LEA will participate in transition planning conferences 
arranged by the designated lead agency under section 637(a)(8) of the 
Act.

(Authority: 20 U.S.C. 1412(a)(9))


Sec. 300.133  Children in private schools.

    The State must have on file with the Secretary policies and 
procedures that ensure that the requirements of Secs. 300.400-300.403 
and Secs. 300.450-300.462 are met.

(Authority: 20 U.S.C. 1413(a)(4))


Sec. 300.134  [Reserved]


Sec. 300.135  Comprehensive system of personnel development.

    (a) General. The State must have in effect, consistent with the 
purposes of this part and with section 635(a)(8) of the Act, a 
comprehensive system of personnel development that--
    (1) Is designed to ensure an adequate supply of qualified special 
education, regular education, and related services personnel; and
    (2) Meets the requirements for a State improvement plan relating to 
personnel development in section 653(b)(2)(B) and (c)(3)(D) of the Act.
    (b) Information. The State must have on file with the Secretary 
information that shows that the requirements of paragraph (a) of this 
section are met.

(Authority: 20 U.S.C. 1412(a)(14))


Sec. 300.136  Personnel standards.

    (a) Definitions. As used in this part--
    (1) Appropriate professional requirements in the State means entry 
level requirements that--
    (i) Are based on the highest requirements in the State applicable 
to the profession or discipline in which a person is providing special 
education or related services; and
    (ii) Establish suitable qualifications for personnel providing 
special education and related services under Part B of the Act to 
children with disabilities who are served by State, local, and private 
agencies (see Sec. 300.2);
    (2) Highest requirements in the State applicable to a specific 
profession or discipline means the highest entry-level academic degree 
needed for any State-approved or -recognized certification, licensing, 
registration, or other comparable requirements that apply to that 
profession or discipline;
    (3) Profession or discipline means a specific occupational category 
that--
    (i) Provides special education and related services to children 
with disabilities under Part B of the Act;
    (ii) Has been established or designated by the State;
    (iii) Has a required scope of responsibility and degree of 
supervision; and
    (iv) Is not limited to traditional occupational categories; and
    (4) State-approved or -recognized certification, licensing, 
registration, or other comparable requirements means the requirements 
that a State legislature either has enacted or has authorized a State 
agency to promulgate through rules to establish the entry-level 
standards for employment in a specific profession or discipline in that 
State.
    (b) Policies and procedures. (1)(i) The State must have on file 
with the Secretary policies and procedures relating to the 
establishment and maintenance of standards to ensure that personnel 
necessary to carry out the purposes of this part are appropriately and 
adequately prepared and trained.
    (ii) The policies and procedures required in paragraph (b)(1)(i) of 
this section must provide for the establishment and maintenance of 
standards that are consistent with any State-approved or -recognized 
certification, licensing, registration, or other comparable 
requirements that apply to the profession or discipline in which a 
person is providing special education or related services.
    (2) Each State may--
    (i) Determine the specific occupational categories required to 
provide special education and related services within the State; and
    (ii) Revise or expand those categories as needed.
    (3) Nothing in this part requires a State to establish a specified 
training standard (e.g., a masters degree) for personnel who provide 
special education and related services under Part B of the Act.
    (4) A State with only one entry-level academic degree for 
employment of personnel in a specific profession or discipline may 
modify that standard as necessary to ensure the provision of FAPE to 
all children with disabilities in the State without violating the 
requirements of this section.
    (c) Steps for retraining or hiring personnel. To the extent that a 
State's standards for a profession or discipline, including standards 
for temporary or emergency certification, are not based on the highest 
requirements in the State applicable to a specific profession or 
discipline, the State must provide the steps the State is taking and 
the procedures for notifying public agencies and personnel of those 
steps and the timelines it has established for the retraining or hiring 
of personnel to meet appropriate professional requirements in the 
State.
    (d) Status of personnel standards in the State. (1) In meeting the 
requirements in paragraphs (b) and (c) of this section, a determination 
must be made about the status of personnel standards in the State. That 
determination must be based on current information that accurately 
describes, for each profession or discipline in which personnel are 
providing special education or related services, whether the applicable 
standards are consistent with the highest requirements in the State for 
that profession or discipline.
    (2) The information required in paragraph (d)(1) of this section 
must be

[[Page 12429]]

on file in the SEA and available to the public.
    (e) Applicability of State statutes and agency rules. In 
identifying the highest requirements in the State for purposes of this 
section, the requirements of all State statutes and the rules of all 
State agencies applicable to serving children with disabilities must be 
considered.
    (f) Use of paraprofessionals and assistants. A State may allow 
paraprofessionals and assistants who are appropriately trained and 
supervised, in accordance with State law, regulations, or written 
policy, in meeting the requirements of this part to be used to assist 
in the provision of special education and related services to children 
with disabilities under Part B of the Act.
    (g) Policy to address shortage of personnel. (1) In implementing 
this section, a State may adopt a policy that includes a requirement 
that LEAs in the State make an ongoing good faith effort to recruit and 
hire appropriately and adequately trained personnel to provide special 
education and related services to children with disabilities, 
including, in a geographic area of the State where there is a shortage 
of personnel that meet these qualifications, the most qualified 
individuals available who are making satisfactory progress toward 
completing applicable course work necessary to meet the standards 
described in paragraph (b)(2) of this section, consistent with State 
law and the steps described in paragraph (c) of this section, within 
three years.
    (2) If a State has reached its established date under paragraph (c) 
of this section, the State may still exercise the option under 
paragraph (g)(1) of this section for training or hiring all personnel 
in a specific profession or discipline to meet appropriate professional 
requirements in the State.
    (3)(i) Each State must have a mechanism for serving children with 
disabilities if instructional needs exceed available personnel who meet 
appropriate professional requirements in the State for a specific 
profession or discipline.
    (ii) A State that continues to experience shortages of qualified 
personnel must address those shortages in its comprehensive system of 
personnel development under Sec. 300.135.

(Authority: 20 U.S.C. 1412(a)(15))


Sec. 300.137  Performance goals and indicators.

    The State must have on file with the Secretary information to 
demonstrate that the State--
    (a) Has established goals for the performance of children with 
disabilities in the State that--
    (1) Will promote the purposes of this part, as stated in 
Sec. 300.1; and
    (2) Are consistent, to the maximum extent appropriate, with other 
goals and standards for all children established by the State;
    (b) Has established performance indicators that the State will use 
to assess progress toward achieving those goals that, at a minimum, 
address the performance of children with disabilities on assessments, 
drop-out rates, and graduation rates;
    (c) Every two years, will report to the Secretary and the public on 
the progress of the State, and of children with disabilities in the 
State, toward meeting the goals established under paragraph (a) of this 
section; and
    (d) Based on its assessment of that progress, will revise its State 
improvement plan under subpart 1 of Part D of the Act as may be needed 
to improve its performance, if the State receives assistance under that 
subpart.

(Authority: 20 U.S.C. 1412(a)(16))


Sec. 300.138  Participation in assessments.

    The State must have on file with the Secretary information to 
demonstrate that--
    (a) Children with disabilities are included in general State and 
district-wide assessment programs, with appropriate accommodations and 
modifications in administration, if necessary;
    (b) As appropriate, the State or LEA--
    (1) Develops guidelines for the participation of children with 
disabilities in alternate assessments for those children who cannot 
participate in State and district-wide assessment programs;
    (2) Develops alternate assessments in accordance with paragraph 
(b)(1) of this section; and
    (3) Beginning not later than, July 1, 2000, conducts the alternate 
assessments described in paragraph (b)(2) of this section.

(Authority: 20 U.S.C. 1412(a)(17)(A))


Sec. 300.139  Reports relating to assessments.

    (a) General. In implementing the requirements of Sec. 300.138, the 
SEA shall make available to the public, and report to the public with 
the same frequency and in the same detail as it reports on the 
assessment of nondisabled children, the following information:
    (1) The number of children with disabilities participating--
    (i) In regular assessments; and
    (ii) In alternate assessments.
    (2) The performance results of the children described in paragraph 
(a)(1) of this section if doing so would be statistically sound and 
would not result in the disclosure of performance results identifiable 
to individual children--
    (i) On regular assessments (beginning not later than July 1, 1998); 
and
    (ii) On alternate assessments (not later than July 1, 2000).
    (b) Combined reports. Reports to the public under paragraph (a) of 
this section must include--
    (1) Aggregated data that include the performance of children with 
disabilities together with all other children; and
    (2) Disaggregated data on the performance of children with 
disabilities.
    (c) Timeline for disaggregation of data. Data relating to the 
performance of children described under paragraph (a)(2) of this 
section must be disaggregated--
    (1) For assessments conducted after July 1, 1998; and
    (2) For assessments conducted before July 1, 1998, if the State is 
required to disaggregate the data prior to July 1, 1998.

(Authority: 20 U.S.C. 612(a)(17)(B))


Sec. 300.140  [Reserved]


Sec. 300.141  SEA responsibility for general supervision.

    (a) The State must have on file with the Secretary information that 
shows that the requirements of Sec. 300.600 are met.
    (b) The information described under paragraph (a) of this section 
must include a copy of each State statute, State regulation, signed 
agreement between respective agency officials, and any other documents 
that show compliance with that paragraph.

(Authority: 20 U.S.C. 1412(a)(11))


Sec. 300.142  Methods of ensuring services.

    (a) Establishing responsibility for services. The Chief Executive 
Officer or designee of that officer shall ensure that an interagency 
agreement or other mechanism for interagency coordination is in effect 
between each noneducational public agency described in paragraph (b) of 
this section and the SEA, in order to ensure that all services 
described in paragraph (b)(1) of this section that are needed to ensure 
FAPE are provided, including the provision of these services during the 
pendency of any dispute under paragraph (a)(3) of this section. The 
agreement or mechanism must include the following:
    (1) Agency financial responsibility. An identification of, or a 
method for

[[Page 12430]]

defining, the financial responsibility of each agency for providing 
services described in paragraph (b)(1) of this section to ensure FAPE 
to children with disabilities. The financial responsibility of each 
noneducational public agency described in paragraph (b) of this 
section, including the State Medicaid agency and other public insurers 
of children with disabilities, must precede the financial 
responsibility of the LEA (or the State agency responsible for 
developing the child's IEP).
    (2) Conditions and terms of reimbursement. The conditions, terms, 
and procedures under which an LEA must be reimbursed by other agencies.
    (3) Interagency disputes. Procedures for resolving interagency 
disputes (including procedures under which LEAs may initiate 
proceedings) under the agreement or other mechanism to secure 
reimbursement from other agencies or otherwise implement the provisions 
of the agreement or mechanism.
    (4) Coordination of services procedures. Policies and procedures 
for agencies to determine and identify the interagency coordination 
responsibilities of each agency to promote the coordination and timely 
and appropriate delivery of services described in paragraph (b)(1) of 
this section.
    (b) Obligation of noneducational public agencies. (1) General. (i) 
If any public agency other than an educational agency is otherwise 
obligated under Federal or State law, or assigned responsibility under 
State policy or pursuant to paragraph (a) of this section, to provide 
or pay for any services that are also considered special education or 
related services (such as, but not limited to, services described in 
Sec. 300.5 relating to assistive technology devices, Sec. 300.6 
relating to assistive technology services, Sec. 300.24 relating to 
related services, Sec. 300.28 relating to supplementary aids and 
services, and Sec. 300.29 relating to transition services) that are 
necessary for ensuring FAPE to children with disabilities within the 
State, the public agency shall fulfill that obligation or 
responsibility, either directly or through contract or other 
arrangement.
    (ii) A noneducational public agency described in paragraph 
(b)(1)(i) of this section may not disqualify an eligible service for 
Medicaid reimbursement because that service is provided in a school 
context.
    (2) Reimbursement for services by noneducational public agency. If 
a public agency other than an educational agency fails to provide or 
pay for the special education and related services described in 
paragraph (b)(1) of this section, the LEA (or State agency responsible 
for developing the child's IEP) shall provide or pay for these services 
to the child in a timely manner. The LEA or State agency may then claim 
reimbursement for the services from the noneducational public agency 
that failed to provide or pay for these services and that agency shall 
reimburse the LEA or State agency in accordance with the terms of the 
interagency agreement or other mechanism described in paragraph (a)(1) 
of this section, and the agreement described in paragraph (a)(2) of 
this section.
    (c) Special rule. The requirements of paragraph (a) of this section 
may be met through--
    (1) State statute or regulation;
    (2) Signed agreements between respective agency officials that 
clearly identify the responsibilities of each agency relating to the 
provision of services; or
    (3) Other appropriate written methods as determined by the Chief 
Executive Officer of the State or designee of that officer.
    (d) Information. The State must have on file with the Secretary 
information to demonstrate that the requirements of paragraphs (a) 
through (c) of this section are met.
    (e) Children with disabilities who are covered by public insurance. 
(1) A public agency may use the Medicaid or other public insurance 
benefits programs in which a child participates to provide or pay for 
services required under this part, as permitted under the public 
insurance program, except as provided in paragraph (e)(2) of this 
section.
    (2) With regard to services required to provide FAPE to an eligible 
child under this part, the public agency--
    (i) May not require parents to sign up for or enroll in public 
insurance programs in order for their child to receive FAPE under Part 
B of the Act;
    (ii) May not require parents to incur an out-of-pocket expense such 
as the payment of a deductible or co-pay amount incurred in filing a 
claim for services provided pursuant to this part, but pursuant to 
paragraph (g)(2) of this section, may pay the cost that the parent 
otherwise would be required to pay; and
    (iii) May not use a child's benefits under a public insurance 
program if that use would--
    (A) Decrease available lifetime coverage or any other insured 
benefit;
    (B) Result in the family paying for services that would otherwise 
be covered by the public insurance program and that are required for 
the child outside of the time the child is in school;
    (C) Increase premiums or lead to the discontinuation of insurance; 
or
    (D) Risk loss of eligibility for home and community-based waivers, 
based on aggregate health-related expenditures.
    (f) Children with disabilities who are covered by private 
insurance. (1) With regard to services required to provide FAPE to an 
eligible child under this part, a public agency may access a parent's 
private insurance proceeds only if the parent provides informed consent 
consistent with Sec. 300.500(b)(1).
    (2) Each time the public agency proposes to access the parent's 
private insurance proceeds, it must--
    (i) Obtain parent consent in accordance with paragraph (f)(1) of 
this section; and
    (ii) Inform the parents that their refusal to permit the public 
agency to access their private insurance does not relieve the public 
agency of its responsibility to ensure that all required services are 
provided at no cost to the parents.
    (g) Use of Part B funds. (1) If a public agency is unable to obtain 
parental consent to use the parent's private insurance, or public 
insurance when the parent would incur a cost for a specified service 
required under this part, to ensure FAPE the public agency may use its 
Part B funds to pay for the service.
    (2) To avoid financial cost to parents who otherwise would consent 
to use private insurance, or public insurance if the parent would incur 
a cost, the public agency may use its Part B funds to pay the cost the 
parents otherwise would have to pay to use the parent's insurance 
(e.g., the deductible or co-pay amounts).
    (h) Proceeds from public or private insurance. (1) Proceeds from 
public or private insurance will not be treated as program income for 
purposes of 34 CFR 80.25.
    (2) If a public agency spends reimbursements from Federal funds 
(e.g., Medicaid) for services under this part, those funds will not be 
considered ``State or local'' funds for purposes of the maintenance of 
effort provisions in Secs. 300.154 and 300.231.
    (i) Construction. Nothing in this part should be construed to alter 
the requirements imposed on a State Medicaid agency, or any other 
agency administering a public insurance program by Federal statute, 
regulations or policy under title XIX, or title XXI of the Social 
Security Act, or any other public insurance program.

(Authority: 20 U.S.C. 1412(a)(12)(A), (B), and (C); 1401(8))

[[Page 12431]]

Sec. 300.143  SEA implementation of procedural safeguards.

    The State must have on file with the Secretary the procedures that 
the SEA (and any agency assigned responsibility pursuant to 
Sec. 300.600(d)) follows to inform each public agency of its 
responsibility for ensuring effective implementation of procedural 
safeguards for the children with disabilities served by that public 
agency.

(Authority: 20 U.S.C. 1412(a)(11); 1415(a))


Sec. 300.144  Hearings relating to LEA eligibility.

    The State must have on file with the Secretary procedures to ensure 
that the SEA does not make any final determination that an LEA is not 
eligible for assistance under Part B of the Act without first giving 
the LEA reasonable notice and an opportunity for a hearing under 34 CFR 
76.401(d).

(Authority: 20 U.S.C. 1412(a)(13))


Sec. 300.145  Recovery of funds for misclassified children.

    The State must have on file with the Secretary policies and 
procedures that ensure that the State seeks to recover any funds 
provided under Part B of the Act for services to a child who is 
determined to be erroneously classified as eligible to be counted under 
section 611(a) or (d) of the Act.

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


Sec. 300.146  Suspension and expulsion rates.

    The State must have on file with the Secretary information to 
demonstrate that the following requirements are met:
    (a) General. The SEA examines data to determine if significant 
discrepancies are occurring in the rate of long-term suspensions and 
expulsions of children with disabilities--
    (1) Among LEAs in the State; or
    (2) Compared to the rates for nondisabled children within the 
agencies.
    (b) Review and revision of policies. If the discrepancies described 
in paragraph (a) of this section are occurring, the SEA reviews and, if 
appropriate, revises (or requires the affected State agency or LEA to 
revise) its policies, procedures, and practices relating to the 
development and implementation of IEPs, the use of behavioral 
interventions, and procedural safeguards, to ensure that these 
policies, procedures, and practices comply with the Act.

(Authority: 20 U.S.C. 612(a)(22))


Sec. 300.147  Additional information if SEA provides direct services.

    (a) If the SEA provides FAPE to children with disabilities, or 
provides direct services to these children, the agency--
    (1) Shall comply with any additional requirements of Secs. 300.220-
300.230(a) and 300.234-300.250 as if the agency were an LEA; and
    (2) May use amounts that are otherwise available to the agency 
under Part B of the Act to serve those children without regard to 
Sec. 300.184 (relating to excess costs).
    (b) The SEA must have on file with the Secretary information to 
demonstrate that it meets the requirements of paragraph (a)(1) of this 
section.

(Authority: 20 U.S.C. 1412(b))


Sec. 300.148  Public participation.

    (a) General; exception. (1) Subject to paragraph (a)(2) of this 
section, each State must ensure that, prior to the adoption of any 
policies and procedures needed to comply with this part, there are 
public hearings, adequate notice of the hearings, and an opportunity 
for comment available to the general public, including individuals with 
disabilities and parents of children with disabilities consistent with 
Secs. 300.280-300.284.
    (2) A State will be considered to have met paragraph (a)(1) of this 
section with regard to a policy or procedure needed to comply with this 
part if it can demonstrate that prior to the adoption of that policy or 
procedure, the policy or procedure was subjected to a public review and 
comment process that is required by the State for other purposes and is 
comparable to and consistent with the requirements of Secs. 300.280-
300.284.
    (b) Documentation. The State must have on file with the Secretary 
information to demonstrate that the requirements of paragraph (a) of 
this section are met.

(Authority: 20 U.S.C. 1412(a)(20))


Sec. 300.149  [Reserved]


Sec. 300.150  State advisory panel.

    The State must have on file with the Secretary information to 
demonstrate that the State has established and maintains an advisory 
panel for the purpose of providing policy guidance with respect to 
special education and related services for children with disabilities 
in the State in accordance with the requirements of Secs. 300.650-
300.653.

(Authority: 20 U.S.C. 1412(a)(21)(A))


Sec. 300.151  [Reserved]


Sec. 300.152  Prohibition against commingling.

    (a) The State must have on file with the Secretary an assurance 
satisfactory to the Secretary that the funds under Part B of the Act 
are not commingled with State funds.
    (b) The assurance in paragraph (a) of this section is satisfied by 
the use of a separate accounting system that includes an audit trail of 
the expenditure of the Part B funds. Separate bank accounts are not 
required. (See 34 CFR 76.702 (Fiscal control and fund accounting 
procedures).)
(Authority: 20 U.S.C. 1412(a)(18)(B))


Sec. 300.153  State-level nonsupplanting.

    (a) General. (1) Except as provided in Sec. 300.230, funds paid to 
a State under Part B of the Act must be used to supplement the level of 
Federal, State, and local funds (including funds that are not under the 
direct control of the SEA or LEAs) expended for special education and 
related services provided to children with disabilities under Part B of 
the Act and in no case to supplant these Federal, State, and local 
funds.
    (2) The State must have on file with the Secretary information to 
demonstrate to the satisfaction of the Secretary that the requirements 
of paragraph (a)(1) of this section are met.
    (b) Waiver. If the State provides clear and convincing evidence 
that all children with disabilities have available to them FAPE, the 
Secretary may waive, in whole or in part, the requirements of paragraph 
(a) of this section if the Secretary concurs with the evidence provided 
by the State under Sec. 300.589.

(Authority: 20 U.S.C. 1412(a)(18)(c))


Sec. 300.154  Maintenance of State financial support.

    (a) General. The State must have on file with the Secretary 
information to demonstrate, on either a total or per-capita basis, that 
the State will not reduce the amount of State financial support for 
special education and related services for children with disabilities, 
or otherwise made available because of the excess costs of educating 
those children, below the amount of that support for the preceding 
fiscal year.
    (b) Reduction of funds for failure to maintain support. The 
Secretary reduces the allocation of funds under section 611 of the Act 
for any fiscal year following the fiscal year in which the State fails 
to comply with the requirement of paragraph (a) of this section by the 
same amount by which the State fails to meet the requirement.
    (c) Waivers for exceptional or uncontrollable circumstances. The

[[Page 12432]]

Secretary may waive the requirement of paragraph (a) of this section 
for a State, for one fiscal year at a time, if the Secretary determines 
that--
    (1) Granting a waiver would be equitable due to exceptional or 
uncontrollable circumstances such as a natural disaster or a 
precipitous and unforeseen decline in the financial resources of the 
State; or
    (2) The State meets the standard in Sec. 300.589 for a waiver of 
the requirement to supplement, and not to supplant, funds received 
under Part B of the Act.
    (d) Subsequent years. If, for any fiscal year, a State fails to 
meet the requirement of paragraph (a) of this section, including any 
year for which the State is granted a waiver under paragraph (c) of 
this section, the financial support required of the State in future 
years under paragraph (a) of this section must be the amount that would 
have been required in the absence of that failure and not the reduced 
level of the State's support.

(Authority: 20 U.S.C. 1412(a)(19))


Sec. 300.155  Policies and procedures for use of Part B funds.

    The State must have on file with the Secretary policies and 
procedures designed to ensure that funds paid to the State under Part B 
of the Act are spent in accordance with the provisions of Part B.

(Authority: 20 U.S.C. 1412(a)(18)(A))


Sec. 300.156  Annual description of use of Part B funds.

    (a) In order to receive a grant in any fiscal year a State must 
annually describe--
    (1) How amounts retained for State-level activities under 
Sec. 300.602 will be used to meet the requirements of this part;
    (2) How those amounts will be allocated among the activities 
described in Secs. 300.621 and 300.370 to meet State priorities based 
on input from LEAs; and
    (3) The percentage of those amounts, if any, that will be 
distributed to LEAs by formula.
    (b) If a State's plans for use of its funds under Secs. 300.370 and 
300.620 for the forthcoming year do not change from the prior year, the 
State may submit a letter to that effect to meet the requirement in 
paragraph (a) of this section.

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

LEA and State Agency Eeligibility--General


Sec. 300.180  Condition of assistance.

    An LEA or State agency is eligible for assistance under Part B of 
the Act for a fiscal year if the agency demonstrates to the 
satisfaction of the SEA that it meets the conditions in Secs. 300.220-
300.250.

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


Sec. 300.181  Exception for prior LEA or State agency policies and 
procedures on file with the SEA.

    If an LEA or a State agency described in Sec. 300.194 has on file 
with the SEA policies and procedures that demonstrate that the LEA or 
State agency meets any requirement of Sec. 300.180, including any 
policies and procedures filed under Part B of the Act as in effect 
before June 4, 1997, the SEA shall consider the LEA or State agency to 
have met the requirement for purposes of receiving assistance under 
Part B of the Act.

(Authority: 20 U.S.C. 1413(b)(1))


Sec. 300.182  Amendments to LEA policies and procedures.

    (a) Modification made by an LEA or a State agency. (1) Subject to 
paragraph (b) of this section, policies and procedures submitted by an 
LEA or a State agency in accordance with this subpart remain in effect 
until it submits to the SEA the modifications that the LEA or State 
agency decides are necessary.
    (2) The provisions of this subpart apply to a modification to an 
LEA's or State agency's policies and procedures in the same manner and 
to the same extent that they apply to the LEA's or State agency's 
original policies and procedures.
    (b) Modifications required by the SEA. The SEA may require an LEA 
or a State agency to modify its policies and procedures, but only to 
the extent necessary to ensure the LEA's or State agency's compliance 
with this part, if--
    (1) After June 4, 1997, the provisions of the Act or the 
regulations in this part are amended;
    (2) There is a new interpretation of the Act by Federal or State 
courts; or
    (3) There is an official finding of noncompliance with Federal or 
State law or regulations.

(Authority: 20 U.S.C. 1413(b))


Sec. 300.183  [Reserved]


Sec. 300.184  Excess cost requirement.

    (a) General. Amounts provided to an LEA under Part B of the Act may 
be used only to pay the excess costs of providing special education and 
related services to children with disabilities.
    (b) Definition. As used in this part, the term excess costs means 
those costs that are in excess of the average annual per-student 
expenditure in an LEA during the preceding school year for an 
elementary or secondary school student, as may be appropriate. Excess 
costs must be computed after deducting--
    (1) Amounts received--
    (i) Under Part B of the Act;
    (ii) Under Part A of title I of the Elementary and Secondary 
Education Act of 1965; or
    (iii) Under Part A of title VII of that Act; and
    (2) Any State or local funds expended for programs that would 
qualify for assistance under any of those parts.
    (c) LLimitation on use of Part B funds. (1) The excess cost 
requirement prevents an LEA from using funds provided under Part B of 
the Act to pay for all of the costs directly attributable to the 
education of a child with a disability, subject to paragraph (c)(2) of 
this section.
    (2) The excess cost requirement does not prevent an LEA from using 
Part B funds to pay for all of the costs directly attributable to the 
education of a child with a disability in any of the ages 3, 4, 5, 18, 
19, 20, or 21, if no local or State funds are available for nondisabled 
children in that age range. However, the LEA must comply with the 
nonsupplanting and other requirements of this part in providing the 
education and services for these children.

(Authority: 20 U.S.C. 1401(7), 1413(a)(2)(A))


Sec. 300.185  Meeting the excess cost requirement.

    (a)(1) General. An LEA meets the excess cost requirement if it has 
spent at least a minimum average amount for the education of its 
children with disabilities before funds under Part B of the Act are 
used.
    (2) The amount described in paragraph (a)(1) of this section is 
determined using the formula in Sec. 300.184(b). This amount may not 
include capital outlay or debt service.
    (b) Joint establishment of eligibility. If two or more LEAs jointly 
establish eligibility in accordance with Sec. 300.190, the minimum 
average amount is the average of the combined minimum average amounts 
determined under Sec. 300.184 in those agencies for elementary or 
secondary school students, as the case may be.

(Authority: 20 U.S.C. 1413(a)(2)(A))


Secs. 300.186-300.189  [Reserved]


Sec. 300.190  Joint establishment of eligibility.

    (a) General. An SEA may require an LEA to establish its eligibility 
jointly

[[Page 12433]]

with another LEA if the SEA determines that the LEA would be ineligible 
under this section because the agency would not be able to establish 
and maintain programs of sufficient size and scope to effectively meet 
the needs of children with disabilities.
    (b) Charter school exception. An SEA may not require a charter 
school that is an LEA to jointly establish its eligibility under 
paragraph (a) of this section unless it is explicitly permitted to do 
so under the State's charter school statute.
    (c) Amount of payments. If an SEA requires the joint establishment 
of eligibility under paragraph (a) of this section, the total amount of 
funds made available to the affected LEAs must be equal to the sum of 
the payments that each LEA would have received under Secs. 300.711-
300.714 if the agencies were eligible for these payments.

(Authority: 20 U.S.C. 1413(e)(1), and (2))


Sec. 300.191  [Reserved]


Sec. 300.192  Requirements for establishing eligibility.

    (a) Requirements for LEAs in general. LEAs that establish joint 
eligibility under this section must--
    (1) Adopt policies and procedures that are consistent with the 
State's policies and procedures under Secs. 300.121-300.156; and
    (2) Be jointly responsible for implementing programs that receive 
assistance under Part B of the Act.
    (b) Requirements for educational service agencies in general. If an 
educational service agency is required by State law to carry out 
programs under Part B of the Act, the joint responsibilities given to 
LEAs under Part B of the Act--
    (1) Do not apply to the administration and disbursement of any 
payments received by that educational service agency; and
    (2) Must be carried out only by that educational service agency.
    (c) Additional requirement. Notwithstanding any other provision of 
Secs. 300.190-300.192, an educational service agency shall provide for 
the education of children with disabilities in the least restrictive 
environment, as required by Sec. 300.130.

(Authority: 20 U.S.C. 1413(e)(3), and (4))


Sec. 300.193  [Reserved]


Sec. 300.194  State agency eligibility.

    Any State agency that desires to receive a subgrant for any fiscal 
year under Secs. 300.711-300.714 must demonstrate to the satisfaction 
of the SEA that--
    (a) All children with disabilities who are participating in 
programs and projects funded under Part B of the Act receive FAPE, and 
that those children and their parents are provided all the rights and 
procedural safeguards described in this part; and
    (b) The agency meets the other conditions of this subpart that 
apply to LEAs.

(Authority: 20 U.S.C. 1413(i))


Sec. 300.195  [Reserved]


Sec. 300.196  Notification of LEA or State agency in case of 
ineligibility.

    If the SEA determines that an LEA or State agency is not eligible 
under Part B of the Act, the SEA shall--
    (a) Notify the LEA or State agency of that determination; and
    (b) Provide the LEA or State agency with reasonable notice and an 
opportunity for a hearing.

(Authority: 20 U.S.C. 1413(c))


Sec. 300.197  LEA and State agency compliance.

    (a) General. If the SEA, after reasonable notice and an opportunity 
for a hearing, finds that an LEA or State agency that has been 
determined to be eligible under this section is failing to comply with 
any requirement described in Secs. 300.220-300.250, the SEA shall 
reduce or may not provide any further payments to the LEA or State 
agency until the SEA is satisfied that the LEA or State agency is 
complying with that requirement.
    (b) Notice requirement. Any State agency or LEA in receipt of a 
notice described in paragraph (a) of this section shall, by means of 
public notice, take the measures necessary to bring the pendency of an 
action pursuant to this section to the attention of the public within 
the jurisdiction of the agency.
    (c) In carrying out its functions under this section, each SEA 
shall consider any decision resulting from a hearing under 
Secs. 300.507-300.528 that is adverse to the LEA or State agency 
involved in the decision.

(Authority: 20 U.S.C. 1413(d))

LEA and State Agency Eligibility--Specific Conditions


Sec. 300.220  Consistency with State policies.

    (a) General. The LEA, in providing for the education of children 
with disabilities within its jurisdiction, must have in effect 
policies, procedures, and programs that are consistent with the State 
policies and procedures established under Secs. 300.121-300.156.
    (b) Policies on file with SEA. The LEA must have on file with the 
SEA the policies and procedures described in paragraph (a) of this 
section.

(Authority: 20 U.S.C. 1413(a)(1))


Sec. 300.221  Implementation of CSPD.

    The LEA must have on file with the SEA information to demonstrate 
that--
    (a) All personnel necessary to carry out Part B of the Act within 
the jurisdiction of the agency are appropriately and adequately 
prepared, consistent with the requirements of Secs. 300.380-300.382; 
and
    (b) To the extent the LEA determines appropriate, it shall 
contribute to and use the comprehensive system of personnel development 
of the State established under Sec. 300.135.

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


Secs. 300.222-300.229  [Reserved]


Sec. 300.230  Use of amounts.

    The LEA must have on file with the SEA information to demonstrate 
that amounts provided to the LEA under Part B of the Act--
    (a) Will be expended in accordance with the applicable provisions 
of this part;
    (b) Will be used only to pay the excess costs of providing special 
education and related services to children with disabilities, 
consistent with Secs. 300.184-300.185; and
    (c) Will be used to supplement State, local, and other Federal 
funds and not to supplant those funds.

(Authority: 20 U.S.C. 1413(a)(2)(A))


Sec. 300.231  Maintenance of effort.

    (a) General. Except as provided in Secs. 300.232 and 300.233, funds 
provided to an LEA under Part B of the Act may not be used to reduce 
the level of expenditures for the education of children with 
disabilities made by the LEA from local funds below the level of those 
expenditures for the preceding fiscal year.
    (b) Information. The LEA must have on file with the SEA information 
to demonstrate that the requirements of paragraph (a) of this section 
are met.
    (c) Standard. (1) Except as provided in paragraph (c)(2) of this 
section, the SEA determines that an LEA complies with paragraph (a) of 
this section for purposes of establishing the LEA's eligibility for an 
award for a fiscal year if the LEA budgets, for the education of 
children with disabilities, at least the same total or per-capita 
amount from either of the following sources as the LEA spent for that 
purpose from the same source for the most recent prior year for which 
information is available:
    (i) Local funds only.
    (ii) The combination of State and local funds.
    (2) An LEA that relies on paragraph (c)(1)(i) of this section for 
any fiscal year

[[Page 12434]]

must ensure that the amount of local funds it budgets for the education 
of children with disabilities in that year is at least the same, either 
in total or per capita, as the amount it spent for that purpose in--
    (i) The most recent fiscal year for which information is available, 
if that year is, or is before, the first fiscal year beginning on or 
after July 1, 1997; or
    (ii) If later, the most recent fiscal year for which information is 
available and the standard in paragraph (c)(1)(i) of this section was 
used to establish its compliance with this section.
    (3) The SEA may not consider any expenditures made from funds 
provided by the Federal Government for which the SEA is required to 
account to the Federal Government or for which the LEA is required to 
account to the Federal Government directly or through the SEA in 
determining an LEA's compliance with the requirement in paragraph (a) 
of this section.

(Authority: 20 U.S.C. 1413(a)(2)(A))


Sec. 300.232  Exception to maintenance of effort.

    An LEA may reduce the level of expenditures by the LEA under Part B 
of the Act below the level of those expenditures for the preceding 
fiscal year if the reduction is attributable to the following:
    (a)(1) The voluntary departure, by retirement or otherwise, or 
departure for just cause, of special education or related services 
personnel, who are replaced by qualified, lower-salaried staff.
    (2) In order for an LEA to invoke the exception in paragraph (a)(1) 
of this section, the LEA must ensure that those voluntary retirements 
or resignations and replacements are in full conformity with:
    (i) Existing school board policies in the agency;
    (ii) The applicable collective bargaining agreement in effect at 
that time; and
    (iii) Applicable State statutes.
    (b) A decrease in the enrollment of children with disabilities.
    (c) The termination of the obligation of the agency, consistent 
with this part, to provide a program of special education to a 
particular child with a disability that is an exceptionally costly 
program, as determined by the SEA, because the child--
    (1) Has left the jurisdiction of the agency;
    (2) Has reached the age at which the obligation of the agency to 
provide FAPE to the child has terminated; or
    (3) No longer needs the program of special education.
    (d) The termination of costly expenditures for long-term purchases, 
such as the acquisition of equipment or the construction of school 
facilities.

(Authority: 20 U.S.C. 1413(a)(2)(B))


Sec. 300.233  Treatment of Federal funds in certain fiscal years.

    (a)(1) Subject to paragraphs (a)(2) and (b) of this section, for 
any fiscal year for which amounts appropriated to carry out section 611 
of the Act exceeds $4,100,000,000, an LEA may treat as local funds up 
to 20 percent of the amount of funds it receives under Part B of the 
Act that exceeds the amount it received under Part B of the Act for the 
previous fiscal year.
    (2) The requirements of Secs. 300.230(c) and 300.231 do not apply 
with respect to the amount that may be treated as local funds under 
paragraph (a)(1) of this section.
    (b) If an SEA determines that an LEA is not meeting the 
requirements of this part, the SEA may prohibit the LEA from treating 
funds received under Part B of the Act as local funds under paragraph 
(a)(1) of this section for any fiscal year, but only if it is 
authorized to do so by the State constitution or a State statute.

(Authority: 20 U.S.C. 1413(a)(2)(C))


Sec. 300.234  Schoolwide programs under title I of the ESEA.

    (a) General; limitation on amount of Part B funds used. An LEA may 
use funds received under Part B of the Act for any fiscal year to carry 
out a schoolwide program under section 1114 of the Elementary and 
Secondary Education Act of 1965, except that the amount used in any 
schoolwide program may not exceed--
    (1)(i) The amount received by the LEA under Part B for that fiscal 
year; divided by
    (ii) The number of children with disabilities in the jurisdiction 
of the LEA; and multiplied by
    (2) The number of children with disabilities participating in the 
schoolwide program.
    (b) Funding conditions. The funds described in paragraph (a) of 
this section are subject to the following conditions:
    (1) The funds must be considered as Federal Part B funds for 
purposes of the calculations required by Secs. 300.230(b) and (c).
    (2) The funds may be used without regard to the requirements of 
Sec. 300.230(a).
    (c) Meeting other Part B requirements. Except as provided in 
paragraph (b) of this section, all other requirements of Part B must be 
met by an LEA using Part B funds in accordance with paragraph (a) of 
this section, including ensuring that children with disabilities in 
schoolwide program schools--
    (1) Receive services in accordance with a properly developed IEP; 
and
    (2) Are afforded all of the rights and services guaranteed to 
children with disabilities under the IDEA.

(Authority: 20 U.S.C. 1413(a)(2)(D))


Sec. 300.235  Permissive use of funds.

    (a) General. Subject to paragraph (b) of this section, funds 
provided to an LEA under Part B of the Act may be used for the 
following activities:
    (1) Services and aids that also benefit nondisabled children. For 
the costs of special education and related services and supplementary 
aids and services provided in a regular class or other education-
related setting to a child with a disability in accordance with the IEP 
of the child, even if one or more nondisabled children benefit from 
these services.
    (2) Integrated and coordinated services system. To develop and 
implement a fully integrated and coordinated services system in 
accordance with Sec. 300.244.
    (b) Non-applicability of certain provisions. An LEA does not 
violate Secs. 300.152, 300.230, and 300.231 based on its use of funds 
provided under Part B of the Act in accordance with paragraphs (a)(1) 
and (a)(2) of this section.

(Authority: 20 U.S.C. 1413(a)(4))


Secs. 300.236-300.239  [Reserved]


Sec. 300.240  Information for SEA.

    (a) The LEA shall provide the SEA with information necessary to 
enable the SEA to carry out its duties under Part B of the Act, 
including, with respect to Secs. 300.137 and 300.138, information 
relating to the performance of children with disabilities participating 
in programs carried out under Part B of the Act.
    (b) The LEA must have on file with the SEA an assurance 
satisfactory to the SEA that the LEA will comply with the requirements 
of paragraph (a) of this section.

(Authority: 20 U.S.C. 1413(a)(6))


Sec. 300.241  Treatment of charter schools and their students.

    The LEA must have on file with the SEA information to demonstrate 
that in carrying out this part with respect to charter schools that are 
public schools of the LEA, the LEA will--
    (a) Serve children with disabilities attending those schools in the 
same

[[Page 12435]]

manner as it serves children with disabilities in its other schools; 
and
    (b) Provide funds under Part B of the Act to those schools in the 
same manner as it provides those funds to its other schools.

(Authority: 20 U.S.C. 1413(a)(5))


Sec. 300.242  Public information.

    The LEA must have on file with the SEA information to demonstrate 
to the satisfaction of the SEA that it will make available to parents 
of children with disabilities and to the general public all documents 
relating to the eligibility of the agency under Part B of the Act.

(Authority: 20 U.S.C. 1413(a)(7))


Sec. 300.243  [Reserved]


Sec. 300.244  Coordinated services system.

    (a) General. An LEA may not use more than 5 percent of the amount 
the agency receives under Part B of the Act for any fiscal year, in 
combination with other amounts (which must include amounts other than 
education funds), to develop and implement a coordinated services 
system designed to improve results for children and families, including 
children with disabilities and their families.
    (b) Activities. In implementing a coordinated services system under 
this section, an LEA may carry out activities that include--
    (1) Improving the effectiveness and efficiency of service delivery, 
including developing strategies that promote accountability for 
results;
    (2) Service coordination and case management that facilitate the 
linkage of IEPs under Part B of the Act and IFSPs under Part C of the 
Act with individualized service plans under multiple Federal and State 
programs, such as title I of the Rehabilitation Act of 1973 (vocational 
rehabilitation), title XIX of the Social Security Act (Medicaid), and 
title XVI of the Social Security Act (supplemental security income);
    (3) Developing and implementing interagency financing strategies 
for the provision of education, health, mental health, and social 
services, including transition services and related services under the 
Act; and
    (4) Interagency personnel development for individuals working on 
coordinated services.
    (c) Coordination with certain projects under Elementary and 
Secondary Education Act of 1965. If an LEA is carrying out a 
coordinated services project under title XI of the Elementary and 
Secondary Education Act of 1965 and a coordinated services project 
under Part B of the Act in the same schools, the agency shall use the 
amounts under Sec. 300.244 in accordance with the requirements of that 
title.

(Authority: 20 U.S.C. 1413(f))

School-Based Improvement Plan


Sec. 300.245  School-based improvement plan.

    (a) General. Each LEA may, in accordance with paragraph (b) of this 
section, use funds made available under Part B of the Act to permit a 
public school within the jurisdiction of the LEA to design, implement, 
and evaluate a school-based improvement plan that--
    (1) Is consistent with the purposes described in section 651(b) of 
the Act; and
    (2) Is designed to improve educational and transitional results for 
all children with disabilities and, as appropriate, for other children 
consistent with Sec. 300.235(a) and (b) in that public school.
    (b) Authority. (1) General. An SEA may grant authority to an LEA to 
permit a public school described in Sec. 300.245 (through a school-
based standing panel established under Sec. 300.247(b)) to design, 
implement, and evaluate a school-based improvement plan described in 
Sec. 300.245 for a period not to exceed 3 years.
    (2) Responsibility of LEA. If an SEA grants the authority described 
in paragraph (b)(1) of this section, an LEA that is granted this 
authority must have the sole responsibility of oversight of all 
activities relating to the design, implementation, and evaluation of 
any school-based improvement plan that a public school is permitted to 
design under this section.

(Authority: 20 U.S.C. 1413(g)(1) and (g)(2)).


Sec. 300.246  Plan requirements.

    A school-based improvement plan described in Sec. 300.245 must--
    (a) Be designed to be consistent with the purposes described in 
section 651(b) of the Act and to improve educational and transitional 
results for all children with disabilities and, as appropriate, for 
other children consistent with Sec. 300.235(a) and (b), who attend the 
school for which the plan is designed and implemented;
    (b) Be designed, evaluated, and, as appropriate, implemented by a 
school-based standing panel established in accordance with 
Sec. 300.247(b);
    (c) Include goals and measurable indicators to assess the progress 
of the public school in meeting these goals; and
    (d) Ensure that all children with disabilities receive the services 
described in their IEPs.

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


Sec. 300.247  Responsibilities of the LEA.

    An LEA that is granted authority under Sec. 300.245(b) to permit a 
public school to design, implement, and evaluate a school-based 
improvement plan shall--
    (a) Select each school under the jurisdiction of the agency that is 
eligible to design, implement, and evaluate the plan;
    (b) Require each school selected under paragraph (a) of this 
section, in accordance with criteria established by the LEA under 
paragraph (c) of this section, to establish a school-based standing 
panel to carry out the duties described in Sec. 300.246(b);
    (c) Establish--
    (1) Criteria that must be used by the LEA in the selection of an 
eligible school under paragraph (a) of this section;
    (2) Criteria that must be used by a public school selected under 
paragraph (a) of this section in the establishment of a school-based 
standing panel to carry out the duties described in Sec. 300.246(b) and 
that ensure that the membership of the panel reflects the diversity of 
the community in which the public school is located and includes, at a 
minimum--
    (i) Parents of children with disabilities who attend a public 
school, including parents of children with disabilities from unserved 
and underserved populations, as appropriate;
    (ii) Special education and general education teachers of public 
schools;
    (iii) Special education and general education administrators, or 
the designee of those administrators, of those public schools; and
    (iv) Related services providers who are responsible for providing 
services to the children with disabilities who attend those public 
schools; and
    (3) Criteria that must be used by the LEA with respect to the 
distribution of funds under Part B of the Act to carry out this 
section;
    (d) Disseminate the criteria established under paragraph (c) of 
this section to local school district personnel and local parent 
organizations within the jurisdiction of the LEA;
    (e) Require a public school that desires to design, implement, and 
evaluate a school-based improvement plan to submit an application at 
the time, in the manner and accompanied by the information, that the 
LEA shall reasonably require; and
    (f) Establish procedures for approval by the LEA of a school-based 
improvement plan designed under Part B of the Act.


[[Page 12436]]


(Authority:1413(g)(4))


Sec. 300.248  Limitation.

    A school-based improvement plan described in Sec. 300.245(a) may be 
submitted to an LEA for approval only if a consensus with respect to 
any matter relating to the design, implementation, or evaluation of the 
goals of the plan is reached by the school-based standing panel that 
designed the plan.

(Authority: 20 U.S.C. 1413(g)(5))


Sec. 300.249  Additional requirements.

    (a) Parental involvement. In carrying out the requirements of 
Secs. 300.245-300.250, an LEA shall ensure that the parents of children 
with disabilities are involved in the design, evaluation, and, if 
appropriate, implementation of school-based improvement plans in 
accordance with this section.
    (b) Plan approval. An LEA may approve a school-based improvement 
plan of a public school within the jurisdiction of the agency for a 
period of 3 years, if--
    (1) The approval is consistent with the policies, procedures, and 
practices established by the LEA and in accordance with Secs. 300.245-
300.250; and
    (2) A majority of parents of children who are members of the 
school-based standing panel, and a majority of other members of the 
school-based standing panel that designed the plan, agree in writing to 
the plan.

(Authority: 20 U.S.C. 1413(g)(6))


Sec. 300.250  Extension of plan.

    If a public school within the jurisdiction of an LEA meets the 
applicable requirements and criteria described in Secs. 300.246 and 
300.247 at the expiration of the 3-year approval period described 
Sec. 300.249(b), the agency may approve a school-based improvement plan 
of the school for an additional 3-year period.

(Authority: 20 U.S.C. 1413(g)(7))

Secretary of the Interior--Eligibility


Sec. 300.260  Submission of information.

    The Secretary may provide the Secretary of the Interior amounts 
under Sec. 300.715(b) and (c) for a fiscal year only if the Secretary 
of the Interior submits to the Secretary information that--
    (a) Meets the requirements of section 612(a)(1), (3)--(9), (10)(B), 
(C), (11)--(12), (14)--(17), (20), (21) and (22) of the Act (including 
monitoring and evaluation activities);
    (b) Meets the requirements of section 612(b) and (e) of the Act;
    (c) Meets the requirements of section 613(a)(1), (2)(A)(i), (6), 
and (7) of the Act;
    (d) Meets the requirements of this part that implement the sections 
of the Act listed in paragraphs (a)-(c) of this section;
    (e) Includes a description of how the Secretary of the Interior 
will coordinate the provision of services under Part B of the Act with 
LEAs, tribes and tribal organizations, and other private and Federal 
service providers;
    (f) Includes an assurance that there are public hearings, adequate 
notice of the hearings, and an opportunity for comment afforded to 
members of tribes, tribal governing bodies, and affected local school 
boards before the adoption of the policies, programs, and procedures 
described in paragraph (a) of this section;
    (g) Includes an assurance that the Secretary of the Interior will 
provide the information that the Secretary may require to comply with 
section 618 of the Act, including data on the number of children with 
disabilities served and the types and amounts of services provided and 
needed;
    (h)(1) Includes an assurance that the Secretary of the Interior and 
the Secretary of Health and Human Services have entered into a 
memorandum of agreement, to be provided to the Secretary, for the 
coordination of services, resources, and personnel between their 
respective Federal, State, and local offices and with the SEAs and LEAs 
and other entities to facilitate the provision of services to Indian 
children with disabilities residing on or near reservations.
    (2) The agreement must provide for the apportionment of 
responsibilities and costs, including child find, evaluation, 
diagnosis, remediation or therapeutic measures, and (if appropriate) 
equipment and medical or personal supplies, as needed for a child with 
a disability to remain in a school or program; and
    (i) Includes an assurance that the Department of the Interior will 
cooperate with the Department in its exercise of monitoring and 
oversight of the requirements in this section and Secs. 300.261-
300.267, and any agreements entered into between the Secretary of the 
Interior and other entities under Part B of the Act, and will fulfill 
its duties under Part B of the Act. Section 616(a) of the Act applies 
to the information described in this section.

(Authority: 20 U.S.C. 1411(i)(2))


Sec. 300.261  Public participation.

    In fulfilling the requirements of Sec. 300.260 the Secretary of the 
Interior shall provide for public participation consistent with 
Secs. 300.280-300.284.

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


Sec. 300.262  Use of Part B funds.

    (a) The Department of the Interior may use five percent of its 
payment under Sec. 300.715(b) and (c) in any fiscal year, or $500,000, 
whichever is greater, for administrative costs in carrying out the 
provisions of this part.
    (b) Payments to the Secretary of the Interior under Sec. 300.716 
must be used in accordance with that section.

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


Sec. 300.263  Plan for coordination of services.

    (a) The Secretary of the Interior shall develop and implement a 
plan for the coordination of services for all Indian children with 
disabilities residing on reservations covered under Part B of the Act.
    (b) The plan must provide for the coordination of services 
benefiting these children from whatever source, including tribes, the 
Indian Health Service, other BIA divisions, and other Federal agencies.
    (c) In developing the plan, the Secretary of the Interior shall 
consult with all interested and involved parties.
    (d) The plan must be based on the needs of the children and the 
system best suited for meeting those needs, and may involve the 
establishment of cooperative agreements between the BIA, other Federal 
agencies, and other entities.
    (e) The plan also must be distributed upon request to States, SEAs 
and LEAs, and other agencies providing services to infants, toddlers, 
and children with disabilities, to tribes, and to other interested 
parties.

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


Sec. 300.264  Definitions.

    (a) Indian. As used in this part, the term Indian means an 
individual who is a member of an Indian tribe.
    (b) Indian tribe. As used in this part, the term Indian tribe means 
any Federal or State Indian tribe, band, rancheria, pueblo, colony, or 
community, including any Alaska Native village or regional village 
corporation (as defined in or established under the Alaska Native 
Claims Settlement Act).

(Authority: 20 U.S.C. 1401(9) and (10))


Sec. 300.265  Establishment of advisory board.

    (a) To meet the requirements of section 612(a)(21) of the Act, the 
Secretary of the Interior shall establish, not later than December 4, 
1997 under

[[Page 12437]]

the BIA, an advisory board composed of individuals involved in or 
concerned with the education and provision of services to Indian 
infants, toddlers, and children with disabilities, including Indians 
with disabilities, Indian parents of the children, teachers, service 
providers, State and local educational officials, representatives of 
tribes or tribal organizations, representatives from State Interagency 
Coordinating Councils under section 641 of the Act in States having 
reservations, and other members representing the various divisions and 
entities of the BIA. The chairperson must be selected by the Secretary 
of the Interior.
    (b) The advisory board shall--
    (1) Assist in the coordination of services within the BIA and with 
other local, State, and Federal agencies in the provision of education 
for infants, toddlers, and children with disabilities;
    (2) Advise and assist the Secretary of the Interior in the 
performance of the Secretary's responsibilities described in section 
611(i) of the Act;
    (3) Develop and recommend policies concerning effective inter- and 
intra-agency collaboration, including modifications to regulations, and 
the elimination of barriers to inter- and intra-agency programs and 
activities;
    (4) Provide assistance and disseminate information on best 
practices, effective program coordination strategies, and 
recommendations for improved educational programming for Indian 
infants, toddlers, and children with disabilities; and
    (5) Provide assistance in the preparation of information required 
under Sec. 300.260(g).

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


Sec. 300.266  Annual report by advisory board.

    (a) General. The advisory board established under Sec. 300.265 
shall prepare and submit to the Secretary of the Interior and to the 
Congress an annual report containing a description of the activities of 
the advisory board for the preceding year.
    (b) Report to the Secretary. The Secretary of the Interior shall 
make available to the Secretary the report described in paragraph (a) 
of this section.

(Authority: 20 U.S.C. 1411(i)(6)(A))


Sec. 300.267  Applicable regulations.

    The Secretary of the Interior shall comply with the requirements of 
Secs. 300.301-300.303, 300.305-300.309, 300.340-300.348, 300.351, 
300.360-300.382, 300.400-300.402, 300.500-300.586, 300.600-300.621, and 
300.660-300.662.

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

Public Participation


Sec. 300.280  Public hearings before adopting State policies and 
procedures.

    Prior to its adoption of State policies and procedures related to 
this part, the SEA shall--
    (a) Make the policies and procedures available to the general 
public;
    (b) Hold public hearings; and
    (c) Provide an opportunity for comment by the general public on the 
policies and procedures.

(Authority: 20 U.S.C. 1412(a)(20))


Sec. 300.281  Notice.

    (a) The SEA shall provide adequate notice to the general public of 
the public hearings.
    (b) The notice must be in sufficient detail to inform the general 
public about--
    (1) The purpose and scope of the State policies and procedures and 
their relation to Part B of the Act;
    (2) The availability of the State policies and procedures;
    (3) The date, time, and location of each public hearing;
    (4) The procedures for submitting written comments about the 
policies and procedures; and
    (5) The timetable for submitting the policies and procedures to the 
Secretary for approval.
    (c) The notice must be published or announced--
    (1) In newspapers or other media, or both, with circulation 
adequate to notify the general public about the hearings; and
    (2) Enough in advance of the date of the hearings to afford 
interested parties throughout the State a reasonable opportunity to 
participate.

(Authority: 20 U.S.C. 1412(a)(20))


Sec. 300.282  Opportunity to participate; comment period.

    (a) The SEA shall conduct the public hearings at times and places 
that afford interested parties throughout the State a reasonable 
opportunity to participate.
    (b) The policies and procedures must be available for comment for a 
period of at least 30 days following the date of the notice under 
Sec. 300.281.

(Authority: 20 U.S.C. 1412(a)(20))


Sec. 300.283  Review of public comments before adopting policies and 
procedures.

    Before adopting the policies and procedures, the SEA shall--
    (a) Review and consider all public comments; and
    (b) Make any necessary modifications in those policies and 
procedures.

(Authority: 20 U.S.C. 1412(a)(20))


Sec. 300.284  Publication and availability of approved policies and 
procedures.

    After the Secretary approves a State's policies and procedures, the 
SEA shall give notice in newspapers or other media, or both, that the 
policies and procedures are approved. The notice must name places 
throughout the State where the policies and procedures are available 
for access by any interested person.

(Authority: 20 U.S.C. 1412(a)(20))

Subpart C--Services

Free Appropriate Public Education


Sec. 300.300  Provision of FAPE.

    (a) General. (1) Subject to paragraphs (b) and (c) of this section 
and Sec. 300.311, each State receiving assistance under this part shall 
ensure that FAPE is available to all children with disabilities, aged 3 
through 21, residing in the State, including children with disabilities 
who have been suspended or expelled from school.
    (2) As a part of its obligation under paragraph (a)(1) of this 
section, each State must ensure that the requirements of Sec. 300.125 
(to identify, locate, and evaluate all children with disabilities) are 
implemented by public agencies throughout the State.
    (3)(i) The services provided to the child under this part address 
all of the child's identified special education and related services 
needs described in paragraph (a) of this section.
    (ii) The services and placement needed by each child with a 
disability to receive FAPE must be based on the child's unique needs 
and not on the child's disability.
    (b) Exception for age ranges 3-5 and 18-21. This paragraph provides 
the rules for applying the requirements in paragraph (a) of this 
section to children with disabilities aged 3, 4, 5, 18, 19, 20, and 21 
within the State:
    (1) If State law or a court order requires the State to provide 
education for children with disabilities in any disability category in 
any of these age groups, the State must make FAPE available to all 
children with disabilities of the same age who have that disability.
    (2) If a public agency provides education to nondisabled children 
in any of these age groups, it must make FAPE available to at least a 
proportionate number of children with disabilities of the same age.
    (3) If a public agency provides education to 50 percent or more of 
its

[[Page 12438]]

children with disabilities in any disability category in any of these 
age groups, it must make FAPE available to all its children with 
disabilities of the same age who have that disability. This provision 
does not apply to children aged 3 through 5 for any fiscal year for 
which the State receives a grant under section 619(a)(1) of the Act.
    (4) If a public agency provides education to a child with a 
disability in any of these age groups, it must make FAPE available to 
that child and provide that child and his or her parents all of the 
rights under Part B of the Act and this part.
    (5) A State is not required to make FAPE available to a child with 
a disability in one of these age groups if--
    (i) State law expressly prohibits, or does not authorize, the 
expenditure of public funds to provide education to nondisabled 
children in that age group; or
    (ii) The requirement is inconsistent with a court order that 
governs the provision of free public education to children with 
disabilities in that State.
    (c) Children aged 3 through 21 on Indian reservations. With the 
exception of children identified in Sec. 300.715(b) and (c), the SEA 
shall ensure that all of the requirements of Part B of the Act are 
implemented for all children with disabilities aged 3 through 21 on 
reservations.

(Authority: 20 U.S.C. 1412(a)(1), 1411(i)(1)(C), S. Rep. No. 94--
168, p. 19 (1975))


Sec. 300.301  FAPE--methods and payments.

    (a) Each State may use whatever State, local, Federal, and private 
sources of support are available in the State to meet the requirements 
of this part. For example, if it is necessary to place a child with a 
disability in a residential facility, a State could use joint 
agreements between the agencies involved for sharing the cost of that 
placement.
    (b) Nothing in this part relieves an insurer or similar third party 
from an otherwise valid obligation to provide or to pay for services 
provided to a child with a disability.
    (c) Consistent with Secs. 300.342(b)(2) and 300.343(b), the State 
must ensure that there is no delay in implementing a child's IEP, 
including any case in which the payment source for providing or paying 
for special education and related services to the child is being 
determined.

(Authority: 20 U.S.C. 1401(8), 1412(a)(1))


Sec. 300.302  Residential placement.

    If placement in a public or private residential program is 
necessary to provide special education and related services to a child 
with a disability, the program, including non-medical care and room and 
board, must be at no cost to the parents of the child.

(Authority: 20 U.S.C. 1412(a)(1), 1412(a)(10)(B))


Sec. 300.303  Proper functioning of hearing aids.

    Each public agency shall ensure that the hearing aids worn in 
school by children with hearing impairments, including deafness, are 
functioning properly.

(Authority: 20 U.S.C. 1412(a)(1))


Sec. 300.304  Full educational opportunity goal.

    Each SEA shall ensure that each public agency establishes and 
implements a goal of providing full educational opportunity to all 
children with disabilities in the area served by the public agency.

(Authority: 20 U.S.C. 1412(a)(2)


Sec. 300.305  Program options.

    Each public agency shall take steps to ensure that its children 
with disabilities have available to them the variety of educational 
programs and services available to nondisabled children in the area 
served by the agency, including art, music, industrial arts, consumer 
and homemaking education, and vocational education.

(Authority: 20 U.S.C. 1412(a)(2), 1413(a)(1))


Sec. 300.306  Nonacademic services.

    (a) Each public agency shall take steps to provide nonacademic and 
extracurricular services and activities in the manner necessary to 
afford children with disabilities an equal opportunity for 
participation in those services and activities.
    (b) Nonacademic and extracurricular services and activities may 
include counseling services, athletics, transportation, health 
services, recreational activities, special interest groups or clubs 
sponsored by the public agency, referrals to agencies that provide 
assistance to individuals with disabilities, and employment of 
students, including both employment by the public agency and assistance 
in making outside employment available.

(Authority: 20 U.S.C. 1412(a)(1))


Sec. 300.307  Physical education.

    (a) General. Physical education services, specially designed if 
necessary, must be made available to every child with a disability 
receiving FAPE.
    (b) Regular physical education. Each child with a disability must 
be afforded the opportunity to participate in the regular physical 
education program available to nondisabled children unless--
    (1) The child is enrolled full time in a separate facility; or
    (2) The child needs specially designed physical education, as 
prescribed in the child's IEP.
    (c) Special physical education. If specially designed physical 
education is prescribed in a child's IEP, the public agency responsible 
for the education of that child shall provide the services directly or 
make arrangements for those services to be provided through other 
public or private programs.
    (d) Education in separate facilities. The public agency responsible 
for the education of a child with a disability who is enrolled in a 
separate facility shall ensure that the child receives appropriate 
physical education services in compliance with paragraphs (a) and (c) 
of this section.

(Authority: 20 U.S.C. 1412(a)(25), 1412(a)(5)(A))


Sec. 300.308  Assistive technology.

    (a) Each public agency shall ensure that assistive technology 
devices or assistive technology services, or both, as those terms are 
defined in Secs. 300.5-300.6, are made available to a child with a 
disability if required as a part of the child's--
    (1) Special education under Sec. 300.26;
    (2) Related services under Sec. 300.24; or
    (3) Supplementary aids and services under Secs. 300.28 and 
300.550(b)(2).
    (b) On a case-by-case basis, the use of school-purchased assistive 
technology devices in a child's home or in other settings is required 
if the child's IEP team determines that the child needs access to those 
devices in order to receive FAPE.

(Authority: 20 U.S.C. 1412(a)(12)(B)(i))


Sec. 300.309  Extended school year services.

    (a) General. (1) Each public agency shall ensure that extended 
school year services are available as necessary to provide FAPE, 
consistent with paragraph (a)(2) of this section.
    (2) Extended school year services must be provided only if a 
child's IEP team determines, on an individual basis, in accordance with 
Secs. 300.340-300.350, that the services are necessary for the 
provision of FAPE to the child.
    (3) In implementing the requirements of this section, a public 
agency may not--
    (i) Limit extended school year services to particular categories of 
disability; or
    (ii) Unilaterally limit the type, amount, or duration of those 
services.

[[Page 12439]]

    (b) Definition. As used in this section, the term extended school 
year services means special education and related services that--
    (1) Are provided to a child with a disability--
    (i) Beyond the normal school year of the public agency;
    (ii) In accordance with the child's IEP; and
    (iii) At no cost to the parents of the child; and
    (2) Meet the standards of the SEA.

(Authority: 20 U.S.C. 1412(a)(1))


Sec. 300.310  [Reserved]


Sec. 300.311  FAPE requirements for students with disabilities in adult 
prisons.

    (a) Exception to FAPE for certain students. Except as provided in 
Sec. 300.122(a)(2)(ii), the obligation to make FAPE available to all 
children with disabilities does not apply with respect to students aged 
18 through 21 to the extent that State law does not require that 
special education and related services under Part B of the Act be 
provided to students with disabilities who, in the last educational 
placement prior to their incarceration in an adult correctional 
facility--
    (1) Were not actually identified as being a child with a disability 
under Sec. 300.7; and
    (2) Did not have an IEP under Part B of the Act.
    (b) Requirements that do not apply. The following requirements do 
not apply to students with disabilities who are convicted as adults 
under State law and incarcerated in adult prisons:
    (1) The requirements contained in Sec. 300.138 and 
Sec. 300.347(a)(5)(i) (relating to participation of children with 
disabilities in general assessments).
    (2) The requirements in Sec. 300.347(b) (relating to transition 
planning and transition services), with respect to the students whose 
eligibility under Part B of the Act will end, because of their age, 
before they will be eligible to be released from prison based on 
consideration of their sentence and eligibility for early release.
    (c) Modifications of IEP or placement. (1) Subject to paragraph 
(c)(2) of this section, the IEP team of a student with a disability, 
who is convicted as an adult under State law and incarcerated in an 
adult prison, may modify the student's IEP or placement if the State 
has demonstrated a bona fide security or compelling penological 
interest that cannot otherwise be accommodated.
    (2) The requirements of Secs. 300.340(a) and 300.347(a) relating to 
IEPs, and 300.550(b) relating to LRE, do not apply with respect to the 
modifications described in paragraph (c)(1) of this section.

(Authority: 20 U.S.C. 1412(a)(1), 1414(d)(6))


Sec. 300.312  Children with disabilities in public charter schools.

    (a) Children with disabilities who attend public charter schools 
and their parents retain all rights under this part.
    (b) If the public charter school is an LEA, consistent with 
Sec. 300.17, that receives funding under Secs. 300.711-300.714, that 
charter school is responsible for ensuring that the requirements of 
this part are met, unless State law assigns that responsibility to some 
other entity.
    (c) If the public charter school is a school of an LEA that 
receives funding under Secs. 300.711-300.714 and includes other public 
schools--
    (1) The LEA is responsible for ensuring that the requirements of 
this part are met, unless State law assigns that responsibility to some 
other entity; and
    (2) The LEA must meet the requirements of Sec. 300.241.
    (d)(1) If the public charter school is not an LEA receiving funding 
under Secs. 300.711-300.714, or a school that is part of an LEA 
receiving funding under Secs. 300.711-300.714, the SEA is responsible 
for ensuring that the requirements of this part are met.
    (2) Paragraph (d)(1) of this section does not preclude a State from 
assigning initial responsibility for ensuring the requirements of this 
part are met to another entity; however, the SEA must maintain the 
ultimate responsibility for ensuring compliance with this part, 
consistent with Sec. 300.600.

(Authority: 20 U.S.C. 1413(a)(5))


Sec. 300.313  Children experiencing developmental delays.

    (a) Use of term developmental delay. (1) A State that adopts the 
term developmental delay under Sec. 300.7(b) determines whether it 
applies to children aged 3 through 9, or to a subset of that age range 
(e.g., ages 3 through 5).
    (2) A State may not require an LEA to adopt and use the term 
developmental delay for any children within its jurisdiction.
    (3) If an LEA uses the term developmental delay for children 
described in Sec. 300.7(b), the LEA must conform to both the State's 
definition of that term and to the age range that has been adopted by 
the State.
    (4) If a State does not adopt the term developmental delay, an LEA 
may not independently use that term as a basis for establishing a 
child's eligibility under this part.
    (b) Use of individual disability categories. (1) Any State or LEA 
that elects to use the term developmental delay for children aged 3 
through 9 may also use one or more of the disability categories 
described in Sec. 300.7 for any child within that age range if it is 
determined, through the evaluation conducted under Secs. 300.530-
300.536, that the child has an impairment described in Sec. 300.7, and 
because of that impairment needs special education and related 
services.
    (2) The State or LEA shall ensure that all of the child's special 
education and related services needs that have been identified through 
the evaluation described in paragraph (b)(1) of this section are 
appropriately addressed.
    (c) Common definition of developmental delay. A State may adopt a 
common definition of developmental delay for use in programs under 
Parts B and C of the Act.

(Authority: 20 U.S.C. 1401(3)(A) and (B))

Evaluations and Reevaluations


Sec. 300.320  Initial evaluations.

    (a) Each public agency shall ensure that a full and individual 
evaluation is conducted for each child being considered for special 
education and related services under Part B of the Act--
    (1) To determine if the child is a ``child with a disability'' 
under Sec. 300.7; and
    (2) To determine the educational needs of the child.
    (b) In implementing the requirements of paragraph (a) of this 
section, the public agency shall ensure that--
    (1) The evaluation is conducted in accordance with the procedures 
described in Secs. 300.530-300.535; and
    (2) The results of the evaluation are used by the child's IEP team 
in meeting the requirements of Secs. 300.340-300.350.

(Authority: 20 U.S.C. 1414(a), (b), and (c))


Sec. 300.321  Reevaluations.

    Each public agency shall ensure that--
    (a) A reevaluation of each child with a disability is conducted in 
accordance with Sec. 300.536; and
    (b) The results of any reevaluations are addressed by the child's 
IEP team under Secs. 300.340-300.349 in reviewing and, as appropriate, 
revising the child's IEP.

(Authority: 20 U.S.C. 1414(a)(2))

[[Page 12440]]

Secs. 300.322-300.324  [Reserved]

Individualized Education Programs


Sec. 300.340  Definitions related to IEPs.

    (a) Individualized education program. As used in this part, the 
term individualized education program or IEP means a written statement 
for a child with a disability that is developed, reviewed, and revised 
in a meeting in accordance with Secs. 300.341-300.350.
    (b) Participating agency. As used in Sec. 300.348, participating 
agency means a State or local agency, other than the public agency 
responsible for a student's education, that is financially and legally 
responsible for providing transition services to the student.

(Authority: 20 U.S.C. 1401(11), 1412(a)(10)(B))


Sec. 300.341  Responsibility of SEA and other public agencies for IEPs.

    (a) The SEA shall ensure that each public agency--
    (1) Except as provided in Secs. 300.450-300.462, develops and 
implements an IEP for each child with a disability served by that 
agency; and
    (2) Ensures that an IEP is developed and implemented for each 
eligible child placed in or referred to a private school or facility by 
the public agency.
    (b) Paragraph (a) of this section applies to--
    (1) The SEA, if it is involved in providing direct services to 
children with disabilities, in accordance with Sec. 300.370(a) and 
(b)(1); and
    (2) Except as provided in Sec. 300.600(d), the other public 
agencies described in Sec. 300.2, including LEAs and other State 
agencies that provide special education and related services either 
directly, by contract, or through other arrangements.

(Authority: 20 U.S.C. 1412(a)(4), (a)(10)(B))


Sec. 300.342  When IEPs must be in effect.

    (a) General. At the beginning of each school year, each public 
agency shall have an IEP in effect for each child with a disability 
within its jurisdiction.
    (b) Implementation of IEPs. Each public agency shall ensure that--
    (1) An IEP--
    (i) Is in effect before special education and related services are 
provided to an eligible child under this part; and
    (ii) Is implemented as soon as possible following the meetings 
described under Sec. 300.343;
    (2) The child's IEP is accessible to each regular education 
teacher, special education teacher, related service provider, and other 
service provider who is responsible for its implementation; and
    (3) Each teacher and provider described in paragraph (b)(2) of this 
section is informed of--
    (i) His or her specific responsibilities related to implementing 
the child's IEP; and
    (ii) The specific accommodations, modifications, and supports that 
must be provided for the child in accordance with the IEP.
    (c) IEP or IFSP for children aged 3 through 5. (1) In the case of a 
child with a disability aged 3 through 5 (or, at the discretion of the 
SEA a 2-year-old child with a disability who will turn age 3 during the 
school year), an IFSP that contains the material described in section 
636 of the Act, and that is developed in accordance with Secs. 300.341-
300.346 and Secs. 300.349-300.350, may serve as the IEP of the child if 
using that plan as the IEP is--
    (i) Consistent with State policy; and
    (ii) Agreed to by the agency and the child's parents.
    (2) In implementing the requirements of paragraph (c)(1) of this 
section, the public agency shall--
    (i) Provide to the child's parents a detailed explanation of the 
differences between an IFSP and an IEP; and
    (ii) If the parents choose an IFSP, obtain written informed consent 
from the parents.
    (d) Effective date for new requirements. All IEPs developed, 
reviewed, or revised on or after July 1, 1998 must meet the 
requirements of Secs. 300.340-300.350.

(Authority: 20 U.S.C. 1414(d)(2)(A) and (B), Pub. L. 105-17, sec. 
201(a)(2)(A), (C)


Sec. 300.343  IEP meetings.

    (a) General. Each public agency is responsible for initiating and 
conducting meetings for the purpose of developing, reviewing, and 
revising the IEP of a child with a disability (or, if consistent with 
Sec. 300.342(c), an IFSP).
    (b) Initial IEPs; provision of services. (1) Each public agency 
shall ensure that within a reasonable period of time following the 
agency's receipt of parent consent to an initial evaluation of a 
child--
    (i) The child is evaluated; and
    (ii) If determined eligible under this part, special education and 
related services are made available to the child in accordance with an 
IEP.
    (2) In meeting the requirement in paragraph (b)(1) of this section, 
a meeting to develop an IEP for the child must be conducted within 30-
days of a determination that the child needs special education and 
related services.
    (c) Review and revision of IEPs. Each public agency shall ensure 
that the IEP team--
    (1) Reviews the child's IEP periodically, but not less than 
annually, to determine whether the annual goals for the child are being 
achieved; and
    (2) Revises the IEP as appropriate to address--
    (i) Any lack of expected progress toward the annual goals described 
in Sec. 300.347(a), and in the general curriculum, if appropriate;
    (ii) The results of any reevaluation conducted under Sec. 300.536;
    (iii) Information about the child provided to, or by, the parents, 
as described in Sec. 300.533(a)(1);
    (iv) The child's anticipated needs; or
    (v) Other matters.

(Authority: 20 U.S.C. 1413(a)(1), 1414(d)(4)(A))


Sec. 300.344  IEP team.

    (a) General. The public agency shall ensure that the IEP team for 
each child with a disability includes--
    (1) The parents of the child;
    (2) At least one regular education teacher of the child (if the 
child is, or may be, participating in the regular education 
environment);
    (3) At least one special education teacher of the child, or if 
appropriate, at least one special education provider of the child;
    (4) A representative of the public agency who--
    (i) Is qualified to provide, or supervise the provision of, 
specially designed instruction to meet the unique needs of children 
with disabilities;
    (ii) Is knowledgeable about the general curriculum; and
    (iii) Is knowledgeable about the availability of resources of the 
public agency;
    (5) An individual who can interpret the instructional implications 
of evaluation results, who may be a member of the team described in 
paragraphs (a)(2) through (6) of this section;
    (6) At the discretion of the parent or the agency, other 
individuals who have knowledge or special expertise regarding the 
child, including related services personnel as appropriate; and
    (7) If appropriate, the child.
    (b) Transition services participants. (1) Under paragraph (a)(7) of 
this section, the public agency shall invite a student with a 
disability of any age to attend his or her IEP meeting if a purpose of 
the meeting will be the consideration of--
    (i) The student's transition services needs under 
Sec. 300.347(b)(1);
    (ii) The needed transition services for the student under 
Sec. 300.347(b)(2); or
    (iii) Both.
    (2) If the student does not attend the IEP meeting, the public 
agency shall

[[Page 12441]]

take other steps to ensure that the student's preferences and interests 
are considered.
    (3)(i) In implementing the requirements of Sec. 300.347(b)(2), the 
public agency also shall invite a representative of any other agency 
that is likely to be responsible for providing or paying for transition 
services.
    (ii) If an agency invited to send a representative to a meeting 
does not do so, the public agency shall take other steps to obtain 
participation of the other agency in the planning of any transition 
services.
    (c) Determination of knowledge and special expertise. The 
determination of the knowledge or special expertise of any individual 
described in paragraph (a)(6) of this section shall be made by the 
party (parents or public agency) who invited the individual to be a 
member of the IEP.
    (d) Designating a public agency representative. A public agency may 
designate another public agency member of the IEP team to also serve as 
the agency representative, if the criteria in paragraph (a)(4) of this 
section are satisfied.

(Authority: 20 U.S.C. 1401(30), 1414(d)(1)(A)(7), (B))


Sec. 300.345  Parent participation.

    (a) Public agency responsibility--general. Each public agency shall 
take steps to ensure that one or both of the parents of a child with a 
disability are present at each IEP meeting or are afforded the 
opportunity to participate, including--
    (1) Notifying parents of the meeting early enough to ensure that 
they will have an opportunity to attend; and
    (2) Scheduling the meeting at a mutually agreed on time and place.
    (b) Information provided to parents. (1) The notice required under 
paragraph (a)(1) of this section must--
    (i) Indicate the purpose, time, and location of the meeting and who 
will be in attendance; and
    (ii) Inform the parents of the provisions in Sec. 300.344(a)(6) and 
(c) (relating to the participation of other individuals on the IEP team 
who have knowledge or special expertise about the child).
    (2) For a student with a disability beginning at age 14, or 
younger, if appropriate, the notice must also--
    (i) Indicate that a purpose of the meeting will be the development 
of a statement of the transition services needs of the student required 
in Sec. 300.347(b)(1); and
    (ii) Indicate that the agency will invite the student.
    (3) For a student with a disability beginning at age 16, or 
younger, if appropriate, the notice must--
    (i) Indicate that a purpose of the meeting is the consideration of 
needed transition services for the student required in 
Sec. 300.347(b)(2);
    (ii) Indicate that the agency will invite the student; and
    (iii) Identify any other agency that will be invited to send a 
representative.
    (c) Other methods to ensure parent participation. If neither parent 
can attend, the public agency shall use other methods to ensure parent 
participation, including individual or conference telephone calls.
    (d) Conducting an IEP meeting without a parent in attendance. A 
meeting may be conducted without a parent in attendance if the public 
agency is unable to convince the parents that they should attend. In 
this case the public agency must have a record of its attempts to 
arrange a mutually agreed on time and place, such as--
    (1) Detailed records of telephone calls made or attempted and the 
results of those calls;
    (2) Copies of correspondence sent to the parents and any responses 
received; and
    (3) Detailed records of visits made to the parent's home or place 
of employment and the results of those visits.
    (e) Use of interpreters or other action, as appropriate. The public 
agency shall take whatever action is necessary to ensure that the 
parent understands the proceedings at the IEP meeting, including 
arranging for an interpreter for parents with deafness or whose native 
language is other than English.
    (f) Parent copy of child's IEP. The public agency shall give the 
parent a copy of the child's IEP at no cost to the parent.

(Authority: 20 U.S.C. 1414(d)(1)(B)(i))


Sec. 300.346  Development, review, and revision of IEP.

    (a) Development of IEP. (1) General. In developing each child's 
IEP, the IEP team, shall consider--
    (i) The strengths of the child and the concerns of the parents for 
enhancing the education of their child;
    (ii) The results of the initial or most recent evaluation of the 
child; and
    (iii) As appropriate, the results of the child's performance on any 
general State or district-wide assessment programs.
    (2) Consideration of special factors. The IEP team also shall--
    (i) In the case of a child whose behavior impedes his or her 
learning or that of others, consider, if appropriate, strategies, 
including positive behavioral interventions, strategies, and supports 
to address that behavior;
    (ii) In the case of a child with limited English proficiency, 
consider the language needs of the child as those needs relate to the 
child's IEP;
    (iii) In the case of a child who is blind or visually impaired, 
provide for instruction in Braille and the use of Braille unless the 
IEP team determines, after an evaluation of the child's reading and 
writing skills, needs, and appropriate reading and writing media 
(including an evaluation of the child's future needs for instruction in 
Braille or the use of Braille), that instruction in Braille or the use 
of Braille is not appropriate for the child;
    (iv) Consider the communication needs of the child, and in the case 
of a child who is deaf or hard of hearing, consider the child's 
language and communication needs, opportunities for direct 
communications with peers and professional personnel in the child's 
language and communication mode, academic level, and full range of 
needs, including opportunities for direct instruction in the child's 
language and communication mode; and
    (v) Consider whether the child requires assistive technology 
devices and services.
    (b) Review and Revision of IEP. In conducting a meeting to review, 
and, if appropriate, revise a child's IEP, the IEP team shall consider 
the factors described in paragraph (a) of this section.
    (c) Statement in IEP. If, in considering the special factors 
described in paragraphs (a)(1) and (2) of this section, the IEP team 
determines that a child needs a particular device or service (including 
an intervention, accommodation, or other program modification) in order 
for the child to receive FAPE, the IEP team must include a statement to 
that effect in the child's IEP.
    (d) Requirement with respect to regular education teacher. The 
regular education teacher of a child with a disability, as a member of 
the IEP team, must, to the extent appropriate, participate in the 
development, review, and revision of the child's IEP, including 
assisting in the determination of--
    (1) Appropriate positive behavioral interventions and strategies 
for the child; and
    (2) Supplementary aids and services, program modifications or 
supports for school personnel that will be provided for the child, 
consistent with Sec. 300.347(a)(3).

[[Page 12442]]

    (e) Construction. Nothing in this section shall be construed to 
require the IEP team to include information under one component of a 
child's IEP that is already contained under another component of the 
child's IEP.

(Authority: 20 U.S.C. 1414(d)(3) and (4)(B) and (e))


Sec. 300.347  Content of IEP.

    (a) General. The IEP for each child with a disability must 
include--
    (1) A statement of the child's present levels of educational 
performance, including--
    (i) How the child's disability affects the child's involvement and 
progress in the general curriculum (i.e., the same curriculum as for 
nondisabled children); or
    (ii) For preschool children, as appropriate, how the disability 
affects the child's participation in appropriate activities;
    (2) A statement of measurable annual goals, including benchmarks or 
short-term objectives, related to--
    (i) Meeting the child's needs that result from the child's 
disability to enable the child to be involved in and progress in the 
general curriculum (i.e., the same curriculum as for nondisabled 
children), or for preschool children, as appropriate, to participate in 
appropriate activities; and
    (ii) Meeting each of the child's other educational needs that 
result from the child's disability;
    (3) A statement of the special education and related services and 
supplementary aids and services to be provided to the child, or on 
behalf of the child, and a statement of the program modifications or 
supports for school personnel that will be provided for the child--
    (i) To advance appropriately toward attaining the annual goals;
    (ii) To be involved and progress in the general curriculum in 
accordance with paragraph (a)(1) of this section and to participate in 
extracurricular and other nonacademic activities; and
    (iii) To be educated and participate with other children with 
disabilities and nondisabled children in the activities described in 
this section;
    (4) An explanation of the extent, if any, to which the child will 
not participate with nondisabled children in the regular class and in 
the activities described in paragraph (a)(3) of this section;
    (5)(i) A statement of any individual modifications in the 
administration of State or district-wide assessments of student 
achievement that are needed in order for the child to participate in 
the assessment; and
    (ii) If the IEP team determines that the child will not participate 
in a particular State or district-wide assessment of student 
achievement (or part of an assessment), a statement of--
    (A) Why that assessment is not appropriate for the child; and
    (B) How the child will be assessed;
    (6) The projected date for the beginning of the services and 
modifications described in paragraph (a)(3) of this section, and the 
anticipated frequency, location, and duration of those services and 
modifications; and
    (7) A statement of--
    (i) How the child's progress toward the annual goals described in 
paragraph (a)(2) of this section will be measured; and
    (ii) How the child's parents will be regularly informed (through 
such means as periodic report cards), at least as often as parents are 
informed of their nondisabled children's progress, of--
    (A) Their child's progress toward the annual goals; and
    (B) The extent to which that progress is sufficient to enable the 
child to achieve the goals by the end of the year.
    (b) Transition services. The IEP must include--
    (1) For each student with a disability beginning at age 14 (or 
younger, if determined appropriate by the IEP team), and updated 
annually, a statement of the transition service needs of the student 
under the applicable components of the student's IEP that focuses on 
the student's courses of study (such as participation in advanced-
placement courses or a vocational education program); and
    (2) For each student beginning at age 16 (or younger, if determined 
appropriate by the IEP team), a statement of needed transition services 
for the student, including, if appropriate, a statement of the 
interagency responsibilities or any needed linkages.
    (c) Transfer of rights. In a State that transfers rights at the age 
majority, beginning at least one year before a student reaches the age 
of majority under State law, the student's IEP must include a statement 
that the student has been informed of his or her rights under Part B of 
the Act, if any, that will transfer to the student on reaching the age 
of majority, consistent with Sec. 300.517.
    (d) Students with disabilities convicted as adults and incarcerated 
in adult prisons. Special rules concerning the content of IEPs for 
students with disabilities convicted as adults and incarcerated in 
adult prisons are contained in Sec. 300.311(b) and (c).

(Authority: 20 U.S.C. 1414(d)(1)(A) and (d)(6)(A)(ii))


Sec. 300.348  Agency responsibilities for transition services.

    (a) If a participating agency, other than the public agency, fails 
to provide the transition services described in the IEP in accordance 
with Sec. 300.347(b)(1), the public agency shall reconvene the IEP team 
to identify alternative strategies to meet the transition objectives 
for the student set out in the IEP.
    (b) Nothing in this part relieves any participating agency, 
including a State vocational rehabilitation agency, of the 
responsibility to provide or pay for any transition service that the 
agency would otherwise provide to students with disabilities who meet 
the eligibility criteria of that agency.

(Authority: 20 U.S.C. 1414(d)(5); 1414(d)(1)(A)(vii))


Sec. 300.349  Private school placements by public agencies.

    (a) Developing IEPs. (1) Before a public agency places a child with 
a disability in, or refers a child to, a private school or facility, 
the agency shall initiate and conduct a meeting to develop an IEP for 
the child in accordance with Secs. 300.346 and 300.347.
    (2) The agency shall ensure that a representative of the private 
school or facility attends the meeting. If the representative cannot 
attend, the agency shall use other methods to ensure participation by 
the private school or facility, including individual or conference 
telephone calls.
    (b) Reviewing and revising IEPs. (1) After a child with a 
disability enters a private school or facility, any meetings to review 
and revise the child's IEP may be initiated and conducted by the 
private school or facility at the discretion of the public agency.
    (2) If the private school or facility initiates and conducts these 
meetings, the public agency shall ensure that the parents and an agency 
representative--
    (i) Are involved in any decision about the child's IEP; and
    (ii) Agree to any proposed changes in the IEP before those changes 
are implemented.
    (c) Responsibility. Even if a private school or facility implements 
a child's IEP, responsibility for compliance with this part remains 
with the public agency and the SEA.

(Authority: 20 U.S.C. 1412(a)(10)(B))


Sec. 300.350  IEP--accountability.

    (a) Provision of services. Subject to paragraph (b) of this 
section, each public agency must--

[[Page 12443]]

    (1) Provide special education and related services to a child with 
a disability in accordance with the child's IEP; and
    (2) Make a good faith effort to assist the child to achieve the 
goals and objectives or benchmarks listed in the IEP.
    (b) Accountability. Part B of the Act does not require that any 
agency, teacher, or other person be held accountable if a child does 
not achieve the growth projected in the annual goals and benchmarks or 
objectives. However, the Act does not prohibit a State or public agency 
from establishing its own accountability systems regarding teacher, 
school, or agency performance.
    (c) Construction--parent rights. Nothing in this section limits a 
parent's right to ask for revisions of the child's IEP or to invoke due 
process procedures if the parent feels that the efforts required in 
paragraph (a) of this section are not being made.

(Authority: 20 U.S.C. 1414(d)); Cong. Rec. at H7152 (daily ed., July 
21, 1975))

Direct Services by the Sea


Sec. 300.360  Use of LEA allocation for direct services.

    (a) General. An SEA shall use the payments that would otherwise 
have been available to an LEA or to a State agency to provide special 
education and related services directly to children with disabilities 
residing in the area served by that local agency, or for whom that 
State agency is responsible, if the SEA determines that the LEA or 
State agency--
    (1) Has not provided the information needed to establish the 
eligibility of the agency under Part B of the Act;
    (2) Is unable to establish and maintain programs of FAPE that meet 
the requirements of this part;
    (3) Is unable or unwilling to be consolidated with one or more LEAs 
in order to establish and maintain the programs; or
    (4) Has one or more children with disabilities who can best be 
served by a regional or State program or service-delivery system 
designed to meet the needs of these children.
    (b) SEA responsibility if an LEA does not apply for Part B funds. 
(1) If an LEA elects not to apply for its Part B allotment, the SEA 
must use those funds to ensure that FAPE is available to all eligible 
children residing in the jurisdiction of the LEA.
    (2)(i) If the local allotment is not sufficient to meet the purpose 
described in paragraph (b)(1) of this section, the SEA must ensure 
compliance with Secs. 300.121(a) and 300.300(a).
    (ii) Consistent with Sec. 300.301(a), the [State; SEA] may use 
whatever funding sources are available in the State to implement 
paragraph (b)(2)(i) of this section.
    (c) SEA administrative procedures. (1) In meeting the requirements 
in paragraph (a) of this section, the SEA may provide special education 
and related services directly, by contract, or through other 
arrangements.
    (2) The excess cost requirements of Secs. 300.184 and 300.185 do 
not apply to the SEA.

(Authority: 20 U.S.C. 1413(h)(1))


Sec. 300.361  Nature and location of services.

    The SEA may provide special education and related services under 
Sec. 300.360(a) in the manner and at the location it considers 
appropriate (including regional and State centers). However, the manner 
in which the education and services are provided must be consistent 
with the requirements of this part (including the LRE provisions of 
Secs. 300.550-300.556).

(Authority: 20 U.S.C. 1413(h)(2))


Secs. 300.362-300.369  [Reserved]


Sec. 300.370  Use of SEA allocations.

    (a) Each State shall use any funds it retains under Sec. 300.602 
and does not use for administration under Sec. 300.620 for any of the 
following:
    (1) Support and direct services, including technical assistance and 
personnel development and training.
    (2) Administrative costs of monitoring and complaint investigation, 
but only to the extent that those costs exceed the costs incurred for 
those activities during fiscal year 1985.
    (3) To establish and implement the mediation process required by 
Sec. 300.506, including providing for the costs of mediators and 
support personnel.
    (4) To assist LEAs in meeting personnel shortages.
    (5) To develop a State Improvement Plan under subpart 1 of Part D 
of the Act.
    (6) Activities at the State and local levels to meet the 
performance goals established by the State under Sec. 300.137 and to 
support implementation of the State Improvement Plan under subpart 1 of 
Part D of the Act if the State receives funds under that subpart.
    (7) To supplement other amounts used to develop and implement a 
Statewide coordinated services system designed to improve results for 
children and families, including children with disabilities and their 
families, but not to exceed one percent of the amount received by the 
State under section 611 of the Act. This system must be coordinated 
with and, to the extent appropriate, build on the system of coordinated 
services developed by the State under Part C of the Act.
    (8) For subgrants to LEAs for the purposes described in 
Sec. 300.622 (local capacity building).
    (b) For the purposes of paragraph (a) of this section--
    (1) Direct services means services provided to a child with a 
disability by the State directly, by contract, or through other 
arrangements; and
    (2) Support services includes implementing the comprehensive system 
of personnel development under Secs. 300.380-300.382, recruitment and 
training of mediators, hearing officers, and surrogate parents, and 
public information and parent training activities relating to FAPE for 
children with disabilities.
    (c) Of the funds an SEA retains under paragraph (a) of this 
section, the SEA may use the funds directly, or distribute them to LEAs 
on a competitive, targeted, or formula basis.

(Authority: 20 U.S.C. 1411(f)(3))


Sec. 300.371  [Reserved]


Sec. 300.372  Nonapplicability of requirements that prohibit 
commingling and supplanting of funds.

    A State may use funds it retains under Sec. 300.602 without regard 
to--
    (a) The prohibition on commingling of funds in Sec. 300.152; and
    (b) The prohibition on supplanting other funds in Sec. 300.153.

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

Comprehensive System of Personnel Development (CSPD)


Sec. 300.380  General CSPD requirements.

    (a) Each State shall develop and implement a comprehensive system 
of personnel development that--
    (1) Is consistent with the purposes of this part and with section 
635(a)(8) of the Act;
    (2) Is designed to ensure an adequate supply of qualified special 
education, regular education, and related services personnel;
    (3) Meets the requirements of Secs. 300.381 and 300.382; and
    (4) Is updated at least every five years.
    (b) A State that has a State improvement grant has met the 
requirements of paragraph (a) of this section.

(Authority: 20 U.S.C. 1412(a)(14))


Sec. 300.381  Adequate supply of qualified personnel.

    Each State must include, at least, an analysis of State and local 
needs for

[[Page 12444]]

professional development for personnel to serve children with 
disabilities that includes, at a minimum--
    (a) The number of personnel providing special education and related 
services; and
    (b) Relevant information on current and anticipated personnel 
vacancies and shortages (including the number of individuals described 
in paragraph (a) of this section with temporary certification), and on 
the extent of certification or retraining necessary to eliminate these 
shortages, that is based, to the maximum extent possible, on existing 
assessments of personnel needs.

(Authority: 20 U.S.C. 1453(b)(2)(B))


Sec. 300.382  Improvement strategies.

    Each State must describe the strategies the State will use to 
address the needs identified under Sec. 300.381. These strategies must 
include how the State will address the identified needs for in-service 
and pre-service preparation to ensure that all personnel who work with 
children with disabilities (including both professional and 
paraprofessional personnel who provide special education, general 
education, related services, or early intervention services) have the 
skills and knowledge necessary to meet the needs of children with 
disabilities. The plan must include a description of how the State 
will--
    (a) Prepare general and special education personnel with the 
content knowledge and collaborative skills needed to meet the needs of 
children with disabilities including how the State will work with other 
States on common certification criteria;
    (b) Prepare professionals and paraprofessionals in the area of 
early intervention with the content knowledge and collaborative skills 
needed to meet the needs of infants and toddlers with disabilities;
    (c) Work with institutions of higher education and other entities 
that (on both a pre-service and an in-service basis) prepare personnel 
who work with children with disabilities to ensure that those 
institutions and entities develop the capacity to support quality 
professional development programs that meet State and local needs;
    (d) Work to develop collaborative agreements with other States for 
the joint support and development of programs to prepare personnel for 
which there is not sufficient demand within a single State to justify 
support or development of a program of preparation;
    (e) Work in collaboration with other States, particularly 
neighboring States, to address the lack of uniformity and reciprocity 
in credentialing of teachers and other personnel;
    (f) Enhance the ability of teachers and others to use strategies, 
such as behavioral interventions, to address the conduct of children 
with disabilities that impedes the learning of children with 
disabilities and others;
    (g) Acquire and disseminate, to teachers, administrators, school 
board members, and related services personnel, significant knowledge 
derived from educational research and other sources, and how the State 
will, if appropriate, adopt promising practices, materials, and 
technology;
    (h) Recruit, prepare, and retain qualified personnel, including 
personnel with disabilities and personnel from groups that are under-
represented in the fields of regular education, special education, and 
related services;
    (i) Insure that the plan is integrated, to the maximum extent 
possible, with other professional development plans and activities, 
including plans and activities developed and carried out under other 
Federal and State laws that address personnel recruitment and training; 
and
    (j) Provide for the joint training of parents and special 
education, related services, and general education personnel.

(Authority: 20 U.S.C. 1453 (c)(3)(D))


Secs. 300.383-300.387  [Reserved]

Subpart D--Children in Private Schools

Children With Disabilities in Private Schools Placed or Referred by 
Public Agencies


Sec. 300.400  Applicability of Secs. 300.400-300.402.

    Sections 300.401-300.402 apply only to children with disabilities 
who are or have been placed in or referred to a private school or 
facility by a public agency as a means of providing special education 
and related services.

(Authority: 20 U.S.C. 1412(a)(10)(B))


Sec. 300.401  Responsibility of State educational agency.

    Each SEA shall ensure that a child with a disability who is placed 
in or referred to a private school or facility by a public agency--
    (a) Is provided special education and related services--
    (1) In conformance with an IEP that meets the requirements of 
Secs. 300.340-300.350; and
    (2) At no cost to the parents;
    (b) Is provided an education that meets the standards that apply to 
education provided by the SEA and LEAs (including the requirements of 
this part); and
    (c) Has all of the rights of a child with a disability who is 
served by a public agency.

(Authority: 20 U.S.C. 1412(a)(10)(B))


Sec. 300.402  Implementation by State educational agency.

    In implementing Sec. 300.401, the SEA shall--
    (a) Monitor compliance through procedures such as written reports, 
on-site visits, and parent questionnaires;
    (b) Disseminate copies of applicable standards to each private 
school and facility to which a public agency has referred or placed a 
child with a disability; and
    (c) Provide an opportunity for those private schools and facilities 
to participate in the development and revision of State standards that 
apply to them.

(Authority: 20 U.S.C. 1412(a)(10)(B))

Children With Disabilities Enrolled by Their Parents in Private 
Schools When FAPE Is at Issue


Sec. 300.403  Placement of children by parents if FAPE is at issue.

    (a) General. This part does not require an LEA to pay for the cost 
of education, including special education and related services, of a 
child with a disability at a private school or facility if that agency 
made FAPE available to the child and the parents elected to place the 
child in a private school or facility. However, the public agency shall 
include that child in the population whose needs are addressed 
consistent with Secs. 300.450-300.462.
    (b) Disagreements about FAPE. Disagreements between a parent and a 
public agency regarding the availability of a program appropriate for 
the child, and the question of financial responsibility, are subject to 
the due process procedures of Secs. 300.500-300.517.
    (c) Reimbursement for private school placement. If the parents of a 
child with a disability, who previously received special education and 
related services under the authority of a public agency, enroll the 
child in a private preschool, elementary, or secondary school without 
the consent of or referral by the public agency, a court or a hearing 
officer may require the agency to reimburse the parents for the cost of 
that enrollment if the court or hearing officer finds that the agency 
had not made FAPE available to the child in a timely manner prior to 
that enrollment and that the private placement is appropriate. A

[[Page 12445]]

parental placement may be found to be appropriate by a hearing officer 
or a court even if it does not meet the State standards that apply to 
education provided by the SEA and LEAs.
    (d) Limitation on reimbursement. The cost of reimbursement 
described in paragraph (c) of this section may be reduced or denied--
    (1) If--
    (i) At the most recent IEP meeting that the parents attended prior 
to removal of the child from the public school, the parents did not 
inform the IEP team that they were rejecting the placement proposed by 
the public agency to provide FAPE to their child, including stating 
their concerns and their intent to enroll their child in a private 
school at public expense; or
    (ii) At least ten (10) business days (including any holidays that 
occur on a business day) prior to the removal of the child from the 
public school, the parents did not give written notice to the public 
agency of the information described in paragraph (d)(1)(i) of this 
section;
    (2) If, prior to the parents' removal of the child from the public 
school, the public agency informed the parents, through the notice 
requirements described in Sec. 300.503(a)(1), of its intent to evaluate 
the child (including a statement of the purpose of the evaluation that 
was appropriate and reasonable), but the parents did not make the child 
available for the evaluation; or
    (3) Upon a judicial finding of unreasonableness with respect to 
actions taken by the parents.
    (e) Exception. Notwithstanding the notice requirement in paragraph 
(d)(1) of this section, the cost of reimbursement may not be reduced or 
denied for failure to provide the notice if--
    (1) The parent is illiterate and cannot write in English;
    (2) Compliance with paragraph (d)(1) of this section would likely 
result in physical or serious emotional harm to the child;
    (3) The school prevented the parent from providing the notice; or
    (4) The parents had not received notice, pursuant to section 615 of 
the Act, of the notice requirement in paragraph (d)(1) of this section.

(Authority: 20 U.S.C. 1412(a)(10)(C))

Children With Disabilities Enrolled by Their Parents in Private 
Schools


Sec. 300.450  Definition of ``private school children with 
disabilities.''

    As used in this part, private school children with disabilities 
means children with disabilities enrolled by their parents in private 
schools or facilities other than children with disabilities covered 
under Secs. 300.400-300.402.

(Authority: 20 U.S.C. 1412(a)(10)(A))


Sec. 300.451  Child find for private school children with disabilities.

    (a) Each LEA shall locate, identify, and evaluate all private 
school children with disabilities, including religious-school children 
residing in the jurisdiction of the LEA, in accordance with 
Secs. 300.125 and 300.220. The activities undertaken to carry out this 
responsibility for private school children with disabilities must be 
comparable to activities undertaken for children with disabilities in 
public schools.
    (b) Each LEA shall consult with appropriate representatives of 
private school children with disabilities on how to carry out the 
activities described in paragraph (a) of this section.

(Authority: 20 U.S.C. 1412(a)(10)(A)(ii))


Sec. 300.452  Provision of services--basic requirement.

    (a) General. To the extent consistent with their number and 
location in the State, provision must be made for the participation of 
private school children with disabilities in the program assisted or 
carried out under Part B of the Act by providing them with special 
education and related services in accordance with Secs. 300.453-
300.462.
    (b) SEA Responsibility--services plan. Each SEA shall ensure that, 
in accordance with paragraph (a) of this section and Secs. 300.454-
300.456, a services plan is developed and implemented for each private 
school child with a disability who has been designated to receive 
special education and related services under this part.

(Authority: 20 U.S.C. 1412(a)(10)(A)(i))


Sec. 300.453  Expenditures.

    (a) Formula. To meet the requirement of Sec. 300.452(a), each LEA 
must spend on providing special education and related services to 
private school children with disabilities--
    (1) For children aged 3 through 21, an amount that is the same 
proportion of the LEA's total subgrant under section 611(g) of the Act 
as the number of private school children with disabilities aged 3 
through 21 residing in its jurisdiction is to the total number of 
children with disabilities in its jurisdiction aged 3 through 21; and
    (2) For children aged 3 through 5, an amount that is the same 
proportion of the LEA's total subgrant under section 619(g) of the Act 
as the number of private school children with disabilities aged 3 
through 5 residing in its jurisdiction is to the total number of 
children with disabilities in its jurisdiction aged 3 through 5.
    (b) Child count. (1) Each LEA shall--
    (i) Consult with representatives of private school children in 
deciding how to conduct the annual count of the number of private 
school children with disabilities; and
    (ii) Ensure that the count is conducted on December 1 or the last 
Friday of October of each year.
    (2) The child count must be used to determine the amount that the 
LEA must spend on providing special education and related services to 
private school children with disabilities in the next subsequent fiscal 
year.
    (c) Expenditures for child find may not be considered. Expenditures 
for child find activities described in Sec. 300.451 may not be 
considered in determining whether the LEA has met the requirements of 
paragraph (a) of this section.
    (d) Additional services permissible. State and local educational 
agencies are not prohibited from providing services to private school 
children with disabilities in excess of those required by this part, 
consistent with State law or local policy.

(Authority: 20 U.S.C. 1412(a)(10)(A))


Sec. 300.454  Services determined.

    (a) No individual right to special education and related services. 
(1) No private school child with a disability has an individual right 
to receive some or all of the special education and related services 
that the child would receive if enrolled in a public school.
    (2) Decisions about the services that will be provided to private 
school children with disabilities under Secs. 300.452-300.462, must be 
made in accordance with paragraphs (b), and (c) of this section.
    (b) Consultation with representatives of private school children 
with disabilities. (1) General. Each LEA shall consult, in a timely and 
meaningful way, with appropriate representatives of private school 
children with disabilities in light of the funding under Sec. 300.453, 
the number of private school children with disabilities, the needs of 
private school children with disabilities, and their location to 
decide--
    (i) Which children will receive services under Sec. 300.452;
    (ii) What services will be provided;
    (iii) How and where the services will be provided; and
    (iv) How the services provided will be evaluated.

[[Page 12446]]

    (2) Genuine opportunity. Each LEA shall give appropriate 
representatives of private school children with disabilities a genuine 
opportunity to express their views regarding each matter that is 
subject to the consultation requirements in this section.
    (3) Timing. The consultation required by paragraph (b)(1) of this 
section must occur before the LEA makes any decision that affects the 
opportunities of private school children with disabilities to 
participate in services under Secs. 300.452-300.462.
    (4) Decisions. The LEA shall make the final decisions with respect 
to the services to be provided to eligible private school children.
    (c) Services plan for each child served under Secs. 300.450-
300.462. If a child with a disability is enrolled in a religious or 
other private school and will receive special education or related 
services from an LEA, the LEA shall--
    (1) Initiate and conduct meetings to develop, review, and revise a 
services plan for the child, in accordance with Sec. 300.455(b); and
    (2) Ensure that a representative of the religious or other private 
school attends each meeting. If the representative cannot attend, the 
LEA shall use other methods to ensure participation by the private 
school, including individual or conference telephone calls.

(Authority: 1412(a)(10)(A))


Sec. 300.455  Services provided.

    (a) General. (1) The services provided to private school children 
with disabilities must be provided by personnel meeting the same 
standards as personnel providing services in the public schools.
    (2) Private school children with disabilities may receive a 
different amount of services than children with disabilities in public 
schools.
    (3) No private school child with a disability is entitled to any 
service or to any amount of a service the child would receive if 
enrolled in a public school.
    (b) Services provided in accordance with a services plan. (1) Each 
private school child with a disability who has been designated to 
receive services under Sec. 300.452 must have a services plan that 
describes the specific special education and related services that the 
LEA will provide to the child in light of the services that the LEA has 
determined, through the process described in Secs. 300.453-300.454, it 
will make available to private school children with disabilities.
    (2) The services plan must, to the extent appropriate--
    (i) Meet the requirements of Sec. 300.347, with respect to the 
services provided; and
    (ii) Be developed, reviewed, and revised consistent with 
Secs. 300.342-300.346.

(Authority: 20 U.S.C. 1412(a)(10)(A))


Sec. 300.456  Location of services; transportation.

    (a) On-site. Services provided to private school children with 
disabilities may be provided on-site at a child's private school, 
including a religious school, to the extent consistent with law.
    (b) Transportation. (1) General. (i) If necessary for the child to 
benefit from or participate in the services provided under this part, a 
private school child with a disability must be provided 
transportation--
    (A) From the child's school or the child's home to a site other 
than the private school; and
    (B) From the service site to the private school, or to the child's 
home, depending on the timing of the services.
    (ii) LEAs are not required to provide transportation from the 
child's home to the private school.
    (2) Cost of transportation. The cost of the transportation 
described in paragraph (b)(1)(i) of this section may be included in 
calculating whether the LEA has met the requirement of Sec. 300.453.

(Authority: 20 U.S.C. 1412(a)(10)(A))


Sec. 300.457  Complaints.

    (a) Due process inapplicable. The procedures in Secs. 300.504-
300.515 do not apply to complaints that an LEA has failed to meet the 
requirements of Secs. 300.452-300.462, including the provision of 
services indicated on the child's services plan.
    (b) Due process applicable. The procedures in Secs. 300.504-300.515 
do apply to complaints that an LEA has failed to meet the requirements 
of Sec. 300.451, including the requirements of Secs. 300.530-300.543.
    (c) State complaints. Complaints that an SEA or LEA has failed to 
meet the requirements of Secs. 300.451-300.462 may be filed under the 
procedures in Secs. 300.660-300.662.

(Authority: 20 U.S.C. 1412(a)(10)(A))


Sec. 300.458  Separate classes prohibited.

    An LEA may not use funds available under section 611 or 619 of the 
Act for classes that are organized separately on the basis of school 
enrollment or religion of the students if--
    (a) The classes are at the same site; and
    (b) The classes include students enrolled in public schools and 
students enrolled in private schools.

(Authority: 20 U.S.C. 1412(a)(10)(A))


Sec. 300.459  Requirement that funds not benefit a private school.

    (a) An LEA may not use funds provided under section 611 or 619 of 
the Act to finance the existing level of instruction in a private 
school or to otherwise benefit the private school.
    (b) The LEA shall use funds provided under Part B of the Act to 
meet the special education and related services needs of students 
enrolled in private schools, but not for--
    (1) The needs of a private school; or
    (2) The general needs of the students enrolled in the private 
school.

(Authority: 20 U.S.C. 1412(a)(10)(A))


Sec. 300.460  Use of public school personnel.

    An LEA may use funds available under sections 611 and 619 of the 
Act to make public school personnel available in other than public 
facilities--
    (a) To the extent necessary to provide services under 
Secs. 300.450-300.462 for private school children with disabilities; 
and
    (b) If those services are not normally provided by the private 
school.

(Authority: 20 U.S.C. 1412(a)(10)(A))


Sec. 300.461  Use of private school personnel.

    An LEA may use funds available under section 611 or 619 of the Act 
to pay for the services of an employee of a private school to provide 
services under Secs. 300.450-300.462 if--
    (a) The employee performs the services outside of his or her 
regular hours of duty; and
    (b) The employee performs the services under public supervision and 
control.

(Authority: 20 U.S.C. 1412(a)(10)(A))


Sec. 300.462  Requirements concerning property, equipment, and supplies 
for the benefit of private school children with disabilities.

    (a) A public agency must keep title to and exercise continuing 
administrative control of all property, equipment, and supplies that 
the public agency acquires with funds under section 611 or 619 of the 
Act for the benefit of private school children with disabilities.
    (b) The public agency may place equipment and supplies in a private 
school for the period of time needed for the program.
    (c) The public agency shall ensure that the equipment and supplies 
placed in a private school--

[[Page 12447]]

    (1) Are used only for Part B purposes; and
    (2) Can be removed from the private school without remodeling the 
private school facility.
    (d) The public agency shall remove equipment and supplies from a 
private school if--
    (1) The equipment and supplies are no longer needed for Part B 
purposes; or
    (2) Removal is necessary to avoid unauthorized use of the equipment 
and supplies for other than Part B purposes.
    (e) No funds under Part B of the Act may be used for repairs, minor 
remodeling, or construction of private school facilities.

(Authority: 20 U.S.C. 1412(a)(10)(A))

Procedures for By-Pass


Sec. 300.480  By-pass--general.

    (a) The Secretary implements a by-pass if an SEA is, and was on 
December 2, 1983, prohibited by law from providing for the 
participation of private school children with disabilities in the 
program assisted or carried out under Part B of the Act, as required by 
section 612(a)(10)(A) of the Act and by Secs. 300.452-300.462.
    (b) The Secretary waives the requirement of section 612(a)(10)(A) 
of the Act and of Secs. 300.452-300.462 if the Secretary implements a 
by-pass.

(Authority: 20 U.S.C. 1412(f)(1))


Sec. 300.481  Provisions for services under a by-pass.

    (a) Before implementing a by-pass, the Secretary consults with 
appropriate public and private school officials, including SEA 
officials, in the affected State to consider matters such as--
    (1) The prohibition imposed by State law that results in the need 
for a by-pass;
    (2) The scope and nature of the services required by private school 
children with disabilities in the State, and the number of children to 
be served under the by-pass; and
    (3) The establishment of policies and procedures to ensure that 
private school children with disabilities receive services consistent 
with the requirements of section 612(a)(10)(A) of the Act and 
Secs. 300.452-300.462.
    (b) After determining that a by-pass is required, the Secretary 
arranges for the provision of services to private school children with 
disabilities in the State in a manner consistent with the requirements 
of section 612(a)(10)(A) of the Act and Secs. 300.452-300.462 by 
providing services through one or more agreements with appropriate 
parties.
    (c) For any fiscal year that a by-pass is implemented, the 
Secretary determines the maximum amount to be paid to the providers of 
services by multiplying--
    (1) A per child amount that may not exceed the amount per child 
provided by the Secretary under Part B of the Act for all children with 
disabilities in the State for the preceding fiscal year; by
    (2) The number of private school children with disabilities (as 
defined by Secs. 300.7(a) and 300.450) in the State, as determined by 
the Secretary on the basis of the most recent satisfactory data 
available, which may include an estimate of the number of those 
children with disabilities.
    (d) The Secretary deducts from the State's allocation under Part B 
of the Act the amount the Secretary determines is necessary to 
implement a by-pass and pays that amount to the provider of services. 
The Secretary may withhold this amount from the State's allocation 
pending final resolution of any investigation or complaint that could 
result in a determination that a by-pass must be implemented.

(Authority: 20 U.S.C. 1412(f)(2))


Sec. 300.482  Notice of intent to implement a by-pass.

    (a) Before taking any final action to implement a by-pass, the 
Secretary provides the affected SEA with written notice.
    (b) In the written notice, the Secretary--
    (1) States the reasons for the proposed by-pass in sufficient 
detail to allow the SEA to respond; and
    (2) Advises the SEA that it has a specific period of time (at least 
45 days) from receipt of the written notice to submit written 
objections to the proposed by-pass and that it may request in writing 
the opportunity for a hearing to show cause why a by-pass should not be 
implemented.
    (c) The Secretary sends the notice to the SEA by certified mail 
with return receipt requested.

(Authority: 20 U.S.C. 1412(f)(3)(A))


Sec. 300.483  Request to show cause.

    An SEA seeking an opportunity to show cause why a by-pass should 
not be implemented shall submit a written request for a show cause 
hearing to the Secretary.

(Authority: 20 U.S.C. 1412(f)(3))


Sec. 300.484  Show cause hearing.

    (a) If a show cause hearing is requested, the Secretary--
    (1) Notifies the SEA and other appropriate public and private 
school officials of the time and place for the hearing; and
    (2) Designates a person to conduct the show cause hearing. The 
designee must not have had any responsibility for the matter brought 
for a hearing.
    (b) At the show cause hearing, the designee considers matters such 
as--
    (1) The necessity for implementing a by-pass;
    (2) Possible factual errors in the written notice of intent to 
implement a by-pass; and
    (3) The objections raised by public and private school 
representatives.
    (c) The designee may regulate the course of the proceedings and the 
conduct of parties during the pendency of the proceedings. The designee 
takes all steps necessary to conduct a fair and impartial proceeding, 
to avoid delay, and to maintain order.
    (d) The designee may interpret applicable statutes and regulations, 
but may not waive them or rule on their validity.
    (e) The designee arranges for the preparation, retention, and, if 
appropriate, dissemination of the record of the hearing.

(Authority: 20 U.S.C. 1412(f)(3))


Sec. 300.485  Decision.

    (a) The designee who conducts the show cause hearing--
    (1) Issues a written decision that includes a statement of 
findings; and
    (2) Submits a copy of the decision to the Secretary and sends a 
copy to each party by certified mail with return receipt requested.
    (b) Each party may submit comments and recommendations on the 
designee's decision to the Secretary within 15 days of the date the 
party receives the designee's decision.
    (c) The Secretary adopts, reverses, or modifies the designee's 
decision and notifies the SEA of the Secretary's final action. That 
notice is sent by certified mail with return receipt requested.

(Authority: 20 U.S.C. 1412(f)(3))


Sec. 300.486  Filing requirements.

    (a) Any written submission under Secs. 300.482-300.485 must be 
filed by hand-delivery, by mail, or by facsimile transmission. The 
Secretary discourages the use of facsimile transmission for documents 
longer than five pages.
    (b) The filing date under paragraph (a) of this section is the date 
the document is--
    (1) Hand-delivered;
    (2) Mailed; or
    (3) Sent by facsimile transmission.
    (c) A party filing by facsimile transmission is responsible for 
confirming that a complete and legible copy of the document was 
received by the Department.

[[Page 12448]]

    (d) If a document is filed by facsimile transmission, the Secretary 
or the hearing officer, as applicable, may require the filing of a 
follow-up hard copy by hand-delivery or by mail within a reasonable 
period of time.
    (e) If agreed upon by the parties, service of a document may be 
made upon the other party by facsimile transmission.

(Authority: 20 U.S.C. 1412(f)(3))


Sec. 300.487  Judicial review.

    If dissatisfied with the Secretary's final action, the SEA may, 
within 60 days after notice of that action, file a petition for review 
with the United States Court of Appeals for the circuit in which the 
State is located. The procedures for judicial review are described in 
section 612(f)(3)(B)-(D) of the Act.

(Authority: 20 U.S.C. 1412(f)(3)(B)-(D))

Subpart E--Procedural Safeguards

Due Process Procedures for Parents and Children


Sec. 300.500  General responsibility of public agencies; definitions.

    (a) Responsibility of SEA and other public agencies. Each SEA shall 
ensure that each public agency establishes, maintains, and implements 
procedural safeguards that meet the requirements of Secs. 300.500-
300.529.
    (b) Definitions of ``consent,'' ``evaluation,'' and ``personally 
identifiable.'' As used in this part --
    (1) Consent means that --
    (i) The parent has been fully informed of all information relevant 
to the activity for which consent is sought, in his or her native 
language, or other mode of communication;
    (ii) The parent understands and agrees in writing to the carrying 
out of the activity for which his or her consent is sought, and the 
consent describes that activity and lists the records (if any) that 
will be released and to whom; and
    (iii)(A) The parent understands that the granting of consent is 
voluntary on the part of the parent and may be revoked at anytime.
    (B) If a parent revokes consent, that revocation is not retroactive 
(i.e., it does not negate an action that has occurred after the consent 
was given and before the consent was revoked).
    (2) Evaluation means procedures used in accordance with 
Secs. 300.530-300.536 to determine whether a child has a disability and 
the nature and extent of the special education and related services 
that the child needs; and
    (3) Personally identifiable means that information includes--
    (i) The name of the child, the child's parent, or other family 
member;
    (ii) The address of the child;
    (iii) A personal identifier, such as the child's social security 
number or student number; or
    (iv) A list of personal characteristics or other information that 
would make it possible to identify the child with reasonable certainty.

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


Sec. 300.501  Opportunity to examine records; parent participation in 
meetings.

    (a) General. The parents of a child with a disability must be 
afforded, in accordance with the procedures of Secs. 300.562-300.569, 
an opportunity to--
    (1) Inspect and review all education records with respect to--
    (i) The identification, evaluation, and educational placement of 
the child; and
    (ii) The provision of FAPE to the child; and
    (2) Participate in meetings with respect to --
    (i) The identification, evaluation, and educational placement of 
the child; and
    (ii) The provision of FAPE to the child.
    (b) Parent participation in meetings. (1) Each public agency shall 
provide notice consistent with Sec. 300.345(a)(1) and (b)(1) to ensure 
that parents of children with disabilities have the opportunity to 
participate in meetings described in paragraph (a)(2) of this section.
    (2) A meeting does not include informal or unscheduled 
conversations involving public agency personnel and conversations on 
issues such as teaching methodology, lesson plans, or coordination of 
service provision if those issues are not addressed in the child's IEP. 
A meeting also does not include preparatory activities that public 
agency personnel engage in to develop a proposal or response to a 
parent proposal that will be discussed at a later meeting.
    (c) Parent involvement in placement decisions. (1) Each public 
agency shall ensure that the parents of each child with a disability 
are members of any group that makes decisions on the educational 
placement of their child.
    (2) In implementing the requirements of paragraph (c)(1) of this 
section, the public agency shall use procedures consistent with the 
procedures described in Sec. 300.345(a) through (b)(1).
    (3) If neither parent can participate in a meeting in which a 
decision is to be made relating to the educational placement of their 
child, the public agency shall use other methods to ensure their 
participation, including individual or conference telephone calls, or 
video conferencing.
    (4) A placement decision may be made by a group without the 
involvement of the parents, if the public agency is unable to obtain 
the parents' participation in the decision. In this case, the public 
agency must have a record of its attempt to ensure their involvement, 
including information that is consistent with the requirements of 
Sec. 300.345(d).
    (5) The public agency shall make reasonable efforts to ensure that 
the parents understand, and are able to participate in, any group 
discussions relating to the educational placement of their child, 
including arranging for an interpreter for parents with deafness, or 
whose native language is other than English.

(Authority: 20 U.S.C. 1414(f), 1415(b)(1))


Sec. 300.502  Independent educational evaluation.

    (a) General. (1) The parents of a child with a disability have the 
right under this part to obtain an independent educational evaluation 
of the child, subject to paragraphs (b) through (e) of this section.
    (2) Each public agency shall provide to parents, upon request for 
an independent educational evaluation, information about where an 
independent educational evaluation may be obtained, and the agency 
criteria applicable for independent educational evaluations as set 
forth in paragraph (e) of this section.
    (3) For the purposes of this part--
    (i) Independent educational evaluation means an evaluation 
conducted by a qualified examiner who is not employed by the public 
agency responsible for the education of the child in question; and
    (ii) Public expense means that the public agency either pays for 
the full cost of the evaluation or ensures that the evaluation is 
otherwise provided at no cost to the parent, consistent with 
Sec. 300.301.
    (b) Parent right to evaluation at public expense. (1) A parent has 
the right to an independent educational evaluation at public expense if 
the parent disagrees with an evaluation obtained by the public agency.
    (2) If a parent requests an independent educational evaluation at 
public expense, the public agency must, without unnecessary delay, 
either--
    (i) Initiate a hearing under Sec. 300.507 to show that its 
evaluation is appropriate; or
    (ii) Ensure that an independent educational evaluation is provided 
at public expense, unless the agency

[[Page 12449]]

demonstrates in a hearing under Sec. 300.507 that the evaluation 
obtained by the parent did not meet agency criteria.
    (3) If the public agency initiates a hearing and the final decision 
is that the agency's evaluation is appropriate, the parent still has 
the right to an independent educational evaluation, but not at public 
expense.
    (4) If a parent requests an independent educational evaluation, the 
public agency may ask for the parent's reason why he or she objects to 
the public evaluation. However, the explanation by the parent may not 
be required and the public agency may not unreasonably delay either 
providing the independent educational evaluation at public expense or 
initiating a due process hearing to defend the public evaluation.
    (c) Parent-initiated evaluations. If the parent obtains an 
independent educational evaluation at private expense, the results of 
the evaluation--
    (1) Must be considered by the public agency, if it meets agency 
criteria, in any decision made with respect to the provision of FAPE to 
the child; and
    (2) May be presented as evidence at a hearing under this subpart 
regarding that child.
    (d) Requests for evaluations by hearing officers. If a hearing 
officer requests an independent educational evaluation as part of a 
hearing, the cost of the evaluation must be at public expense.
    (e) Agency criteria. (1) If an independent educational evaluation 
is at public expense, the criteria under which the evaluation is 
obtained, including the location of the evaluation and the 
qualifications of the examiner, must be the same as the criteria that 
the public agency uses when it initiates an evaluation, to the extent 
those criteria are consistent with the parent's right to an independent 
educational evaluation.
    (2) Except for the criteria described in paragraph (e)(1) of this 
section, a public agency may not impose conditions or timelines related 
to obtaining an independent educational evaluation at public expense.

(Authority: 20 U.S.C. 1415(b)(1))


Sec. 300.503  Prior notice by the public agency; content of notice.

    (a) Notice. (1) Written notice that meets the requirements of 
paragraph (b) of this section must be given to the parents of a child 
with a disability a reasonable time before the public agency--
    (i) Proposes to initiate or change the identification, evaluation, 
or educational placement of the child or the provision of FAPE to the 
child; or
    (ii) Refuses to initiate or change the identification, evaluation, 
or educational placement of the child or the provision of FAPE to the 
child.
    (2) If the notice described under paragraph (a)(1) of this section 
relates to an action proposed by the public agency that also requires 
parental consent under Sec. 300.505, the agency may give notice at the 
same time it requests parent consent.
    (b) Content of notice. The notice required under paragraph (a) of 
this section must include--
    (1) A description of the action proposed or refused by the agency;
    (2) An explanation of why the agency proposes or refuses to take 
the action;
    (3) A description of any other options that the agency considered 
and the reasons why those options were rejected;
    (4) A description of each evaluation procedure, test, record, or 
report the agency used as a basis for the proposed or refused action;
    (5) A description of any other factors that are relevant to the 
agency's proposal or refusal;
    (6) A statement that the parents of a child with a disability have 
protection under the procedural safeguards of this part and, if this 
notice is not an initial referral for evaluation, the means by which a 
copy of a description of the procedural safeguards can be obtained; and
    (7) Sources for parents to contact to obtain assistance in 
understanding the provisions of this part.
    (c) Notice in understandable language. (1) The notice required 
under paragraph (a) of this section must be--
    (i) Written in language understandable to the general public; and
    (ii) Provided in the native language of the parent or other mode of 
communication used by the parent, unless it is clearly not feasible to 
do so.
    (2) If the native language or other mode of communication of the 
parent is not a written language, the public agency shall take steps to 
ensure--
    (i) That the notice is translated orally or by other means to the 
parent in his or her native language or other mode of communication;
    (ii) That the parent understands the content of the notice; and
    (iii) That there is written evidence that the requirements in 
paragraphs (c)(2) (i) and (ii) of this section have been met.

(Authority: 20 U.S.C. 1415(b)(3), (4) and (c), 1414(b)(1))


Sec. 300.504  Procedural safeguards notice.

    (a) General. A copy of the procedural safeguards available to the 
parents of a child with a disability must be given to the parents, at a 
minimum--
    (1) Upon initial referral for evaluation;
    (2) Upon each notification of an IEP meeting;
    (3) Upon reevaluation of the child; and
    (4) Upon receipt of a request for due process under Sec. 300.507.
    (b) Contents. The procedural safeguards notice must include a full 
explanation of all of the procedural safeguards available under 
Secs. 300.403, 300.500-300.529, and 300.560-300.577, and the State 
complaint procedures available under Secs. 300.660-300.662 relating 
to--
    (1) Independent educational evaluation;
    (2) Prior written notice;
    (3) Parental consent;
    (4) Access to educational records;
    (5) Opportunity to present complaints to initiate due process 
hearings;
    (6) The child's placement during pendency of due process 
proceedings;
    (7) Procedures for students who are subject to placement in an 
interim alternative educational setting;
    (8) Requirements for unilateral placement by parents of children in 
private schools at public expense;
    (9) Mediation;
    (10) Due process hearings, including requirements for disclosure of 
evaluation results and recommendations;
    (11) State-level appeals (if applicable in that State);
    (12) Civil actions;
    (13) Attorneys' fees; and
    (14) The State complaint procedures under Secs. 300.660-300.662, 
including a description of how to file a complaint and the timelines 
under those procedures.
    (c) Notice in understandable language. The notice required under 
paragraph (a) of this section must meet the requirements of 
Sec. 300.503(c).

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


Sec. 300.505  Parental consent.

    (a) General. (1) Subject to paragraphs (a)(3), (b) and (c) of this 
section, informed parent consent must be obtained before--
    (i) Conducting an initial evaluation or reevaluation; and
    (ii) Initial provision of special education and related services to 
a child with a disability.
    (2) Consent for initial evaluation may not be construed as consent 
for initial placement described in paragraph (a)(1)(ii) of this 
section.

[[Page 12450]]

    (3) Parental consent is not required before--
    (i) Reviewing existing data as part of an evaluation or a 
reevaluation; or
    (ii) Administering a test or other evaluation that is administered 
to all children unless, before administration of that test or 
evaluation, consent is required of parents of all children.
    (b) Refusal. If the parents of a child with a disability refuse 
consent for initial evaluation or a reevaluation, the agency may 
continue to pursue those evaluations by using the due process 
procedures under Secs. 300.507-300.509, or the mediation procedures 
under Sec. 300.506 if appropriate, except to the extent inconsistent 
with State law relating to parental consent.
    (c) Failure to respond to request for reevaluation. (1) Informed 
parental consent need not be obtained for reevaluation if the public 
agency can demonstrate that it has taken reasonable measures to obtain 
that consent, and the child's parent has failed to respond.
    (2) To meet the reasonable measures requirement in paragraph (c)(1) 
of this section, the public agency must use procedures consistent with 
those in Sec. 300.345(d).
    (d) Additional State consent requirements. In addition to the 
parental consent requirements described in paragraph (a) of this 
section, a State may require parental consent for other services and 
activities under this part if it ensures that each public agency in the 
State establishes and implements effective procedures to ensure that a 
parent's refusal to consent does not result in a failure to provide the 
child with FAPE.
    (e) Limitation. A public agency may not use a parent's refusal to 
consent to one service or activity under paragraphs (a) and (d) of this 
section to deny the parent or child any other service, benefit, or 
activity of the public agency, except as required by this part.

(Authority: 20 U.S.C. 1415(b)(3); 1414(a)(1)(C) and (c)(3))


Sec. 300.506  Mediation.

    (a) General. Each public agency shall ensure that procedures are 
established and implemented to allow parties to disputes involving any 
matter described in Sec. 300.503(a)(1) to resolve the disputes through 
a mediation process that, at a minimum, must be available whenever a 
hearing is requested under Secs. 300.507 or 300.520-300.528.
    (b) Requirements. The procedures must meet the following 
requirements:
    (1) The procedures must ensure that the mediation process--
    (i) Is voluntary on the part of the parties;
    (ii) Is not used to deny or delay a parent's right to a due process 
hearing under Sec. 300.507, or to deny any other rights afforded under 
Part B of the Act; and
    (iii) Is conducted by a qualified and impartial mediator who is 
trained in effective mediation techniques.
    (2)(i) The State shall maintain a list of individuals who are 
qualified mediators and knowledgeable in laws and regulations relating 
to the provision of special education and related services.
    (ii) If a mediator is not selected on a random (e.g., a rotation) 
basis from the list described in paragraph (b)(2)(i) of this section, 
both parties must be involved in selecting the mediator and agree with 
the selection of the individual who will mediate.
    (3) The State shall bear the cost of the mediation process, 
including the costs of meetings described in paragraph (d) of this 
section.
    (4) Each session in the mediation process must be scheduled in a 
timely manner and must be held in a location that is convenient to the 
parties to the dispute.
    (5) An agreement reached by the parties to the dispute in the 
mediation process must be set forth in a written mediation agreement.
    (6) Discussions that occur during the mediation process must be 
confidential and may not be used as evidence in any subsequent due 
process hearings or civil proceedings, and the parties to the mediation 
process may be required to sign a confidentiality pledge prior to the 
commencement of the process.
    (c) Impartiality of mediator. (1) An individual who serves as a 
mediator under this part--
    (i) May not be an employee of--
    (A) Any LEA or any State agency described under Sec. 300.194; or
    (B) An SEA that is providing direct services to a child who is the 
subject of the mediation process; and
    (ii) Must not have a personal or professional conflict of interest.
    (2) A person who otherwise qualifies as a mediator is not an 
employee of an LEA or State agency described under Sec. 300.194 solely 
because he or she is paid by the agency to serve as a mediator.
    (d) Meeting to encourage mediation. (1) A public agency may 
establish procedures to require parents who elect not to use the 
mediation process to meet, at a time and location convenient to the 
parents, with a disinterested party--
    (i) Who is under contract with a parent training and information 
center or community parent resource center in the State established 
under section 682 or 683 of the Act, or an appropriate alternative 
dispute resolution entity; and
    (ii) Who would explain the benefits of the mediation process, and 
encourage the parents to use the process.
    (2) A public agency may not deny or delay a parent's right to a due 
process hearing under Sec. 300.507 if the parent fails to participate 
in the meeting described in paragraph (d)(1) of this section.

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


Sec. 300.507  Impartial due process hearing; parent notice.

    (a) General. (1) A parent or a public agency may initiate a hearing 
on any of the matters described in Sec. 300.503(a)(1) and (2) (relating 
to the identification, evaluation or educational placement of a child 
with a disability, or the provision of FAPE to the child).
    (2) When a hearing is initiated under paragraph (a)(1) of this 
section, the public agency shall inform the parents of the availability 
of mediation described in Sec. 300.506.
    (3) The public agency shall inform the parent of any free or low-
cost legal and other relevant services available in the area if--
    (i) The parent requests the information; or
    (ii) The parent or the agency initiates a hearing under this 
section.
    (b) Agency responsible for conducting hearing. The hearing 
described in paragraph (a) of this section must be conducted by the SEA 
or the public agency directly responsible for the education of the 
child, as determined under State statute, State regulation, or a 
written policy of the SEA.
    (c) Parent notice to the public agency. (1) General. The public 
agency must have procedures that require the parent of a child with a 
disability or the attorney representing the child, to provide notice 
(which must remain confidential) to the public agency in a request for 
a hearing under paragraph (a)(1) of this section.
    (2) Content of parent notice. The notice required in paragraph 
(c)(1) of this section must include--
    (i) The name of the child;
    (ii) The address of the residence of the child;
    (iii) The name of the school the child is attending;
    (iv) A description of the nature of the problem of the child 
relating to the proposed or refused initiation or change, including 
facts relating to the problem; and
    (v) A proposed resolution of the problem to the extent known and 
available to the parents at the time.

[[Page 12451]]

    (3) Model form to assist parents. Each SEA shall develop a model 
form to assist parents in filing a request for due process that 
includes the information required in paragraphs (c)(1) and (2) of this 
section.
    (4) Right to due process hearing. A public agency may not deny or 
delay a parent's right to a due process hearing for failure to provide 
the notice required in paragraphs (c)(1) and (2) of this section.

(Authority: 20 U.S.C. 1415(b)(5), (b)(6), (b)(7), (b)(8), (e)(1) and 
(f)(1))


Sec. 300.508  Impartial hearing officer.

    (a) A hearing may not be conducted--
    (1) By a person who is an employee of the State agency or the LEA 
that is involved in the education or care of the child; or
    (2) By any person having a personal or professional interest that 
would conflict with his or her objectivity in the hearing.
    (b) A person who otherwise qualifies to conduct a hearing under 
paragraph (a) of this section is not an employee of the agency solely 
because he or she is paid by the agency to serve as a hearing officer.
    (c) Each public agency shall keep a list of the persons who serve 
as hearing officers. The list must include a statement of the 
qualifications of each of those persons.

(Authority: 20 U.S.C. 1415(f)(3))


Sec. 300.509  Hearing rights.

    (a) General. Any party to a hearing conducted pursuant to 
Secs. 300.507 or 300.520-300.528, or an appeal conducted pursuant to 
Sec. 300.510, has the right to--
    (1) Be accompanied and advised by counsel and by individuals with 
special knowledge or training with respect to the problems of children 
with disabilities;
    (2) Present evidence and confront, cross-examine, and compel the 
attendance of witnesses;
    (3) Prohibit the introduction of any evidence at the hearing that 
has not been disclosed to that party at least 5 business days before 
the hearing;
    (4) Obtain a written, or, at the option of the parents, electronic, 
verbatim record of the hearing; and
    (5) Obtain written, or, at the option of the parents, electronic 
findings of fact and decisions.
    (b) Additional disclosure of information. (1) At least 5 business 
days prior to a hearing conducted pursuant to Sec. 300.507(a), each 
party shall disclose to all other parties all evaluations completed by 
that date and recommendations based on the offering party's evaluations 
that the party intends to use at the hearing.
    (2) A hearing officer may bar any party that fails to comply with 
paragraph (b)(1) of this section from introducing the relevant 
evaluation or recommendation at the hearing without the consent of the 
other party.
    (c) Parental rights at hearings. (1) Parents involved in hearings 
must be given the right to--
    (i) Have the child who is the subject of the hearing present; and
    (ii) Open the hearing to the public.
    (2) The record of the hearing and the findings of fact and 
decisions described in paragraphs (a)(4) and (a)(5) of this section 
must be provided at no cost to parents.
    (d) Findings and decision to advisory panel and general public. The 
public agency, after deleting any personally identifiable information, 
shall --
    (1) Transmit the findings and decisions referred to in paragraph 
(a)(5) of this section to the State advisory panel established under 
Sec. 300.650; and
    (2) Make those findings and decisions available to the public.

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


Sec. 300.510  Finality of decision; appeal; impartial review.

    (a) Finality of decision. A decision made in a hearing conducted 
pursuant to Secs. 300.507 or 300.520-300.528 is final, except that any 
party involved in the hearing may appeal the decision under the 
provisions of paragraph (b) of this section and Sec. 300.512.

(Authority: 20 U.S.C. 1415(i)(1)(A))

    (b) Appeal of decisions; impartial review. (1) General. If the 
hearing required by Sec. 300.507 is conducted by a public agency other 
than the SEA, any party aggrieved by the findings and decision in the 
hearing may appeal to the SEA.
    (2) SEA responsibility for review. If there is an appeal, the SEA 
shall conduct an impartial review of the hearing. The official 
conducting the review shall--
    (i) Examine the entire hearing record;
    (ii) Ensure that the procedures at the hearing were consistent with 
the requirements of due process;
    (iii) Seek additional evidence if necessary. If a hearing is held 
to receive additional evidence, the rights in Sec. 300.509 apply;
    (iv) Afford the parties an opportunity for oral or written 
argument, or both, at the discretion of the reviewing official;
    (v) Make an independent decision on completion of the review; and
    (vi) Give a copy of the written, or, at the option of the parents, 
electronic findings of fact and decisions to the parties.
    (c) Findings and decision to advisory panel and general public. The 
SEA, after deleting any personally identifiable information, shall--
    (1) Transmit the findings and decisions referred to in paragraph 
(b)(2)(vi) of this section to the State advisory panel established 
under Sec. 300.650; and
    (2) Make those findings and decisions available to the public.
    (d) Finality of review decision. The decision made by the reviewing 
official is final unless a party brings a civil action under 
Sec. 300.512.

(Authority: 20 U.S.C. 1415(g); H. R. Rep. No. 94-664, at p. 49 
(1975))


Sec. 300.511  Timelines and convenience of hearings and reviews.

    (a) The public agency shall ensure that not later than 45 days 
after the receipt of a request for a hearing--
    (1) A final decision is reached in the hearing; and
    (2) A copy of the decision is mailed to each of the parties.
    (b) The SEA shall ensure that not later than 30 days after the 
receipt of a request for a review--
    (1) A final decision is reached in the review; and
    (2) A copy of the decision is mailed to each of the parties.
    (c) A hearing or reviewing officer may grant specific extensions of 
time beyond the periods set out in paragraphs (a) and (b) of this 
section at the request of either party.
    (d) Each hearing and each review involving oral arguments must be 
conducted at a time and place that is reasonably convenient to the 
parents and child involved.

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


Sec. 300.512  Civil action.

    (a) General. Any party aggrieved by the findings and decision made 
under Secs. 300.507 or 300.520-300.528 who does not have the right to 
an appeal under Sec. 300.510(b), and any party aggrieved by the 
findings and decision under Sec. 300.510(b), has the right to bring a 
civil action with respect to the complaint presented pursuant to 
Sec. 300.507. The action may be brought in any State court of competent 
jurisdiction or in a district court of the United States without regard 
to the amount in controversy.
    (b) Additional requirements. In any action brought under paragraph 
(a) of this section, the court--
    (1) Shall receive the records of the administrative proceedings;
    (2) Shall hear additional evidence at the request of a party; and

[[Page 12452]]

    (3) Basing its decision on the preponderance of the evidence, shall 
grant the relief that the court determines to be appropriate.
    (c) Jurisdiction of district courts. The district courts of the 
United States have jurisdiction of actions brought under section 615 of 
the Act without regard to the amount in controversy.
    (d) Rule of construction. Nothing in this part restricts or limits 
the rights, procedures, and remedies available under the Constitution, 
the Americans with Disabilities Act of 1990, title V of the 
Rehabilitation Act of 1973, or other Federal laws protecting the rights 
of children with disabilities, except that before the filing of a civil 
action under these laws seeking relief that is also available under 
section 615 of the Act, the procedures under Secs. 300.507 and 300.510 
must be exhausted to the same extent as would be required had the 
action been brought under section 615 of the Act.

(Authority: 20 U.S.C. 1415(i)(2), (i)(3)(A), and 1415(l))


Sec. 300.513  Attorneys' fees.

    (a) In any action or proceeding brought under section 615 of the 
Act, the court, in its discretion, may award reasonable attorneys' fees 
as part of the costs to the parents of a child with a disability who is 
the prevailing party.
    (b)(1) Funds under Part B of the Act may not be used to pay 
attorneys' fees or costs of a party related to an action or proceeding 
under section 615 of the Act and subpart E of this part.
    (2) Paragraph (b)(1) of this section does not preclude a public 
agency from using funds under Part B of the Act for conducting an 
action or proceeding under section 615 of the Act.
    (c) A court awards reasonable attorney's fees under section 
615(i)(3) of the Act consistent with the following:
    (1) Determination of amount of attorneys' fees. Fees awarded under 
section 615(i)(3) of the Act must be based on rates prevailing in the 
community in which the action or proceeding arose for the kind and 
quality of services furnished. No bonus or multiplier may be used in 
calculating the fees awarded under this subsection.
    (2) Prohibition of attorneys' fees and related costs for certain 
services. (i) Attorneys' fees may not be awarded and related costs may 
not be reimbursed in any action or proceeding under section 615 of the 
Act for services performed subsequent to the time of a written offer of 
settlement to a parent if--
    (A) The offer is made within the time prescribed by Rule 68 of the 
Federal Rules of Civil Procedure or, in the case of an administrative 
proceeding, at any time more than 10 days before the proceeding begins;
    (B) The offer is not accepted within 10 days; and
    (C) The court or administrative hearing officer finds that the 
relief finally obtained by the parents is not more favorable to the 
parents than the offer of settlement.
    (ii) Attorneys' fees may not be awarded relating to any meeting of 
the IEP team unless the meeting is convened as a result of an 
administrative proceeding or judicial action, or at the discretion of 
the State, for a mediation described in Sec. 300.506 that is conducted 
prior to the filing of a request for due process under Secs. 300.507 or 
300.520-300.528.
    (3) Exception to prohibition on attorneys' fees and related costs. 
Notwithstanding paragraph (c)(2) of this section, an award of 
attorneys' fees and related costs may be made to a parent who is the 
prevailing party and who was substantially justified in rejecting the 
settlement offer.
    (4) Reduction of amount of attorneys' fees. Except as provided in 
paragraph (c)(5) of this section, the court reduces, accordingly, the 
amount of the attorneys' fees awarded under section 615 of the Act, if 
the court finds that--
    (i) The parent, during the course of the action or proceeding, 
unreasonably protracted the final resolution of the controversy;
    (ii) The amount of the attorneys' fees otherwise authorized to be 
awarded unreasonably exceeds the hourly rate prevailing in the 
community for similar services by attorneys of reasonably comparable 
skill, reputation, and experience;
    (iii) The time spent and legal services furnished were excessive 
considering the nature of the action or proceeding; or
    (iv) The attorney representing the parent did not provide to the 
school district the appropriate information in the due process 
complaint in accordance with Sec. 300.507(c).
    (5) Exception to reduction in amount of attorneys' fees. The 
provisions of paragraph (c)(4) of this section do not apply in any 
action or proceeding if the court finds that the State or local agency 
unreasonably protracted the final resolution of the action or 
proceeding or there was a violation of section 615 of the Act.

(Authority: 20 U.S.C. 1415(i)(3)(B)-(G))


Sec. 300.514  Child's status during proceedings.

    (a) Except as provided in Sec. 300.526, during the pendency of any 
administrative or judicial proceeding regarding a complaint under 
Sec. 300.507, unless the State or local agency and the parents of the 
child agree otherwise, the child involved in the complaint must remain 
in his or her current educational placement.
    (b) If the complaint involves an application for initial admission 
to public school, the child, with the consent of the parents, must be 
placed in the public school until the completion of all the 
proceedings.
    (c) If the decision of a hearing officer in a due process hearing 
conducted by the SEA or a State review official in an administrative 
appeal agrees with the child's parents that a change of placement is 
appropriate, that placement must be treated as an agreement between the 
State or local agency and the parents for purposes of paragraph (a) of 
this section.

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


Sec. 300.515  Surrogate parents.

    (a) General. Each public agency shall ensure that the rights of a 
child are protected if--
    (1) No parent (as defined in Sec. 300.20) can be identified;
    (2) The public agency, after reasonable efforts, cannot discover 
the whereabouts of a parent; or
    (3) The child is a ward of the State under the laws of that State.
    (b) Duty of public agency. The duty of a public agency under 
paragraph (a) of this section includes the assignment of an individual 
to act as a surrogate for the parents. This must include a method--
    (1) For determining whether a child needs a surrogate parent; and
    (2) For assigning a surrogate parent to the child.
    (c) Criteria for selection of surrogates. (1) The public agency may 
select a surrogate parent in any way permitted under State law.
    (2) Except as provided in paragraph (c)(3) of this section, public 
agencies shall ensure that a person selected as a surrogate--
    (i) Is not an employee of the SEA, the LEA, or any other agency 
that is involved in the education or care of the child;
    (ii) Has no interest that conflicts with the interest of the child 
he or she represents; and
    (iii) Has knowledge and skills that ensure adequate representation 
of the child.
    (3) A public agency may select as a surrogate a person who is an 
employee of a nonpublic agency that only provides non-educational care 
for the child and who meets the standards in

[[Page 12453]]

paragraphs (c)(2)(ii) and (iii) of this section.
    (d) Non-employee requirement; compensation. A person who otherwise 
qualifies to be a surrogate parent under paragraph (c) of this section 
is not an employee of the agency solely because he or she is paid by 
the agency to serve as a surrogate parent.
    (e) Responsibilities. The surrogate parent may represent the child 
in all matters relating to--
    (1) The identification, evaluation, and educational placement of 
the child; and
    (2) The provision of FAPE to the child.

(Authority: 20 U.S.C. 1415(b)(2))


Sec. 300.516  [Reserved].


Sec. 300.517  Transfer of parental rights at age of majority.

    (a) General. A State may provide that, when a student with a 
disability reaches the age of majority under State law that applies to 
all students (except for a student with a disability who has been 
determined to be incompetent under State law)--
    (1)(i) The public agency shall provide any notice required by this 
part to both the individual and the parents; and
    (ii) All other rights accorded to parents under Part B of the Act 
transfer to the student; and
    (2) All rights accorded to parents under Part B of the Act transfer 
to students who are incarcerated in an adult or juvenile, State or 
local correctional institution.
    (3) Whenever a State transfers rights under this part pursuant to 
paragraph (a)(1) or (a)(2) of this section, the agency shall notify the 
individual and the parents of the transfer of rights.
    (b) Special rule. If, under State law, a State has a mechanism to 
determine that a student with a disability, who has reached the age of 
majority under State law that applies to all children and has not been 
determined incompetent under State law, does not have the ability to 
provide informed consent with respect to his or her educational 
program, the State shall establish procedures for appointing the 
parent, or, if the parent is not available another appropriate 
individual, to represent the educational interests of the student 
throughout the student's eligibility under Part B of the Act.

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

Discipline Procedures


Sec. 300.519  Change of placement for disciplinary removals.

    For purposes of removals of a child with a disability from the 
child's current educational placement under Secs. 300.520-300.529, a 
change of placement occurs if--
    (a) The removal is for more than 10 consecutive school days; or
    (b) The child is subjected to a series of removals that constitute 
a pattern because they cumulate to more than 10 school days in a school 
year, and because of factors such as the length of each removal, the 
total amount of time the child is removed, and the proximity of the 
removals to one another.

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


Sec. 300.520  Authority of school personnel.

    (a) School personnel may order--
    (1)(i) To the extent removal would be applied to children without 
disabilities, the removal of a child with a disability from the child's 
current placement for not more than 10 consecutive school days for any 
violation of school rules, and additional removals of not more than 10 
consecutive school days in that same school year for separate incidents 
of misconduct (as long as those removals do not constitute a change of 
placement under Sec. 300.519(b));
    (ii) After a child with a disability has been removed from his or 
her current placement for more than 10 school days in the same school 
year, during any subsequent days of removal the public agency must 
provide services to the extent required under Sec. 300.121(d); and
    (2) A change in placement of a child with a disability to an 
appropriate interim alternative educational setting for the same amount 
of time that a child without a disability would be subject to 
discipline, but for not more than 45 days, if--
    (i) The child carries a weapon to school or to a school function 
under the jurisdiction of a State or a local educational agency; or
    (ii) The child knowingly possesses or uses illegal drugs or sells 
or solicits the sale of a controlled substance while at school or a 
school function under the jurisdiction of a State or local educational 
agency.
    (b)(1) Either before or not later than 10 business days after 
either first removing the child for more than 10 school days in a 
school year or commencing a removal that constitutes a change of 
placement under Sec. 300.519, including the action described in 
paragraph (a)(2) of this section--
    (i) If the LEA did not conduct a functional behavioral assessment 
and implement a behavioral intervention plan for the child before the 
behavior that resulted in the removal described in paragraph (a) of 
this section, the agency shall convene an IEP meeting to develop an 
assessment plan.
    (ii) If the child already has a behavioral intervention plan, the 
IEP team shall meet to review the plan and its implementation, and, 
modify the plan and its implementation as necessary, to address the 
behavior.
    (2) As soon as practicable after developing the plan described in 
paragraph (b)(1)(i) of this section, and completing the assessments 
required by the plan, the LEA shall convene an IEP meeting to develop 
appropriate behavioral interventions to address that behavior and shall 
implement those interventions.
    (c)(1) If subsequently, a child with a disability who has a 
behavioral intervention plan and who has been removed from the child's 
current educational placement for more than 10 school days in a school 
year is subjected to a removal that does not constitute a change of 
placement under Sec. 300.519, the IEP team members shall review the 
behavioral intervention plan and its implementation to determine if 
modifications are necessary.
    (2) If one or more of the team members believe that modifications 
are needed, the team shall meet to modify the plan and its 
implementation, to the extent the team determines necessary.
    (d) For purposes of this section, the following definitions apply:
    (1) Controlled substance means a drug or other substance identified 
under schedules I, II, III, IV, or V in section 202(c) of the 
Controlled Substances Act (21 U.S.C. 812(c)).
    (2) Illegal drug--
    (i) Means a controlled substance; but
    (ii) Does not include a substance that is legally possessed or used 
under the supervision of a licensed health-care professional or that is 
legally possessed or used under any other authority under that Act or 
under any other provision of Federal law.
    (3) Weapon has the meaning given the term ``dangerous weapon'' 
under paragraph (2) of the first subsection (g) of section 930 of title 
18, United States Code.

(Authority: 20 U.S.C. 1415(k)(1), (10))


Sec. 300.521  Authority of hearing officer.

    A hearing officer under section 615 of the Act may order a change 
in the placement of a child with a disability to an appropriate interim 
alternative educational setting for not more than 45 days if the 
hearing officer, in an expedited due process hearing--
    (a) Determines that the public agency has demonstrated by 
substantial evidence that maintaining the current placement of the 
child is substantially likely to result in injury to the child or to 
others;

[[Page 12454]]

    (b) Considers the appropriateness of the child's current placement;
    (c) Considers whether the public agency has made reasonable efforts 
to minimize the risk of harm in the child's current placement, 
including the use of supplementary aids and services; and
    (d) Determines that the interim alternative educational setting 
that is proposed by school personnel who have consulted with the 
child's special education teacher, meets the requirements of 
Sec. 300.522(b).
    (e) As used in this section, the term substantial evidence means 
beyond a preponderance of the evidence.

(Authority: 20 U.S.C. 1415(k)(2), (10))


Sec. 300.522  Determination of setting.

    (a) General. The interim alternative educational setting referred 
to in Sec. 300.520(a)(2) must be determined by the IEP team.
    (b) Additional requirements. Any interim alternative educational 
setting in which a child is placed under Secs. 300.520(a)(2) or 300.521 
must--
    (1) Be selected so as to enable the child to continue to progress 
in the general curriculum, although in another setting, and to continue 
to receive those services and modifications, including those described 
in the child's current IEP, that will enable the child to meet the 
goals set out in that IEP; and
    (2) Include services and modifications to address the behavior 
described in Secs. 300.520(a)(2) or 300.521, that are designed to 
prevent the behavior from recurring.

(Authority: 20 U.S.C. 1415(k)(3))


Sec. 300.523  Manifestation determination review.

    (a) General. If an action is contemplated regarding behavior 
described in Secs. 300.520(a)(2) or 300.521, or involving a removal 
that constitutes a change of placement under Sec. 300.519 for a child 
with a disability who has engaged in other behavior that violated any 
rule or code of conduct of the LEA that applies to all children--
    (1) Not later than the date on which the decision to take that 
action is made, the parents must be notified of that decision and 
provided the procedural safeguards notice described in Sec. 300.504; 
and
    (2) Immediately, if possible, but in no case later than 10 school 
days after the date on which the decision to take that action is made, 
a review must be conducted of the relationship between the child's 
disability and the behavior subject to the disciplinary action.
    (b) Individuals to carry out review. A review described in 
paragraph (a) of this section must be conducted by the IEP team and 
other qualified personnel in a meeting.
    (c) Conduct of review. In carrying out a review described in 
paragraph (a) of this section, the IEP team and other qualified 
personnel may determine that the behavior of the child was not a 
manifestation of the child's disability only if the IEP team and other 
qualified personnel--
    (1) First consider, in terms of the behavior subject to 
disciplinary action, all relevant information, including --
    (i) Evaluation and diagnostic results, including the results or 
other relevant information supplied by the parents of the child;
    (ii) Observations of the child; and
    (iii) The child's IEP and placement; and
    (2) Then determine that--
    (i) In relationship to the behavior subject to disciplinary action, 
the child's IEP and placement were appropriate and the special 
education services, supplementary aids and services, and behavior 
intervention strategies were provided consistent with the child's IEP 
and placement;
    (ii) The child's disability did not impair the ability of the child 
to understand the impact and consequences of the behavior subject to 
disciplinary action; and
    (iii) The child's disability did not impair the ability of the 
child to control the behavior subject to disciplinary action.
    (d) Decision. If the IEP team and other qualified personnel 
determine that any of the standards in paragraph (c)(2) of this section 
were not met, the behavior must be considered a manifestation of the 
child's disability.
    (e) Meeting. The review described in paragraph (a) of this section 
may be conducted at the same IEP meeting that is convened under 
Sec. 300.520(b).
    (f) Deficiencies in IEP or placement. If, in the review in 
paragraphs (b) and (c) of this section, a public agency identifies 
deficiencies in the child's IEP or placement or in their 
implementation, it must take immediate steps to remedy those 
deficiencies.

(Authority: 20 U.S.C. 1415(k)(4))


Sec. 300.524  Determination that behavior was not manifestation of 
disability.

    (a) General. If the result of the review described in Sec. 300.523 
is a determination, consistent with Sec. 300.523(d), that the behavior 
of the child with a disability was not a manifestation of the child's 
disability, the relevant disciplinary procedures applicable to children 
without disabilities may be applied to the child in the same manner in 
which they would be applied to children without disabilities, except as 
provided in Sec. 300.121(d).
    (b) Additional requirement. If the public agency initiates 
disciplinary procedures applicable to all children, the agency shall 
ensure that the special education and disciplinary records of the child 
with a disability are transmitted for consideration by the person or 
persons making the final determination regarding the disciplinary 
action.
    (c) Child's status during due process proceedings. Except as 
provided in Sec. 300.526, Sec. 300.514 applies if a parent requests a 
hearing to challenge a determination, made through the review described 
in Sec. 300.523, that the behavior of the child was not a manifestation 
of the child's disability.

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


Sec. 300.525  Parent appeal.

    (a) General. (1) If the child's parent disagrees with a 
determination that the child's behavior was not a manifestation of the 
child's disability or with any decision regarding placement under 
Secs. 300.520-300.528, the parent may request a hearing.
    (2) The State or local educational agency shall arrange for an 
expedited hearing in any case described in paragraph (a)(1) of this 
section if a hearing is requested by a parent.
    (b) Review of decision. (1) In reviewing a decision with respect to 
the manifestation determination, the hearing officer shall determine 
whether the public agency has demonstrated that the child's behavior 
was not a manifestation of the child's disability consistent with the 
requirements of Sec. 300.523(d).
    (2) In reviewing a decision under Sec. 300.520(a)(2) to place the 
child in an interim alternative educational setting, the hearing 
officer shall apply the standards in Sec. 300.521.

(Authority: 20 U.S.C. 1415(k)(6))


Sec. 300.526  Placement during appeals.

    (a) General. If a parent requests a hearing or an appeal regarding 
a disciplinary action described in Sec. 300.520(a)(2) or 300.521 to 
challenge the interim alternative educational setting or the 
manifestation determination, the child must remain in the interim 
alternative educational setting pending the decision of the hearing 
officer or until the expiration of the time period provided for in 
Sec. 300.520(a)(2) or 300.521, whichever occurs first, unless the 
parent and the State agency or local educational agency agree 
otherwise.

[[Page 12455]]

    (b) Current placement. If a child is placed in an interim 
alternative educational setting pursuant to Sec. 300.520(a)(2) or 
300.521 and school personnel propose to change the child's placement 
after expiration of the interim alternative placement, during the 
pendency of any proceeding to challenge the proposed change in 
placement the child must remain in the current placement (the child's 
placement prior to the interim alternative educational setting), except 
as provided in paragraph (c) of this section.
    (c) Expedited hearing. (1) If school personnel maintain that it is 
dangerous for the child to be in the current placement (placement prior 
to removal to the interim alternative education setting) during the 
pendency of the due process proceedings, the LEA may request an 
expedited due process hearing.
    (2) In determining whether the child may be placed in the 
alternative educational setting or in another appropriate placement 
ordered by the hearing officer, the hearing officer shall apply the 
standards in Sec. 300.521.
    (3) A placement ordered pursuant to paragraph (c)(2) of this 
section may not be longer than 45 days.
    (4) The procedure in paragraph (c) of this section may be repeated, 
as necessary.

(Authority: 20 U.S.C. 1415(k)(7))


Sec. 300.527  Protections for children not yet eligible for special 
education and related services.

    (a) General. A child who has not been determined to be eligible for 
special education and related services under this part and who has 
engaged in behavior that violated any rule or code of conduct of the 
local educational agency, including any behavior described in 
Secs. 300.520 or 300.521, may assert any of the protections provided 
for in this part if the LEA had knowledge (as determined in accordance 
with paragraph (b) of this section) that the child was a child with a 
disability before the behavior that precipitated the disciplinary 
action occurred.
    (b) Basis of knowledge. An LEA must be deemed to have knowledge 
that a child is a child with a disability if--
    (1) The parent of the child has expressed concern in writing (or 
orally if the parent does not know how to write or has a disability 
that prevents a written statement) to personnel of the appropriate 
educational agency that the child is in need of special education and 
related services;
    (2) The behavior or performance of the child demonstrates the need 
for these services, in accordance with Sec. 300.7;
    (3) The parent of the child has requested an evaluation of the 
child pursuant to Secs. 300.530-300.536; or
    (4) The teacher of the child, or other personnel of the local 
educational agency, has expressed concern about the behavior or 
performance of the child to the director of special education of the 
agency or to other personnel in accordance with the agency's 
established child find or special education referral system.
    (c) Exception. A public agency would not be deemed to have 
knowledge under paragraph (b) of this section if, as a result of 
receiving the information specified in that paragraph, the agency--
    (1) Either--
    (i) Conducted an evaluation under Secs. 300.530-300.536, and 
determined that the child was not a child with a disability under this 
part; or
    (ii) Determined that an evaluation was not necessary; and
    (2) Provided notice to the child's parents of its determination 
under paragraph (c)(1) of this section, consistent with Sec. 300.503.
    (d) Conditions that apply if no basis of knowledge. (1) General. If 
an LEA does not have knowledge that a child is a child with a 
disability (in accordance with paragraphs (b) and (c) of this section) 
prior to taking disciplinary measures against the child, the child may 
be subjected to the same disciplinary measures as measures applied to 
children without disabilities who engaged in comparable behaviors 
consistent with paragraph (d)(2) of this section.
    (2) Limitations. (i) If a request is made for an evaluation of a 
child during the time period in which the child is subjected to 
disciplinary measures under Sec. 300.520 or 300.521, the evaluation 
must be conducted in an expedited manner.
    (ii) Until the evaluation is completed, the child remains in the 
educational placement determined by school authorities, which can 
include suspension or expulsion without educational services.
    (iii) If the child is determined to be a child with a disability, 
taking into consideration information from the evaluation conducted by 
the agency and information provided by the parents, the agency shall 
provide special education and related services in accordance with the 
provisions of this part, including the requirements of Secs. 300.520-
300.529 and section 612(a)(1)(A) of the Act.

(Authority: 20 U.S.C. 1415(k)(8))


Sec. 300.528  Expedited due process hearings.

    (a) Expedited due process hearings under Secs. 300.521-300.526 
must--
    (1) Meet the requirements of Sec. 300.509, except that a State may 
provide that the time periods identified in Secs. 300.509(a)(3) and 
Sec. 300.509(b) for purposes of expedited due process hearings under 
Secs. 300.521-300.526 are not less than two business days; and
    (2) Be conducted by a due process hearing officer who satisfies the 
requirements of Sec. 300.508.
    (b)(1) Each State shall establish a timeline for expedited due 
process hearings that results in a written decision being mailed to the 
parties within 45 days of the public agency's receipt of the request 
for the hearing, without exceptions or extensions.
    (2) The timeline established under paragraph (b)(1) of this section 
must be the same for hearings requested by parents or public agencies.
    (c) A State may establish different procedural rules for expedited 
hearings under Secs. 300.521-300.526 than it has established for due 
process hearings under Sec. 300.507.
    (d) The decisions on expedited due process hearings are appealable 
consistent with Sec. 300.510.

(Authority: 20 U.S.C. 1415(k)(2), (6), (7))


Sec. 300.529  Referral to and action by law enforcement and judicial 
authorities.

    (a) Nothing in this part prohibits an agency from reporting a crime 
committed by a child with a disability to appropriate authorities or to 
prevent State law enforcement and judicial authorities from exercising 
their responsibilities with regard to the application of Federal and 
State law to crimes committed by a child with a disability.
    (b)(1) An agency reporting a crime committed by a child with a 
disability shall ensure that copies of the special education and 
disciplinary records of the child are transmitted for consideration by 
the appropriate authorities to whom it reports the crime.
    (2) An agency reporting a crime under this section may transmit 
copies of the child's special education and disciplinary records only 
to the extent that the transmission is permitted by the Family 
Educational Rights and Privacy Act.

(Authority: 20 U.S.C. 1415(k)(9))


Procedures for Evaluation and Determination of Eligibility

Sec. 300.530  General.

    Each SEA shall ensure that each public agency establishes and

[[Page 12456]]

implements procedures that meet the requirements of Secs. 300.531-
300.536.

(Authority: 20 U.S.C. 1414(b)(3); 1412(a)(7))


Sec. 300.531  Initial evaluation.

    Each public agency shall conduct a full and individual initial 
evaluation, in accordance with Secs. 300.532 and 300.533, before the 
initial provision of special education and related services to a child 
with a disability under Part B of the Act.

(Authority: 20 U.S.C. 1414(a)(1))


Sec. 300.532  Evaluation procedures.

    Each public agency shall ensure, at a minimum, that the following 
requirements are met:
    (a)(1) Tests and other evaluation materials used to assess a child 
under Part B of the Act--
    (i) Are selected and administered so as not to be discriminatory on 
a racial or cultural basis; and
    (ii) Are provided and administered in the child's native language 
or other mode of communication, unless it is clearly not feasible to do 
so; and
    (2) Materials and procedures used to assess a child with limited 
English proficiency are selected and administered to ensure that they 
measure the extent to which the child has a disability and needs 
special education, rather than measuring the child's English language 
skills.
    (b) A variety of assessment tools and strategies are used to gather 
relevant functional and developmental information about the child, 
including information provided by the parent, and information related 
to enabling the child to be involved in and progress in the general 
curriculum (or for a preschool child, to participate in appropriate 
activities), that may assist in determining--
    (1) Whether the child is a child with a disability under 
Sec. 300.7; and
    (2) The content of the child's IEP.
    (c)(1) Any standardized tests that are given to a child--
    (i) Have been validated for the specific purpose for which they are 
used; and
    (ii) Are administered by trained and knowledgeable personnel in 
accordance with any instructions provided by the producer of the tests.
    (2) If an assessment is not conducted under standard conditions, a 
description of the extent to which it varied from standard conditions 
(e.g., the qualifications of the person administering the test, or the 
method of test administration) must be included in the evaluation 
report.
    (d) Tests and other evaluation materials include those tailored to 
assess specific areas of educational need and not merely those that are 
designed to provide a single general intelligence quotient.
    (e) Tests are selected and administered so as best to ensure that 
if a test is administered to a child with impaired sensory, manual, or 
speaking skills, the test results accurately reflect the child's 
aptitude or achievement level or whatever other factors the test 
purports to measure, rather than reflecting the child's impaired 
sensory, manual, or speaking skills (unless those skills are the 
factors that the test purports to measure).
    (f) No single procedure is used as the sole criterion for 
determining whether a child is a child with a disability and for 
determining an appropriate educational program for the child.
    (g) The child is assessed in all areas related to the suspected 
disability, including, if appropriate, health, vision, hearing, social 
and emotional status, general intelligence, academic performance, 
communicative status, and motor abilities.
    (h) In evaluating each child with a disability under Secs. 300.531-
300.536, the evaluation is sufficiently comprehensive to identify all 
of the child's special education and related services needs, whether or 
not commonly linked to the disability category in which the child has 
been classified.
    (i) The public agency uses technically sound instruments that may 
assess the relative contribution of cognitive and behavioral factors, 
in addition to physical or developmental factors.
    (j) The public agency uses assessment tools and strategies that 
provide relevant information that directly assists persons in 
determining the educational needs of the child.

(Authority: 20 U.S.C. 1412(a)(6)(B), 1414(b)(2) and (3))


Sec. 300.533  Determination of needed evaluation data.

    (a) Review of existing evaluation data. As part of an initial 
evaluation (if appropriate) and as part of any reevaluation under Part 
B of the Act, a group that includes the individuals described in 
Sec. 300.344, and other qualified professionals, as appropriate, 
shall--
    (1) Review existing evaluation data on the child, including--
    (i) Evaluations and information provided by the parents of the 
child;
    (ii) Current classroom-based assessments and observations; and
    (iii) Observations by teachers and related services providers; and
    (2) On the basis of that review, and input from the child's 
parents, identify what additional data, if any, are needed to 
determine--
    (i) Whether the child has a particular category of disability, as 
described in Sec. 300.7, or, in case of a reevaluation of a child, 
whether the child continues to have such a disability;
    (ii) The present levels of performance and educational needs of the 
child;
    (iii) Whether the child needs special education and related 
services, or in the case of a reevaluation of a child, whether the 
child continues to need special education and related services; and
    (iv) Whether any additions or modifications to the special 
education and related services are needed to enable the child to meet 
the measurable annual goals set out in the IEP of the child and to 
participate, as appropriate, in the general curriculum.
    (b) Conduct of review. The group described in paragraph (a) of this 
section may conduct its review without a meeting.
    (c) Need for additional data. The public agency shall administer 
tests and other evaluation materials as may be needed to produce the 
data identified under paragraph (a) of this section.
    (d) Requirements if additional data are not needed. (1) If the 
determination under paragraph (a) of this section is that no additional 
data are needed to determine whether the child continues to be a child 
with a disability, the public agency shall notify the child's parents--
    (i) Of that determination and the reasons for it; and
    (ii) Of the right of the parents to request an assessment to 
determine whether, for purposes of services under this part, the child 
continues to be a child with a disability.
    (2) The public agency is not required to conduct the assessment 
described in paragraph (d)(1)(ii) of this section unless requested to 
do so by the child's parents.

(Authority: 20 U.S.C. 1414(c)(1), (2) and (4))


Sec. 300.534  Determination of eligibility

    (a) Upon completing the administration of tests and other 
evaluation materials--
    (1) A group of qualified professionals and the parent of the child 
must determine whether the child is a child with a disability, as 
defined in Sec. 300.7; and
    (2) The public agency must provide a copy of the evaluation report 
and the documentation of determination of eligibility to the parent.
    (b) A child may not be determined to be eligible under this part 
if--
    (1) The determinant factor for that eligibility determination is--

[[Page 12457]]

    (i) Lack of instruction in reading or math; or
    (ii) Limited English proficiency; and
    (2) The child does not otherwise meet the eligibility criteria 
under Sec. 300.7(a).
    (c)(1) A public agency must evaluate a child with a disability in 
accordance with Secs. 300.532 and 300.533 before determining that the 
child is no longer a child with a disability.
    (2) The evaluation described in paragraph (c)(1) of this section is 
not required before the termination of a student's eligibility under 
Part B of the Act due to graduation with a regular high school diploma, 
or exceeding the age eligibility for FAPE under State law.

(Authority: 20 U.S.C. 1414(b)(4) and (5), (c)(5))


Sec. 300.535  Procedures for determining eligibility and placement.

    (a) In interpreting evaluation data for the purpose of determining 
if a child is a child with a disability under Sec. 300.7, and the 
educational needs of the child, each public agency shall--
    (1) Draw upon information from a variety of sources, including 
aptitude and achievement tests, parent input, teacher recommendations, 
physical condition, social or cultural background, and adaptive 
behavior; and
    (2) Ensure that information obtained from all of these sources is 
documented and carefully considered.
    (b) If a determination is made that a child has a disability and 
needs special education and related services, an IEP must be developed 
for the child in accordance with Secs. 300.340-300.350.

(Authority: 20 U.S.C. 1412(a)(6), 1414(b)(4))


Sec. 300.536  Reevaluation.

    Each public agency shall ensure--
    (a) That the IEP of each child with a disability is reviewed in 
accordance with Secs. 300.340-300.350; and
    (b) That a reevaluation of each child, in accordance with 
Secs. 300.532-300.535, is conducted if conditions warrant a 
reevaluation, or if the child's parent or teacher requests a 
reevaluation, but at least once every three years.

(Authority: 20 U.S.C. 1414(a)(2))

Additional Procedures for Evaluating Children With Specific 
Learning Disabilities


Sec. 300.540  Additional team members.

    The determination of whether a child suspected of having a specific 
learning disability is a child with a disability as defined in 
Sec. 300.7, must be made by the child's parents and a team of qualified 
professionals which must include--
    (a)(1) The child's regular teacher; or
    (2) If the child does not have a regular teacher, a regular 
classroom teacher qualified to teach a child of his or her age; or
    (3) For a child of less than school age, an individual qualified by 
the SEA to teach a child of his or her age; and
    (b) At least one person qualified to conduct individual diagnostic 
examinations of children, such as a school psychologist, speech-
language pathologist, or remedial reading teacher.

(Authority: Sec. 5(b), Pub. L. 94-142)


Sec. 300.541  Criteria for determining the existence of a specific 
learning disability.

    (a) A team may determine that a child has a specific learning 
disability if--
    (1) The child does not achieve commensurate with his or her age and 
ability levels in one or more of the areas listed in paragraph (a)(2) 
of this section, if provided with learning experiences appropriate for 
the child's age and ability levels; and
    (2) The team finds that a child has a severe discrepancy between 
achievement and intellectual ability in one or more of the following 
areas:
    (i) Oral expression.
    (ii) Listening comprehension.
    (iii) Written expression.
    (iv) Basic reading skill.
    (v) Reading comprehension.
    (vi) Mathematics calculation.
    (vii) Mathematics reasoning.
    (b) The team may not identify a child as having a specific learning 
disability if the severe discrepancy between ability and achievement is 
primarily the result of--
    (1) A visual, hearing, or motor impairment;
    (2) Mental retardation;
    (3) Emotional disturbance; or
    (4) Environmental, cultural or economic disadvantage.

(Authority: Sec. 5(b), Pub. L. 94-142)


Sec. 300.542  Observation.

    (a) At least one team member other than the child's regular teacher 
shall observe the child's academic performance in the regular classroom 
setting.
    (b) In the case of a child of less than school age or out of 
school, a team member shall observe the child in an environment 
appropriate for a child of that age.

(Authority: Sec. 5(b), Pub. L. 94-142)


Sec. 300.543  Written report.

    (a) For a child suspected of having a specific learning disability, 
the documentation of the team's determination of eligibility, as 
required by Sec. 300.534(a)(2), must include a statement of--
    (1) Whether the child has a specific learning disability;
    (2) The basis for making the determination;
    (3) The relevant behavior noted during the observation of the 
child;
    (4) The relationship of that behavior to the child's academic 
functioning;
    (5) The educationally relevant medical findings, if any;
    (6) Whether there is a severe discrepancy between achievement and 
ability that is not correctable without special education and related 
services; and
    (7) The determination of the team concerning the effects of 
environmental, cultural, or economic disadvantage.
    (b) Each team member shall certify in writing whether the report 
reflects his or her conclusion. If it does not reflect his or her 
conclusion, the team member must submit a separate statement presenting 
his or her conclusions.

(Authority: Sec. 5(b), Pub. L. 94-142)

Least Restrictive Environment (LRE)


Sec. 300.550  General LRE requirements.

    (a) Except as provided in Sec. 300.311(b) and (c), a State shall 
demonstrate to the satisfaction of the Secretary that the State has in 
effect policies and procedures to ensure that it meets the requirements 
of Secs. 300.550-300.556.
    (b) Each public agency shall ensure--
    (1) That to the maximum extent appropriate, children with 
disabilities, including children in public or private institutions or 
other care facilities, are educated with children who are nondisabled; 
and
    (2) That special classes, separate schooling or other removal of 
children with disabilities from the regular educational environment 
occurs only if the nature or severity of the disability is such that 
education in regular classes with the use of supplementary aids and 
services cannot be achieved satisfactorily.

(Authority: 20 U.S.C. 1412(a)(5))


Sec. 300.551  Continuum of alternative placements.

    (a) Each public agency shall ensure that a continuum of alternative 
placements is available to meet the needs of children with disabilities 
for special education and related services.
    (b) The continuum required in paragraph (a) of this section must--
    (1) Include the alternative placements listed in the definition of 
special education under Sec. 300.26 (instruction in regular classes, 
special classes, special schools, home instruction, and instruction in 
hospitals and institutions); and
    (2) Make provision for supplementary services (such as resource 
room or

[[Page 12458]]

itinerant instruction) to be provided in conjunction with regular class 
placement.

(Authority: 20 U.S.C. 1412(a)(5))


Sec. 300.552  Placements.

    In determining the educational placement of a child with a 
disability, including a preschool child with a disability, each public 
agency shall ensure that--
    (a) The placement decision--
    (1) Is made by a group of persons, including the parents, and other 
persons knowledgeable about the child, the meaning of the evaluation 
data, and the placement options; and
    (2) Is made in conformity with the LRE provisions of this subpart, 
including Secs. 300.550-300.554;
    (b) The child's placement--
    (1) Is determined at least annually;
    (2) Is based on the child's IEP; and
    (3) Is as close as possible to the child's home;
    (c) Unless the IEP of a child with a disability requires some other 
arrangement, the child is educated in the school that he or she would 
attend if nondisabled;
    (d) In selecting the LRE, consideration is given to any potential 
harmful effect on the child or on the quality of services that he or 
she needs; and
    (e) A child with a disability is not removed from education in age-
appropriate regular classrooms solely because of needed modifications 
in the general curriculum.

(Authority: 20 U.S.C. 1412(a)(5))


Sec. 300.553  Nonacademic settings.

    In providing or arranging for the provision of nonacademic and 
extracurricular services and activities, including meals, recess 
periods, and the services and activities set forth in Sec. 300.306, 
each public agency shall ensure that each child with a disability 
participates with nondisabled children in those services and activities 
to the maximum extent appropriate to the needs of that child.

(Authority: 20 U.S.C. 1412(a)(5))


Sec. 300.554  Children in public or private institutions.

    Except as provided in Sec. 300.600(d), an SEA must ensure that 
Sec. 300.550 is effectively implemented, including, if necessary, 
making arrangements with public and private institutions (such as a 
memorandum of agreement or special implementation procedures).

(Authority: 20 U.S.C. 1412(a)(5))


Sec. 300.555  Technical assistance and training activities.

    Each SEA shall carry out activities to ensure that teachers and 
administrators in all public agencies--
    (a) Are fully informed about their responsibilities for 
implementing Sec. 300.550; and
    (b) Are provided with technical assistance and training necessary 
to assist them in this effort.

(Authority: 20 U.S.C. 1412(a)(5))


Sec. 300.556  Monitoring activities.

    (a) The SEA shall carry out activities to ensure that Sec. 300.550 
is implemented by each public agency.
    (b) If there is evidence that a public agency makes placements that 
are inconsistent with Sec. 300.550, the SEA shall--
    (1) Review the public agency's justification for its actions; and
    (2) Assist in planning and implementing any necessary corrective 
action.

(Authority: 20 U.S.C. 1412(a)(5))

Confidentiality of Information


Sec. 300.560   Definitions.

    As used in Secs. 300.560-300.577--
    (a) Destruction means physical destruction or removal of personal 
identifiers from information so that the information is no longer 
personally identifiable.
    (b) Education records means the type of records covered under the 
definition of ``education records'' in 34 CFR part 99 (the regulations 
implementing the Family Educational Rights and Privacy Act of 1974).
    (c) Participating agency means any agency or institution that 
collects, maintains, or uses personally identifiable information, or 
from which information is obtained, under Part B of the Act.

(Authority: 20 U.S.C. 1221e-3, 1412(a)(8), 1417(c))


Sec. 300.561  Notice to parents.

    (a) The SEA shall give notice that is adequate to fully inform 
parents about the requirements of Sec. 300.127, including--
    (1) A description of the extent that the notice is given in the 
native languages of the various population groups in the State;
    (2) A description of the children on whom personally identifiable 
information is maintained, the types of information sought, the methods 
the State intends to use in gathering the information (including the 
sources from whom information is gathered), and the uses to be made of 
the information;
    (3) A summary of the policies and procedures that participating 
agencies must follow regarding storage, disclosure to third parties, 
retention, and destruction of personally identifiable information; and
    (4) A description of all of the rights of parents and children 
regarding this information, including the rights under the Family 
Educational Rights and Privacy Act of 1974 and implementing regulations 
in 34 CFR part 99.
    (b) Before any major identification, location, or evaluation 
activity, the notice must be published or announced in newspapers or 
other media, or both, with circulation adequate to notify parents 
throughout the State of the activity.

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


Sec. 300.562  Access rights.

    (a) Each participating agency shall permit parents to inspect and 
review any education records relating to their children that are 
collected, maintained, or used by the agency under this part. The 
agency shall comply with a request without unnecessary delay and before 
any meeting regarding an IEP, or any hearing pursuant to Secs. 300.507 
and 300.521-300.528, and in no case more than 45 days after the request 
has been made.
    (b) The right to inspect and review education records under this 
section includes--
    (1) The right to a response from the participating agency to 
reasonable requests for explanations and interpretations of the 
records;
    (2) The right to request that the agency provide copies of the 
records containing the information if failure to provide those copies 
would effectively prevent the parent from exercising the right to 
inspect and review the records; and
    (3) The right to have a representative of the parent inspect and 
review the records.
    (c) An agency may presume that the parent has authority to inspect 
and review records relating to his or her child unless the agency has 
been advised that the parent does not have the authority under 
applicable State law governing such matters as guardianship, 
separation, and divorce.

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


Sec. 300.563  Record of access.

    Each participating agency shall keep a record of parties obtaining 
access to education records collected, maintained, or used under Part B 
of the Act (except access by parents and authorized employees of the

[[Page 12459]]

participating agency), including the name of the party, the date access 
was given, and the purpose for which the party is authorized to use the 
records.

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


Sec. 300.564  Records on more than one child.

    If any education record includes information on more than one 
child, the parents of those children have the right to inspect and 
review only the information relating to their child or to be informed 
of that specific information.

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


Sec. 300.565  List of types and locations of information.

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

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


Sec. 300.566  Fees.

    (a) Each participating agency may charge a fee for copies of 
records that are made for parents under this part if the fee does not 
effectively prevent the parents from exercising their right to inspect 
and review those records.
    (b) A participating agency may not charge a fee to search for or to 
retrieve information under this part.

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


Sec. 300.567  Amendment of records at parent's request.

    (a) A parent who believes that information in the education records 
collected, maintained, or used under this part is inaccurate or 
misleading or violates the privacy or other rights of the child may 
request the participating agency that maintains the information to 
amend the information.
    (b) The agency shall decide whether to amend the information in 
accordance with the request within a reasonable period of time of 
receipt of the request.
    (c) If the agency decides to refuse to amend the information in 
accordance with the request, it shall inform the parent of the refusal 
and advise the parent of the right to a hearing under Sec. 300.568.

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


Sec. 300.568  Opportunity for a hearing.

    The agency shall, on request, provide an opportunity for a hearing 
to challenge information in education records to ensure that it is not 
inaccurate, misleading, or otherwise in violation of the privacy or 
other rights of the child.

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


Sec. 300.569  Result of hearing.

    (a) If, as a result of the hearing, the agency decides that the 
information is inaccurate, misleading or otherwise in violation of the 
privacy or other rights of the child, it shall amend the information 
accordingly and so inform the parent in writing.
    (b) If, as a result of the hearing, the agency decides that the 
information is not inaccurate, misleading, or otherwise in violation of 
the privacy or other rights of the child, it shall inform the parent of 
the right to place in the records it maintains on the child a statement 
commenting on the information or setting forth any reasons for 
disagreeing with the decision of the agency.
    (c) Any explanation placed in the records of the child under this 
section must--
    (1) Be maintained by the agency as part of the records of the child 
as long as the record or contested portion is maintained by the agency; 
and
    (2) If the records of the child or the contested portion is 
disclosed by the agency to any party, the explanation must also be 
disclosed to the party.

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


Sec. 300.570  Hearing procedures.

    A hearing held under Sec. 300.568 must be conducted according to 
the procedures under 34 CFR 99.22.

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


Sec. 300.571  Consent.

    (a) Except as to disclosures addressed in Sec. 300.529(b) for which 
parental consent is not required by Part 99, parental consent must be 
obtained before personally identifiable information is--
    (1) Disclosed to anyone other than officials of participating 
agencies collecting or using the information under this part, subject 
to paragraph (b) of this section; or
    (2) Used for any purpose other than meeting a requirement of this 
part.
    (b) An educational agency or institution subject to 34 CFR part 99 
may not release information from education records to participating 
agencies without parental consent unless authorized to do so under part 
99.
    (c) The SEA shall provide policies and procedures that are used in 
the event that a parent refuses to provide consent under this section.

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


Sec. 300.572  Safeguards.

    (a) Each participating agency shall protect the confidentiality of 
personally identifiable information at collection, storage, disclosure, 
and destruction stages.
    (b) One official at each participating agency shall assume 
responsibility for ensuring the confidentiality of any personally 
identifiable information.
    (c) All persons collecting or using personally identifiable 
information must receive training or instruction regarding the State's 
policies and procedures under Sec. 300.127 and 34 CFR part 99.
    (d) Each participating agency shall maintain, for public 
inspection, a current listing of the names and positions of those 
employees within the agency who may have access to personally 
identifiable information.

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


Sec. 300.573  Destruction of information.

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

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


Sec. 300.574  Children's rights.

    (a) The SEA shall provide policies and procedures regarding the 
extent to which children are afforded rights of privacy similar to 
those afforded to parents, taking into consideration the age of the 
child and type or severity of disability.
    (b) Under the regulations for the Family Educational Rights and 
Privacy Act of 1974 (34 CFR 99.5(a)), the rights of parents regarding 
education records are transferred to the student at age 18.
    (c) If the rights accorded to parents under Part B of the Act are 
transferred to a student who reaches the age of majority, consistent 
with Sec. 300.517, the rights regarding educational records in 
Secs. 300.562-300.573 must also be transferred to the student. However, 
the public agency must provide any notice required under section 615 of 
the Act to the student and the parents.

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


Sec. 300.575  Enforcement.

    The SEA shall provide the policies and procedures, including 
sanctions, that the State uses to ensure that its policies and 
procedures are followed and that the requirements of the Act and the 
regulations in this part are met.


[[Page 12460]]


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


Sec. 300.576  Disciplinary information.

    (a) The State may require that a public agency include in the 
records of a child with a disability a statement of any current or 
previous disciplinary action that has been taken against the child and 
transmit the statement to the same extent that the disciplinary 
information is included in, and transmitted with, the student records 
of nondisabled children.
    (b) The statement may include a description of any behavior engaged 
in by the child that required disciplinary action, a description of the 
disciplinary action taken, and any other information that is relevant 
to the safety of the child and other individuals involved with the 
child.
    (c) If the State adopts such a policy, and the child transfers from 
one school to another, the transmission of any of the child's records 
must include both the child's current individualized education program 
and any statement of current or previous disciplinary action that has 
been taken against the child.

(Authority: 20 U.S.C. 1413(j))


Sec. 300.577  Department use of personally identifiable information.

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

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

Department Procedures


Sec. 300.580  Determination by the Secretary that a State is eligible.

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

(Authority: 20 U.S.C. 1412(d))


Sec. 300.581  Notice and hearing before determining that a State is not 
eligible.

    (a) General. (1) The Secretary does not make a final determination 
that a State is not eligible to receive a grant under Part B of the Act 
until providing the State--
    (i) With reasonable notice; and
    (ii) With an opportunity for a hearing.
    (2) In implementing paragraph (a)(1)(i) of this section, the 
Secretary sends a written notice to the SEA by certified mail with 
return receipt requested.
    (b) Content of notice. In the written notice described in paragraph 
(a)(2) of this section, the Secretary--
    (1) States the basis on which the Secretary proposes to make a 
final determination that the State is not eligible;
    (2) May describe possible options for resolving the issues;
    (3) Advises the SEA that it may request a hearing and that the 
request for a hearing must be made not later than 30 days after it 
receives the notice of the proposed final determination that the State 
is not eligible; and
    (4) Provides information about the procedures followed for a 
hearing.

(Authority: 20 U.S.C. (1412(d)(2))


Sec. 300.582  Hearing official or panel.

    (a) If the SEA requests a hearing, the Secretary designates one or 
more individuals, either from the Department or elsewhere, not 
responsible for or connected with the administration of this program, 
to conduct a hearing.
    (b) If more than one individual is designated, the Secretary 
designates one of those individuals as the Chief Hearing Official of 
the Hearing Panel. If one individual is designated, that individual is 
the Hearing Official.

(Authority: 20 U.S.C. (1412(d)(2))


Sec. 300.583  Hearing procedures.

    (a) As used in Secs. 300.581-300.586 the term party or parties 
means the following:
    (1) An SEA that requests a hearing regarding the proposed 
disapproval of the State's eligibility under this part.
    (2) The Department official who administers the program of 
financial assistance under this part.
    (3) A person, group or agency with an interest in and having 
relevant information about the case that has applied for and been 
granted leave to intervene by the Hearing Official or Panel.
    (b) Within 15 days after receiving a request for a hearing, the 
Secretary designates a Hearing Official or Panel and notifies the 
parties.
    (c) The Hearing Official or Panel may regulate the course of 
proceedings and the conduct of the parties during the proceedings. The 
Hearing Official or Panel takes all steps necessary to conduct a fair 
and impartial proceeding, to avoid delay, and to maintain order, 
including the following:
    (1) The Hearing Official or Panel may hold conferences or other 
types of appropriate proceedings to clarify, simplify, or define the 
issues or to consider other matters that may aid in the disposition of 
the case.
    (2) The Hearing Official or Panel may schedule a prehearing 
conference of the Hearing Official or Panel and parties.
    (3) Any party may request the Hearing Official or Panel to schedule 
a prehearing or other conference. The Hearing Official or Panel decides 
whether a conference is necessary and notifies all parties.
    (4) At a prehearing or other conference, the Hearing Official or 
Panel and the parties may consider subjects such as--
    (i) Narrowing and clarifying issues;
    (ii) Assisting the parties in reaching agreements and stipulations;
    (iii) Clarifying the positions of the parties;
    (iv) Determining whether an evidentiary hearing or oral argument 
should be held; and
    (v) Setting dates for--
    (A) The exchange of written documents;
    (B) The receipt of comments from the parties on the need for oral 
argument or evidentiary hearing;
    (C) Further proceedings before the Hearing Official or Panel 
(including an evidentiary hearing or oral argument, if either is 
scheduled);
    (D) Requesting the names of witnesses each party wishes to present 
at an evidentiary hearing and estimation of time for each presentation; 
or
    (E) Completion of the review and the initial decision of the 
Hearing Official or Panel.
    (5) A prehearing or other conference held under paragraph (b)(4) of 
this section may be conducted by telephone conference call.
    (6) At a prehearing or other conference, the parties shall be 
prepared to discuss the subjects listed in paragraph (b)(4) of this 
section.
    (7) Following a prehearing or other conference the Hearing Official 
or Panel may issue a written statement describing the issues raised, 
the action taken, and the stipulations and agreements reached by the 
parties.
    (d) The Hearing Official or Panel may require parties to state 
their positions and to provide all or part of the evidence in writing.
    (e) The Hearing Official or Panel may require parties to present 
testimony through affidavits and to conduct cross-examination through 
interrogatories.
    (f) The Hearing Official or Panel may direct the parties to 
exchange relevant documents or information and lists of witnesses, and 
to send copies to the Hearing Official or Panel.
    (g) The Hearing Official or Panel may receive, rule on, exclude, or 
limit evidence at any stage of the proceedings.

[[Page 12461]]

    (h) The Hearing Official or Panel may rule on motions and other 
issues at any stage of the proceedings.
    (i) The Hearing Official or Panel may examine witnesses.
    (j) The Hearing Official or Panel may set reasonable time limits 
for submission of written documents.
    (k) The Hearing Official or Panel may refuse to consider documents 
or other submissions if they are not submitted in a timely manner 
unless good cause is shown.
    (l) The Hearing Official or Panel may interpret applicable statutes 
and regulations but may not waive them or rule on their validity.
    (m)(1) The parties shall present their positions through briefs and 
the submission of other documents and may request an oral argument or 
evidentiary hearing. The Hearing Official or Panel shall determine 
whether an oral argument or an evidentiary hearing is needed to clarify 
the positions of the parties.
    (2) The Hearing Official or Panel gives each party an opportunity 
to be represented by counsel.
    (n) If the Hearing Official or Panel determines that an evidentiary 
hearing would materially assist the resolution of the matter, the 
Hearing Official or Panel gives each party, in addition to the 
opportunity to be represented by counse--
    (1) An opportunity to present witnesses on the party's behalf; and
    (2) An opportunity to cross-examine witnesses either orally or with 
written questions.
    (o) The Hearing Official or Panel accepts any evidence that it 
finds is relevant and material to the proceedings and is not unduly 
repetitious.
    (p)(1) The Hearing Official or Panel--
    (i) Arranges for the preparation of a transcript of each hearing;
    (ii) Retains the original transcript as part of the record of the 
hearing; and
    (iii) Provides one copy of the transcript to each party.
    (2) Additional copies of the transcript are available on request 
and with payment of the reproduction fee.
    (q) Each party shall file with the Hearing Official or Panel all 
written motions, briefs, and other documents and shall at the same time 
provide a copy to the other parties to the proceedings.

(Authority: 20 U.S.C. (1412(d)(2))


Sec. 300.584  Initial decision; final decision.

    (a) The Hearing Official or Panel prepares an initial written 
decision that addresses each of the points in the notice sent by the 
Secretary to the SEA under Sec. 300.581.
    (b) The initial decision of a Panel is made by a majority of Panel 
members.
    (c) The Hearing Official or Panel mails by certified mail with 
return receipt requested a copy of the initial decision to each party 
(or to the party's counsel) and to the Secretary, with a notice stating 
that each party has an opportunity to submit written comments regarding 
the decision to the Secretary.
    (d) Each party may file comments and recommendations on the initial 
decision with the Hearing Official or Panel within 15 days of the date 
the party receives the Panel's decision.
    (e) The Hearing Official or Panel sends a copy of a party's initial 
comments and recommendations to the other parties by certified mail 
with return receipt requested. Each party may file responsive comments 
and recommendations with the Hearing Official or Panel within seven 
days of the date the party receives the initial comments and 
recommendations.
    (f) The Hearing Official or Panel forwards the parties' initial and 
responsive comments on the initial decision to the Secretary who 
reviews the initial decision and issues a final decision.
    (g) The initial decision of the Hearing Official or Panel becomes 
the final decision of the Secretary unless, within 25 days after the 
end of the time for receipt of written comments, the Secretary informs 
the Hearing Official or Panel and the parties to a hearing in writing 
that the decision is being further reviewed for possible modification.
    (h) The Secretary may reject or modify the initial decision of the 
Hearing Official or Panel if the Secretary finds that it is clearly 
erroneous.
    (i) The Secretary conducts the review based on the initial 
decision, the written record, the Hearing Official's or Panel's 
proceedings, and written comments. The Secretary may remand the matter 
for further proceedings.
    (j) The Secretary issues the final decision within 30 days after 
notifying the Hearing Official or Panel that the initial decision is 
being further reviewed.

(Authority: 20 U.S.C. (1412(d)(2))


Sec. 300.585  Filing requirements.

    (a) Any written submission under Secs. 300.581-300.585 must be 
filed by hand-delivery, by mail, or by facsimile transmission. The 
Secretary discourages the use of facsimile transmission for documents 
longer than five pages.
    (b) The filing date under paragraph (a) of this section is the date 
the document is--
    (1) Hand-delivered;
    (2) Mailed; or (3) Sent by facsimile transmission.
    (c) A party filing by facsimile transmission is responsible for 
confirming that a complete and legible copy of the document was 
received by the Department.
    (d) If a document is filed by facsimile transmission, the 
Secretary, the Hearing Official, or the Panel, as applicable, may 
require the filing of a follow-up hard copy by hand-delivery or by mail 
within a reasonable period of time.
    (e) If agreed upon by the parties, service of a document may be 
made upon the other party by facsimile transmission.

(Authority: 20 U.S.C. 1413(c))


Sec. 300.586  Judicial review.

    If a State is dissatisfied with the Secretary's final action with 
respect to the eligibility of the State under section 612 of the Act, 
the State may, not later than 60 days after notice of that action, file 
with the United States Court of Appeals for the circuit in which that 
State is located a petition for review of that action. A copy of the 
petition must be forthwith transmitted by the clerk of the court to the 
Secretary. The Secretary then files in the court the record of the 
proceedings upon which the Secretary's action was based, as provided in 
section 2112 of title 28, United States Code.

(Authority: 20 U.S.C. 1416(b))


Sec. 300.587  Enforcement.

    (a) General. The Secretary initiates an action described in 
paragraph (b) of this section if the Secretary finds--
    (1) That there has been a failure by the State to comply 
substantially with any provision of Part B of the Act, this part, or 34 
CFR part 301; or
    (2) That there is a failure to comply with any condition of an 
LEA's or SEA's eligibility under Part B of the Act, this part or 34 CFR 
part 301, including the terms of any agreement to achieve compliance 
with Part B of the Act, this part, or Part 301 within the timelines 
specified in the agreement.
    (b) Types of action. The Secretary, after notifying the SEA (and 
any LEA or State agency affected by a failure described in paragraph 
(a)(2) of this section)--
    (1) Withholds in whole or in part any further payments to the State 
under Part B of the Act;
    (2) Refers the matter to the Department of Justice for enforcement; 
or
    (3) Takes any other enforcement action authorized by law.
    (c) Nature of withholding. (1) If the Secretary determines that it 
is

[[Page 12462]]

appropriate to withhold further payments under paragraph (b)(1) of this 
section, the Secretary may determine that the withholding will be 
limited to programs or projects, or portions thereof, affected by the 
failure, or that the SEA shall not make further payments under Part B 
of the Act to specified LEA or State agencies affected by the failure.
    (2) Until the Secretary is satisfied that there is no longer any 
failure to comply with the provisions of Part B of the Act, this part, 
or 34 CFR part 301, as specified in paragraph (a) of this section, 
payments to the State under Part B of the Act are withheld in whole or 
in part, or payments by the SEA under Part B of the Act are limited to 
local educational agencies and State agencies whose actions did not 
cause or were not involved in the failure, as the case may be.
    (3) Any SEA, LEA, or other State agency that has received notice 
under paragraph (a) of this section shall, by means of a public notice, 
take such measures as may be necessary to bring the pendency of an 
action pursuant to this subsection to the attention of the public 
within the jurisdiction of that agency.
    (4) Before withholding under paragraph (b)(1) of this section, the 
Secretary provides notice and a hearing pursuant to the procedures in 
Secs. 300.581-300.586.
    (d) Referral for appropriate enforcement. (1) Before the Secretary 
makes a referral under paragraph (b)(2) of this section for 
enforcement, or takes any other enforcement action authorized by law 
under paragraph (b)(3), the Secretary provides the State--
    (i) With reasonable notice; and
    (ii) With an opportunity for a hearing.
    (2) The hearing described in paragraph (d)(1)(ii) of this section 
consists of an opportunity to meet with the Assistant Secretary for the 
Office of Special Education and Rehabilitative Services to demonstrate 
why the Department should not make a referral for enforcement.
    (e) Divided State agency responsibility. For purposes of this part, 
if responsibility for ensuring that the requirements of this part are 
met with respect to children with disabilities who are convicted as 
adults under State law and incarcerated in adult prisons is assigned to 
a public agency other than the SEA pursuant to Sec. 300.600(d), and if 
the Secretary finds that the failure to comply substantially with the 
provisions of Part B of the Act or this part are related to a failure 
by the public agency, the Secretary takes one of the enforcement 
actions described in paragraph (b) of this section to ensure compliance 
with Part B of the Act and this part, except--
    (1) Any reduction or withholding of payments to the State under 
paragraph (b)(1) of this section is proportionate to the total funds 
allotted under section 611 of the Act to the State as the number of 
eligible children with disabilities in adult prisons under the 
supervision of the other public agency is proportionate to the number 
of eligible individuals with disabilities in the State under the 
supervision of the State educational agency; and
    (2) Any withholding of funds under paragraph (e)(1) of this section 
is limited to the specific agency responsible for the failure to comply 
with Part B of the Act or this part.

(Authority: 20 U.S.C. 1416)


Secs. 300.588  [Reserved]


Sec. 300.589  Waiver of requirement regarding supplementing and not 
supplanting with Part B funds.

    (a) Except as provided under Secs. 300.232-300.235, funds paid to a 
State under Part B of the Act must be used to supplement and increase 
the level of Federal, State, and local funds (including funds that are 
not under the direct control of SEAs or LEAs) expended for special 
education and related services provided to children with disabilities 
under Part B of the Act and in no case to supplant those Federal, 
State, and local funds. A State may use funds it retains under 
Sec. 300.602 without regard to the prohibition on supplanting other 
funds (see Sec. 300.372).
    (b) If a State provides clear and convincing evidence that all 
eligible children with disabilities throughout the State have FAPE 
available to them, the Secretary may waive for a period of one year in 
whole or in part the requirement under Sec. 300.153 (regarding State-
level nonsupplanting) if the Secretary concurs with the evidence 
provided by the State.
    (c) If a State wishes to request a waiver under this section, it 
must submit to the Secretary a written request that includes--
    (1) An assurance that FAPE is currently available, and will remain 
available throughout the period that a waiver would be in effect, to 
all eligible children with disabilities throughout the State, 
regardless of the public agency that is responsible for providing FAPE 
to them. The assurance must be signed by an official who has the 
authority to provide that assurance as it applies to all eligible 
children with disabilities in the State;
    (2) All evidence that the State wishes the Secretary to consider in 
determining whether all eligible children with disabilities have FAPE 
available to them, setting forth in detail--
    (i) The basis on which the State has concluded that FAPE is 
available to all eligible children in the State; and
    (ii) The procedures that the State will implement to ensure that 
FAPE remains available to all eligible children in the State, which 
must include--
    (A) The State's procedures under Sec. 300.125 for ensuring that all 
eligible children are identified, located and evaluated;
    (B) The State's procedures for monitoring public agencies to ensure 
that they comply with all requirements of this part;
    (C) The State's complaint procedures under Secs. 300.660-300.662; 
and
    (D) The State's hearing procedures under Secs. 300.507-300.511 and 
300.520-300.528;
    (3) A summary of all State and Federal monitoring reports, and 
State complaint decisions (see Secs. 300.660-300.662) and hearing 
decisions (see Secs. 300.507-300.511 and 300.520-300.528), issued 
within three years prior to the date of the State's request for a 
waiver under this section, that includes any finding that FAPE has not 
been available to one or more eligible children, and evidence that FAPE 
is now available to all children addressed in those reports or 
decisions; and
    (4) Evidence that the State, in determining that FAPE is currently 
available to all eligible children with disabilities in the State, has 
consulted with the State advisory panel under Sec. 300.650, the State's 
parent training and information center or centers, the State's 
protection and advocacy organization, and other organizations 
representing the interests of children with disabilities and their 
parents, and a summary of the input of these organizations.
    (d) If the Secretary determines that the request and supporting 
evidence submitted by the State makes a prima facie showing that FAPE 
is, and will remain, available to all eligible children with 
disabilities in the State, the Secretary, after notice to the public 
throughout the State, conducts a public hearing at which all interested 
persons and organizations may present evidence regarding the following 
issues:
    (1) Whether FAPE is currently available to all eligible children 
with disabilities in the State.
    (2) Whether the State will be able to ensure that FAPE remains 
available to all eligible children with disabilities in

[[Page 12463]]

the State if the Secretary provides the requested waiver.
    (e) Following the hearing, the Secretary, based on all submitted 
evidence, will provide a waiver, in whole or in part, for a period of 
one year if the Secretary finds that the State has provided clear and 
convincing evidence that FAPE is currently available to all eligible 
children with disabilities in the State, and the State will be able to 
ensure that FAPE remains available to all eligible children with 
disabilities in the State if the Secretary provides the requested 
waiver.
    (f) A State may receive a waiver of the requirement of section 
612(a)(19)(A) and Sec. 300.154(a) if it satisfies the requirements of 
paragraphs (b) through (e) of this section.
    (g) The Secretary may grant subsequent waivers for a period of one 
year each, if the Secretary determines that the State has provided 
clear and convincing evidence that all eligible children with 
disabilities throughout the State have, and will continue to have 
throughout the one-year period of the waiver, FAPE available to them.

(Authority: 20 U.S.C. 1412(a)(18)(C), (19)(C)(ii) and (E))

Subpart F--State Administration

General


Sec. 300.600  Responsibility for all educational programs.

    (a) The SEA is responsible for ensuring--
    (1) That the requirements of this part are carried out; and
    (2) That each educational program for children with disabilities 
administered within the State, including each program administered by 
any other State or local agency--
    (i) Is under the general supervision of the persons responsible for 
educational programs for children with disabilities in the SEA; and
    (ii) Meets the education standards of the SEA (including the 
requirements of this part).
    (b) The State must comply with paragraph (a) of this section 
through State statute, State regulation, signed agreement between 
respective agency officials, or other documents.
    (c) Part B of the Act does not limit the responsibility of agencies 
other than educational agencies for providing or paying some or all of 
the costs of FAPE to children with disabilities in the State.
    (d) Notwithstanding paragraph (a) of this section, the Governor (or 
another individual pursuant to State law) may assign to any public 
agency in the State the responsibility of ensuring that the 
requirements of Part B of the Act are met with respect to students with 
disabilities who are convicted as adults under State law and 
incarcerated in adult prisons.

(Authority: 20 U.S.C. 1412(a)(11))


Sec. 300.601  Relation of Part B to other Federal programs.

    Part B of the Act may not be construed to permit a State to reduce 
medical and other assistance available to children with disabilities, 
or to alter the eligibility of a child with a disability, under title V 
(Maternal and Child Health) or title XIX (Medicaid) of the Social 
Security Act, to receive services that are also part of FAPE.

(Authority: 20 U.S.C. 1412(e))


Sec. 300.602  State-level activities.

    (a) Each State may retain not more than the amount described in 
paragraph (b) of this section for administration in accordance with 
Secs. 300.620 and 300.621 and other State-level activities in 
accordance with Sec. 300.370.
    (b) For each fiscal year, the Secretary determines and reports to 
the SEA an amount that is 25 percent of the amount the State received 
under this section for fiscal year 1997, cumulatively adjusted by the 
Secretary for each succeeding fiscal year by the lesser of--
    (1) The percentage increase, if any, from the preceding fiscal year 
in the State's allocation under section 611 of the Act; or
    (2) The rate of inflation, as measured by the percentage increase, 
if any, from the preceding fiscal year in the Consumer Price Index For 
All Urban Consumers, published by the Bureau of Labor Statistics of the 
Department of Labor.

(Authority: 20 U.S.C. 1411(f)(1)(A) and (B))

Use of Funds


Sec. 300.620  Use of funds for State administration.

    (a) For the purpose of administering Part B of the Act, including 
section 619 of the Act (including the coordination of activities under 
Part B of the Act with, and providing technical assistance to, other 
programs that provide services to children with disabilities)--
    (1) Each State may use not more than twenty percent of the maximum 
amount it may retain under Sec. 300.602(a) for any fiscal year or 
$500,000 (adjusted by the cumulative rate of inflation since fiscal 
year 1998, as measured by the percentage increase, if any, in the 
Consumer Price Index For All Urban Consumers, published by the Bureau 
of Labor Statistics of the Department of Labor), whichever is greater; 
and
    (2) Each outlying area may use up to five percent of the amount it 
receives under this section for any fiscal year or $35,000, whichever 
is greater.
    (b) Funds described in paragraph (a) of this section may also be 
used for the administration of Part C of the Act, if the SEA is the 
lead agency for the State under that part.

(Authority: 20 U.S.C. 1411(f)(2))


Sec. 300.621  Allowable costs.

    (a) The SEA may use funds under Sec. 300.620 for--
    (1) Administration of State activities under Part B of the Act and 
for planning at the State level, including planning, or assisting in 
the planning, of programs or projects for the education of children 
with disabilities;
    (2) Approval, supervision, monitoring, and evaluation of the 
effectiveness of local programs and projects for the education of 
children with disabilities;
    (3) Technical assistance to LEAs with respect to the requirements 
of Part B of the Act;
    (4) Leadership services for the program supervision and management 
of special education activities for children with disabilities; and
    (5) Other State leadership activities and consultative services.
    (b) The SEA shall use the remainder of its funds under Sec. 300.620 
in accordance with Sec. 300.370.

(Authority: 20 U.S.C. 1411(f)(2))


Sec. 300.622  Subgrants to LEAs for capacity-building and improvement.

    In any fiscal year in which the percentage increase in the State's 
allocation under 611 of the Act exceeds the rate of inflation (as 
measured by the percentage increase, if any, from the preceding fiscal 
year in the Consumer Price Index For All Urban Consumers, published by 
the Bureau of Labor Statistics of the Department of Labor), each State 
shall reserve, from its allocation under 611 of the Act, the amount 
described in Sec. 300.623 to make subgrants to LEAs, unless that amount 
is less than $100,000, to assist them in providing direct services and 
in making systemic change to improve results for children with 
disabilities through one or more of the following:
    (a) Direct services, including alternative programming for children 
who have been expelled from school, and services for children in 
correctional facilities, children enrolled in State-operated or State-
supported schools, and children in charter schools.
    (b) Addressing needs or carrying out improvement strategies 
identified in the

[[Page 12464]]

State's Improvement Plan under subpart 1 of Part D of the Act.
    (c) Adopting promising practices, materials, and technology, based 
on knowledge derived from education research and other sources.
    (d) Establishing, expanding, or implementing interagency agreements 
and arrangements between LEAs and other agencies or organizations 
concerning the provision of services to children with disabilities and 
their families.
    (e) Increasing cooperative problem-solving between parents and 
school personnel and promoting the use of alternative dispute 
resolution.

(Authority: 20 U.S.C. 1411(f)(4)(A))


Sec. 300.623  Amount required for subgrants to LEAs.

    For each fiscal year, the amount referred to in Sec. 300.622 is--
    (a) The maximum amount the State was allowed to retain under 
Sec. 300.602(a) for the prior fiscal year, or, for fiscal year 1998, 25 
percent of the State's allocation for fiscal year 1997 under section 
611; multiplied by
    (b) The difference between the percentage increase in the State's 
allocation under this section and the rate of inflation, as measured by 
the percentage increase, if any, from the preceding fiscal year in the 
Consumer Price Index For All Urban Consumers, published by the Bureau 
of Labor Statistics of the Department of Labor.

(Authority: 20 U.S.C. 1411(f)(4)(B))


Sec. 300.624  State discretion in awarding subgrants.

    The State may establish priorities in awarding subgrants under 
Sec. 300.622 to LEAs competitively or on a targeted basis.

(Authority: 20 U.S.C. 1411(f)(4)(A))

State Advisory Panel


Sec. 300.650  Establishment of advisory panels.

    (a) Each State shall establish and maintain, in accordance with 
Secs. 300.650-300.653, a State advisory panel on the education of 
children with disabilities.
    (b) The advisory panel must be appointed by the Governor or any 
other official authorized under State law to make those appointments.
    (c) If a State has an existing advisory panel that can perform the 
functions in Sec. 300.652, the State may modify the existing panel so 
that it fulfills all of the requirements of Secs. 300.650-300.653, 
instead of establishing a new advisory panel.

(Authority: 20 U.S.C. 1412(a)(21)(A))


Sec. 300.651  Membership.

    (a) General. The membership of the State advisory panel must 
consist of members appointed by the Governor, or any other official 
authorized under State law to make these appointments, that is 
representative of the State population and that is composed of 
individuals involved in, or concerned with the education of children 
with disabilities, including--
    (1) Parents of children with disabilities;
    (2) Individuals with disabilities;
    (3) Teachers;
    (4) Representatives of institutions of higher education that 
prepare special education and related services personnel;
    (5) State and local education officials;
    (6) Administrators of programs for children with disabilities;
    (7) Representatives of other State agencies involved in the 
financing or delivery of related services to children with 
disabilities;
    (8) Representatives of private schools and public charter schools;
    (9) At least one representative of a vocational, community, or 
business organization concerned with the provision of transition 
services to children with disabilities; and
    (10) Representatives from the State juvenile and adult corrections 
agencies.
    (b) Special rule. A majority of the members of the panel must be 
individuals with disabilities or parents of children with disabilities.

(Authority: 20 U.S.C. 1412(a)(21)(B) and (C))


Sec. 300.652  Advisory panel functions.

    (a) General. The State advisory panel shall--
    (1) Advise the SEA of unmet needs within the State in the education 
of children with disabilities;
    (2) Comment publicly on any rules or regulations proposed by the 
State regarding the education of children with disabilities;
    (3) Advise the SEA in developing evaluations and reporting on data 
to the Secretary under section 618 of the Act;
    (4) Advise the SEA in developing corrective action plans to address 
findings identified in Federal monitoring reports under Part B of the 
Act; and
    (5) Advise the SEA in developing and implementing policies relating 
to the coordination of services for children with disabilities.
    (b) Advising on eligible students with disabilities in adult 
prisons. The advisory panel also shall advise on the education of 
eligible students with disabilities who have been convicted as adults 
and incarcerated in adult prisons, even if, consistent with 
Sec. 300.600(d), a State assigns general supervision responsibility for 
those students to a public agency other than an SEA.

(Authority: 20 U.S.C. 1412(a)(21)(D))


Sec. 300.653  Advisory panel procedures.

    (a) The advisory panel shall meet as often as necessary to conduct 
its business.
    (b) By July 1 of each year, the advisory panel shall submit an 
annual report of panel activities and suggestions to the SEA. This 
report must be made available to the public in a manner consistent with 
other public reporting requirements of Part B of the Act.
    (c) Official minutes must be kept on all panel meetings and must be 
made available to the public on request.
    (d) All advisory panel meetings and agenda items must be announced 
enough in advance of the meeting to afford interested parties a 
reasonable opportunity to attend. Meetings must be open to the public.
    (e) Interpreters and other necessary services must be provided at 
panel meetings for panel members or participants. The State may pay for 
these services from funds under Sec. 300.620.
    (f) The advisory panel shall serve without compensation but the 
State must reimburse the panel for reasonable and necessary expenses 
for attending meetings and performing duties. The State may use funds 
under Sec. 300.620 for this purpose.

(Authority: 20 U.S.C. 1412(a)(21))

State Complaint Procedures


Sec. 300.660  Adoption of State complaint procedures.

    (a) General. Each SEA shall adopt written procedures for--
    (1) Resolving any complaint, including a complaint filed by an 
organization or individual from another State, that meets the 
requirements of Sec. 300.662 by--
    (i) Providing for the filing of a complaint with the SEA; and
    (ii) At the SEA's discretion, providing for the filing of a 
complaint with a public agency and the right to have the SEA review the 
public agency's decision on the complaint; and
    (2) Widely disseminating to parents and other interested 
individuals, including parent training and information centers, 
protection and advocacy agencies, independent living centers, and other 
appropriate entities, the State's procedures under Secs. 300.660-
300.662.
    (b) Remedies for denial of appropriate services. In resolving a 
complaint in

[[Page 12465]]

which it has found a failure to provide appropriate services, an SEA, 
pursuant to its general supervisory authority under Part B of the Act, 
must address:
    (1) How to remediate the denial of those services, including, as 
appropriate, the awarding of monetary reimbursement or other corrective 
action appropriate to the needs of the child; and
    (2) Appropriate future provision of services for all children with 
disabilities.

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


Sec. 300.661  Minimum State complaint procedures.

    (a) Time limit; minimum procedures. Each SEA shall include in its 
complaint procedures a time limit of 60 days after a complaint is filed 
under Sec. 300.660(a) to--
    (1) Carry out an independent on-site investigation, if the SEA 
determines that an investigation is necessary;
    (2) Give the complainant the opportunity to submit additional 
information, either orally or in writing, about the allegations in the 
complaint;
    (3) Review all relevant information and make an independent 
determination as to whether the public agency is violating a 
requirement of Part B of the Act or of this part; and
    (4) Issue a written decision to the complainant that addresses each 
allegation in the complaint and contains--
    (i) Findings of fact and conclusions; and
    (ii) The reasons for the SEA's final decision.
    (b) Time extension; final decision; implementation. The SEA's 
procedures described in paragraph (a) of this section also must--
    (1) Permit an extension of the time limit under paragraph (a) of 
this section only if exceptional circumstances exist with respect to a 
particular complaint; and
    (2) Include procedures for effective implementation of the SEA's 
final decision, if needed, including--
    (i) Technical assistance activities;
    (ii) Negotiations; and
    (iii) Corrective actions to achieve compliance.
    (c) Complaints filed under this section, and due process hearings 
under Secs. 300.507 and 300.520-300.528. (1) If a written complaint is 
received that is also the subject of a due process hearing under 
Sec. 300.507 or Secs. 300.520-300.528, or contains multiple issues, of 
which one or more are part of that hearing, the State must set aside 
any part of the complaint that is being addressed in the due process 
hearing, until the conclusion of the hearing. However, any issue in the 
complaint that is not a part of the due process action must be resolved 
using the time limit and procedures described in paragraphs (a) and (b) 
of this section.
    (2) If an issue is raised in a complaint filed under this section 
that has previously been decided in a due process hearing involving the 
same parties--
    (i) The hearing decision is binding; and
    (ii) The SEA must inform the complainant to that effect.
    (3) A complaint alleging a public agency's failure to implement a 
due process decision must be resolved by the SEA.

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


Sec. 300.662  Filing a complaint.

    (a) An organization or individual may file a signed written 
complaint under the procedures described in Secs. 300.660-300.661.
    (b) The complaint must include--
    (1) A statement that a public agency has violated a requirement of 
Part B of the Act or of this part; and
    (2) The facts on which the statement is based.
    (c) The complaint must allege a violation that occurred not more 
than one year prior to the date that the complaint is received in 
accordance with Sec. 300.660(a) unless a longer period is reasonable 
because the violation is continuing, or the complainant is requesting 
compensatory services for a violation that occurred not more than three 
years prior to the date the complaint is received under 
Sec. 300.660(a).

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

Subpart G--Allocation of Funds; Reports

Allocations


Sec. 300.700  Special definition of the term ``State''.

    For the purposes of Secs. 300.701, and 300.703-300.714, the term 
State means each of the 50 States, the District of Columbia, and the 
Commonwealth of Puerto Rico.

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


Sec. 300.701  Grants to States.

    (a) Purpose of grants. The Secretary makes grants to States and the 
outlying areas and provides funds to the Secretary of the Interior, to 
assist them to provide special education and related services to 
children with disabilities in accordance with Part B of the Act.
    (b) Maximum amounts. The maximum amount of the grant a State may 
receive under section 611 of the Act for any fiscal year is--
    (1) The number of children with disabilities in the State who are 
receiving special education and related services--
    (i) Aged 3 through 5 if the State is eligible for a grant under 
section 619 of the Act; and
    (ii) Aged 6 through 21; multiplied by--
    (2) Forty (40) percent of the average per-pupil expenditure in 
public elementary and secondary schools in the United States.

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


Sec. 300.702  Definition.

    For the purposes of this section the term average per-pupil 
expenditure in public elementary and secondary schools in the United 
States means--
    (a) Without regard to the source of funds--
    (1) The aggregate current expenditures, during the second fiscal 
year preceding the fiscal year for which the determination is made (or, 
if satisfactory data for that year are not available, during the most 
recent preceding fiscal year for which satisfactory data are available) 
of all LEAs in the 50 States and the District of Columbia); plus
    (2) Any direct expenditures by the State for the operation of those 
agencies; divided by
    (b) The aggregate number of children in average daily attendance to 
whom those agencies provided free public education during that 
preceding year.

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


Sec. 300.703  Allocations to States.

    (a) General. After reserving funds for studies and evaluations 
under section 674(e) of the Act, and for payments to the outlying 
areas, the freely associated States, and the Secretary of the Interior 
under Secs. 300.715 and 300.717-300.719, the Secretary allocates the 
remaining amount among the States in accordance with paragraph (b) of 
this section and Secs. 300.706-300.709.
    (b) Interim formula. Except as provided in Secs. 300.706-300.709, 
the Secretary allocates the amount described in paragraph (a) of this 
section among the States in accordance with section 611(a)(3), (4), (5) 
and (b)(1), (2) and (3) of the Act, as in effect prior to June 4, 1997, 
except that the determination of the number of children with 
disabilities receiving special education and related services under 
section 611(a)(3) of the Act (as then in effect) may be calculated as 
of December 1, or, at the State's discretion, the last

[[Page 12466]]

Friday in October, of the fiscal year for which the funds were 
appropriated.

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


Secs. 300.704-300.705  [Reserved]


Sec. 300.706  Permanent formula.

    (a) Establishment of base year. The Secretary allocates the amount 
described in Sec. 300.703(a) among the States in accordance with 
Secs. 300.706-300.709 for each fiscal year beginning with the first 
fiscal year for which the amount appropriated under 611(j) of the Act 
is more than $4,924,672,200.
    (b) Use of base year. (1) Definition. As used in this section, the 
term base year means the fiscal year preceding the first fiscal year in 
which this section applies.
    (2) Special rule for use of base year amount. If a State received 
any funds under section 611 of the Act for the base year on the basis 
of children aged 3 through 5, but does not make FAPE available to all 
children with disabilities aged 3 through 5 in the State in any 
subsequent fiscal year, the Secretary computes the State's base year 
amount, solely for the purpose of calculating the State's allocation in 
that subsequent year under Secs. 300.707-300.709, by subtracting the 
amount allocated to the State for the base year on the basis of those 
children.

(Authority: 20 U.S.C. 1411(e)(1) and (2))


Sec. 300.707  Increase in funds.

    If the amount available for allocations to States under 
Sec. 300.706 is equal to or greater than the amount allocated to the 
States under section 611 of the Act for the preceding fiscal year, 
those allocations are calculated as follows:
    (a) Except as provided in Sec. 300.708, the Secretary--
    (1) Allocates to each State the amount it received for the base 
year;
    (2) Allocates 85 percent of any remaining funds to States on the 
basis of their relative populations of children aged 3 through 21 who 
are of the same age as children with disabilities for whom the State 
ensures the availability of FAPE under Part B of the Act; and
    (3) Allocates 15 percent of those remaining funds to States on the 
basis of their relative populations of children described in paragraph 
(a)(2) of this section who are living in poverty.
    (b) For the purpose of making grants under this section, the 
Secretary uses the most recent population data, including data on 
children living in poverty, that are available and satisfactory to the 
Secretary.

(Authority: 20 U.S.C. 1411(e)(3))


Sec. 300.708  Limitation.

    (a) Allocations under Sec. 300.707 are subject to the following:
    (1) No State's allocation may be less than its allocation for the 
preceding fiscal year.
    (2) No State's allocation may be less than the greatest of--
    (i) The sum of--
    (A) The amount it received for the base year; and
    (B) One-third of one percent of the amount by which the amount 
appropriated under section 611(j) of the Act exceeds the amount 
appropriated under section 611 of the Act for the base year; or
    (ii) The sum of--
    (A) The amount it received for the preceding fiscal year; and
    (B) That amount multiplied by the percentage by which the increase 
in the funds appropriated from the preceding fiscal year exceeds 1.5 
percent; or
    (iii) The sum of--
    (A) The amount it received for the preceding fiscal year; and
    (B) That amount multiplied by 90 percent of the percentage increase 
in the amount appropriated from the preceding fiscal year.
    (b) Notwithstanding paragraph (a)(2) of this section, no State's 
allocation under Sec. 300.707 may exceed the sum of--
    (1) The amount it received for the preceding fiscal year; and
    (2) That amount multiplied by the sum of 1.5 percent and the 
percentage increase in the amount appropriated.
    (c) If the amount available for allocations to States under 
Sec. 300.703 and paragraphs (a) and (b) of this section is insufficient 
to pay those allocations in full those allocations are ratably reduced, 
subject to paragraph (a)(1) of this section.

(Authority: 20 U.S.C. 1411(e)(3)(B) and (C))


Sec. 300.709  Decrease in funds.

    If the amount available for allocations to States under 
Sec. 300.706 is less than the amount allocated to the States under 
section 611 of the Act for the preceding fiscal year, those allocations 
are calculated as follows:
    (a) If the amount available for allocations is greater than the 
amount allocated to the States for the base year, each State is 
allocated the sum of--
    (1) The amount it received for the base year; and
    (2) An amount that bears the same relation to any remaining funds 
as the increase the State received for the preceding fiscal year over 
the base year bears to the total of those increases for all States.
    (b)(1) If the amount available for allocations is equal to or less 
than the amount allocated to the States for the base year, each State 
is allocated the amount it received for the base year.
    (2) If the amount available is insufficient to make the allocations 
described in paragraph (b)(1) of this section, those allocations are 
ratably reduced.

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


Sec. 300.710  Allocation for State in which by-pass is implemented for 
private school children with disabilities.

    In determining the allocation under Secs. 300.700-300.709 of a 
State in which the Secretary will implement a by-pass for private 
school children with disabilities under Secs. 300.451-300.487, the 
Secretary includes in the State's child count--
    (a) For the first year of a by-pass, the actual or estimated number 
of private school children with disabilities (as defined in 
Secs. 300.7(a) and 300.450) in the State, as of the preceding December 
1; and
    (b) For succeeding years of a by-pass, the number of private school 
children with disabilities who received special education and related 
services under the by-pass in the preceding year.

(Authority: 20 U.S.C. 1412(f)(2))


Sec. 300.711  Subgrants to LEAs.

    Each State that receives a grant under section 611 of the Act for 
any fiscal year shall distribute in accordance with Sec. 300.712 any 
funds it does not retain under Sec. 300.602 and is not required to 
distribute under Secs. 300.622 and 300.623 to LEAs in the State that 
have established their eligibility under section 613 of the Act, and to 
State agencies that received funds under section 614A(a) of the Act for 
fiscal year 1997, as then in effect, and have established their 
eligibility under section 613 of the Act, for use in accordance with 
Part B of the Act.

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


Sec. 300.712  Allocations to LEAs.

    (a) Interim procedure. For each fiscal year for which funds are 
allocated to States under Sec. 300.703(b) each State shall allocate 
funds under Sec. 300.711 in accordance with section 611(d) of the Act, 
as in effect prior to June 4, 1997.
    (b) Permanent procedure. For each fiscal year for which funds are 
allocated to States under Secs. 300.706-300.709, each State shall 
allocate funds under Sec. 300.711 as follows:
    (1) Base payments. The State first shall award each agency 
described in Sec. 300.711 the amount that agency would have received 
under this section for the

[[Page 12467]]

base year, as defined in Sec. 300.706(b)(1), if the State had 
distributed 75 percent of its grant for that year under section 
Sec. 300.703(b).
    (2) Base payment adjustments. For any fiscal year after the base 
year fiscal year--
    (i) If a new LEA is created, the State shall divide the base 
allocation determined under paragraph (b)(1) of this section for the 
LEAs that would have been responsible for serving children with 
disabilities now being served by the new LEA, among the new LEA and 
affected LEAs based on the relative numbers of children with 
disabilities ages 3 through 21, or ages 6 through 21 if a State has had 
its payment reduced under Sec. 300.706(b)(2), currently provided 
special education by each of the LEAs;
    (ii) If one or more LEAs are combined into a single new LEA, the 
State shall combine the base allocations of the merged LEAs; and
    (iii) If, for two or more LEAs, geographic boundaries or 
administrative responsibility for providing services to children with 
disabilities ages 3 through 21 change, the base allocations of affected 
LEAs shall be redistributed among affected LEAs based on the relative 
numbers of children with disabilities ages 3 through 21, or ages 6 
through 21 if a State has had its payment reduced under 
Sec. 300.706(b)(2), currently provided special education by each 
affected LEA.
    (3) Allocation of remaining funds. The State then shall--
    (i) Allocate 85 percent of any remaining funds to those agencies on 
the basis of the relative numbers of children enrolled in public and 
private elementary and secondary schools within each agency's 
jurisdiction; and
    (ii) Allocate 15 percent of those remaining funds to those agencies 
in accordance with their relative numbers of children living in 
poverty, as determined by the SEA.
    (iii) For the purposes of making grants under this section, States 
must apply on a uniform basis across all LEAs the best data that are 
available to them on the numbers of children enrolled in public and 
private elementary and secondary schools and the numbers of children 
living in poverty.

(Authority: 20 U.S.C. 1411(g)(2))


Sec. 300.713  Former Chapter 1 State agencies.

    (a) To the extent necessary, the State--
    (1) Shall use funds that are available under Sec. 300.602(a) to 
ensure that each State agency that received fiscal year 1994 funds 
under subpart 2 of Part D of chapter 1 of title I of the Elementary and 
Secondary Education Act of 1965 (as in effect in fiscal year 1994) 
receives, from the combination of funds under Sec. 300.602(a) and funds 
provided under Sec. 300.711, an amount no less than--
    (i) The number of children with disabilities, aged 6 through 21, to 
whom the agency was providing special education and related services on 
December 1, or, at the State's discretion, the last Friday in October, 
of the fiscal year for which the funds were appropriated, subject to 
the limitation in paragraph (b) of this section; multiplied by
    (ii) The per-child amount provided under that subpart for fiscal 
year 1994; and
    (2) May use funds under Sec. 300.602(a) to ensure that each LEA 
that received fiscal year 1994 funds under that subpart for children 
who had transferred from a State-operated or State-supported school or 
program assisted under that subpart receives, from the combination of 
funds available under Sec. 300.602(a) and funds provided under 
Sec. 300.711, an amount for each child, aged 3 through 21 to whom the 
agency was providing special education and related services on December 
1, or, at the State's discretion, the last Friday in October, of the 
fiscal year for which the funds were appropriated, equal to the per-
child amount the agency received under that subpart for fiscal year 
1994.
    (b) The number of children counted under paragraph (a)(1)(i) of 
this section may not exceed the number of children aged 3 through 21 
for whom the agency received fiscal year 1994 funds under subpart 2 of 
Part D of chapter 1 of title I of the Elementary and Secondary 
Education Act of 1965 (as in effect in fiscal year 1994).

(Authority: 20 U.S.C. 1411(g)(3))


Sec. 300.714  Reallocation of LEA funds.

    If an SEA determines that an LEA is adequately providing FAPE to 
all children with disabilities residing in the area served by that 
agency with State and local funds, the SEA may reallocate any portion 
of the funds under Part B of the Act that are not needed by that local 
agency to provide FAPE to other LEAs in the State that are not 
adequately providing special education and related services to all 
children with disabilities residing in the areas they serve.

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


Sec. 300.715  Payments to the Secretary of the Interior for the 
education of Indian children.

    (a) Reserved amounts for Secretary of Interior. From the amount 
appropriated for any fiscal year under 611(j) of the Act, the Secretary 
reserves 1.226 percent to provide assistance to the Secretary of the 
Interior in accordance with this section and Sec. 300.716.
    (b) Provision of amounts for assistance. The Secretary provides 
amounts to the Secretary of the Interior to meet the need for 
assistance for the education of children with disabilities on 
reservations aged 5 to 21, inclusive, enrolled in elementary and 
secondary schools for Indian children operated or funded by the 
Secretary of the Interior. The amount of the payment for any fiscal 
year is equal to 80 percent of the amount allotted under paragraph (a) 
of this section for that fiscal year.
    (c) Calculation of number of children. In the case of Indian 
students aged 3 to 5, inclusive, who are enrolled in programs 
affiliated with the Bureau of Indian Affairs (BIA) schools and that are 
required by the States in which these schools are located to attain or 
maintain State accreditation, and which schools have this accreditation 
prior to the date of enactment of the Individuals with Disabilities 
Education Act Amendments of 1991, the school may count those children 
for the purpose of distribution of the funds provided under this 
section to the Secretary of the Interior.
    (d) Responsibility for meeting the requirements of Part B. The 
Secretary of the Interior shall meet all of the requirements of Part B 
of the Act for the children described in paragraphs (b) and (c) of this 
section, in accordance with Sec. 300.260.

(Authority: 20 U.S.C. 1411(c); 1411(i)(1)(A) and (B))


Sec. 300.716  Payments for education and services for Indian children 
with disabilities aged 3 through 5.

    (a) General. With funds appropriated under 611(j) of the Act, the 
Secretary makes payments to the Secretary of the Interior to be 
distributed to tribes or tribal organizations (as defined under section 
4 of the Indian Self-Determination and Education Assistance Act) or 
consortia of those tribes or tribal organizations to provide for the 
coordination of assistance for special education and related services 
for children with disabilities aged 3 through 5 on reservations served 
by elementary and secondary schools for Indian children operated or 
funded by the Department of the Interior. The amount of the payments 
under paragraph (b) of this section for any fiscal year is equal to 20 
percent of the amount allotted under Sec. 300.715(a).
    (b) Distribution of funds. The Secretary of the Interior shall 
distribute the total amount of the payment under

[[Page 12468]]

paragraph (a) of this section by allocating to each tribe or tribal 
organization an amount based on the number of children with 
disabilities ages 3 through 5 residing on reservations as reported 
annually, divided by the total of those children served by all tribes 
or tribal organizations.
    (c) Submission of information. To receive a payment under this 
section, the tribe or tribal organization shall submit the figures to 
the Secretary of the Interior as required to determine the amounts to 
be allocated under paragraph (b) of this section. This information must 
be compiled and submitted to the Secretary.
    (d) Use of funds. (1) The funds received by a tribe or tribal 
organization must be used to assist in child find, screening, and other 
procedures for the early identification of children aged 3 through 5, 
parent training, and the provision of direct services. These activities 
may be carried out directly or through contracts or cooperative 
agreements with the BIA, LEAs, and other public or private nonprofit 
organizations. The tribe or tribal organization is encouraged to 
involve Indian parents in the development and implementation of these 
activities.
    (2) The entities shall, as appropriate, make referrals to local, 
State, or Federal entities for the provision of services or further 
diagnosis.
    (e) Biennial report. To be eligible to receive a grant pursuant to 
paragraph (a) of this section, the tribe or tribal organization shall 
provide to the Secretary of the Interior a biennial report of 
activities undertaken under this paragraph, including the number of 
contracts and cooperative agreements entered into, the number of 
children contacted and receiving services for each year, and the 
estimated number of children needing services during the two years 
following the one in which the report is made. The Secretary of the 
Interior shall include a summary of this information on a biennial 
basis in the report to the Secretary required under section 611(i) of 
the Act. The Secretary may require any additional information from the 
Secretary of the Interior.
    (f) Prohibitions. None of the funds allocated under this section 
may be used by the Secretary of the Interior for administrative 
purposes, including child count and the provision of technical 
assistance.

(Authority: 20 U.S.C. 1411(i)(3))


Sec. 300.717  Outlying areas and freely associated States.

    From the amount appropriated for any fiscal year under section 
611(j) of the Act, the Secretary reserves not more than one percent, 
which must be used--
    (a) To provide assistance to the outlying areas in accordance with 
their respective populations of individuals aged 3 through 21; and
    (b) For fiscal years 1998 through 2001, to carry out the 
competition described in Sec. 300.719, except that the amount reserved 
to carry out that competition may not exceed the amount reserved for 
fiscal year 1996 for the competition under Part B of the Act described 
under the heading ``SPECIAL EDUCATION'' in Public Law 104-134.

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


Sec. 300.718  Outlying area--definition.

    As used in this part, the term outlying area means the United 
States Virgin Islands, Guam, American Samoa, and the Commonwealth of 
the Northern Mariana Islands.

(Authority: 20 U.S.C. 1402(18))


Sec. 300.719  Limitation for freely associated States.

    (a) Competitive grants. The Secretary uses funds described in 
Sec. 300.717(b) to award grants, on a competitive basis, to Guam, 
American Samoa, the Commonwealth of the Northern Mariana Islands, and 
the freely associated States to carry out the purposes of this part.
    (b) Award basis. The Secretary awards grants under paragraph (a) of 
this section on a competitive basis, pursuant to the recommendations of 
the Pacific Region Educational Laboratory in Honolulu, Hawaii. Those 
recommendations must be made by experts in the field of special 
education and related services.
    (c) Assistance requirements. Any freely associated State that 
wishes to receive funds under Part B of the Act shall include, in its 
application for assistance--
    (1) Information demonstrating that it will meet all conditions that 
apply to States under Part B of the Act;
    (2) An assurance that, notwithstanding any other provision of Part 
B of the Act, it will use those funds only for the direct provision of 
special education and related services to children with disabilities 
and to enhance its capacity to make FAPE available to all children with 
disabilities;
    (3) The identity of the source and amount of funds, in addition to 
funds under Part B of the Act, that it will make available to ensure 
that FAPE is available to all children with disabilities within its 
jurisdiction; and
    (4) Such other information and assurances as the Secretary may 
require.
    (d) Termination of eligibility. Notwithstanding any other provision 
of law, the freely associated States may not receive any funds under 
Part B of the Act for any program year that begins after September 30, 
2001.
    (e) Administrative costs. The Secretary may provide not more than 
five percent of the amount reserved for grants under this section to 
pay the administrative costs of the Pacific Region Educational 
Laboratory under paragraph (b) of this section.
    (f) Eligibility for award. An outlying area is not eligible for a 
competitive award under Sec. 300.719 unless it receives assistance 
under Sec. 300.717(a).

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


Sec. 300.720  Special rule.

    The provisions of Public Law 95-134, permitting the consolidation 
of grants by the outlying areas, do not apply to funds provided to 
those areas or to the freely associated States under Part B of the Act.

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


Sec. 300.721  [Reserved]


Sec. 300.722  Definition.

    As used in this part, the term freely associated States means the 
Republic of the Marshall Islands, the Federated States of Micronesia, 
and the Republic of Palau.

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

Reports


Sec. 300.750  Annual report of children served--report requirement.

    (a) The SEA shall report to the Secretary no later than February 1 
of each year the number of children with disabilities aged 3 through 21 
residing in the State who are receiving special education and related 
services.
    (b) The SEA shall submit the report on forms provided by the 
Secretary.

(Authority: 20 U.S.C. 1411(d)(2); 1418(a))


Sec. 300.751  Annual report of children served--information required in 
the report.

    (a) For any year the SEA shall include in its report a table that 
shows the number of children with disabilities receiving special 
education and related services on December 1, or at the State's 
discretion on the last Friday in October, of that school year--
    (1) Aged 3 through 5;
    (2) Aged 6 through 17; and
    (3) Aged 18 through 21.
    (b) For the purpose of this part, a child's age is the child's 
actual age on the date of the child count: December 1, or, at the 
State's discretion, the last Friday in October.

[[Page 12469]]

    (c) Reports must also include the number of those children with 
disabilities aged 3 through 21 for each year of age (3, 4, 5, etc.) 
within each disability category, as defined in the definition of 
``children with disabilities'' in Sec. 300.7; and
    (d) The Secretary may permit the collection of the data in 
paragraph (c) of this section through sampling.
    (e) The SEA may not report a child under paragraph (c) of this 
section under more than one disability category.
    (f) If a child with a disability has more than one disability, the 
SEA shall report that child under paragraph (c) of this section in 
accordance with the following procedure:
    (1) If a child has only two disabilities and those disabilities are 
deafness and blindness, and the child is not reported as having a 
developmental delay, that child must be reported under the category 
``deaf-blindness''.
    (2) A child who has more than one disability and is not reported as 
having deaf-blindness or as having a developmental delay must be 
reported under the category ``multiple disabilities''.

(Authority: 20 U.S.C. 1411(d)(2); 1418(a) and (b))


Sec. 300.752  Annual report of children served--certification.

    The SEA shall include in its report a certification signed by an 
authorized official of the agency that the information provided under 
Sec. 300.751(a) is an accurate and unduplicated count of children with 
disabilities receiving special education and related services on the 
dates in question.

(Authority: 20 U.S.C. 1411(d)(2); 1417(b))


Sec. 300.753  Annual report of children served--criteria for counting 
children.

    (a) The SEA may include in its report children with disabilities 
who are enrolled in a school or program that is operated or supported 
by a public agency, and that--
    (1) Provides them with both special education and related services 
that meet State standards;
    (2) Provides them only with special education, if a related service 
is not required, that meets State standards; or
    (3) In the case of children with disabilities enrolled by their 
parents in private schools, provides them with special education or 
related services under Secs. 300.452-300.462 that meet State standards.
    (b) The SEA may not include children with disabilities in its 
report who are receiving special education funded solely by the Federal 
Government, including children served by the Department of Interior, 
the Department of Defense, or the Department of Education. However, the 
State may count children covered under Sec. 300.184(c)(2).

(Authority: 20 U.S.C. 1411(d)(2); 1417(b))


Sec. 300.754  Annual report of children served--other responsibilities 
of the SEA.

    In addition to meeting the other requirements of Secs. 300.750-
300.753, the SEA shall--
    (a) Establish procedures to be used by LEAs and other educational 
institutions in counting the number of children with disabilities 
receiving special education and related services;
    (b) Set dates by which those agencies and institutions must report 
to the SEA to ensure that the State complies with Sec. 300.750(a);
    (c) Obtain certification from each agency and institution that an 
unduplicated and accurate count has been made;
    (d) Aggregate the data from the count obtained from each agency and 
institution, and prepare the reports required under Secs. 300.750-
300.753; and
    (e) Ensure that documentation is maintained that enables the State 
and the Secretary to audit the accuracy of the count.

(Authority: 20 U.S.C. 1411(d)(2); 1417(b))


Sec. 300.755  Disproportionality.

    (a) General. Each State that receives assistance under Part B of 
the Act, and the Secretary of the Interior, shall provide for the 
collection and examination of data to determine if significant 
disproportionality based on race is occurring in the State or in the 
schools operated by the Secretary of the Interior with respect to--
    (1) The identification of children as children with disabilities, 
including the identification of children as children with disabilities 
in accordance with a particular impairment described in section 602(3) 
of the Act; and
    (2) The placement in particular educational settings of these 
children.
    (b) Review and revision of policies, practices, and procedures. In 
the case of a determination of significant disproportionality with 
respect to the identification of children as children with 
disabilities, or the placement in particular educational settings of 
these children, in accordance with paragraph (a) of this section, the 
State or the Secretary of the Interior shall provide for the review 
and, if appropriate revision of the policies, procedures, and practices 
used in the identification or placement to ensure that the policies, 
procedures, and practices comply with the requirements of Part B of the 
Act.

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


Sec. 300.756  Acquisition of equipment; construction or alteration of 
facilities.

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

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

Appendix A to Part 300--Notice of Interpretation

I. Involvement and Progress of Each Child With a Disability in the 
General Curriculum

    1. What are the major Part B IEP requirements that govern the 
involvement and progress of children with disabilities in the 
general curriculum?
    2. Must a child's IEP address his or her involvement in the 
general curriculum, regardless of the nature and severity of the 
child's disability and the setting in which the child is educated?
    3. What must public agencies do to meet the requirements at 
Secs. 300.344(a)(2) and 300.346(d) regarding the participation of a 
``regular education teacher'' in the development review, and 
revision of the IEPs, for children age 3 through 5 who are receiving 
special education and related services?
    4. Must the measurable annual goals in a child's IEP address all 
areas of the general curriculum, or only those areas in which the 
child's involvement and progress are affected by the child's 
disability?

II. Involvement of Parents and Students

    5. What is the role of the parents, including surrogate parents, 
in decisions regarding the educational program of their children?
    6. What are the Part B requirements regarding the participation 
of a student (child) with a disability in an IEP meeting?
    7. Must the public agency inform the parents of who will be at 
the IEP meeting?
    8. Do parents have the right to a copy of their child's IEP?
    9. What is a public agency's responsibility if it is not 
possible to reach consensus on what services should be included in a 
child's IEP?

[[Page 12470]]

    10. Does Part B require that public agencies inform parents 
regarding the educational progress of their children with 
disabilities?

III. Preparing Students With Disabilities for Employment and Other 
Post-School Experiences

    11. What must the IEP team do to meet the requirements that the 
IEP include a statement of ``transition service needs'' beginning at 
age 14 (Sec. 300.347(b)(1), and a statement of ``needed transition 
services'' beginning at age 16 (Sec. 300.347(b)(2)?
    12. Must the IEP for each student with a disability, beginning 
no later than age 16, include all ``needed transition services,'' as 
identified by the IEP team and consistent with the definition at 
Sec. 300.29, even if an agency other than the public agency will 
provide those services? What is the public agency's responsibility 
if another agency fails to provide agreed-upon transition services?
    13. Under what circumstances must a public agency invite 
representatives from other agencies to an IEP meeting at which a 
child's need for transition services will be considered?

IV. Other Questions Regarding Implementation of Idea

    14. For a child with a disability receiving special education 
for the first time, when must an IEP be developed--before placement 
or after placement?
    15. Who is responsible for ensuring the development of IEPs for 
children with disabilities served by a public agency other than an 
LEA?
    16. For a child placed out of State by an educational or non-
educational State or local agency, is the placing or receiving State 
responsible for the child's IEP?
    17. If a disabled child has been receiving special education 
from one public agency and transfers to another public agency in the 
same State, must the new public agency develop an IEP before the 
child can be placed in a special education program?
    18. What timelines apply to the development and implementation 
of an initial IEP for a child with a disability?
    19. Must a public agency hold separate meetings to determine a 
child's eligibility for special education and related services, 
develop the child's IEP, and determine the child's placement, or may 
the agency meet all of these requirements in a single meeting?
    20. How frequently must a public agency conduct meetings to 
review, and if appropriate revise, the IEP for each child with a 
disability?
    21. May IEP meetings be audio or video-tape-recorded?
    22. Who can serve as the representative of the public agency at 
an IEP meeting?
    23. For a child with a disability being considered for initial 
placement in special education, which teacher or teachers should 
attend the IEP meeting?
    24. What is the role of a regular education teacher in the 
development, review, and revision of the IEP for a child who is, or 
may be, participating in the regular education environment?
    25. If a child with a disability attends several regular 
classes, must all of the child's regular education teachers be 
members of the child's IEP team?
    26. How should a public agency determine which regular education 
teacher and special education teacher will members of the IEP team 
for a particular child with a disability?
    27. For a child whose primary disability is a speech impairment, 
may a public agency meet its responsibility under Sec. 300.344(a)(3) 
to ensure that the IEP team includes ``at least one special 
education teacher, or, if appropriate, at least one special 
education provider of the child'' by including a speech-language 
pathologist on the IEP team?
    28. Do public agencies and parents have the option of having any 
individual of their choice attend a child's IEP meeting as 
participants on their child's IEP team?
    29. Can parents or public agencies bring their attorneys to IEP 
meetings, and, if so under what circumstances? Are attorney's fees 
available for parents' attorneys if the parents are prevailing 
parties in actions or proceedings brought under Part B?
    30. Must related services personnel attend IEP meetings?
    31. Must the public agency ensure that all services specified in 
a child's IEP are provided?
    32. Is it permissible for an agency to have the IEP completed 
before the IEP meeting begins?
    33. Must a public agency include transportation in a child's IEP 
as a related service?
    34. Must a public agency provide related services that are 
required to assist a child with a disability to benefit from special 
education, whether or not those services are included in the list of 
related services in Sec. 300.24?
    35. Must the IEP specify the amount of services or may it simply 
list the services to be provided?
    36. Under what circumstances is a public agency required to 
permit a child with a disability to use a school-purchased assistive 
technology device in the child's home or in another setting?
    37. Can the IEP team also function as the group making the 
placement decision for a child with a disability?
    38. If a child's IEP includes behavioral strategies to address a 
particular behavior, can a child ever be suspended for engaging in 
that behavior?
    39. If a child's behavior in the regular classroom, even with 
appropriate interventions, would significantly impair the learning 
of others, can the group that makes the placement decision determine 
that placement in the regular classroom is inappropriate for that 
child?
    40. May school personnel during a school year implement more 
than one short-term removal of a child with disabilities from his or 
her classroom or school for misconduct?
    Authority: Part B of the Individuals with Disabilities Education 
Act (20 U.S.C. 1401, et seq.), unless otherwise noted.

Individualized Education Programs (IEPS) and Other Selected 
ImplementatioN Issues

    Interpretation of IEP and Other selected Requirements under Part 
B of the Individuals with Disabilities Education Act (IDEA; Part B)

Introduction

    The IEP requirements under Part B of the IDEA emphasize the 
importance of three core concepts: (1) the involvement and progress 
of each child with a disability in the general curriculum including 
addressing the unique needs that arise out of the child's 
disability; (2) the involvement of parents and students, together 
with regular and special education personnel, in making individual 
decisions to support each student's (child's) educational success, 
and (3) the preparation of students with disabilities for employment 
and other post-school activities.
    The first three sections of this Appendix (I-III) provide 
guidance regarding the IEP requirements as they relate to the three 
core concepts described above. Section IV addresses other questions 
regarding the development and content of IEPs, including questions 
about the timelines and responsibility for developing and 
implementing IEPs, participation in IEP meetings, and IEP content. 
Section IV also addresses questions on other selected requirements 
under IDEA.

I. Involvement and Progress of Each Child With a Disability in the 
General Curriculum

    In enacting the IDEA Amendments of 1997, the Congress found that 
research, demonstration, and practice over the past 20 years in 
special education and related disciplines have demonstrated that an 
effective educational system now and in the future must maintain 
high academic standards and clear performance goals for children 
with disabilities, consistent with the standards and expectations 
for all students in the educational system, and provide for 
appropriate and effective strategies and methods to ensure that 
students who are children with disabilities have maximum 
opportunities to achieve those standards and goals. [Section 
651(a)(6)(A) of the Act.]
    Accordingly, the evaluation and IEP provisions of Part B place 
great emphasis on the involvement and progress of children with 
disabilities in the general curriculum. (The term ``general 
curriculum,'' as used in these regulations, including this Appendix, 
refers to the curriculum that is used with nondisabled children.)
    While the Act and regulations recognize that IEP teams must make 
individualized decisions about the special education and related 
services, and supplementary aids and services, provided to each 
child with a disability, they are driven by IDEA's strong preference 
that, to the maximum extent appropriate, children with disabilities 
be educated in regular classes with their nondisabled peers with 
appropriate supplementary aids and services.
    In many cases, children with disabilities will need appropriate 
supports in order to successfully progress in the general 
curriculum, participate in State and district-wide assessment 
programs, achieve the measurable goals in their IEPs, and be 
educated together with their nondisabled peers. Accordingly, the Act 
requires the IEP team to determine, and the public agency to

[[Page 12471]]

provide, the accommodations, modifications, supports, and 
supplementary aids and services, needed by each child with a 
disability to successfully be involved in and progress in the 
general curriculum achieve the goals of the IEP, and successfully 
demonstrate his or her competencies in State and district-wide 
assessments.
    1. What are the major Part B IEP requirements that govern the 
involvement and progress of children with disabilities in the 
general curriculum?

Present Levels of Educational Performance

    Section 300.347(a)(1) requires that the IEP for each child with 
a disability include ``* * * a statement of the child's present 
levels of educational performance, including--(i) how the child's 
disability affects the child's involvement and progress in the 
general curriculum; or (ii) for preschool children, as appropriate, 
how the child's disability affects the child's participation in 
appropriate activities * * *'' (``Appropriate activities'' in this 
context refers to age-relevant developmental abilities or milestones 
that typically developing children of the same age would be 
performing or would have achieved.)
    The IEP team's determination of how each child's disability 
affects the child's involvement and progress in the general 
curriculum is a primary consideration in the development of the 
child's IEP. In assessing children with disabilities, school 
districts may use a variety of assessment techniques to determine 
the extent to which these children can be involved and progress in 
the general curriculum, such as criterion-referenced tests, standard 
achievement tests, diagnostic tests, other tests, or any combination 
of the above.
    The purpose of using these assessments is to determine the 
child's present levels of educational performance and areas of need 
arising from the child's disability so that approaches for ensuring 
the child's involvement and progress in the general curriculum and 
any needed adaptations or modifications to that curriculum can be 
identified.
    Measurable Annual Goals, including Benchmarks or Short-term 
ojectives
    Measurable annual goals, including benchmarks or short-term 
objectives, are critical to the strategic planning process used to 
develop and implement the IEP for each child with a disability. Once 
the IEP team has developed measurable annual goals for a child, the 
team (1) can develop strategies that will be most effective in 
realizing those goals and (2) must develop either measurable, 
intermediate steps (short-term objectives) or major milestones 
(benchmarks) that will enable parents, students, and educators to 
monitor progress during the year, and, if appropriate, to revise the 
IEP consistent with the student's instructional needs.
    The strong emphasis in Part B on linking the educational program 
of children with disabilities to the general curriculum is reflected 
in Sec. 300.347(a)(2), which requires that the IEP include:

a statement of measurable annual goals, including benchmarks or 
short-term objectives, related to--(i) meeting the child's needs 
that result from the child's disability to enable the child to be 
involved in and progress in the general curriculum; and (ii) meeting 
each of the child's other educational needs that result from the 
child's disability.
    As noted above, each annual goal must include either short-term 
objectives or benchmarks. The purpose of both is to enable a child's 
teacher(s), parents, and others involved in developing and 
implementing the child's IEP, to gauge, at intermediate times during 
the year, how well the child is progressing toward achievement of 
the annual goal. IEP teams may continue to develop short-term 
instructional objectives, that generally break the skills described 
in the annual goal down into discrete components. The revised 
statute and regulations also provide that, as an alternative, IEP 
teams may develop benchmarks, which can be thought of as describing 
the amount of progress the child is expected to make within 
specified segments of the year. Generally, benchmarks establish 
expected performance levels that allow for regular checks of 
progress that coincide with the reporting periods for informing 
parents of their child's progress toward achieving the annual goals. 
An IEP team may use either short term objectives or benchmarks or a 
combination of the two depending on the nature of the annual goals 
and the needs of the child.

Special Education and Related Services and Supplementary Aids and 
Services

    The requirements regarding services provided to address a 
child's present levels of educational performance and to make 
progress toward the identified goals reinforce the emphasis on 
progress in the general curriculum, as well as maximizing the extent 
to which children with disabilities are educated with nondisabled 
children. Section 300.347(a)(3) requires that the IEP include:

a statement of the special education and related services and 
supplementary aids and services to be provided to the child, or on 
behalf of the child, and a statement of the program modifications or 
supports for school personnel that will be provided for the child--
(i) to advance appropriately toward attaining the annual goals; (ii) 
to be involved and progress in the general curriculum * * * and to 
participate in extracurricular and other nonacademic activities; and 
(iii) to be educated and participate with other children with 
disabilities and nondisabled children in [extracurricular and other 
nonacademic activities] * * * [Italics added.]

Extent to Which Child Will Participate With Nondisabled Children

    Section 300.347(a)(4) requires that each child's IEP include 
``An explanation of the extent, if any, to which the child will not 
participate with nondisabled children in the regular class and in 
[extracurricular and other nonacademic] activities * * *'' This is 
consistent with the least restrictive environment (LRE) provisions 
at Secs. 300.550-300.553, which include requirements that:
    (1) each child with a disability be educated with nondisabled 
children to the maximum extent appropriate (Sec. 300.550(b)(1));
    (2) each child with a disability be removed from the regular 
educational environment only when the nature or severity of the 
child's disability is such that education in regular classes with 
the use of supplementary aids and services cannot be achieved 
satisfactorily (Sec. 300.550(b)(1)); and
    (3) to the maximum extent appropriate to the child's needs, each 
child with a disability participates with nondisabled children in 
nonacademic and extracurricular services and activities 
(Sec. 300.553).
    All services and educational placements under Part B must be 
individually determined in light of each child's unique abilities 
and needs, to reasonably promote the child's educational success. 
Placing children with disabilities in this manner should enable each 
disabled child to meet high expectations in the future.
    Although Part B requires that a child with a disability not be 
removed from the regular educational environment if the child's 
education can be achieved satisfactorily in regular classes with the 
use of supplementary aids and services, Part B's LRE principle is 
intended to ensure that a child with a disability is served in a 
setting where the child can be educated successfully. Even though 
IDEA does not mandate regular class placement for every disabled 
student, IDEA presumes that the first placement option considered 
for each disabled student by the student's placement team, which 
must include the parent, is the school the child would attend if not 
disabled, with appropriate supplementary aids and services to 
facilitate such placement. Thus, before a disabled child can be 
placed outside of the regular educational environment, the full 
range of supplementary aids and services that if provided would 
facilitate the student's placement in the regular classroom setting 
must be considered. Following that consideration, if a determination 
is made that particular disabled student cannot be educated 
satisfactorily in the regular educational environment, even with the 
provision of appropriate supplementary aids and services, that 
student then could be placed in a setting other than the regular 
classroom. Later, if it becomes apparent that the child's IEP can be 
carried out in a less restrictive setting, with the provision of 
appropriate supplementary aids and services, if needed, Part B would 
require that the child's placement be changed from the more 
restrictive setting to a less restrictive setting. In all cases, 
placement decisions must be individually determined on the basis of 
each child's abilities and needs, and not solely on factors such as 
category of disability, significance of disability, availability of 
special education and related services, configuration of the service 
delivery system, availability of space, or administrative 
convenience. Rather, each student's IEP forms the basis for the 
placement decision.
    Further, a student need not fail in the regular classroom before 
another placement can be considered. Conversely, IDEA does not 
require that a student demonstrate achievement of a specific 
performance level as a prerequisite for placement into a regular 
classroom.

[[Page 12472]]

Participation in State or District-Wide Assessments of Student 
Achievement

    Consistent with Sec. 300.138(a), which sets forth a presumption 
that children with disabilities will be included in general State 
and district-wide assessment programs, and provided with appropriate 
accommodations if necessary, Sec. 300.347(a)(5) requires that the 
IEP for each student with a disability include: ``(i) a statement of 
any individual modifications in the administration of State or 
district-wide assessments of student achievement that are needed in 
order for the child to participate in the assessment; and (ii) if 
the IEP team determines that the child will not participate in a 
particular State or district-wide assessment of student achievement 
(or part of an assessment of student achievement), a statement of--
(A) Why that assessment is not appropriate for the child; and (B) 
How the child will be assessed.''

Regular Education Teacher Participation in the Development, Review, 
and Revision of IEPs

    Very often, regular education teachers play a central role in 
the education of children with disabilities (H. Rep. No. 105-95, p. 
103 (1997); S. Rep. No. 105-17, p. 23 (1997)) and have important 
expertise regarding the general curriculum and the general education 
environment. Further, with the emphasis on involvement and progress 
in the general curriculum added by the IDEA Amendments of 1997, 
regular education teachers have an increasingly critical role 
(together with special education and related services personnel) in 
implementing the program of FAPE for most children with 
disabilities, as described in their IEPs.
    Accordingly, the IDEA Amendments of 1997 added a requirement 
that each child's IEP team must include at least one regular 
education teacher of the child, if the child is, or may be, 
participating in the regular education environment (see 
Sec. 300.344(a)(2)). (See also Secs. 300.346(d) on the role of a 
regular education teacher in the development, review and revision of 
IEPs.)
    2. Must a child's IEP address his or her involvement in the 
general curriculum, regardless of the nature and severity of the 
child's disability and the setting in which the child is educated?
    Yes. The IEP for each child with a disability (including 
children who are educated in separate classrooms or schools) must 
address how the child will be involved and progress in the general 
curriculum. However, the Part B regulations recognize that some 
children have other educational needs resulting from their 
disability that also must be met, even though those needs are not 
directly linked to participation in the general curriculum.
    Accordingly, Sec. 300.347(a)(1)(2) requires that each child's 
IEP include:
    A statement of measurable annual goals, including benchmarks or 
short-term objectives related to--(i) Meeting the child's needs that 
result from the child's disability to enable the child to be 
involved in and progress in the general curriculum; and (ii) meeting 
each of the child's other educational needs that result from the 
child's disability. [Italics added.]
    Thus, the IEP team for each child with a disability must make an 
individualized determination regarding (1) how the child will be 
involved and progress in the general curriculum and what needs that 
result from the child's disability must be met to facilitate that 
participation; (2) whether the child has any other educational needs 
resulting from his or her disability that also must be met; and (3) 
what special education and other services and supports must be 
described in the child's IEP to address both sets of needs 
(consistent with Sec. 300.347(a)). For example, if the IEP team 
determines that in order for a child who is deaf to participate in 
the general curriculum he or she needs sign language and materials 
which reflect his or her language development, those needs (relating 
to the child's participation in the general curriculum) must be 
addressed in the child's IEP. In addition, if the team determines 
that the child also needs to expand his or her vocabulary in sign 
language that service must also be addressed in the applicable 
components of the child's IEP. The IEP team may also wish to 
consider whether there is a need for members of the child's family 
to receive training in sign language in order for the child to 
receive FAPE.
    3. What must public agencies do to meet the requirements at 
Secs. 300.344(a)(2) and 300.346(d) regarding the participation of a 
``regular education teacher'' in the development, review, and 
revision of IEPs, for children aged 3 through 5 who are receiving 
preschool special education services?
    If a public agency provides ``regular education'' preschool 
services to non-disabled children, then the requirements of 
Secs. 300.344(a)(2) and 300.346(d) apply as they do in the case of 
older children with disabilities. If a public agency makes 
kindergarten available to nondisabled children, then a regular 
education kindergarten teacher could appropriately be the regular 
education teacher who would be a member of the IEP team, and, as 
appropriate, participate in IEP meetings, for a kindergarten-aged 
child who is, or may be, participating in the regular education 
environment.
    If a public agency does not provide regular preschool education 
services to nondisabled children, the agency could designate an 
individual who, under State standards, is qualified to serve 
nondisabled children of the same age.
    4. Must the measurable annual goals in a child's IEP address all 
areas of the general curriculum, or only those areas in which the 
child's involvement and progress are affected by the child's 
disability?
    Section 300.347(a)(2) requires that each child's IEP include ``A 
statement of measurable annual goals, including benchmarks or short-
term objectives, related to--(i) meeting the child's needs that 
result from the child's disability to enable the child to be 
involved in and progress in the general curriculum * * *; and (ii) 
meeting each of the child's other educational needs that result from 
the child's disability. . . .'' (Italics added).
    Thus, a public agency is not required to include in an IEP 
annual goals that relate to areas of the general curriculum in which 
the child's disability does not affect the child's ability to be 
involved in and progress in the general curriculum. If a child with 
a disability needs only modifications or accommodations in order to 
progress in an area of the general curriculum, the IEP does not need 
to include a goal for that area; however, the IEP would need to 
specify those modifications or accommodations.
    Public agencies often require all children, including children 
with disabilities, to demonstrate mastery in a given area of the 
general curriculum before allowing them to progress to the next 
level or grade in that area. Thus, in order to ensure that each 
child with a disability can effectively demonstrate competencies in 
an applicable area of the general curriculum, it is important for 
the IEP team to consider the accommodations and modifications that 
the child needs to assist him or her in demonstrating progress in 
that area.

II. Involvement of Parents and Students

    The Congressional Committee Reports on the IDEA Amendments of 
1997 express the view that the Amendments provide an opportunity for 
strengthening the role of parents, and emphasize that one of the 
purposes of the Amendments is to expand opportunities for parents 
and key public agency staff (e.g., special education, related 
services, regular education, and early intervention service 
providers, and other personnel) to work in new partnerships at both 
the State and local levels (H. Rep. 105-95, p. 82 (1997); S. Rep. 
No. 105-17, p. 4 and 5 (1997)). Accordingly, the IDEA Amendments of 
1997 require that parents have an opportunity to participate in 
meetings with respect to the identification, evaluation, and 
educational placement of the child, and the provision of FAPE to the 
child. (Sec. 300.501(a)(2)). Thus, parents must now be part of: (1) 
the group that determines what additional data are needed as part of 
an evaluation of their child (Sec. 300.533(a)(1)); (2) the team that 
determines their child's eligibility (Sec. 300.534(a)(1)); and (3) 
the group that makes decisions on the educational placement of their 
child (Sec. 300.501(c)).
    In addition, the concerns of parents and the information that 
they provide regarding their children must be considered in 
developing and reviewing their children's IEPs 
(Secs. 300.343(c)(iii) and 300.346(a)(1)(i) and (b)); and the 
requirements for keeping parents informed about the educational 
progress of their children, particularly as it relates to their 
progress in the general curriculum, have been strengthened 
(Sec. 300.347(a)(7)).
    The IDEA Amendments of 1997 also contain provisions that greatly 
strengthen the involvement of students with disabilities in 
decisions regarding their own futures, to facilitate movement from 
school to post-school activities. For example, those amendments (1) 
retained, essentially verbatim, the ``transition services'' 
requirements from the IDEA Amendments of 1990 (which provide that a 
statement of needed transition services must be in the IEP of each 
student with a disability, beginning no later than age 16); and (2) 
significantly

[[Page 12473]]

expanded those provisions by adding a new annual requirement for the 
IEP to include ``transition planning'' activities for students 
beginning at age 14. (See section IV of this appendix for a 
description of the transition services requirements and definition.)
    With respect to student involvement in decisions regarding 
transition services, Sec. 300.344(b) provides that (1) ``the public 
agency shall invite a student with a disability of any age to attend 
his or her IEP meeting if a purpose of the meeting will be the 
consideration of--(i) The student's transition services needs under 
Sec. 300.347(b)(1); or (ii) The needed transition services for the 
student under Sec. 300.347(b)(2); or (iii) Both;'' and (2) ``If the 
student does not attend the IEP meeting, the public agency shall 
take other steps to ensure that the student's preferences and 
interests are considered.'' (Sec. 300.344(b)(2)).
    The IDEA Amendments of 1997 also give States the authority to 
elect to transfer the rights accorded to parents under Part B to 
each student with a disability upon reaching the age of majority 
under State law (if the student has not been determined incompetent 
under State law) (Sec. 300.517). (Part B requires that if the rights 
transfer to the student, the public agency must provide any notice 
required under Part B to both the student and the parents.) If the 
State elects to provide for the transfer of rights from the parents 
to the student at the age of majority, the IEP must, beginning at 
least one year before a student reaches the age of majority under 
State law, include a statement that the student has been informed of 
any rights that will transfer to him or her upon reaching the age of 
majority. (Sec. 300.347(c)).
    The IDEA Amendments of 1997 also permit, but do not require, 
States to establish a procedure for appointing the parent, or 
another appropriate individual if the parent is not available, to 
represent the educational interests of a student with a disability 
who has reached the age of majority under State law and has not been 
determined to be incompetent, but who is determined not to have the 
ability to provide informed consent with respect to his or her 
educational program.
    5. What is the role of the parents, including surrogate parents, 
in decisions regarding the educational program of their children?
    The parents of a child with a disability are expected to be 
equal participants along with school personnel, in developing, 
reviewing, and revising the IEP for their child. This is an active 
role in which the parents (1) provide critical information regarding 
the strengths of their child and express their concerns for 
enhancing the education of their child; (2) participate in 
discussions about the child's need for special education and related 
services and supplementary aids and services; and (3) join with the 
other participants in deciding how the child will be involved and 
progress in the general curriculum and participate in State and 
district-wide assessments, and what services the agency will provide 
to the child and in what setting.
    As previously noted in the introduction to section II of this 
Appendix, Part B specifically provides that parents of children with 
disabilities--
     Have an opportunity to participate in meetings with 
respect to the identification, evaluation, and educational placement 
of their child, and the provision of FAPE to the child (including 
IEP meetings) (Secs. 300.501(b), 300.344(a)(1), and 300.517;
     Be part of the groups that determine what additional 
data are needed as part of an evaluation of their child 
(Sec. 300.533(a)(1)), and determine their child's eligibility 
(Sec. 300.534(a)(1)) and educational placement (Sec. 300.501(c));
     Have their concerns and the information that they 
provide regarding their child considered in developing and reviewing 
their child's IEPs (Secs. 300.343(c)(iii) and 300.346(a)(1)(i) and 
(b)); and
     Be regularly informed (by such means as periodic report 
cards), as specified in their child's IEP, at least as often as 
parents are informed of their nondisabled children's progress, of 
their child's progress toward the annual goals in the IEP and the 
extent to which that progress is sufficient to enable the child to 
achieve the goals by the end of the year (Sec. 300.347(a)(7)).
    A surrogate parent is a person appointed to represent the 
interests of a child with a disability in the educational decision-
making process when no parent (as defined at Sec. 300.20) is known, 
the agency, after reasonable efforts, cannot locate the child's 
parents, or the child is a ward of the State under the laws of the 
State. A surrogate parent has all of the rights and responsibilities 
of a parent under Part B (Sec. 300.515.)
    6. What are the Part B requirements regarding the participation 
of a student (child) with a disability in an IEP meeting?
    If a purpose of an IEP meeting for a student with a disability 
will be the consideration of the student's transition services needs 
or needed transition services under Sec. 300.347(b)(1) or (2), or 
both, the public agency must invite the student and, as part of the 
notification to the parents of the IEP meeting, inform the parents 
that the agency will invite the student to the IEP meeting.
    If the student does not attend, the public agency must take 
other steps to ensure that the student's preferences and interests 
are considered. (See Sec. 300.344(b)).
    Section Sec. 300.517 permits, but does not require, States to 
transfer procedural rights under Part B from the parents to students 
with disabilities who reach the age of majority under State law, if 
they have not been determined to be incompetent under State law. If 
those rights are to be transferred from the parents to the student, 
the public agency would be required to ensure that the student has 
the right to participate in IEP meetings set forth for parents in 
Sec. 300.345. However, at the discretion of the student or the 
public agency, the parents also could attend IEP meetings as ``* * * 
individuals who have knowledge or special expertise regarding the 
child * * *'' (see Sec. 300.344(a)(6)).
    In other circumstances, a child with a disability may attend 
``if appropriate.'' (Sec. 300.344(a)(7)). Generally, a child with a 
disability should attend the IEP meeting if the parent decides that 
it is appropriate for the child to do so. If possible, the agency 
and parents should discuss the appropriateness of the child's 
participation before a decision is made, in order to help the 
parents determine whether or not the child's attendance would be (1) 
helpful in developing the IEP or (2) directly beneficial to the 
child or both. The agency should inform the parents before each IEP 
meeting--as part of notification under Sec. 300.345(a)(1)--that they 
may invite their child to participate.
    7. Must the public agency inform the parents of who will be at 
the IEP meeting?
    Yes. In notifying parents about the meeting, the agency ``must 
indicate the purpose, time, and location of the meeting, and who 
will be in attendance.'' (Sec. 300.345(b), italics added.) In 
addition, if a purpose of the IEP meeting will be the consideration 
of a student's transition services needs or needed transition 
services under Sec. 300.347(b)(1) or (2) or both, the notice must 
also inform the parents that the agency is inviting the student, and 
identify any other agency that will be invited to send a 
representative.
    The public agency also must inform the parents of the right of 
the parents and the agency to invite other individuals who have 
knowledge or special expertise regarding the child, including 
related services personnel as appropriate to be members of the IEP 
team. (Sec. 300.345(b)(1)(ii).)
    It also may be appropriate for the agency to ask the parents to 
inform the agency of any individuals the parents will be bringing to 
the meeting. Parents are encouraged to let the agency know whom they 
intend to bring. Such cooperation can facilitate arrangements for 
the meeting, and help ensure a productive, child-centered meeting.
    8. Do parents have the right to a copy of their child's IEP?
    Yes. Section 300.345(f) states that the public agency shall give 
the parent a copy of the IEP at no cost to the parent.
    9. What is a public agency's responsibility if it is not 
possible to reach consensus on what services should be included in a 
child's IEP?
    The IEP meeting serves as a communication vehicle between 
parents and school personnel, and enables them, as equal 
participants, to make joint, informed decisions regarding the (1) 
child's needs and appropriate goals; (2) extent to which the child 
will be involved in the general curriculum and participate in the 
regular education environment and State and district-wide 
assessments; and (3) services needed to support that involvement and 
participation and to achieve agreed-upon goals. Parents are 
considered equal partners with school personnel in making these 
decisions, and the IEP team must consider the parents' concerns and 
the information that they provide regarding their child in 
developing, reviewing, and revising IEPs (Secs. 300.343(c)(iii) and 
300.346(a)(1) and (b)).
    The IEP team should work toward consensus, but the public agency 
has ultimate responsibility to ensure that the IEP includes the 
services that the child needs in order to receive FAPE. It is not 
appropriate to make IEP decisions based upon a majority ``vote.'' If 
the team cannot reach consensus, the public agency must provide the 
parents

[[Page 12474]]

with prior written notice of the agency's proposals or refusals, or 
both, regarding the child's educational program, and the parents 
have the right to seek resolution of any disagreements by initiating 
an impartial due process hearing.
    Every effort should be made to resolve differences between 
parents and school staff through voluntary mediation or some other 
informal step, without resort to a due process hearing. However, 
mediation or other informal procedures may not be used to deny or 
delay a parent's right to a due process hearing, or to deny any 
other rights afforded under Part B.
    10. Does Part B require that public agencies inform parents 
regarding the educational progress of their children with 
disabilities?
    Yes. The Part B statute and regulations include a number of 
provisions to help ensure that parents are involved in decisions 
regarding, and are informed about, their child's educational 
progress, including the child's progress in the general curriculum. 
First, the parents will be informed regarding their child's present 
levels of educational performance through the development of the 
IEP. Section 300.347(a)(1) requires that each IEP include:
    * * * A statement of the child's present levels of educational 
performance, including--(i) how the child's disability affects the 
child's involvement and progress in the general curriculum; or (ii) 
for preschool children, as appropriate, how the disability affects 
the child's participation in appropriate activities * * *
    Further, Sec. 300.347(a)(7) sets forth new requirements for 
regularly informing parents about their child's educational 
progress, as regularly as parents of nondisabled children are 
informed of their child's progress. That section requires that the 
IEP include:
    A statement of--(i) How the child's progress toward the annual 
goals * * * will be measured; and (ii) how the child's parents will 
be regularly informed (by such means as periodic report cards), at 
least as often as parents are informed of their nondisabled 
children's progress, of--(A) their child's progress toward the 
annual goals; and (B) the extent to which that progress is 
sufficient to enable the child to achieve the goals by the end of 
the year.
    One method that public agencies could use in meeting this 
requirement would be to provide periodic report cards to the parents 
of students with disabilities that include both (1) the grading 
information provided for all children in the agency at the same 
intervals; and (2) the specific information required by 
Sec. 300.347(a)(7)(ii)(A) and (B).
    Finally, the parents, as part of the IEP team, will participate 
at least once every 12 months in a review of their child's 
educational progress. Section 300.343(c) requires that a public 
agency initiate and conduct a meeting, at which the IEP team:
    * * * (1) Reviews the child's IEP periodically, but not less 
than annually to determine whether the annual goals for the child 
are being achieved; and (2) revises the IEP as appropriate to 
address--(i) any lack of expected progress toward the annual goals * 
* * and in the general curriculum, if appropriate; (ii) The results 
of any reevaluation * * *; (iii) Information about the child 
provided to, or by, the parents * * *; (iv) The child's anticipated 
needs; or (v) Other matters.

III. Preparing Students With Disabilities for Employment and Other 
Post-School Experiences

    One of the primary purposes of the IDEA is to ``* * * ensure 
that all children with disabilities have available to them a free 
appropriate public education that emphasizes special education and 
related services designed to meet their unique needs and prepare 
them for employment and independent living * * *'' (Sec. 300.1(a)). 
Section 701 of the Rehabilitation Act of 1973 describes the 
philosophy of independent living as including a philosophy of 
consumer control, peer support, self-help, self-determination, equal 
access, and individual and system advocacy, in order to maximize the 
leadership, empowerment, independence, and productivity of 
individuals with disabilities, and the integration and full 
inclusion of individuals with disabilities into the mainstream of 
American society. Because many students receiving services under 
IDEA will also receive services under the Rehabilitation Act, it is 
important, in planning for their future, to consider the impact of 
both statutes.
    Similarly, one of the key purposes of the IDEA Amendments of 
1997 was to ``promote improved educational results for children with 
disabilities through early intervention, preschool, and educational 
experiences that prepare them for later educational challenges and 
employment.'' (H. Rep. No. 105-95, p. 82 (1997); S. Rep. No. 105-17, 
p. 4 (1997)).
    Thus, throughout their preschool, elementary, and secondary 
education, the IEPs for children with disabilities must, to the 
extent appropriate for each individual child, focus on providing 
instruction and experiences that enable the child to prepare himself 
or herself for later educational experiences and for post-school 
activities, including formal education, if appropriate, employment, 
and independent living. Many students with disabilities will obtain 
services through State vocational rehabilitation programs to ensure 
that their educational goals are effectively implemented in post-
school activities. Services available through rehabilitation 
programs are consistent with the underlying purpose of IDEA.
    Although preparation for adult life is a key component of FAPE 
throughout the educational experiences of students with 
disabilities, Part B sets forth specific requirements related to 
transition planning and transition services that must be implemented 
no later than ages 14 and 16, respectively, and which require an 
intensified focus on that preparation as these students begin and 
prepare to complete their secondary education.
    11. What must the IEP team do to meet the requirements that the 
IEP include ``a statement of * * * transition service needs'' 
beginning at age 14 (Sec. 300.347(b)(1)(i)),'' and a statement of 
needed transition services'' no later than age 16 
(Sec. 300.347(b)(2)?
    Section 300.347(b)(1) requires that, beginning no later than age 
14, each student's IEP include specific transition-related content, 
and, beginning no later than age 16, a statement of needed 
transition services:
    Beginning at age 14 and younger if appropriate, and updated 
annually, each student's IEP must include:

    ``* * * a statement of the transition service needs of the 
student under the applicable components of the student's IEP that 
focuses on the student's courses of study (such as participation in 
advanced-placement courses or a vocational education program)'' 
(Sec. 300.347(b)(1)(i)).
    Beginning at age 16 (or younger, if determined appropriate by 
the IEP team), each student's IEP must include:

``* * * a statement of needed transition services for the student, 
including, if appropriate, a statement of the interagency 
responsibilities or any needed linkages.'' (Sec. 300.347(b)(2)).
    The Committee Reports on the IDEA Amendments of 1997 make clear 
that the requirement added to the statute in 1997 that beginning at 
age 14, and updated annually, the IEP include ``a statement of the 
transition service needs'' is ``* * * designed to augment, and not 
replace,'' the separate, preexisting requirement that the IEP 
include, ``* * * beginning at age 16 (or younger, if determined 
appropriate by the IEP team), a statement of needed transition 
services * * *'' (H. Rep. No. 105-95, p. 102 (1997); S. Rep. No. 
105-17, p. 22 (1997)). As clarified by the Reports, ``The purpose of 
[the requirement in Sec. 300.347(b)(1)(i)] is to focus attention on 
how the child's educational program can be planned to help the child 
make a successful transition to his or her goals for life after 
secondary school.'' (H. Rep. No. 105-95, pp. 101-102 (1997); S. Rep. 
No. 105-17, p. 22 (1997)). The Reports further explain that ``[F]or 
example, for a child whose transition goal is a job, a transition 
service could be teaching the child how to get to the job site on 
public transportation.'' (H. Rep. No. 105-95, p. 102 (1997); S. Rep. 
No. 105-17, p. 22 (1997)).
    Thus, beginning at age 14, the IEP team, in determining 
appropriate measurable annual goals (including benchmarks or short-
term objectives) and services for a student, must determine what 
instruction and educational experiences will assist the student to 
prepare for transition from secondary education to post-secondary 
life.
    The statement of transition service needs should relate directly 
to the student's goals beyond secondary education, and show how 
planned studies are linked to these goals. For example, a student 
interested in exploring a career in computer science may have a 
statement of transition services needs connected to technology 
course work, while another student's statement of transition 
services needs could describe why public bus transportation training 
is important for future independence in the community.
    Although the focus of the transition planning process may shift 
as the student approaches graduation, the IEP team must discuss 
specific areas beginning at least at the age of 14 years and review 
these areas annually. As noted in the Committee Reports, a 
disproportionate number of students with disabilities drop out of 
school before they

[[Page 12475]]

complete their secondary education: ``Too many students with 
disabilities are failing courses and dropping out of school. Almost 
twice as many students with disabilities drop out as compared to 
students without disabilities.'' (H. Rep. No. 105-95, p. 85 (1997), 
S. Rep. No. 105-17, p. 5 (1997).)
    To help reduce the number of students with disabilities that 
drop out, it is important that the IEP team work with each student 
with a disability and the student's family to select courses of 
study that will be meaningful to the student's future and motivate 
the student to complete his or her education.
    This requirement is distinct from the requirement, at 
Sec. 300.347(b)(2), that the IEP include:

* * * beginning at age 16 (or younger, if determined appropriate by 
the IEP team), a statement of needed transition services for the 
child, including, if appropriate, a statement of the interagency 
responsibilities or any needed linkages.
    The term ``transition services'' is defined at Sec. 300.29 to 
mean:

* * * a coordinated set of activities for a student with a 
disability that--(1) Is designed within an outcome-oriented process, 
that promotes movement from school to post-school activities, 
including postsecondary education, vocational training, integrated 
employment (including supported employment), continuing and adult 
education, adult services, independent living, or community 
participation; (2) Is based on the individual student's needs, 
taking into account the student's preferences and interests; and (3) 
Includes--(i) Instruction; (ii) Related services; (iii) Community 
experiences; (iv) The development of employment and other post-
school adult living objectives; and (v) If appropriate, acquisition 
of daily living skills and functional vocational evaluation.
    Thus, while Sec. 300.347(b)(1) requires that the IEP team begin 
by age 14 to address the student's need for instruction that will 
assist the student to prepare for transition, the IEP must include 
by age 16 a statement of needed transition services under 
Sec. 300.347(b)(2) that includes a ``coordinated set of activities * 
* *, designed within an outcome-oriented process, that promotes 
movement from school to post-school activities * * *.'' 
(Sec. 300.29) Section 300.344(b)(3) further requires that, in 
implementing Sec. 300.347(b)(1), public agencies (in addition to 
required participants for all IEP meetings), must also invite a 
representative of any other agency that is likely to be responsible 
for providing or paying for transition services. Thus, 
Sec. 300.347(b)(2) requires a broader focus on coordination of 
services across, and linkages between, agencies beyond the SEA and 
LEA.
    12. Must the IEP for each student with a disability, beginning 
no later than age 16, include all ``needed transition services,'' as 
identified by the IEP team and consistent with the definition at 
Sec. 300.29, even if an agency other than the public agency will 
provide those services? What is the public agency's responsibility 
if another agency fails to provide agreed-upon transition services?
    Section 300.347(b)(2) requires that the IEP for each child with 
a disability, beginning no later than age 16, or younger if 
determined appropriate by the IEP team, include all ``needed 
transition services,'' as identified by the IEP team and consistent 
with the definition at Sec. 300.29, regardless of whether the public 
agency or some other agency will provide those services. Section 
300.347(b)(2) specifically requires that the statement of needed 
transition services include, ``* * * if appropriate, a statement of 
the interagency responsibilities or any needed linkages.''
    Further, the IDEA Amendments of 1997 also permit an LEA to use 
up to five percent of the Part B funds it receives in any fiscal 
year in combination with other amounts, which must include amounts 
other than education funds, to develop and implement a coordinated 
services system. These funds may be used for activities such as: (1) 
linking IEPs under Part B and Individualized Family Service Plans 
(IFSPs) under Part C, with Individualized Service Plans developed 
under multiple Federal and State programs, such as Title I of the 
Rehabilitation Act; and (2) developing and implementing interagency 
financing strategies for the provision of services, including 
transition services under Part B.
    The need to include, as part of a student's IEP, transition 
services to be provided by agencies other than the public agency is 
contemplated by Sec. 300.348(a), which specifies what the public 
agency must do if another agency participating in the development of 
the statement of needed transition services fails to provide a 
needed transition service that it had agreed to provide.
    If an agreed-upon service by another agency is not provided, the 
public agency responsible for the student's education must implement 
alternative strategies to meet the student's needs. This requires 
that the public agency provide the services, or convene an IEP 
meeting as soon as possible to identify alternative strategies to 
meet the transition services objectives, and to revise the IEP 
accordingly.
    Alternative strategies might include the identification of 
another funding source, referral to another agency, the public 
agency's identification of other district-wide or community 
resources that it can use to meet the student's identified needs 
appropriately, or a combination of these strategies. As emphasized 
by Sec. 300.348(b), however:
    Nothing in [Part B] relieves any participating agency, including 
a State vocational rehabilitation agency, of the responsibility to 
provide or pay for any transition service that the agency would 
otherwise provide to students with disabilities who meet the 
eligibility criteria of that agency.
    However, the fact that an agency other than the public agency 
does not fulfill its responsibility does not relieve the public 
agency of its responsibility to ensure that FAPE is available to 
each student with a disability. (Section 300.142(b)(2) specifically 
requires that if an agency other than the LEA fails to provide or 
pay for a special education or related service (which could include 
a transition service), the LEA must, without delay, provide or pay 
for the service, and may then claim reimbursement from the agency 
that failed to provide or pay for the service.)
    13. Under what circumstances must a public agency invite 
representatives from other agencies to an IEP meeting at which a 
child's need for transition services will be considered?
    Section 300.344 requires that, ``In implementing the 
requirements of [Sec. 300.347(b)(1)(ii) requiring a statement of 
needed transition services], the public agency shall also invite a 
representative of any other agency that is likely to be responsible 
for providing or paying for transition services.'' To meet this 
requirement, the public agency must identify all agencies that are 
``likely to be responsible for providing or paying for transition 
services'' for each student addressed by Sec. 300.347(b)(1), and 
must invite each of those agencies to the IEP meeting; and if an 
agency invited to send a representative to a meeting does not do so, 
the public agency must take other steps to obtain the participation 
of that agency in the planning of any transition services.
    If, during the course of an IEP meeting, the team identifies 
additional agencies that are ``likely to be responsible for 
providing or paying for transition services'' for the student, the 
public agency must determine how it will meet the requirements of 
Sec. 300.344.

IV. Other Questions Regarding the Development and Content of IEPS

    14. For a child with a disability receiving special education 
for the first time, when must an IEP be developed--before or after 
the child begins to receive special education and related services?
    Section 300.342(b)(1) requires that an IEP be ``in effect before 
special education and related services are provided to an eligible 
child * * *'' (Italics added.)
    The appropriate placement for a particular child with a 
disability cannot be determined until after decisions have been made 
about the child's needs and the services that the public agency will 
provide to meet those needs. These decisions must be made at the IEP 
meeting, and it would not be permissible first to place the child 
and then develop the IEP. Therefore, the IEP must be developed 
before placement. (Further, the child's placement must be based, 
among other factors, on the child's IEP.)
    This requirement does not preclude temporarily placing an 
eligible child with a disability in a program as part of the 
evaluation process--before the IEP is finalized--to assist a public 
agency in determining the appropriate placement for the child. 
However, it is essential that the temporary placement not become the 
final placement before the IEP is finalized. In order to ensure that 
this does not happen, the State might consider requiring LEAs to 
take the following actions:
    a. Develop an interim IEP for the child that sets out the 
specific conditions and timelines for the trial placement. (See 
paragraph c, following.)
    b. Ensure that the parents agree to the interim placement before 
it is carried out, and that they are involved throughout the

[[Page 12476]]

process of developing, reviewing, and revising the child's IEP.
    c. Set a specific timeline (e.g., 30 days) for completing the 
evaluation, finalizing the IEP, and determining the appropriate 
placement for the child.
    d. Conduct an IEP meeting at the end of the trial period in 
order to finalize the child's IEP.
    15. Who is responsible for ensuring the development of IEPs for 
children with disabilities served by a public agency other than an 
LEA?
    The answer as to which public agency has direct responsibility 
for ensuring the development of IEPs for children with disabilities 
served by a public agency other than an LEA will vary from State to 
State, depending upon State law, policy, or practice. The SEA is 
ultimately responsible for ensuring that all Part B requirements, 
including the IEP requirements, are met for eligible children within 
the State, including those children served by a public agency other 
than an LEA. Thus, the SEA must ensure that every eligible child 
with a disability in the State has FAPE available, regardless of 
which State or local agency is responsible for educating the child. 
(The only exception to this responsibility is that the SEA is not 
responsible for ensuring that FAPE is made available to children 
with disabilities who are convicted as adults under State law and 
incarcerated in adult prisons, if the State has assigned that 
responsibility to a public agency other than the SEA. (See 
Sec. 300.600(d)).
    Although the SEA has flexibility in deciding the best means to 
meet this obligation (e.g., through interagency agreements), the SEA 
must ensure that no eligible child with a disability is denied FAPE 
due to jurisdictional disputes among agencies.
    When an LEA is responsible for the education of a child with a 
disability, the LEA remains responsible for developing the child's 
IEP, regardless of the public or private school setting into which 
it places the child.
    16. For a child placed out of State by an educational or non-
educational State or local agency, is the placing or receiving State 
responsible for the child's IEP?
    Regardless of the reason for the placement, the ``placing'' 
State is responsible for ensuring that the child's IEP is developed 
and that it is implemented. The determination of the specific agency 
in the placing State that is responsible for the child's IEP would 
be based on State law, policy, or practice. However, the SEA in the 
placing State is ultimately responsible for ensuring that the child 
has FAPE available.
    17. If a disabled child has been receiving special education 
from one public agency and transfers to another public agency in the 
same State, must the new public agency develop an IEP before the 
child can be placed in a special education program?
    If a child with a disability moves from one public agency to 
another in the same State, the State and its public agencies have an 
ongoing responsibility to ensure that FAPE is made available to that 
child. This means that if a child moves to another public agency the 
new agency is responsible for ensuring that the child has available 
special education and related services in conformity with an IEP.
    The new public agency must ensure that the child has an IEP in 
effect before the agency can provide special education and related 
services. The new public agency may meet this responsibility by 
either adopting the IEP the former public agency developed for the 
child or by developing a new IEP for the child. (The new public 
agency is strongly encouraged to continue implementing the IEP 
developed by the former public agency, if appropriate, especially if 
the parents believe their child was progressing appropriately under 
that IEP.)
    Before the child's IEP is finalized, the new public agency may 
provide interim services agreed to by both the parents and the new 
public agency. If the parents and the new public agency are unable 
to agree on an interim IEP and placement, the new public agency must 
implement the old IEP to the extent possible until a new IEP is 
developed and implemented.
    In general, while the new public agency must conduct an IEP 
meeting, it would not be necessary if: (1) A copy of the child's 
current IEP is available; (2) the parents indicate that they are 
satisfied with the current IEP; and (3) the new public agency 
determines that the current IEP is appropriate and can be 
implemented as written.
    If the child's current IEP is not available, or if either the 
new public agency or the parent believes that it is not appropriate, 
the new public agency must develop a new IEP through appropriate 
procedures within a short time after the child enrolls in the new 
public agency (normally, within one week).
    18. What timelines apply to the development and implementation 
of an initial IEP for a child with a disability?
    Section 300.343(b) requires each public agency to ensure that 
within a reasonable period of time following the agency's receipt of 
parent consent to an initial evaluation of a child, the child is 
evaluated and, if determined eligible, special education and related 
services are made available to the child in accordance with an IEP. 
The section further requires the agency to conduct a meeting to 
develop an IEP for the child within 30 days of determining that the 
child needs special education and related services.
    Section 300.342(b)(2) provides that an IEP must be implemented 
as soon as possible following the meeting in which the IEP is 
developed.
    19. Must a public agency hold separate meetings to determine a 
child's eligibility for special education and related services, 
develop the child's IEP, and determine the child's placement, or may 
the agency meet all of these requirements in a single meeting?
    A public agency may, after a child is determined by ``a group of 
qualified professionals and the parent'' (see Sec. 300.534(a)(1)) to 
be a child with a disability, continue in the same meeting to 
develop an IEP for the child and then to determine the child's 
placement. However, the public agency must ensure that it meets: (1) 
the requirements of Sec. 300.535 regarding eligibility decisions; 
(2) all of the Part B requirements regarding meetings to develop 
IEPs (including providing appropriate notification to the parents, 
consistent with the requirements of Secs. 300.345, 300.503, and 
300.504, and ensuring that all the required team members participate 
in the development of the IEP, consistent with the requirements of 
Sec. 300.344;) and (3) ensuring that the placement is made by the 
required individuals, including the parent, as required by 
Secs. 300.552 and 300.501(c).
    20. How frequently must a public agency conduct meetings to 
review, and, if appropriate, revise the IEP for each child with a 
disability?
    A public agency must initiate and conduct meetings periodically, 
but at least once every twelve months, to review each child's IEP, 
in order to determine whether the annual goals for the child are 
being achieved, and to revise the IEP, as appropriate, to address: 
(a) Any lack of expected progress toward the annual goals and in the 
general curriculum, if appropriate; (b) the results of any 
reevaluation; (c) information about the child provided to, or by, 
the parents; (d) the child's anticipated needs; or (e) other matters 
(Sec. 300.343(c)).
    A public agency also must ensure that an IEP is in effect for 
each child at the beginning of each school year (Sec. 300.342(a)). 
It may conduct IEP meetings at any time during the year. However, if 
the agency conducts the IEP meeting prior to the beginning of the 
next school year, it must ensure that the IEP contains the necessary 
special education and related services and supplementary aids and 
services to ensure that the student's IEP can be appropriately 
implemented during the next school year. Otherwise, it would be 
necessary for the public agency to conduct another IEP meeting.
    Although the public agency is responsible for determining when 
it is necessary to conduct an IEP meeting, the parents of a child 
with a disability have the right to request an IEP meeting at any 
time. For example, if the parents believe that the child is not 
progressing satisfactorily or that there is a problem with the 
child's current IEP, it would be appropriate for the parents to 
request an IEP meeting.
    If a child's teacher feels that the child's IEP or placement is 
not appropriate for the child, the teacher should follow agency 
procedures with respect to: (1) calling or meeting with the parents 
or (2) requesting the agency to hold another IEP meeting to review 
the child's IEP.
    The legislative history of Public Law 94-142 makes it clear that 
there should be as many meetings a year as any one child may need 
(121 Cong. Rec. S20428-29 (Nov. 19, 1975) (remarks of Senator 
Stafford)). Public agencies should grant any reasonable parent 
request for an IEP meeting. For example, if the parents question the 
adequacy of services that are provided while their child is 
suspended for short periods of time, it would be appropriate to 
convene an IEP meeting.
    In general, if either a parent or a public agency believes that 
a required component of the student's IEP should be changed, the 
public agency must conduct an IEP meeting if it believes that a 
change in the IEP may be necessary to ensure the provision of FAPE.
    If a parent requests an IEP meeting because the parent believes 
that a change is needed

[[Page 12477]]

in the provision of FAPE to the child or the educational placement 
of the child, and the agency refuses to convene an IEP meeting to 
determine whether such a change is needed, the agency must provide 
written notice to the parents of the refusal, including an 
explanation of why the agency has determined that conducting the 
meeting is not necessary to ensure the provision of FAPE to the 
student.
    Under Sec. 300.507(a), the parents or agency may initiate a due 
process hearing at any time regarding any proposal or refusal 
regarding the identification, evaluation, or educational placement 
of the child, or the provision of FAPE to the child, and the public 
agency must inform parents about the availability of mediation.
    21. May IEP meetings be audio- or video-tape-recorded?
    Part B does not address the use of audio or video recording 
devices at IEP meetings, and no other Federal statute either 
authorizes or prohibits the recording of an IEP meeting by either a 
parent or a school official. Therefore, an SEA or public agency has 
the option to require, prohibit, limit, or otherwise regulate the 
use of recording devices at IEP meetings.
    If a public agency has a policy that prohibits or limits the use 
of recording devices at IEP meetings, that policy must provide for 
exceptions if they are necessary to ensure that the parent 
understands the IEP or the IEP process or to implement other 
parental rights guaranteed under Part B. An SEA or school district 
that adopts a rule regulating the tape recording of IEP meetings 
also should ensure that it is uniformly applied.
    Any recording of an IEP meeting that is maintained by the public 
agency is an ``education record,'' within the meaning of the Family 
Educational Rights and Privacy Act (``FERPA''; 20 U.S.C. 1232g), and 
would, therefore, be subject to the confidentiality requirements of 
the regulations under both FERPA (34 CFR part 99) and part B 
(Secs. 300.560-300.575).
    Parents wishing to use audio or video recording devices at IEP 
meetings should consult State or local policies for further 
guidance.
    22. Who can serve as the representative of the public agency at 
an IEP meeting?
    The IEP team must include a representative of the public agency 
who: (a) Is qualified to provide, or supervise the provision of, 
specially designed instruction to meet the unique needs of children 
with disabilities; (b) is knowledgeable about the general 
curriculum; and (c) is knowledgeable about the availability of 
resources of the public agency (Sec. 300.344(a)(4)).
    Each public agency may determine which specific staff member 
will serve as the agency representative in a particular IEP meeting, 
so long as the individual meets these requirements. It is important, 
however, that the agency representative have the authority to commit 
agency resources and be able to ensure that whatever services are 
set out in the IEP will actually be provided.
    A public agency may designate another public agency member of 
the IEP team to also serve as the agency representative, so long as 
that individual meets the requirements of Sec. 300.344(a)(4).
    23. For a child with a disability being considered for initial 
provision of special education and related services, which teacher 
or teachers should attend the IEP meeting?
    A child's IEP team must include at least one of the child's 
regular education teachers (if the child is, or may be participating 
in the regular education environment) and at least one of the 
child's special education teachers, or, if appropriate, at least one 
of the child's special education providers (Sec. 300.344(a)(2) and 
(3)).
    Each IEP must include a statement of the present levels of 
educational performance, including a statement of how the child's 
disability affects the child's involvement and progress in the 
general curriculum (Sec. 300.347(a)(1)). At least one regular 
education teacher is a required member of the IEP team of a child 
who is, or may be, participating in the regular educational 
environment, regardless of the extent of that participation.
    The requirements of Sec. 300.344(a)(3) can be met by either: (1) 
a special education teacher of the child; or (2) another special 
education provider of the child, such as a speech pathologist, 
physical or occupational therapist, etc., if the related service 
consists of specially designed instruction and is considered special 
education under applicable State standards.
    Sometimes more than one meeting is necessary in order to 
finalize a child's IEP. In this process, if the special education 
teacher or special education provider who will be working with the 
child is identified, it would be useful to have that teacher or 
provider participate in the meeting with the parents and other 
members of the IEP team in finalizing the IEP. If this is not 
possible, the public agency must ensure that the teacher or provider 
has access to the child's IEP as soon as possible after it is 
finalized and before beginning to work with the child.
    Further, (consistent with Sec. 300.342(b)), the public agency 
must ensure that each regular education teacher, special education 
teacher, related services provider and other service provider of an 
eligible child under this part (1) has access to the child's IEP, 
and (2) is informed of his or her specific responsibilities related 
to implementing the IEP, and of the specific accommodations, 
modifications, and supports that must be provided to the child in 
accordance with the IEP. This requirement is crucial to ensuring 
that each child receives FAPE in accordance with his or her IEP, and 
that the IEP is appropriately and effectively implemented.
    24. What is the role of a regular education teacher in the 
development, review and revision of the IEP for a child who is, or 
may be, participating in the regular education environment?
    As required by Sec. 300.344(a)(2), the IEP team for a child with 
a disability must include at least one regular education teacher of 
the child if the child is, or may be, participating in the regular 
education environment. Section 300.346(d) further specifies that the 
regular education teacher of a child with a disability, as a member 
of the IEP team, must, to the extent appropriate, participate in the 
development, review, and revision of the child's IEP, including 
assisting in--(1) the determination of appropriate positive 
behavioral interventions and strategies for the child; and (2) the 
determination of supplementary aids and services, program 
modifications, and supports for school personnel that will be 
provided for the child, consistent with 300.347(a)(3) 
(Sec. 300.344(d)).
    Thus, while a regular education teacher must be a member of the 
IEP team if the child is, or may be, participating in the regular 
education environment, the teacher need not (depending upon the 
child's needs and the purpose of the specific IEP team meeting) be 
required to participate in all decisions made as part of the meeting 
or to be present throughout the entire meeting or attend every 
meeting. For example, the regular education teacher who is a member 
of the IEP team must participate in discussions and decisions about 
how to modify the general curriculum in the regular classroom to 
ensure the child's involvement and progress in the general 
curriculum and participation in the regular education environment.
    Depending upon the specific circumstances, however, it may not 
be necessary for the regular education teacher to participate in 
discussions and decisions regarding, for example, the physical 
therapy needs of the child, if the teacher is not responsible for 
implementing that portion of the child's IEP.
    In determining the extent of the regular education teacher's 
participation at IEP meetings, public agencies and parents should 
discuss and try to reach agreement on whether the child's regular 
education teacher that is a member of the IEP team should be present 
at a particular IEP meeting and, if so, for what period of time. The 
extent to which it would be appropriate for the regular education 
teacher member of the IEP team to participate in IEP meetings must 
be decided on a case-by-case basis.
    25. If a child with a disability attends several regular 
classes, must all of the child's regular education teachers be 
members of the child's IEP team?
    No. The IEP team need not include more than one regular 
education teacher of the child. If the participation of more than 
one regular education teacher would be beneficial to the child's 
success in school (e.g., in terms of enhancing the child's 
participation in the general curriculum), it would be appropriate 
for them to attend the meeting.
    26. How should a public agency determine which regular education 
teacher and special education teacher will be members of the IEP 
team for a particular child with a disability?
    The regular education teacher who serves as a member of a 
child's IEP team should be a teacher who is, or may be, responsible 
for implementing a portion of the IEP, so that the teacher can 
participate in discussions about how best to teach the child.
    If the child has more than one regular education teacher 
responsible for carrying out a portion of the IEP, the LEA may 
designate which teacher or teachers will serve as IEP team 
member(s), taking into account the best interest of the child.
    In a situation in which not all of the child's regular education 
teachers are members of

[[Page 12478]]

the child's IEP team, the LEA is strongly encouraged to seek input 
from the teachers who will not be attending. In addition, 
(consistent with Sec. 300.342(b)), the LEA must ensure that each 
regular education teacher (as well as each special education 
teacher, related services provider, and other service provider) of 
an eligible child under this part (1) has access to the child's IEP, 
and (2) is informed of his or her specific responsibilities related 
to implementing the IEP, and of the specific accommodations, 
modifications and supports that must be provided to the child in 
accordance with the IEP.
    In the case of a child whose behavior impedes the learning of 
the child or others, the LEA is encouraged to have a regular 
education teacher or other person knowledgeable about positive 
behavior strategies at the IEP meeting. This is especially important 
if the regular education teacher is expected to carry out portions 
of the IEP.
    Similarly, the special education teacher or provider of the 
child who is a member of the child's IEP team should be the person 
who is, or will be, responsible for implementing the IEP. If, for 
example, the child's disability is a speech impairment, the special 
education teacher on the IEP team could be the speech-language 
pathologist.
    27. For a child whose primary disability is a speech impairment, 
may a public agency meet its responsibility under Sec. 300.344(a)(3) 
to ensure that the IEP team includes ``at least one special 
education teacher, or, if appropriate, at least one special 
education provider of the child'' by including a speech-language 
pathologist on the IEP team?
    Yes, if speech is considered special education under State 
standards. As with other children with disabilities, the IEP team 
must also include at least one of the child's regular education 
teachers if the child is, or may be, participating in the regular 
education environment.
    28. Do parents and public agencies have the option of inviting 
any individual of their choice be participants on their child's IEP 
team?
    The IEP team may, at the discretion of the parent or the agency, 
include ``other individuals who have knowledge or special expertise 
regarding the child * * *'' (Sec. 300.344(a)(6), italics added). 
Under Sec. 300.344(a)(6), these individuals are members of the IEP 
team. This is a change from prior law, which provided, without 
qualification, that parents or agencies could have other individuals 
as members of the IEP team at the discretion of the parents or 
agency.
    Under Sec. 300.344(c), the determination as to whether an 
individual has knowledge or special expertise, within the meaning of 
Sec. 300.344(a)(6), shall be made by the parent or public agency who 
has invited the individual to be a member of the IEP team.
    Part B does not provide for including individuals such as 
representatives of teacher organizations as part of an IEP team, 
unless they are included because of knowledge or special expertise 
regarding the child. (Because a representative of a teacher 
organization would generally be concerned with the interests of the 
teacher rather than the interests of the child, and generally would 
not possess knowledge or expertise regarding the child, it generally 
would be inappropriate for such an official to be a member of the 
IEP team or to otherwise participate in an IEP meeting.)
    29. Can parents or public agencies bring their attorneys to IEP 
meetings, and, if so under what circumstances? Are attorney's fees 
available for parents' attorneys if the parents are prevailing 
parties in actions or proceedings brought under Part B?
    Section 300.344(a)(6) authorizes the addition to the IEP team of 
other individuals at the discretion of the parent or the public 
agency only if those other individuals have knowledge or special 
expertise regarding the child. The determination of whether an 
attorney possesses knowledge or special expertise regarding the 
child would have to be made on a case-by-case basis by the parent or 
public agency inviting the attorney to be a member of the team.
    The presence of the agency's attorney could contribute to a 
potentially adversarial atmosphere at the meeting. The same is true 
with regard to the presence of an attorney accompanying the parents 
at the IEP meeting. Even if the attorney possessed knowledge or 
special expertise regarding the child (Sec. 300.344(a)(6)), an 
attorney's presence would have the potential for creating an 
adversarial atmosphere that would not necessarily be in the best 
interests of the child.
    Therefore, the attendance of attorneys at IEP meetings should be 
strongly discouraged. Further, as specified in Section 
615(i)(3)(D)(ii) of the Act and Sec. 300.513(c)(2)(ii), Attorneys' 
fees may not be awarded relating to any meeting of the IEP team 
unless the meeting is convened as a result of an administrative 
proceeding or judicial action, or, at the discretion of the State, 
for a mediation conducted prior to the request for a due process 
hearing.
    30. Must related services personnel attend IEP meetings?
    Although Part B does not expressly require that the IEP team 
include related services personnel as part of the IEP team 
(Sec. 300.344(a)), it is appropriate for those persons to be 
included if a particular related service is to be discussed as part 
of the IEP meeting. Section 300.344(a)(6) provides that the IEP team 
also includes ``at the discretion of the parent or the agency, other 
individuals who have knowledge or special expertise regarding the 
child, including related services personnel as appropriate. * * *'' 
(Italics added.)
    Further, Sec. 300.344(a)(3) requires that the IEP team for each 
child with a disability include ``at least one special education 
teacher, or, if appropriate, at least one special education provider 
of the child * * *'' This requirement can be met by the 
participation of either (1) a special education teacher of the 
child, or (2) another special education provider such as a speech-
language pathologist, physical or occupational therapist, etc., if 
the related service consists of specially designed instruction and 
is considered special education under the applicable State standard.
    If a child with a disability has an identified need for related 
services, it would be appropriate for the related services personnel 
to attend the meeting or otherwise be involved in developing the 
IEP. As explained in the Committee Reports on the IDEA Amendments of 
1997, ``Related services personnel should be included on the team 
when a particular related service will be discussed at the request 
of the child's parents or the school.'' (H. Rep. No. 105-95, p. 103 
(1997); S. Rep. No. 105-17, p. 23 (1997)). For example, if the 
child's evaluation indicates the need for a specific related service 
(e.g., physical therapy, occupational therapy, special 
transportation services, school social work services, school health 
services, or counseling), the agency should ensure that a qualified 
provider of that service either (1) attends the IEP meeting, or (2) 
provides a written recommendation concerning the nature, frequency, 
and amount of service to be provided to the child. This written 
recommendation could be a part of the evaluation report.
    A public agency must ensure that all individuals who are 
necessary to develop an IEP that will meet the child's unique needs, 
and ensure the provision of FAPE to the child, participate in the 
child's IEP meeting.
    31. Must the public agency ensure that all services specified in 
a child's IEP are provided?
    Yes. The public agency must ensure that all services set forth 
in the child's IEP are provided, consistent with the child's needs 
as identified in the IEP. The agency may provide each of those 
services directly, through its own staff resources; indirectly, by 
contracting with another public or private agency; or through other 
arrangements. In providing the services, the agency may use whatever 
State, local, Federal, and private sources of support are available 
for those purposes (see Sec. 300.301(a)); but the services must be 
at no cost to the parents, and the public agency remains responsible 
for ensuring that the IEP services are provided in a manner that 
appropriately meets the student's needs as specified in the IEP. The 
SEA and responsible public agency may not allow the failure of 
another agency to provide service(s) described in the child's IEP to 
deny or delay the provision of FAPE to the child. (See Sec. 300.142, 
Methods of ensuring services.)
    32. Is it permissible for an agency to have the IEP completed 
before the IEP meeting begins?
    No. Agency staff may come to an IEP meeting prepared with 
evaluation findings and proposed recommendations regarding IEP 
content, but the agency must make it clear to the parents at the 
outset of the meeting that the services proposed by the agency are 
only recommendations for review and discussion with the parents. 
Parents have the right to bring questions, concerns, and 
recommendations to an IEP meeting as part of a full discussion, of 
the child's needs and the services to be provided to meet those 
needs before the IEP is finalized.
    Public agencies must ensure that, if agency personnel bring 
drafts of some or all of the IEP content to the IEP meeting, there 
is a full discussion with the child's parents, before

[[Page 12479]]

the child's IEP is finalized, regarding drafted content and the 
child's needs and the services to be provided to meet those needs.
    33. Must a public agency include transportation in a child's IEP 
as a related service?
    As with other related services, a public agency must provide 
transportation as a related service if it is required to assist the 
disabled child to benefit from special education. (This includes 
transporting a preschool-aged child to the site at which the public 
agency provides special education and related services to the child, 
if that site is different from the site at which the child receives 
other preschool or day care services.)
    In determining whether to include transportation in a child's 
IEP, and whether the child needs to receive transportation as a 
related service, it would be appropriate to have at the IEP meeting 
a person with expertise in that area. In making this determination, 
the IEP team must consider how the child's disability affects the 
child's need for transportation, including determining whether the 
child's disability prevents the child from using the same 
transportation provided to nondisabled children, or from getting to 
school in the same manner as nondisabled children.
    The public agency must ensure that any transportation service 
included in a child's IEP as a related service is provided at public 
expense and at no cost to the parents, and that the child's IEP 
describes the transportation arrangement.
    Even if a child's IEP team determines that the child does not 
require transportation as a related service, Section 504 of the 
Rehabilitation Act of 1973, as amended, requires that the child 
receive the same transportation provided to nondisabled children. If 
a public agency transports nondisabled children, it must transport 
disabled children under the same terms and conditions. However, if a 
child's IEP team determines that the child does not need 
transportation as a related service, and the public agency 
transports only those children whose IEPs specify transportation as 
a related service, and does not transport nondisabled children, the 
public agency would not be required to provide transportation to a 
disabled child.
    It should be assumed that most children with disabilities 
receive the same transportation services as nondisabled children. 
For some children with disabilities, integrated transportation may 
be achieved by providing needed accommodations such as lifts and 
other equipment adaptations on regular school transportation 
vehicles.
    34. Must a public agency provide related services that are 
required to assist a child with a disability to benefit from special 
education, whether or not those services are included in the list of 
related services in Sec. 300.24?
    The list of related services is not exhaustive and may include 
other developmental, corrective, or supportive services if they are 
required to assist a child with a disability to benefit from special 
education. This could, depending upon the unique needs of a child, 
include such services as nutritional services or service 
coordination.
    These determinations must be made on an individual basis by each 
child's IEP team.
    35. Must the IEP specify the amount of services or may it simply 
list the services to be provided?
    The amount of services to be provided must be stated in the IEP, 
so that the level of the agency's commitment of resources will be 
clear to parents and other IEP team members (Sec. 300.347(a)(6)). 
The amount of time to be committed to each of the various services 
to be provided must be (1) appropriate to the specific service, and 
(2) stated in the IEP in a manner that is clear to all who are 
involved in both the development and implementation of the IEP.
    The amount of a special education or related service to be 
provided to a child may be stated in the IEP as a range (e.g., 
speech therapy to be provided three times per week for 30-45 minutes 
per session) only if the IEP team determines that stating the amount 
of services as a range is necessary to meet the unique needs of the 
child. For example, it would be appropriate for the IEP to specify, 
based upon the IEP team's determination of the student's unique 
needs, that particular services are needed only under specific 
circumstances, such as the occurrence of a seizure or of a 
particular behavior. A range may not be used because of personnel 
shortages or uncertainty regarding the availability of staff.
    36. Under what circumstances is a public agency required to 
permit a child with a disability to use a school-purchased assistive 
technology device in the child's home or in another setting?
    Each child's IEP team must consider the child's need for 
assistive technology (AT) in the development of the child's IEP 
(Sec. 300.346(a)(2)(v)); and the nature and extent of the AT devices 
and services to be provided to the child must be reflected in the 
child's IEP (Sec. 300.346(c)).
    A public agency must permit a child to use school-purchased 
assistive technology devices at home or in other settings, if the 
IEP team determines that the child needs access to those devices in 
nonschool settings in order to receive FAPE (to complete homework, 
for example).
    Any assistive technology devices that are necessary to ensure 
FAPE must be provided at no cost to the parents, and the parents 
cannot be charged for normal use, wear and tear. However, while 
ownership of the devices in these circumstances would remain with 
the public agency, State law, rather than Part B, generally would 
govern whether parents are liable for loss, theft, or damage due to 
negligence or misuse of publicly owned equipment used at home or in 
other settings in accordance with a child's IEP.
    37. Can the IEP team also function as the group making the 
placement decision for a child with a disability?
    Yes, a public agency may use the IEP team to make the placement 
decision for a child, so long as the group making the placement 
decision meets the requirements of Secs. 300.552 and 300.501(c), 
which requires that the placement decision be made by a group of 
persons, including the parents, and other persons knowledgeable 
about the child, the meaning of the evaluation data, and the 
placement options.
    38. If a child's IEP includes behavioral strategies to address a 
particular behavior, can a child ever be suspended for engaging in 
that behavior?
    If a child's behavior impedes his or her learning or that of 
others, the IEP team, in developing the child's IEP, must consider, 
if appropriate, development of strategies, including positive 
behavioral interventions, strategies and supports to address that 
behavior, consistent with Sec. 300.346(a)(2)(i). This means that in 
most cases in which a child's behavior that impedes his or her 
learning or that of others is, or can be readily anticipated to be, 
repetitive, proper development of the child's IEP will include the 
development of strategies, including positive behavioral 
interventions, strategies and supports to address that behavior. See 
Sec. 300.346(c). This includes behavior that could violate a school 
code of conduct. A failure to, if appropriate, consider and address 
these behaviors in developing and implementing the child's IEP would 
constitute a denial of FAPE to the child. Of course, in appropriate 
circumstances, the IEP team, which includes the child's parents, 
might determine that the child's behavioral intervention plan 
includes specific regular or alternative disciplinary measures, such 
as denial of certain privileges or short suspensions, that would 
result from particular infractions of school rules, along with 
positive behavior intervention strategies and supports, as a part of 
a comprehensive plan to address the child's behavior. Of course, if 
short suspensions that are included in a child's IEP are being 
implemented in a manner that denies the child access to the ability 
to progress in the educational program, the child would be denied 
FAPE.
    Whether other disciplinary measures, including suspension, are 
ever appropriate for behavior that is addressed in a child's IEP 
will have to be determined on a case by case basis in light of the 
particular circumstances of that incident. However, school personnel 
may not use their ability to suspend a child for 10 days or less at 
a time on multiple occasions in a school year as a means of avoiding 
appropriately considering and addressing the child's behavior as a 
part of providing FAPE to the child.
    39. If a child's behavior in the regular classroom, even with 
appropriate interventions, would significantly impair the learning 
of others, can the group that makes the placement decision determine 
that placement in the regular classroom is inappropriate for that 
child?
    The IEP team, in developing the IEP, is required to consider, 
when appropriate, strategies, including positive behavioral 
interventions, strategies and supports to address the behavior of a 
child with a disability whose behavior impedes his or her learning 
or that of others. If the IEP team determines that such supports, 
strategies or interventions are necessary to address the behavior of 
the child, those services must be included in the child's IEP. These 
provisions are designed to foster increased participation of 
children with disabilities in regular

[[Page 12480]]

education environments or other less restrictive environments, not 
to serve as a basis for placing children with disabilities in more 
restrictive settings.
    The determination of appropriate placement for a child whose 
behavior is interfering with the education of others requires 
careful consideration of whether the child can appropriately 
function in the regular classroom if provided appropriate behavioral 
supports, strategies and interventions. If the child can 
appropriately function in the regular classroom with appropriate 
behavioral supports, strategies or interventions, placement in a 
more restrictive environment would be inconsistent with the least 
restrictive environment provisions of the IDEA. If the child's 
behavior in the regular classroom, even with the provision of 
appropriate behavioral supports, strategies or interventions, would 
significantly impair the learning of others, that placement would 
not meet his or her needs and would not be appropriate for that 
child.
    40. May school personnel during a school year implement more 
than one short-term removal of a child with disabilities from his or 
her classroom or school for misconduct?
    Yes. Under Sec. 300.520(a)(1), school personnel may order 
removal of a child with a disability from the child's current 
placement for not more than 10 consecutive school days for any 
violation of school rules, and additional removals of not more than 
10 consecutive school days in that same school year for separate 
incidents of misconduct, as long as these removals do not constitute 
a change of placement under Sec. 300.519(b). However, these removals 
are permitted only to the extent they are consistent with discipline 
that is applied to children without disabilities. Also, school 
personnel should be aware of constitutional due process protections 
that apply to suspensions of all children. Goss v. Lopez, 419 U.S. 
565 (1975). Section 300.121(d) addresses the extent of the 
obligation to provide services after a child with a disability has 
been removed from his or her current placement for more than 10 
school days in the same school year.

BILLING CODE: 4000-01-P

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BILLING CODE 4000-01-C

PART 303--EARLY INTERVENTION PROGRAM FOR INFANTS AND TODDLERS WITH 
DISABILITIES

    2. The authority citation for part 303 continues to read as 
follows:

    Authority: 20 U.S.C. 1431-1445, unless otherwise noted.


Sec. 303.1  [Amended]

    3. Section 303.1 is amended by removing the word ``program'' in 
paragraph (a), and adding, in its place, ``system.''


Sec. 303.4  [Amended]

    4. Section 303.4 is amended by revising the authority citation to 
read as follows:

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

    5. Section 303.5 is amended by adding ``, and'' at the end of 
paragraph (a)(1)(vi), by revising paragraph (a)(3), and by revising the 
authority citation to read as follows:


Sec. 303.5  Applicable regulations.

* * * * *
    (a) * * *
    (3) The following regulations in 34 CFR part 300 (Assistance to 
States for the Education of Children with Disabilities Program): 
Secs. 300.560-300.577, and Secs. 300.580-300.585.
* * * * *
(Authority: 20 U.S.C. 1401, 1416, 1417)


Secs. 303.6, 303.12, and 303.18  [Amended]

    6. The note preceding Sec. 303.6 and following the heading 
``Definitions'' is amended by removing the phrase ``'natural 
environments'' in Sec. 303.12(b)(2)'' and adding, in its place, 
```natural environments' in Sec. 303.18''.
    7. Section 303.10 is revised to read as follows:


Sec. 303.10  Developmental delay.

    As used in this part, ``developmental delay,'' when used with 
respect to an individual residing in a State, has the meaning given to 
that term under Sec. 303.300.

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


Sec. 303.12  [Amended]

    8. Section 303.12(d)(11) is amended by removing the reference to 
``Sec. 303.22'' and by adding in its place ``Sec. 303.23''.
    9. Section 303.19 is revised to read as follows:


Sec. 303.19  Parent.

    (a) General. As used in this part, ``parent'' means--
    (1) A natural or adoptive parent of a child;
    (2) A guardian;
    (3) A person acting in the place of a parent (such as a grandparent 
or stepparent with whom the child lives, or a person who is legally 
responsible for the child's welfare); or
    (4) A surrogate parent who has been assigned in accordance with 
Sec. 303.406.
    (b) Foster parent. Unless State law prohibits a foster parent from 
acting as a parent, a State may allow a foster parent to act as a 
parent under Part C of the Act if--
    (1) The natural parents' authority to make the decisions required 
of parents under the Act has been extinguished under State law; and
    (2) The foster parent--
    (i) Has an ongoing, long-term parental relationship with the child;
    (ii) Is willing to make the decisions required of parents under the 
Act; and
    (iii) Has no interest that would conflict with the interests of the 
child.

(Authority: 20 U.S.C. 1401(19), 1431-1445)

    10. Section 303.100 is amended by revising paragraph (d)(2) to read 
as follows:


Sec. 303.100  Conditions of assistance.

* * * * *
    (d) * * *
    (2) A new interpretation is made of the Act by a Federal court or 
the State's highest court; or
* * * * *


Sec. 303.140  [Amended]

    11. In Sec. 303.140 paragraph (b) is amended by adding the words, 
``in the State'' after ``services are available to all infants and 
toddlers with disabilities''.


Sec. 303.145  [Amended]

    12. Section 303.145 is amended by revising the heading for 
paragraph (c) to

[[Page 12536]]

read ``Maintenance and implementation activities''; and by removing the 
words ``planning, developing'' in paragraph (c)(1), and adding, in 
their place, ``maintaining''. 3. Section 303.344 is amended by adding 
``and'' after ``Sec. 303.12(b)'' in paragraph (d)(1)(ii), and by 
revising paragraph (h)(1) to read as follows:


Sec. 303.344  Content of an IFSP.

* * * * *
    (h) Transition from Part C services. (1) The IFSP must include the 
steps to be taken to support the transition of the child, in accordance 
with Sec. 303.148, to--
    (i) Preschool services under Part B of the Act, to the extent that 
those services are appropriate; or
    (ii) Other services that may be available, if appropriate.
* * * * *
    14. Section 303.403 is amended by removing the word ``and'' at the 
end of paragraph (b)(2); by revising paragraph (b)(3); by adding a new 
paragraph (b)(4); and by revising the authority citation to read as 
follows:


Sec. 303.403  Prior notice; native language.

* * * * *
    (b) * * *
    (3) All procedural safeguards that are available under 
Secs. 303.401-303.460 of this part; and
    (4) The State complaint procedures under Secs. 303.510-303.512, 
including a description of how to file a complaint and the timelines 
under those procedures.
* * * * *
(Authority: 20 U.S.C. 1439(a)(6) and (7))

    15. Section 303.510 is revised to read as follows:


Sec. 303.510  Adopting complaint procedures.

    (a) General. Each lead agency shall adopt written procedures for--
    (1) Resolving any complaint, including a complaint filed by an 
organization or individual from another State, that any public agency 
or private service provider is violating a requirement of Part C of the 
Act or this Part by--
    (i) Providing for the filing of a complaint with the lead agency; 
and
    (ii) At the lead agency's discretion, providing for the filing of a 
complaint with a public agency and the right to have the lead agency 
review the public agency's decision on the complaint; and
    (2) Widely disseminating to parents and other interested 
individuals, including parent training centers, protection and advocacy 
agencies, independent living centers, and other appropriate entities, 
the State's procedures under Secs. 303.510-303.512.
    (b) Remedies for denial of appropriate services. In resolving a 
complaint in which it finds a failure to provide appropriate services, 
a lead agency, pursuant to its general supervisory authority under Part 
C of the Act, must address:
    (1) How to remediate the denial of those services, including, as 
appropriate, the awarding of monetary reimbursement or other corrective 
action appropriate to the needs of the child and the child's family; 
and
    (2) Appropriate future provision of services for all infants and 
toddlers with disabilities and their families.

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

    16. Section 303.511 is revised to read as follows:


Sec. 303.511  An organization or individual may file a complaint.

    (a) General. An individual or organization may file a written 
signed complaint under Sec. 303.510. The complaint must include--
    (1) A statement that the State has violated a requirement of part C 
of the Act or the regulations in this part; and
    (2) The facts on which the complaint is based.
    (b) Limitations. The alleged violation must have occurred not more 
than one year before the date that the complaint is received by the 
public agency unless a longer period is reasonable because--
    (1) The alleged violation continues for that child or other 
children; or
    (2) The complainant is requesting reimbursement or corrective 
action for a violation that occurred not more than three years before 
the date on which the complaint is received by the public agency.

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

    17. Section 303.512 is revised to read as follows:


Sec. 303.512  Minimum State complaint procedures.

    (a) Time limit, minimum procedures. Each lead agency shall include 
in its complaint procedures a time limit of 60 calendar days after a 
complaint is filed under Sec. 303.510(a) to--
    (1) Carry out an independent on-site investigation, if the lead 
agency determines that such an investigation is necessary;
    (2) Give the complainant the opportunity to submit additional 
information, either orally or in writing, about the allegations in the 
complaint;
    (3) Review all relevant information and make an independent 
determination as to whether the public agency is violating a 
requirement of Part C of the Act or of this Part; and
    (4) Issue a written decision to the complainant that addresses each 
allegation in the complaint and contains--
    (i) Findings of fact and conclusions; and
    (ii) The reasons for the lead agency's final decision.
    (b) Time extension; final decisions; implementation. The lead 
agency's procedures described in paragraph (a) of this section also 
must--
    (1) Permit an extension of the time limit under paragraph (a) of 
this section only if exceptional circumstances exist with respect to a 
particular complaint; and
    (2) Include procedures for effective implementation of the lead 
agency's final decision, if needed, including--
    (i) Technical assistance activities;
    (ii) Negotiations; and
    (iii) Corrective actions to achieve compliance.
    (c) Complaints filed under this section, and due process hearings 
under Sec. 303.420. (1) If a written complaint is received that is also 
the subject of a due process hearing under Sec. 303.420, or contains 
multiple issues, of which one or more are part of that hearing, the 
State must set aside any part of the complaint that is being addressed 
in the due process hearing until the conclusion of the hearing. 
However, any issue in the complaint that is not a part of the due 
process action must be resolved within the 60-calendar-day timeline 
using the complaint procedures described in paragraphs (a) and (b) of 
this section.
    (2) If an issue is raised in a complaint filed under this section 
that has previously been decided in a due process hearing involving the 
same parties--
    (i) The hearing decision is binding; and
    (ii) The lead agency must inform the complainant to that effect.
    (3) A complaint alleging a public agency's or private service 
provider's failure to implement a due process decision must be resolved 
by the lead agency.

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

    18. Section 303.520 is amended by adding a new paragraph (d); and 
revising the authority citation to read as follows:


Sec. 303.520  Policies related to payment for services.

* * * * *
    (d) Proceeds from public or private insurance. (1) Proceeds from 
public or

[[Page 12537]]

private insurance are not treated as program income for purposes of 34 
CFR 80.25.
    (2) If a public agency spends reimbursements from Federal funds 
(e.g., Medicaid) for services under this part, those funds are not 
considered State or local funds for purposes of the provisions 
contained in Sec. 303.124.

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

(Note: This attachment will not be codified in the Code of Federal 
Regulations.)

Attachment 1--Analysis of Comments and Changes

    The following is an analysis of the significant issues raised by 
the public comments received on the NPRM published on October 22, 1997 
(62 FR 55026), and a description of the changes made in the proposed 
regulations since publication of the NPRM.
    Except for relevant general comments relating to the overall NPRM, 
which are discussed at the beginning of this analysis, specific 
substantive issues are discussed under the subpart and section of the 
regulations to which they pertain. References to subparts and section 
numbers in this attachment are to those contained in the final 
regulations.
    This analysis generally does not address--
    (a) Minor changes, including technical changes, made to the 
language published in the NPRM;
    (b) Suggested changes the Secretary is not legally authorized to 
make under applicable statutory authority;
    (c) The organizational structure of these regulations and the 
extent to which statutory language is used; and
    (d) Comments that express concerns of a general nature about the 
Department or other matters that are not directly relevant to these 
regulations, such as requests for information about innovative 
instructional methods or matters that lie within the purview of State 
and local decision-makers.

General Comments

    Comment: Some commenters stated that the notes in the regulations 
are extremely important because they provide additional information and 
clarification. Other commenters expressed concerns about the extensive 
use of notes throughout the NPRM and raised questions about their legal 
status. Several of the commenters stated that the number of notes 
should be dramatically reduced because they go well beyond 
clarification, creating a new interpretation that differs from the 
statutory language.
    Many of the commenters stated that any note that is intended to be 
a requirement should be incorporated into the text of the regulations. 
Some of the commenters felt that all other notes that are not 
requirements should be deleted or otherwise moved to a nonregulatory 
format, such as a technical assistance document. Other commenters 
indicated that notes should be used only for guidance and examples, or 
clarifying information, including appropriate references to recent 
legislative history.
    Discussion: In light of the comments received, certain changes with 
respect to notes in these final regulations are appropriate and should 
be made. The Department does not regulate by notes. Therefore, the 
substance of any note that should be a requirement should be 
incorporated into the text of the regulations. Information that was 
contained in a note that provides meaningful guidance is reflected in 
the discussion of the relevant section of these regulations in this 
Attachment so that the public will have access to the information. 
Information in any note that is not considered to be useful should 
simply be removed.
    Changes: Consistent with the above discussion, all notes have been 
removed as notes from these final regulations. The substance of any 
note considered to be a requirement has been added to the text of the 
regulations. Information in any note considered to provide clarifying 
information or useful guidance has been incorporated into the 
discussion of the applicable comments in this Attachment or, as 
appropriate, in Appendix A (Notice of Interpretation on IEPs). Notes 
that are no longer relevant have simply been deleted. A table is 
included in attachment 3 that describes the disposition of all notes in 
the NPRM.
    Comment: A few commenters stated that the NPRM should have focused 
only on implementing the IDEA Amendments of 1997, and expressed concern 
that it was used to regulate on subjects addressed in previous policy 
letters that should be published separately for public comment. These 
commenters stated that the attempt to bring forward in the NPRM policy 
letters that interpret prior law is inappropriate because the new law 
has a goal of including children with disabilities in the general 
curriculum and improving results for these children, in contrast to the 
focus in prior law of simply providing disabled children access to 
public schools.
    Discussion: Publishing a separate NPRM on longstanding policy 
letters is not in the best interests of the general public because it 
would impose an added burden on the reviewers and would be inefficient, 
ineffective, and very costly. In fact, by incorporating the positions 
taken in these policy letters into the NPRM, they already have been 
subjected to the public comment process. It also would be confusing 
both to parents and public agencies if the longstanding policy 
interpretations were not included in these final regulations, because 
it would imply that the provisions were no longer in effect. Moreover, 
it is important for parents, public agency staff, and others to be able 
to review all proposed changes to the regulations at one time and in a 
single context.
    Although the new amendments place greater emphasis on the 
participation of disabled children in the general curriculum and on 
ensuring better results for these children, the essential rights and 
protections in prior law, including the concept of the least 
restrictive environment have been retained under the IDEA Amendments of 
1997, and, in many respects, have been strengthened. Many of the 
interpretations of prior law--including those relating to the rights 
and protections afforded under the law--continue to be relevant to 
implementing Part B. Therefore, it would be inappropriate to exclude 
them from the final regulations.
    Changes: None.
    Comment: Some commenters stated that, in the preamble to the NPRM, 
the characterization of prior law as focusing simply on ensuring access 
to education is a misstatement and should be deleted. The commenters 
indicated that the courts have traditionally acknowledged that disabled 
children were entitled to participate fully in all educational programs 
and services available to all other students, and added that a correct 
interpretation of prior law is necessary because of pending and new 
court cases.
    Discussion: The broader interpretation of prior law raised by 
commenters is the correct one. That characterization is reflected in 
the definition of FAPE (that, among other things, FAPE includes 
preschool, elementary, or secondary school education in the State), and 
in the provisions under Secs. 300.304 (Full educational opportunity 
goal) and 300.305 (Program options). The statement in the preamble, 
however, was reflective of the status of the education of disabled 
children prior to 1975--in which approximately one million of those 
children were excluded from public education, and of the evolution of 
the program over a 22-year period.
    Experience and research over that period have demonstrated that, as 
reflected in the statutory findings, the education of disabled children 
can be

[[Page 12538]]

more effective by having higher expectations for those children, and 
ensuring their access to the general curriculum, as well as other 
findings (see section 601(c)(5) of the Act). Therefore, it is correct 
to state that the 1997 amendments place greater emphasis on a results-
oriented approach related to improving educational results for disabled 
children than was true under prior law.
    Changes: None.
    Comment: Commenters requested clarification relating to the 
``reserved'' sections in the regulations, and indicated that if 
regulatory language is inserted into those reserved sections, the 
inserted language should be subjected to the same field input process 
that was used for the rest of the regulations.
    Discussion: The reserved sections are simply placeholders for 
future regulations, if further regulations become necessary. Any 
regulations that would be added to those reserved sections in the 
future would be subject to notice and comment in accordance with the 
Department's rulemaking procedures. These procedures include a 90-day 
public comment period as required by section 607(a) of the Act.
    Changes: None.

Subpart A

Purposes (Sec. 300.1)

    Comment: Some commenters requested that Sec. 300.1 be amended to 
include the new purposes under sections 601(d)(2) of the Act (relating 
to the early intervention program for infants and toddlers with 
disabilities under Part C of the Act), and 601(d)(3) (relating to 
ensuring that educators and parents have the tools necessary to improve 
educational results for children with disabilities).
    Some commenters expressed their support of the emphasis on 
independent living and preparation for employment in the Act and 
regulations. A few commenters stated that the note following Sec. 300.1 
(that includes the definition of ``independent living'' from the 
Rehabilitation Act of 1973), sets forth the spirit of these 
regulations. Other commenters requested that the note be revised to 
clarify that the purpose of the note is not to disturb the longstanding 
understanding of FAPE for children with disabilities, and that 
maximization of educational services is not required under Part B.
    Several commenters recommended that the note be deleted. Some of 
these commenters stated that it is misleading and confusing to include 
the purposes of other statutes in these regulations, that it implies 
that school districts are responsible for some rehabilitation services, 
and that ``independent living'' is a term of art, and not just an 
educational enterprise.
    Discussion: Section 300.1 includes the statutory purposes that are 
specifically related to the Assistance for Education of All Children 
with Disabilities Program under Part B of the Act and to these 
regulations, which are codified at 34 CFR Part 300. Therefore, the list 
of statutory purposes contained in Sec. 300.1 should be retained.
    Although statutory purposes relating to Part C have not been 
included in these regulations, these purposes were included as part of 
the regulations in 34 CFR Part 303 implementing Part C published in the 
Federal Register on April 14, 1998 (63 FR 18289). In addition, although 
the second purpose in section 601(d)(3) of the Act is relevant to the 
successful implementation of these regulations, (i.e., ensuring that 
educators and parents have the tools necessary to improve educational 
results for children with disabilities) this statutory purpose is 
directed at the discretionary programs under Part D of the Act, and not 
to the requirements under Part B.
    Independent living is an important concept in the education of 
children with disabilities, as set forth in Sec. 300.1(a). However, 
because the note goes beyond the stated purposes of these regulations 
and focuses on a provision from another law, it is confusing, and the 
note should be deleted.
    Changes: The note following Sec. 300.1 has been deleted. A 
discussion of independent living has been incorporated into Appendix A 
with respect to transition services.

Applicability to State, Local, and Private Agencies (Sec. 300.2)

    Comment: A few commenters recommended that charter schools be 
included in the list of public agencies to which these regulations 
apply, because these schools are sometimes treated by State law as 
political subdivisions, and, thus, would be subject to the requirements 
of these regulations. Other commenters emphasized the importance of 
clarifying the formal obligations of agencies other than educational 
agencies, particularly with respect to mental health services.
    Discussion: Because of the increasing attention that charter 
schools are receiving, it is appropriate to specifically clarify that 
under the statute public charter schools that are not otherwise already 
included as LEAs or ESAs and are not a school of an LEA or ESA in the 
list of political subdivisions that are subject to the requirements of 
these regulations. Charter schools are also addressed in other sections 
of these regulations (see analysis of comments under Secs. 300.18, 
300.22, 300.241, and 300.312).
    A change is not necessary to address responsibility of an agency 
other than an educational agency for services necessary for ensuring a 
free appropriate public education including mental health services. 
Section 300.142 addresses interagency agreements and the requirements 
of section 612(a)(12) of the Act regarding methods of ensuring 
services. See discussion of Sec. 300.142 in this Analysis.
    In light of the general decision to remove all notes from these 
final regulations, the note following this section of the NPRM should 
be deleted. The substance of this note, regarding the applicability of 
these regulations to each public agency that has direct or delegated 
authority to provide special education and related services in a State 
receiving Part B funds, regardless of that agency's receipt of Part B 
funds, should be incorporated into the text of this regulation.
    Changes: Section 300.2 has been amended by redesignating the 
existing paragraph (b) as paragraph (b)(1), by adding public charter 
schools that are not otherwise included as LEAs or ESAs and are not a 
school of an LEA or ESA to the list of entities to which these 
regulations apply, and by removing the note to this section of the NPRM 
and adding the substance of that note as paragraph (b)(2) of this 
section.

Definitions--General Comments

    Comment: Commenters recommended that the final regulations should 
(1) include a master list of all terms used in these regulations and 
the specific section in which each term is defined; (2) add other 
relevant statutory terms in the IDEA that were omitted from the NPRM 
(e.g., institution of higher education, nonprofit, parent organization, 
parent training and information center, and SEA etc.); (3) update 
Sec. 300.28 to add ``elementary school,'' ``nonprofit,'' and ``SEA'' to 
the list of relevant terms defined in the Education Department General 
Administrative Regulations (EDGAR); (4) define terms used in two or 
more subparts of these regulations, such as consent, direct services, 
evaluation, personally identifiable, private school children with 
disabilities, and public expense; and (5) that the master list of 
definitions in note 1 to this section of the NPRM was not complete 
because it omitted the definitions of the thirteen terms defined within 
the definition of

[[Page 12539]]

``child with a disability,'' the fifteen terms defined within the 
definition of ``related services,'' and the four terms defined within 
the definition of ``special education.''
    Some commenters requested that the following definitions be 
deleted: ``comparable services'' (Sec. 300.455); ``extended school 
year'' (Sec. 300.309); ``meetings'' (Sec. 300.501); and ``financial 
costs'' (Sec. 300.142(e)), because none of the terms is defined in the 
statute, and the regulations should not exceed the statute. Other 
commenters recommended adding definitions of ``change of placement;'' 
``competent eighteen year old;'' ``developmental delay;'' ``school 
day;'' ``extra curricular activities;'' ``functional behavioral 
assessment;'' ``impeding behavior;'' ``other agency personnel;'' 
``paraprofessional;'' ``positive behavior support or intervention 
plan;'' and ``positive behavioral intervention strategies.''
    A few commenters expressed concern with the use of ``adversely 
affects educational performance'' throughout Sec. 300.7(b) as 
potentially limiting the services that are provided to disabled 
children, especially those children who are academically gifted but who 
still need transition services to postsecondary education, and 
recommended that a definition of this term be added to the regulations.
    Discussion: It would make the regulations more useful to parents 
and others by: (1) Adding to Subpart A the definitions of terms of 
general applicability (e.g., consent, evaluation, and personally 
identifiable) that are used in two or more subparts of these final 
regulations, and (2) adding to Sec. 300.30, previously Sec. 300.28 of 
the NPRM, relevant terms used in these regulations that are defined in 
EDGAR (e.g., elementary school, secondary school, nonprofit, and State 
educational agency).
    It also would make the regulations more useful to include an 
alphabetical master list of the definitions of terms used in this part, 
and the specific section in which each term is defined, including terms 
of general applicability (e.g., FAPE and IEP), terms used in a single 
section or subpart (e.g., ``illegal drug'' and ``weapon''), and 
individual terms used in the definitions of ``child with a 
disability,'' ``related services,'' and ``special education.'' These 
regulations should include an index that identifies the key terms used 
in the regulations and lists the specific section in which each term is 
used; and the master list of definitions of the terms should be 
included in the index.
    A definition of the term ``parent training and information center'' 
should not be added, but the statutory definition of that term in 
section 602(21) of the Act is referenced in the sections of these 
regulations that use the term (Sec. 300.506(d)(1)(i) (relating to 
mediation) and Sec. 300.589(c)(4) (relating to waiver of the 
nonsupplanting requirement)), and the term ``parent training centers'', 
which has been dropped from Sec. 300.660(b), would be replaced by a 
reference to the statutory term.
    The disposition of the terms defined in Secs. 300.142(e), 300.309, 
300.455, and 300.501 of the NPRM is addressed in each of the pertinent 
sections of this attachment.
    With respect to the term ``adversely affects educational 
performance,'' in order for a child to be eligible for services under 
Part B, the child must meet the two-pronged test established under 
Sec. 300.7(a), which reflects the statutory definition in section 
602(3) of the Act. This means that the child has one of the listed 
conditions that adversely affects educational performance, and who, 
because of that condition, needs special education and related 
services. Revising this language in the manner suggested by commenters 
could result in an unwarranted expansion of eligibility under Part B. 
It should be pointed out that a child who is academically gifted but 
who may not be progressing at the rate desired is not automatically 
eligible under Part B. Neither is the child automatically ineligible. 
Rather, determinations as to a child's eligibility for services under 
Part B must be made on a case-by-case basis in accordance with 
applicable evaluation procedures.
    In light of the general decision to remove all notes from these 
final regulations, Notes 1 and 2 following the subheading 
``Definitions'' and immediately preceding Sec. 300.5 in the NPRM should 
be deleted. Note 1 listed the terms defined in specific sections of the 
NPRM. As stated earlier in this discussion, those terms should be 
included in a master list of definitions in a newly-created index to 
these final regulations. Note 2 contained abbreviations of common terms 
used in these regulations (e.g. the use of ``FAPE'' for ``free 
appropriate public education''). In lieu of listing those abbreviations 
in a note, each term should be included parenthetically in the text of 
the regulations as that term appears; and, thereafter, either the 
abbreviation or the full term may be used interchangeably, depending on 
the context in which it is used.
    Changes: References to the terms defined in Sec. 300.500--
``consent,'' ``evaluation,'' and ``personally identifiable''--have been 
added as Secs. 300.8, 300.12, and 300.21 of these final regulations. 
Relevant terms from EDGAR referenced throughout these regulations have 
been added to Sec. 300.30. Notes 1 and 2 immediately preceding 
Sec. 300.5 have been removed. An index to these regulations have been 
added as a new Appendix B, and a master list of the definitions of all 
terms used in this part has been included in the index under the 
heading ``Definitions of terms used under this part.'' The 
abbreviations listed in Note 2 have been included in the text of the 
regulations, as described in the above discussion.

Assistive Technology Devices and Services (Secs. 300.5 and 300.6)

    Comment: Some commenters recommended that assistive technology 
devices and services be listed as a related service under Sec. 300.22, 
as well as defined separately under Secs. 300.5 and 300.6. Some 
commenters also recommended changes that would alter the statutory 
definitions of these terms. A few commenters requested that Secs. 300.5 
and 300.6 be amended to add language clarifying that assistive 
technology devices and services are only required for a disabled child 
if necessary for the child to benefit from special education. A few 
commenters stated that the regulations should clarify public agency 
responsibility for providing personal devices, such as eyeglasses, 
hearing aids, braces and medication, while other commenters recommended 
that the regulations make explicit that public agencies are not 
responsible for providing personally-prescribed devices under these 
regulations. Commenters also requested that the regulations include 
examples of assistive technology devices for children, including a 
range of high to low technology devices, such as postural supports, 
mobility aids, and positioning equipment. Commenters also requested 
clarification on how school districts draw distinctions between a 
child's need for an assistive technology device and a parent's desire 
for the child to have the newest and best device on the market.
    Discussion: As stated in the note following Sec. 300.6 of the NPRM, 
the definitions of ``Assistive technology device'' and ``Assistive 
technology service'' in sections 602(1) and 602(2) of the Act are 
substantially identical to the definitions of those terms used in the 
Technology-Related Assistance for Individuals with Disabilities Act of 
1988, as amended (Tech Act). Since

[[Page 12540]]

Sec. Sec. 300.5-300.6 essentially adopt the statutory definitions of 
these terms, no changes to these statutory definitions should be made 
in these final regulations. However, consistent with Part B, the words 
``child with a disability'' were substituted for the statutory 
reference to individual with a disability found in the definitions 
contained in the Tech Act. In addition, in light of the general 
decision not to use notes in these final regulations, the note to 
Sec. 300.6 of the NPRM should be removed.
    Section 300.308 of these regulations specifies that an assistive 
technology device or service is only required if it is determined, 
through the IEP process, to be (1) special education, as defined in 
Sec. 300.26, (2) related services, as defined in Sec. 300.24, or (3) 
supplementary aids and services, as defined in Sec. 300.28. No further 
clarification should be provided, and references to Sec. 300.308 should 
not be included in the definitions of ``related services'' under 
Sec. 300.24 or ``special education'' under Sec. 300.26. Section 300.308 
is sufficient to explain how a determination about a child's need for 
an assistive technology device or service is made.
    As a general matter, public agencies are not responsible for 
providing personal devices, such as eyeglasses or hearing aids or 
braces, that a disabled child requires regardless of whether he or she 
is attending school. However, if a child's IEP team specifies that a 
child requires a personal device in order to receive FAPE, the public 
agency must provide the device at no cost to the child's parents. 
Consistent with section 612(a)(12) of the Act, public agencies that are 
otherwise obligated under Federal or State law or assigned 
responsibility under State policy or interagency agreement or other 
mechanisms to provide or pay for any services that are also considered 
special education or related services, including devices that are 
necessary for ensuring FAPE, must fulfill that obligation or 
responsibility, either directly or through contract or other 
arrangement.
    Regarding responsibilities relative to medication under Sec. 300.5, 
medication is an excluded ``medical service,'' and is not the 
responsibility of a public agency under these regulations; therefore, 
the change suggested by commenters is not warranted.
    Further examples of assistive technology are not necessary within 
these regulations. Because the definitions of assistive technology 
devices and services have been included in these regulations for over 
five years and have been included in the Tech Act since 1988, most 
public agencies should be informed about those devices and services for 
purposes of implementing these regulations. Examples of assistive 
technology devices and services and other relevant information may be 
available through one of the technical assistance providers funded by 
the National Institute on Disability and Rehabilitation Research in the 
Office of Special Education and Rehabilitative Services (OSERS) or 
other technical assistance providers funded by OSERS.
    Changes: The note following Sec. 300.6 has been removed.
    Comment: Some commenters asked for clarification that (1) the 
statutory provision encompasses both a child's own assistive technology 
needs (e.g., electronic note takers, cassette recorders, and speech 
synthesizers), as well as access to general technology used by all 
students, (2) a child with a disability may take assistive technology 
devices home for use on homework and other assignments, as well as for 
use in the community, and (3) school districts have continuing 
responsibility for installation, repair, and maintenance of devices. 
These commenters added that in order to fully benefit from assistive 
technology, children with disabilities must be able to use it on all 
school-work assignments, whether done in the classroom or at home or in 
the community; and LEAs must ensure that children, their teachers, and 
other personnel receive the necessary in-service instruction on the 
operation and maintenance of technology. Other commenters requested 
that the final regulations specify in the text of the regulations or in 
a note (1) the right of children with disabilities to take devices home 
or to other settings, as needed, and (2) the issue of ownership and 
responsibility.
    Discussion: The provision of assistive technology devices and 
services is limited to those situations in which they are required in 
order for a disabled child to receive FAPE. However, subject to this 
limitation, commenters are correct that (1) ``assistive technology'' 
encompasses both a disabled child's own personal needs for assistive 
technology devices (e.g., electronic note-takers, cassette recorders, 
etc), as well as access to general technology devices used by all 
students, and (2) if an eligible child is unable, without a specific 
accommodation, to use a technology device used by all students, the 
agency must ensure that the necessary accommodation is provided. 
Further, commenters are correct that LEAs must ensure that students, 
their teachers, and other personnel receive the necessary in-service 
instruction on the operation and maintenance of technology.
    Finally, Sec. 300.308 of these final regulations should be amended 
to clarify that, on a case-by-case basis, the use of school-purchased 
assistive technology devices in a child's home or in other settings is 
required if the child's IEP team determines that the child needs to 
have access to those devices in order to receive FAPE. The assistive 
technology devices that are necessary to ensure FAPE must be provided 
at no cost to the parents, and the parents cannot be charged for normal 
use, and wear and tear. However, while ownership of the device in these 
circumstances would remain with the public agency, State law, rather 
than Part B, generally would govern whether parents are liable for 
loss, theft, or damage due to negligence or misuse of publicly owned 
equipment used at home or in other settings in accordance with a 
child's IEP.
    Changes: No change has been made to this section in response to 
these comments. However, Sec. 300.308 has been amended, consistent with 
the above discussion.

Child With a Disability (Sec. 300.7)

    Comment: A number of commenters requested that the definition of 
developmental delay be consistent across both Part B and the early 
intervention program under Part C. The commenters stated that defining 
the term consistently across all age ranges will help to avoid 
confusion, enhance transition, and conform to diagnostic procedures. 
Other commenters requested that States not be allowed to establish 
their own definitions of developmental delay because of the risk of 
inequitable services across State lines.
    Several commenters requested that children with sensory 
disabilities (such as deafness or blindness) not be included under the 
developmental delay designation, because a sensory disability is a 
permanent condition and not a delay. Some commenters requested that 
LEAs be required to justify, through assessment and elimination of 
specific disabilities, why a child is identified as developmentally 
delayed. One of the commenters stated that LEAs must be required to 
include assessment of uneven patterns of development as part of the 
determination of developmental delay, and added that developmental 
delay should be utilized for individual cases where the child's 
disability cannot be identified, although delays are manifested in the 
child.

[[Page 12541]]

    A few commenters recommended that the regulations make clear that 
(1) the broad definition of developmental delay must not be used to 
deny proper evaluations, and (2) a full, comprehensive evaluation of 
each child must be conducted in all areas of suspected disability so 
that the child's particular educational and other disability-related 
needs can be effectively addressed.
    Some commenters disagreed with the language in Note 2 prohibiting 
States that have adopted developmental delay from requiring LEAs to 
also adopt the provision, since LEAs, as agents of the State, may be 
directed by the State to enforce what the State has adopted. Other 
commenters recommended that the regulations make clear that an LEA is 
not required to indicate why a child is in a developmental delay 
category rather than in a disability category, and that an LEA is not 
required to categorize the child as having one of the thirteen 
disabilities before using the developmental delay designation.
    Discussion: The term ``developmental delay'' is a statutory term 
that is included in both Parts B and C of the Act. A definition of 
developmental delay, substantially similar to the definition in 
Sec. 300.7(a)(2) of the NPRM, should be retained in these final 
regulations. Because of the numerous questions raised by commenters 
about the application of this definition, it is determined that a new 
paragraph describing requirements governing the use of the 
developmental delay designation should be added to these final 
regulations as Sec. 300.313. In light of these changes, the definition 
of ``developmental delay'' would be placed in paragraph (b) of 
Sec. 300.7 of these final regulations, and paragraph (b) of this 
section of the NPRM would be redesignated as a new paragraph (c).
    Also, in light of the general decision not to use notes in these 
final regulations, Notes 2 and 3 following this section of the NPRM 
should be removed, and the substance of these notes would be 
incorporated into the new Sec. 300.313. This new section will (1) set 
out the requirements for States and LEAs in using the developmental 
delay designation; (2) clarify that States and LEAs may use the 
developmental delay designation for any child who has an identifiable 
disability, provided all of the child's identified needs are addressed; 
and (3) clarify that a State may, but is not required to, adopt a 
common definition of developmental delay for Parts B and C.
    States electing to adopt the term developmental delay are not 
prohibited from also continuing to use the disability categories in 
Sec. 300.7(a) and (c) for those children who have been evaluated in 
accordance with Secs. 300.530-300.536 as having one of the listed 
disabilities and who because of that disability need special education 
and related services. Although States traditionally have had the 
authority to require LEAs to adopt State policies, new section 
602(3)(B) of the Act, unlike the provision in prior law, provides that 
implementation of the provision related to serving children under the 
developmental delay designation is at the discretion of both the State 
and the LEA. New Sec. 300.313 reflects this statutory change.
    Under the statute, States also have the discretion to apply the 
term developmental delay to children who have an identified sensory 
disability (such as deafness or blindness) or any other permanent 
condition (such as a significant cognitive disability), or to use the 
specific categories. However, States must ensure that children with 
sensory impairments or other permanent conditions are evaluated in all 
areas of suspected disability, and that the educational and other 
disability-related needs of these children identified through 
applicable evaluation procedures are appropriately addressed.
    It is important to ensure that the broad definition of 
developmental delay is not used to deny children proper evaluations. In 
all cases, evaluations must be sufficiently comprehensive to ensure 
that children's needs are appropriately identified. The provisions in 
Secs. 300.530-300.536 of these regulations should ensure that 
evaluations of children in States and LEAs that use the developmental 
delay designation are sufficiently comprehensive to address the full 
range of these children's needs. It would not be appropriate to require 
public agencies to justify why a child is identified as developmental 
delay rather than under one of the other disability designations in 
these regulations.
    Changes: Section 300.7 has been amended by adding a new paragraph 
(a)(2) to clarify that if a child has one of the disabilities listed in 
paragraph (a) of this section but only needs a related service and not 
special education that child is not a child with a disability under 
this part, unless the related service is considered special education 
rather than a related service under State standards. Paragraph (a)(2) 
of the NPRM has been redesignated as paragraph (b) of these final 
regulations, entitled ``children aged three through nine experiencing 
developmental delays,'' which incorporates the definition in 
Sec. 300.7(a)(2)(i) and (ii) of the NPRM; and a new Sec. 300.313 has 
been added that clarifies the circumstances under which the DD 
designation is used, reflecting the substance of proposed 
Sec. 300.7(a)(2)(iii) and Notes 2 and 3 to this section of the NPRM. 
Notes 2 and 3 to this section of the NPRM have been deleted. Paragraph 
(b) of the NPRM has been redesignated as paragraph (c) in these final 
regulations.
    Comment: A variety of comments proposing various changes in 
definitions was received regarding the terms ``deaf-blindness,'' 
``emotional disturbance,'' ``hearing impairment,'' ``multiple 
disability,'' ``speech or language impairment,'' ``mental 
retardation,'' ``orthopedic impairment,'' ``specific learning 
disability,'' ``traumatic brain injury,'' and ``visual impairment 
including blindness.'' Other commenters supported the existing 
definitions but suggested some modifications. Some commenters stated 
that the term deaf-blindness, as defined in the NPRM, mistakenly labels 
these children's disability as causing educational problems as if the 
child is a burden to the system. These commenters requested that the 
definition be amended to replace ``problems'' with ``needs''. The 
commenters made the same statement with respect to the term ``multiple 
disability.''
    Discussion: In light of the general decision not to use notes in 
these final regulations, Note 1 to this section of the NPRM should be 
removed. While the characteristics of ``autism'' are generally evident 
before age three, a child who manifests characteristics of the category 
``autism'' after age three still can be evaluated as having autism, if 
the criteria in the definition are satisfied. Because of the importance 
of this clarification, the definition of autism in Sec. 300.7(c)(1) 
should be amended to incorporate the substance of Note 1 to this 
section of the NPRM. While there is merit to many of the proposed 
changes to definitions and terms, modifications to the substance of 
existing definitions should be subject to further review and discussion 
before changes are proposed. For example, as indicated in the preamble 
to the NPRM (62 FR 55026-55048 (Oct 22, 1997)), the Department plans to 
carefully review research findings, expert opinion, and practical 
knowledge over the next several years to determine whether changes 
should be proposed to the procedures for evaluating children suspected 
of having specific learning disabilities. Any changes to the definition 
of this term should also be considered in light of that review.

[[Page 12542]]

    As indicated in the NPRM, no substantive changes are made to the 
definition of the term ``emotional disturbance'' in Sec. 300.7(c)(4). 
With respect to the use of the term ``emotional disturbance'' instead 
of ``serious emotional disturbance,'' the Senate and House committee 
reports on Pub. L. No. 105-17 include the following statement:

    The Committee wants to make clear that changing the terminology 
from ``serious emotional disturbance'' to ``serious emotional 
disturbance [hereinafter referred to as `emotional disturbance']'' 
in the definition of a ``child with a disability'' is intended to 
have no substantive or legal significance. It is intended strictly 
to eliminate the pejorative connotation of the term ``serious.'' It 
should in no circumstances be construed to change the existing 
meaning of the term under 34 CFR Sec. 300.7(b)(9) as promulgated 
September 29, 1992. (S. Rep. No. 105-17, p. 7; H.R. Rep. No. 105-95, 
p. 86 (1997).)

    In light of the general decision not to use notes in these final 
regulations, Note 4 to this section of the NPRM should be removed. In 
response to suggestions of commenters, the definitions of deaf-
blindness and multiple disability should be revised to eliminate the 
negative connotation of the language in the current definitions, and 
the word ``needs'' should replace the word ``problems.'' However, these 
changes, in no way, are intended to alter which children are considered 
eligible under these categories.
    Changes: Note 1 to this section of the NPRM has been removed, and 
the definition of ``autism'' in Sec. 300.7(c)(1) of these final 
regulations has been amended to specify that if a child manifests 
characteristics of ``autism'' after age three, the child could be 
diagnosed as having ``autism'' if the criteria in the definition of 
``autism'' are satisfied. The definitions of deaf-blindness and 
multiple disability have been revised to replace ``problems'' with 
``needs.''
    Note 4 to this section of the NPRM has been removed, and the 
substance of Note 4 is reflected in the above discussion.
    Comment: A large number of commenters expressed support for 
retaining Note 5, and agreed with the clarification that attention 
deficit disorder (ADD) and attention deficit hyperactivity disorder 
(ADHD) are conditions that may make a child eligible under Sec. 300.7. 
As an alternative, these and other commenters suggested that ADD/ADHD 
be listed as examples of conditions that could make a child eligible 
under the ``other health impairment'' category at Sec. 300.7(c)(9). A 
few commenters requested that ADD/ADHD be specified as a separate 
disability category under these regulations. Many of these commenters, 
parents of children with ADD/ADHD, described the tremendous problems 
they have had, and are having, in obtaining appropriate services for 
their children. Of particular concern to these commenters was that ADD/
ADHD is not expressly listed in the regulations; additionally, 
commenters were concerned that discussing ADD/ADHD in a note would not 
be adequate. One commenter noted that the regulations should clarify 
that a disabled child needs only one, not two, disabilities in order to 
be eligible under these regulations. A few commenters recommended that 
schools not require an additional evaluation for a child with ADD/ADHD 
under other health impairment once the child has been diagnosed and has 
qualified under another disability category, noting that schools have 
placed burdens on children and their families by requesting that ADD/
ADHD be re-diagnosed by using different procedural qualification 
requirements when the child with ADD/ADHD moves from one qualifying 
category (such as learning disabilities or emotional disturbance) to 
the other health impairment category.
    Other commenters requested that Note 5 be deleted because it 
exceeds statutory authority and would increase the regulatory burden on 
LEAs by giving the false impression that children with ADD/ADHD are 
automatically protected by the IDEA Amendments of 1997. Some of these 
commenters stated that children with ADD/ADHD may be eligible for 
services under the Act, and, if they are eligible, are receiving 
services, but added that it is not appropriate to enumerate in the Act 
or regulations all conditions, e.g., Tourette's Syndrome, that may 
qualify children for special education and related services. Other 
commenters indicated that the definition of ADD/ADHD is so vague it 
fits all children, and added that the most damaging potential abuse 
comes from over-identification of poor and minority children who will 
get the label and the reduced expectations that accompany it. Some 
commenters stated that the discussion in Note 5 of ``limited 
alertness'' as ``heightened alertness'' is exceptionally loose and 
could result in the largest expansion of eligible children in IDEA 
history.
    Several commenters stated that the diagnosis of ADHD/ADHD does not 
require a medical evaluation if the disability is diagnosed by a school 
or licensed psychologist, and the need for special education is 
determined through the eligibility process in Secs. 300.534-300.535. A 
suggestion was made by commenters that the regulations emphasize that 
educational impact must be the basis for determining eligibility of 
those children for special education because, according to commenters, 
at least 25 percent of the children referred for evaluation, who had 
been diagnosed medically as ADD/ADHD, were experiencing few, if any, 
educational problems at the time of their referrals.
    Discussion: Note 5 following Sec. 300.7 was included in the NPRM to 
reflect the Department's longstanding policy memorandum relating to the 
eligibility of children with ADD/ADHD. However, although some of the 
commenters who favor deleting Note 5 indicate that some children with 
ADD/ADHD are receiving services under these regulations, experience and 
the numerous comments received have demonstrated that the Department's 
policy is not being fully and effectively implemented.
    It is important to take steps to ensure that children with ADD/ADHD 
who meet the criteria under Part B receive special education and 
related services in the same timely manner as other children with 
disabilities. Therefore, the definition of ``other health impairment'' 
at Sec. 300.7(c)(9) of these final regulations should be amended to add 
ADD/ADHD to the list of conditions that could render a child eligible 
under this definition, and the list of conditions in Sec. 300.7(c)(9) 
should be rearranged in alphabetical order. Following the phrase 
``limited strength, vitality or alertness,'' and prior to the phrase, 
``that adversely affects educational performance,'' the words 
``including a child's heightened alertness to environmental stimuli 
that results in limited alertness with respect to the educational 
environment'' should be added.
    These changes are needed to clarify the applicability of the 
``other health impairment'' definition to children with ADD/ADHD. The 
clarification with respect to ``limited strength, vitality, or 
alertness'' is essential because many children with ADD/ADHD actually 
experience heightened alertness to environmental stimuli, which results 
in limited alertness with respect to their educational environment. In 
light of these regulatory changes, Note 5 to this section of the NPRM 
should be removed as a note, and other portions of Note 5 are reflected 
in the following discussion. A child with ADD/ADHD may be eligible 
under Part B if the child's condition meets one of the disability 
categories described in Sec. 300.7, and because of that disability, the 
child needs special education and related services. Children with ADD/

[[Page 12543]]

ADHD are a very diverse group; some children with ADD/ADHD who are 
eligible under Part B meet the criteria for ``other health 
impairments.'' Those children would be classified as eligible for 
services under the ``other health impairments'' category if (1) the 
ADD/ADHD is determined to be a chronic health problem that results in 
limited alertness, that adversely affects educational performance, and 
(2) special education and related services are needed because of the 
ADD/ADHD. All children with ADD/ADHD clearly are not eligible to 
receive special education and related services under these regulations, 
just as all children who have one of the other conditions listed under 
the other health impairment category are not necessarily eligible 
(e.g., children with a heart condition, asthma, diabetes, and rheumatic 
fever).
    Some children with ADD/ADHD may be eligible under other categories, 
such as ``emotional disturbance'' (Sec. 300.7(c)(4)) or ``specific 
learning disability'' (Sec. 300.7(c)(10)) if they meet the criteria 
under those categories. Regardless of what disability designation is 
attached, children with ADD/ADHD meeting the criteria for any of the 
listed disabilities under these regulations must receive the 
specialized instruction and related services designed to address their 
individualized needs arising from the ADD/ADHD. No child is eligible 
for services under the Act merely because the child is identified as 
being in a particular disability category. Children identified as ADD/
ADHD are no different, and are eligible for services only if they meet 
the criteria of one of the disability categories in Part B, and because 
of their impairment, need special education and related services.
    Other children with ADD/ADHD may have a diagnosed medical condition 
(and need medication) but may not require any special education or 
otherwise be eligible under these regulations. These children may be 
covered by the requirements of section 504 of the Rehabilitation Act of 
1973 (Section 504) and its implementing regulation in 34 CFR Part 104.
    With respect to commenters' suggestions that the diagnosis of ADD/
ADHD does not require a medical evaluation if the disability is 
diagnosed by a school or licensed psychologist, a change is not needed 
in these regulations. Also, it would not be appropriate to make a 
change to respond to commenters' suggestion that a medical evaluation 
is required for a child with ADD/ADHD to establish eligibility under 
the other health impairment category. Part B does not require that a 
particular type of evaluation be conducted to establish any child's 
eligibility under these regulations; rather, the evaluation 
requirements in Secs. 300.530-300.536 are sufficiently comprehensive to 
support individualized evaluations on a case-by-case basis, including 
the use of professional staff appropriately qualified to conduct the 
evaluations deemed necessary for each child.
    In accordance with these procedures, if a determination is made 
that a medical evaluation is required in order to determine whether a 
child with ADD/ADHD is eligible for services under Part B, such an 
evaluation must be conducted at no cost to the parents. In all 
instances, as is true for all children who may be eligible for services 
under Part B, each child with ADD/ADHD who is suspected of having a 
disability must be assessed in all areas related to the suspected 
disability, including, if appropriate, health, vision, hearing, social 
and emotional status, general intelligence, academic performance, 
communicative status, and motor abilities. (Sec. 300.532(g)).
    There is no requirement under these regulations that a medical 
evaluation be conducted to accomplish these assessments. Even if a 
State requires that a medical evaluation be included as part of all 
evaluations to determine eligibility for the other health impairment 
category, it must also ensure that any necessary evaluations by other 
professionals, such as psychologists, are conducted and considered as 
part of the eligibility determination process. Whether or not public 
agencies will be required to conduct an additional evaluation for a 
child with ADD/ADHD under other health impairment once the child has 
been evaluated and has qualified under another disability category will 
depend on whether sufficient evaluation information exists to enable 
school district officials to ensure, consistent with Sec. 300.532(g), 
that each child is assessed in all areas of suspected disability.
    Because these determinations will necessarily depend on the 
individual needs of the child and the circumstances surrounding the 
evaluation, a change is not needed.
    With respect to the concern of commenters that the most damaging 
potential abuse from the definition will be the over-identification of 
poor and minority children, there is no indication that children from 
minority backgrounds have been disproportionately identified as ADD/
ADHD even as the numbers of children in this category have increased. 
Further, the definition of ADD/ADHD is not so loose that it could 
result in the largest expansion of eligible children in IDEA history. 
As previously stated, many children with ADD/ADHD are not eligible 
under Part B. If appropriate evaluations are conducted in accordance 
with Secs. 300.530-300.536, the result of the evaluations should be the 
inclusion of only those children with ADD/ADHD who are eligible for, 
and have an entitlement to, special education and related services 
under Part B.
    Changes: The definition of ``other health impairment'' at 
Sec. 300.7(c)(9) has been amended to add ADD/ADHD to the list of 
conditions that could render a child eligible under this definition, 
and the list of conditions in Sec. 300.7(c)(9) has been rearranged in 
alphabetical order. Following the phrase ``limited strength, vitality, 
or alertness,'' and prior to the phrase, ``that adversely affects 
educational performance,'' the words ``including a child's heightened 
alertness to environmental stimuli that results in limited alertness 
with respect to the educational environment'' have been added to 
clarify the applicability of the other health impairment definition to 
children with ADD/ADHD. Note 5 to this section of the NPRM has been 
removed.

Day; Business Day; School Day (Sec. 300.9)

    Comment: Some commenters indicated support for the definition of 
``day'' as written. Many commenters requested that the term be revised 
to define ``school day'' and ``business day,'' since these are key 
terms that are used throughout the Act and regulations. Some of the 
commenters recommended similar definitions of the terms, ``school day'' 
and ``business day'' (e.g., ``school day'' means days when children are 
attending school and ``business day'' means days when a school is open 
for business and administrative personnel are working). One definition 
proposed by commenters included staff development day as a school day. 
Several commenters asked when a partial day might be considered a 
``day,'' if inservice or staff development days are considered business 
days, and what holidays are to be used, as school districts and States 
vary in this regard. Other commenters requested that there be no 
reference to ``calendar day'' or ``day,'' but that instead the 
definitions of ``school day'' and ``business day'' be incorporated into 
these regulations. Some of the commenters indicated that the use of 
``calendar day'' can place an impractical time standard on school 
systems when

[[Page 12544]]

actions are required and a school may not be open for business.
    Discussion: It is necessary, to avoid confusion and ensure clarity, 
to amend the definition of ``day'' to include definitions of both 
``school day'' and ``business day.'' Both ``school day'' and ``business 
day'' are used to implement new provisions added by Pub. L. 105-17: The 
term ``school day'' is used only with respect to discipline procedures 
and appears in Secs. 300.121(c)(1) and (c)(2), and 300.520(a)(1) and 
(c). The term ``business day'' is used in Secs. 300.509(b) (Additional 
disclosure of information requirement); 300.520(b) (Authority of school 
personnel); and 300.528(a)(1) (Expedited due process hearing). In 
addition, the phrase ``business days (including holidays that fall on a 
business day)'' is used in Sec. 300.403(d)(1)(ii) (Placement of 
children by parents in a private school or facility if FAPE is at 
issue.)
    ``School day'' means any day that children are in attendance at 
school for instructional purposes. If children attend school for only 
part of a school day and are released early (e.g., on the last day 
before Christmas or summer vacation) that day would be considered to be 
a school day. However, it is expected that the term ``school day,'' 
including partial school day, has the same meaning for all children in 
school, including children with and without disabilities.
    The term ``business day'' is used in the statute and regulations in 
relation to actions by school personnel and parents. While school 
personnel could reasonably be expected to know when administrative 
staff are working, very often this information is not readily available 
to parents, nor is it likely to be consistent from one LEA to another, 
or from the SEA to an LEA. If ``business day'' were interpreted to be 
days when school offices are open and administrative staff are working, 
it could actually be impossible for parents to know with any certainty 
the date in advance of a due process hearing on which they would have 
to share evidence to be introduced at the hearing with the other party 
to the hearing (see Sec. 300.509). Therefore, this term is interpreted 
to be a commonly understood measure of time, Monday through Friday 
except for Federal and State holidays, unless holidays are specifically 
included, as in Sec. 300.403(d)(1)(ii).
    Including definitions of ``school day'' and ``business day'' will 
reduce confusion about the meaning of these terms and should facilitate 
meeting the various timelines in the Act and regulations.
    The definition of ``day,'' while that term was not previously 
defined in the regulations, represents the Department's longstanding 
interpretation that the term ``day'' means calendar day. (See, e.g., 
NPRM published August 4, 1982, 47 FR 33836-33840 describing the 30-day 
time line from determination of eligibility to initial IEP meeting as 
``30 calendar days.'') This interpretation is consistent with 
generally-recognized authority on statutory interpretation. (See 
Sutherland Stat. Const. Sec. 33.12 (5th Ed.)). In addition, the statute 
itself uses three different terms, ``day,'' ``business day,'' and 
``school day,'' so it would be inappropriate to interpret ``day'' to be 
the same as either ``business day'' or ``school day.''
    Finally, altering the interpretation of ``day'' from the 
longstanding interpretation as ``calendar day'' would raise significant 
concerns about compliance with the terms of section 607(b) of the Act, 
especially as to timelines that affect the rights of parents and 
children with disabilities such as (1) the timeline in Sec. 300.343 
(relating to holding an initial IEP meeting for a child), and (2) the 
procedural safeguards in Subpart E, including Sec. 300.509(a)(3) 
(hearing rights--timeline for disclosure of evidence); Sec. 300.511(a) 
and (b) (timelines for hearings and reviews); and Sec. 300.562(a) 
(access rights relating to records).
    There also are other provisions in these regulations that include 
timelines that have always been interpreted to be calendar day 
timelines--including the (1) 30-day public comment period in 
Sec. 300.282, (2) by-pass procedures under Subpart D, (3) notice and 
hearing procedures in Secs. 300.581-300.586 that the Department uses 
before determining that a State is not eligible under Part B, and (4) 
60-day timeline under the State complaint procedures in Sec. 300.661. 
The majority of those timelines have been in effect since 1977, and, in 
light of the clear distinction in the IDEA Amendments of 1997 between 
days, school days, and business days, there is no basis for changing 
other timelines in the regulations.
    Changes: The name of the section in the NPRM has been changed to 
``Day; business day; school day'' in these final regulations. 
Definitions of ``school day'' and ``business day'' have been added to 
reflect the above discussion.

Educational Service Agency (Sec. 300.10)

    Comment: None.
    Discussion: The definition of ``educational service agency'' in 
Sec. 300.10 of these final regulations adopts the statutory definition 
of this term in section 602(4) of the Act. This definition replaces the 
definition of the term ``intermediate educational unit'' (IEU) in 
Sec. 300.8 of the current regulations. The use of the term 
``educational service agency'' was not intended to exclude those 
entities that were considered IEUs under prior law. This interpretation 
is supported by the legislative history, which makes explicit that most 
definitions in prior law have been retained, and, where appropriate, 
updated. S. Rep. No. 105-17 at 6., and H.R. Rep. No. 105-95 at 86. With 
respect to ``educational service agency,'' the Reports explain that 
this definition has been updated ``to reflect the more contemporary 
understanding of the broad and varied functions of such agencies.'' Id.
    Although there were no comments regarding this definition, the 
application of the term ``educational service agency'' to entities 
covered under the definition of IEU in prior law has been questioned. 
The definition of IEU did not refer explicitly to public elementary and 
secondary schools. However, the definition of ``educational service 
agency'' makes specific references to an entity's administrative 
control over public elementary and secondary school. This definition 
could be misinterpreted as excluding from the educational service 
agency definition those entities in States that serve preschool-aged 
children with disabilities but do not have administrative control and 
direction over a public elementary or secondary school. Therefore, to 
avoid any confusion about the use of this new terminology, a statement 
should be added to the definition to clarify that the term 
``educational service agency'' includes entities that meet the 
definition of IEU in section 602(23) of IDEA as in effect prior to June 
4, 1997.
    Changes: Consistent with the above discussion, a statement has been 
added at the end of the definition to clarify that the definition of 
``educational service agency'' includes entities that meet the 
definition of IEU in section 602(23) of IDEA as in effect prior to June 
4, 1997.

Equipment (Sec. 300.11)

    Comment: One comment stated that the reference to ``books, 
periodicals, documents, and other related materials'' be deleted from 
Sec. 300.10(b) because materials and equipment are accounted for 
differently in the budget. A few commenters recommended that the 
definition of ``equipment'' be amended to add that (1) any 
instructional or related materials be provided in accessible formats, 
as appropriate; and

[[Page 12545]]

(2) any technological aids and services be accessible.
    Discussion: The definition of ``equipment'' is a standard statutory 
definition that is used in most elementary and secondary education 
programs funded by the Department. Therefore, efficient administration 
of Federal programs would not be served by revising the definition in 
the ways suggested by the commenters. In appropriate situations, public 
agencies are required by section 504 of the Rehabilitation Act of 1973 
and title II of the Americans with Disabilities Act (ADA) to ensure 
that instructional or related materials are provided in accessible 
formats and that technological aids and services are accessible to 
students with disabilities or can be made accessible, to afford 
students with disabilities an equal opportunity to participate in their 
programs.
    Changes: None.

General Curriculum

    Comment: Several commenters indicated support for the definition of 
``general curriculum,'' and for the note clarifying that the term 
relates to the content of the curriculum and not the setting in which 
it is used. Some commenters stated that, as written, the definition 
should preclude any likelihood of the ``general curriculum'' being 
identified with the ``low'' track.
    Some commenters recommended that the substance of the note be 
integrated into the definition or made other suggestions to strengthen 
the idea that the general curriculum applies to children with 
disabilities wherever they are educated. Other commenters disputed that 
there is a ``general curriculum,'' pointing to the variety of common 
courses offered by many school districts, the need of some children for 
a functional life-skills curriculum or the needs of students in 
alternative programs (e.g., moderate disabilities, significant or 
profound, autism, etc.) who may be pursuing an alternative certificate 
rather than a diploma. Other commenters requested that the definition 
be dropped from the final regulations, because it (1) sets a dangerous 
precedent for the Federal government to dictate what the general 
curriculum should be in each school, and (2) violates the General 
Education Provisions Act.
    Discussion: The concept of ``general curriculum'' in these 
regulations plays a crucial role in meeting the requirements of the 
Act. The IDEA Amendments of 1997 place significant emphasis on the 
participation of children with disabilities in the general curriculum 
as a key factor in ensuring better results for these children.
    The definition in Sec. 300.12 would not have imposed a national 
curriculum, but only clarified what the statutory term ``general 
curriculum'' means. As the term is used throughout the Act and 
congressional report language, the clear implication is that, in each 
State or school district, there is a ``general curriculum'' that is 
applicable to all children. A major focus of the Act--especially with 
respect to the new IEP provisions--is ensuring that children with 
disabilities are able to be involved in and progress in the ``general 
curriculum.'' For example, the Senate and House committee reports on 
Pub. L. No. 105-17 state that--

    [t]he new focus is intended to produce attention to the 
accommodations and adjustments necessary for disabled children to 
have access to the general education curriculum and the special 
services which may be necessary for appropriate participation in 
particular areas of the curriculum due to the nature of the 
disability. (S. Rep. No. 105-17, p. 20; H.R. Rep. No. 105-95, p. 100 
(1997)).

    Even as school systems offer more choices to students, there still 
is a common core of subjects and curriculum areas that is adopted by 
each LEA or schools within the LEA, or, where applicable, the SEA, that 
applies to all children within each general age grouping from preschool 
through secondary school. Appropriate access to the general curriculum 
must be provided. The development and implementation of IEPs for each 
child with a disability must be based on having high, not low, 
expectations for the child.
    In light of the concerns of the commenters and the principle of 
regulating only to the extent necessary, proposed Sec. 300.12 should be 
removed from the final regulations. Instead the regulations should 
emphasize the importance of the ``general curriculum'' concept in the 
IEP provision under which the term is used.
    Changes: The definition of ``general curriculum'' in Sec. 300.12 of 
the NPRM and the note following that section of the NPRM have been 
deleted. The term is explained where it is used in Sec. 300.347 and in 
Appendix A regarding IEP requirements.

Individualized Education Program Team (Sec. 300.16)

    Comment: None.
    Discussion: In light of the general decision not to use notes in 
these final regulations, the note following this section of the NPRM 
should be removed. However, it is important to clarify that the IEP 
team may also serve as the placement team.
    Changes: The note following this section of the NPRM has been 
removed.

Local Educational Agency (Sec. 300.18)

    Comment: A number of commenters expressed concern about the note on 
public charter schools following Sec. 300.17 of the NPRM, stating that 
it provides an inadequate and too limited explanation of the 
responsibilities of those schools under these regulations (i.e., it 
focuses only on public charter schools that are ``LEAs'' under State 
law and excludes public charter schools that are defined by State law 
as being part of an LEA).
    Some of the commenters requested that the note be modified to 
clarify that public charter schools must comply with these regulations 
whether or not they receive Part B funds. Commenters believe that this 
clarification is particularly important because, according to the 
commenters, services to disabled children in some public charter 
schools have been dismantled, and parents have been asked to waive 
their children's rights under Part B as a condition of enrollment in 
the schools.
    Other commenters requested that the note be dropped and that 
Sec. 300.241 (Treatment of public charter schools and their students) 
clarify that all charter schools must comply with the requirements of 
Part B of the Act. The commenters added that this action would 
consolidate all public charter school requirements into one regulatory 
provision. A few commenters requested that the regulations include a 
provision requiring that LEAs in which charter schools are physically 
located describe to the State how they will ensure that children with 
disabilities receive special education and related services under this 
part, even when the charter school is not otherwise under the 
jurisdiction of the LEA.
    Discussion: In light of the general decision not to use notes in 
these final regulations, the note following Sec. 300.17 of the NPRM 
should be removed. However, it should be pointed out that the proposed 
note was inadequate and did not provide a full explanation of the 
responsibilities of public charter schools under these regulations.
    In light of concerns raised about how public charter schools could 
meet their obligations to disabled students under Part B and obtain 
access to Part B funds for disabled students enrolled in their schools, 
two important provisions were included in the IDEA Amendments of 1997 
at section 613(a)(5) and (e)(1)(B).
    Some public charter schools can be LEAs if, under State law, they 
meet the

[[Page 12546]]

Part B definition of LEA. As a result of section 613(e)(1)(B) of the 
Act, public charter schools that are LEAs may not be required to apply 
for Part B funds jointly with other LEAs, unless explicitly permitted 
to do so under the State charter school statute. However, in many 
instances, charter schools are schools within LEAs. If this is so, 
section 613(a)(5) of the Act provides that the LEA of which the public 
charter school is a part must serve those disabled students attending 
public charter schools in the same manner as it serves students with 
disabilities in its other public schools and must provide Part B funds 
to charter schools in the same manner that it provides Part B funds to 
other public schools.
    Still, in other instances, due to the provisions in States' charter 
school statutes, some public charter schools are not considered LEAs or 
a school within an LEA. In such instances, the SEA would have ultimate 
responsibility for ensuring that Part B requirements are met. 
Regardless of whether a public charter school receives Part B funds, 
the requirements of Part B are fully applicable to disabled students 
attending those schools. The legislative history of the IDEA Amendments 
of 1997 makes explicit that Congress ``expects that public charter 
schools will be in full compliance with Part B.'' See S. Rep. No. 105-
17 at 17; H.R. Rep. No. 105-95 at 97.
    Therefore, based on the concerns expressed by commenters and for 
the reasons clarified in the above discussion, it is determined that 
(1) the definition of LEA should be amended to clarify that the term 
``LEA'' includes a public charter school established as an LEA under 
State law; (2) the provision in Sec. 300.241 (Treatment of charter 
schools and their students) should be retained in these final 
regulations; and (3) a new Sec. 300.312, entitled ``Children with 
disabilities in public charter schools,'' should be added to these 
final regulations.
    The new section makes clear that children with disabilities and 
their parents retain all rights under these regulations and that 
compliance with Part B is required regardless of whether a public 
charter school receives Part B funds. Thus, charter school personnel, 
for example, may not ask parents to waive their disabled child's right 
to FAPE in order to enroll their child in the charter school. This new 
section also would address the responsibilities of (1) public charter 
schools that are LEAs, (2) LEAs if a charter school is a school in the 
LEA, and (3) the SEA if a charter school is not an LEA or a school in 
an LEA.
    Changes: The note has been removed. The definition of LEA has been 
amended by adding after ``secondary school'' the words ``including a 
public charter school that is established as an LEA under State law.'' 
A new Sec. 300.312 has been added to further address the treatment of 
charter schools.

Native Language (Sec. 300.19)

    Comment: Some commenters requested that, in item (1) under the 
note, the Department change ``child'' to ``student''; add ``combination 
of languages'' used by the student; and add ``in the home and learning 
environments.'' A few commenters requested additional specificity in 
item 2 to clarify that the mode of communication used should be that 
used by the individual.
    Discussion: In light of the general decision not to use notes in 
these final regulations, the note following Sec. 300.18 of the NPRM 
should be removed. However, it is critical that public agencies take 
the necessary steps to ensure that the needs of disabled children with 
limited English proficiency (LEP) are adequately addressed. The term 
``native language'' is used in the prior notice, procedural safeguards 
notice, and evaluation sections: Secs. 300.503(c), 300.504(c), and 
300.532(a)(1)(ii).
    In light of concerns of commenters and the need to ensure that the 
full range of the needs of children with disabilities whose native 
language is other than English is appropriately addressed, the 
definition of ``native language'' in the NPRM should be expanded in 
these final regulations to clarify that (1) in all direct contact with 
the child (including evaluation of the child), communication would be 
in the language normally used by the child and not that of the parents, 
if there is a difference between the two; and (2) for individuals with 
deafness or blindness, or for individuals with no written language, the 
mode of communication would be that normally used by the individual 
(such as sign language, Braille, or oral communication).
    These changes to the regulatory definition of ``native language'' 
should enhance the chances of school personnel being able to 
communicate effectively with a LEP child in all direct contact with the 
child, including evaluation of the child.
    Changes: The definition of ``native language'' in the NPRM has been 
amended to reflect the concepts contained in the note following that 
definition, and the note has been removed.

Parent (Sec. 300.20)

    Comment: Several commenters indicated that (1) based on the 
definition of ``parent'' in the NPRM, States would be required to 
change their laws to include foster parents under the State definition 
of ``parent,'' and (2) language should be added to the NPRM so that 
foster parents can serve as parents, unless prohibited from doing so 
under State law.
    These and other commenters also requested that
    (1) the language in the note be included in the text of the 
regulations;
    (2) a provision be added to the effect that the public agency must 
continue to afford the natural parents all protections of this part if 
their rights to make educational decisions have not been extinguished, 
even if the child does not live with the natural parents and even if 
other persons appear to be acting as the child's parents;
    (3) the legal parent have the authority, not a grandparent or other 
person, unless parental authority is extinguished;
    (4) ``legal'' be added in front of ``guardian''; and
    (5) all references to ``parent'' in these regulations be changed to 
``the child's parent.'' Some commenters felt that the note created a 
problem for school districts because a situation often arises where a 
child is living with a person acting as a parent, while the natural 
parents are still involved and have not had their rights terminated, 
and requested clarification for school districts in these situations.
    Discussion: States should not have to amend their laws relating to 
parents in order to treat ``foster parents'' as parents. Therefore, 
conditional language in this regard is necessary if State law prohibits 
a foster parent from acting as a parent. This change would accomplish 
the intended effect of the provision (i.e., acknowledging that in some 
instances foster parents may be recognized as ``parents'' under the 
Act) without adding any burden to individual States whose State 
statutory provisions relating to parents expressly exclude foster 
parents.
    In light of the general decision not to use notes in these final 
regulations, the note following this section of the NPRM should be 
removed, but the substance of the note on foster parents should be 
added to the text of the regulations. Under these regulations, the term 
``parent'' is defined to include persons acting in the place of a 
parent, such as a grandparent or stepparent with whom the child lives, 
as well as persons who are legally responsible for a child's

[[Page 12547]]

welfare, and, at the discretion of the State, a foster parent who meets 
the requirements in paragraph (b) of this section. Commenters' concerns 
related to ensuring that the rights of natural parents are protected in 
a case in which a disabled child is living with a person acting as a 
parent, or providing that the parent retain authority even if a child 
is living with a grandparent, raise questions that the Department has 
traditionally held best to be left to each State to decide as a matter 
of family law.
    It is not necessary to add ``legal'' before the word ``guardian'' 
since the statute regarding the term ``parent'' at section 602(19)(A) 
merely notes that it includes a legal guardian. A legal guardian would 
be considered to meet the regulatory definition of ``parent''. The 
regulatory definition of ``parent'' has always included more than just 
the term identified in the statute. An inclusive definition of parent 
benefits public agencies by reducing the instances in which the agency 
will have to bear the expense of providing and appointing a surrogate 
parent (see Sec. 300.515) and benefits children with disabilities by 
enhancing the possibility that a person with ongoing day-to-day 
involvement in the life of the child and personal concerns for the 
child's interests and well-being will be able to act to advance the 
child's interests under the Act.
    Regarding the use of the reference to the child's parent, no change 
is needed since it is implicit that the rights under Part B are 
afforded to a child with a disability and his or her parents, as 
defined under these regulations.
    Changes: The note following the definition of ``parent'' in the 
NPRM has been removed; and the substance of the note has been reflected 
in the above discussion. The definition of ``Parent'' in these final 
regulations has been amended to permit States in certain circumstances 
to use foster parents as parents under the Act without amending 
relevant State statutes.

Public Agency (Sec. 300.22)

    Comment: Some commenters requested that the definition of ``public 
agency'' be amended to include ``charter schools'' that are created 
under State law and are the recipients of public funds, because as 
proposed, a public agency would not include any charter school that is 
not an LEA or most of the nation's existing charter schools. Other 
commenters stated that, in order to support the provision on assistive 
technology under Sec. 300.308, the definition of ``public agency'' must 
be amended to include other State agencies, since the proposed 
definition of ``public agency'' includes only the SEA, not other State 
agencies which arguably could be used to try to circumvent financial 
responsibility based on this omission.
    Discussion: Public charter schools that are not otherwise included 
as LEAs or ESAs and are not a school of an LEA or ESA should be added 
to the definition of ``public agencies'' in order to ensure that all 
public entities responsible for providing education to children with 
disabilities are covered. However, the definition of ``public agency'' 
should not be amended to address financial responsibility for assistive 
technology. If another State agency is responsible for providing 
education to children with disabilities, it is already included in the 
definition of ``public agency.'' Other State agencies, not responsible 
for educating children with disabilities, should not be held to the 
requirements imposed on public agencies by these regulations because 
they are not agencies with educational responsibilities.
    Changes: Public charter schools as discussed previously has been 
added to the list of examples of a ``public agency'' in Sec. 300.22.

Qualified Personnel (Sec. 300.23)

    Comment: Numerous commenters stated that the definition of 
``qualified'' should be renamed ``qualified personnel,'' updated to the 
highest standard, and should be cross-referenced to the exception to 
the maintenance of effort provision'' in the regulations. Some 
commenters requested that the definition be changed to link the term 
``qualified'' to the statutory and regulatory provisions on personnel 
standards, i.e., the SEA standards that are consistent with any State 
approved or recognized certification, licensing, registration, or other 
comparable requirements based on the highest requirements in the State 
applicable to the profession or discipline in which a person is 
providing special education or related services. These commenters also 
stated that the more detailed definition is important to ensure that, 
under the exception to maintenance of effort in Sec. 300.232, qualified 
lower-salaried staff who replace higher-salaried staff have met the 
highest requirements in the State consistent with Sec. 300.136.
    Other commenters, with similar recommendations, requested that the 
name of the section be changed to ``Qualified professionals and 
qualified personnel,'' and that a note be added to explain the basis 
and importance of qualified professionals. Several commenters requested 
that the definition be amended to require that personnel providing 
services to limited English proficient students meet SEA requirements 
for bilingual specialists in the language of the child or student.
    Some commenters requested that the regulations be clarified to 
address qualifications for interpreters serving children who are deaf 
or have hearing impairments.
    Discussion: It is appropriate to change the title of this section 
of these final regulations to ``qualified personnel.'' This change is 
consistent with the importance of ensuring that all providers of 
special education and related services, including interpreters, meet 
State standards and Part B requirements.
    In order for interpreters to provide appropriate instruction or 
services to children with disabilities who require an interpreter in 
order to receive FAPE, States must ensure that these individuals meet 
appropriate State qualification standards.
    It is not necessary to refer to Sec. 300.136, as the definition 
already specifies that the person must meet State-approved or 
recognized requirements. Section 300.232 (exception to maintenance of 
effort), uses the term ``qualified'' in referring to the replacement of 
higher-salaried personnel by qualified lower-salaried personnel. 
Therefore it would be unnecessary and redundant to include a reference 
to that section.
    The definition of ``qualified personnel'' is sufficiently broad to 
encompass the qualifications of bilingual specialists, and no further 
changes are required in this definition.
    Changes: The name of this section has been changed to ``Qualified 
personnel,'' and a corresponding reference to ``qualified personnel'' 
has been included in the text of the definition.

Related Services (Sec. 300.24)

    Comment: A number of comments were received relating to the general 
definition of ``related services'' under Sec. 300.22(a) of the NPRM, 
and to Note 1 following that section of the NPRM. These comments 
included revising Sec. 300.22(a) consistent with the definition in the 
statute, and adding services to the definition of related services; for 
example, assistive technology devices and services, school nursing 
services, travel training, and educational interpreter services. Some 
of these commenters stated that interpreter services are of utmost 
importance for deaf students to succeed in the educational setting and 
are essential for hearing impaired students to function in the 
mainstream. A few

[[Page 12548]]

commenters requested that ``qualified sign language interpreting'' be 
added, including the definition of the term from the ADA.
    One commenter stated that a note should be added that related 
services not only can be used to ameliorate the disability but also to 
work toward independence and employability.
    Several commenters recommended that changes be made in Note 1. Some 
of the commenters expressed concern about adding additional services 
(travel training, nutrition services, and independent living services) 
to an already lengthy list of services. Some commenters requested that 
the note be deleted because it is too expansive, or that the 
parenthetical phrase in the first paragraph be dropped because the 
listing is confusing without some further explanation or clarification. 
One comment stated that the menu of related services suggests that a 
disabled child might need all of the listed services. Other commenters 
stated that inclusion of terms such as dance therapy and nutrition is 
confusing, and that further clarification is needed as to how they are 
``related'' to the student's access to special education and to making 
progress in the general curriculum.
    Some commenters requested that ``artistic and cultural programs'' 
be deleted from the parenthetical statement in Note 1, stating (for 
example) that (1) these programs are areas of the curriculum and not 
related services (i.e., they are not necessary for a child to benefit 
from special education), and (2) ensuring that disabled children have 
an equal opportunity to participate in the type of cultural activities 
available to all children is different than considering those programs 
to be a related service ``therapy'' that implies specific certification 
requirements in many sectors.
    A number of commenters requested that the statement that 
psychological testing might be done by qualified psychological 
examiners, psychometrists, or psychologists depending on State 
standards be deleted from the second paragraph of Note 1. One comment 
stated that there is no national standard for this role, and thus it 
conflicts with evaluation requirements and personnel standards. Other 
commenters recommended that the third paragraph in Note 1 be amended to 
provide that the activities do not act to reduce the amount of the 
service specified by any child's IEP as necessary for FAPE.
    Discussion: In light of the general decision not to use notes in 
these final regulations, Note 1 following this section of the NPRM 
should be removed, but the substance of the note is reflected in the 
following discussion. All related services may not be required for each 
individual child. As under prior law, the list of related services is 
not exhaustive and may include other developmental, corrective, or 
supportive services (such as artistic and cultural programs, art, 
music, and dance therapy) if they are required to assist a child with a 
disability to benefit from special education in order for the child to 
receive FAPE. Therefore, if it is determined through the Act's 
evaluation and IEP requirements that a child with a disability requires 
a particular supportive service in order to receive FAPE, regardless of 
whether that service is included in these regulations, that service can 
be considered a related service under these regulations, and must be 
provided at no cost to the parents.
    The IEP process in Secs. 300.340-300.350, and the evaluation 
requirements in Secs. 300.530-300.536, are designed to ensure that each 
eligible child under Part B receives only those related services that 
are necessary to assist the child to benefit from special education, 
and there is nothing in these regulations that would require every 
disabled child to receive all related services identified in the 
regulations, as suggested by some commenters.
    Commenters' suggestions that the second paragraph of Note 1 to this 
section of the NPRM is no longer needed should be addressed. The 
statement in Note 1--that ``psychological testing might be done by 
qualified psychological examiners, psychometrists, or psychologists 
depending on State standards''--should not be retained, since States 
must establish their own qualification standards for persons providing 
special education and related services. Therefore, State standards 
would govern which individuals should administer these tests, 
consistent with Part B evaluation requirements.
    As stated in the discussion under Secs. 300.5 and 300.6 of this 
analysis, assistive technology devices and services may already be 
considered a related service. Therefore, it is not necessary to add 
assistive technology devices and services to the list of related 
services defined in this section. Second, because ``school health 
services'' is currently defined as services provided by a ``qualified 
school nurse'' or other qualified person, there is no reason to address 
further the issue of ``school nurses'' or school nursing services. 
Third, although interpreter services for children with hearing 
impairments are not specifically mentioned in the definition of related 
services, those services have been provided under these regulations 
since the initial regulations for Part B were issued in 1977. (See also 
discussion under Qualified personnel).
    Regarding commenters' suggestions that related services are 
required not only to ameliorate the disability but to provide 
preparation for employment, a change is not needed. The Act's 
transition services requirements are sufficiently broad to facilitate 
effective movement from school to post-school activities, and if deemed 
appropriate by the IEP team, these transition services could be 
identified as related services for an individual student.
    Changes: Note 1 following the definition of ``related services'' in 
the NPRM has been removed.
    Comment: A number of commenters requested changes in the 
definitions of specific terms defined in the definition of ``related 
services,'' as follows:
    Some commenters recommended that the definition of ``audiology'' be 
modified to include functions that are not contained in the current 
definition. Some commenters requested that the definition of 
``occupational therapy'' be amended to add language to ensure that 
occupational therapy services are provided by qualified occupational 
therapists or occupational therapy assistants to ensure that those 
services can assist children to participate in the general curriculum, 
and achieve IEP/IFSP goals.
    A number of commenters recommended that the final regulations 
clarify that orientation and mobility services may be required by 
children with other disabilities, and that the services may be provided 
by personnel with different qualifications other than those serving 
persons who are blind or visually impaired. Other commenters requested 
that (1) the term ``qualified personnel'' should be deleted because 
using this term in this definition creates personnel problems for rural 
areas and for many urban settings, that orientation and mobility 
personnel are not used for all purposes listed, and not every State has 
a classification called orientation and mobility specialist; and (2) 
the option of providing orientation and mobility services in a 
student's home would apply to students who may not be home-schooled and 
would violate the least restrictive environment requirements of the 
Act.
    Several comments were also received on Note 2 (relating to 
orientation and mobility services and travel training). Some commenters 
requested that travel training be added as a separate related service 
with its own definition. The definition would be based on, or

[[Page 12549]]

incorporate, the language from Note 2 relating to travel training. 
Other commenters suggested that it would be more accurate to refer to 
this type of training as mobility training.
    A number of commenters requested that Note 2 be deleted because it 
was too expansive. Other commenters stated that (1) all references to 
travel training be dropped, since the term is not defined or even 
mentioned in the statute; (2) Note 2 expands services beyond the 
statute and will make orientation and mobility services extremely 
expensive and adversarial by requiring new personnel that are not 
available in rural areas and many urban areas; (3) Note 2 should not 
require a deliverable standard against which a school system might be 
held liable; and (4) travel training may be appropriate for other 
children with disabilities, but orientation and mobility specialists 
are not the personnel to provide these services.
    With respect to parent counseling and training, commenters 
recommended that (1) the title be changed to ``Parental training'' 
because the definition describes training, and schools cannot counsel 
parents as a related service; and (2) a training element be added at 
the end of the definition, to provide for assisting parents to acquire 
the necessary skills to help support the implementation of their 
child's IEP or IFSP. Other commenters proposed a specific definition of 
parent counseling and training that would emphasize helping parents to 
acquire the necessary skills to support the implementation of their 
child's IEP or IFSP. Another commenter recommended adding a note that 
training may include training in sign language or other forms of 
communication.
    Several commenters requested that the definition of ``school health 
services'' at Sec. 300.22(b)(12) of the NPRM be expanded to 
specifically include health care services that are not curative or 
treatment oriented, such as suctioning, gastronomy, tube feeding, blood 
sugar testing, catheterization, and administration of medication.
    A few commenters requested that the definition of ``school health 
services'' be amended to add the three-part test adopted by the United 
States Supreme Court in Irving Independent School District v. Tatro, 
484 U.S. 883 (1984). In Tatro, the Court stated that services affecting 
both the educational and health needs of a child must be provided under 
IDEA if: (1) The child is disabled so as to require special education; 
(2) the service is necessary to assist a disabled child to benefit from 
special education (thus, services which could be provided outside the 
school day need not be provided by the school, regardless of how easily 
a school could provide them); and (3) a nurse or other qualified person 
who is not a physician can provide the service. The commenters believe 
that by stating the Tatro holding in the regulation, longstanding 
Department policy would be formalized and litigation would decrease. 
Other commenters requested that the regulations clarify that 
specialized school health services should not be improperly or 
dangerously performed by individuals who lack the requisite training 
and supervision.
    Discussion: The definition of ``audiology'' should not be amended 
since the changes suggested by commenters are more than technical 
changes, and thus would require further study and regulatory review. 
However, in response to suggestions of commenters, it is appropriate to 
modify the definition of ``occupational therapy'' to make it clear that 
this term encompasses services provided by a qualified occupational 
therapist. This makes the definition generally consistent with the 
other related service definitions. It is not necessary to incorporate 
the term ``certified occupational therapy assistant,'' because the 
option of using paraprofessionals and assistants to assist in the 
provision of services under these regulations is addressed in 
Sec. 300.136(f).
    As stated by the commenters, some children with disabilities other 
than visual impairments need travel training if they are to safely and 
effectively move within and outside their school environment, but these 
students (e.g., children with significant cognitive disabilities) do 
not need orientation and mobility services as that term is defined in 
these regulations. ``Orientation and mobility services'' is a term of 
art that is expressly related to children with visual impairments, and 
includes services that must be provided by qualified personnel who are 
trained to work with those children. No further changes to the 
definition of ``orientation and mobility services'' are needed, since 
the definition as written does not conflict with the Act's least 
restrictive environment requirements.
    For some children with disabilities, such as children with 
significant cognitive disabilities, ``travel training'' is often an 
integral part of their special educational program in order for them to 
receive FAPE and be prepared for post-school activities such as 
employment and independent living. Travel training is important to 
enable students to attain systematic orientation to and safe movement 
within their environment in school, home, at work and in the community. 
Therefore, the definition of ``special education'' should be amended to 
include a provision relating to the teaching of travel training, as 
appropriate, to children with significant cognitive disabilities, and 
any other disabled children who require such services. The regulations 
should not substitute the term ``mobility training,'' since the 
legislative history (S. Rep. No. 105-17, p. 6; H.R. Rep. No. 105-95, p. 
86) recognizes that ``orientation and mobility'' services are generally 
recognized as for blind children while children with other disabilities 
may need travel training. In light of this regulatory change, Note 2 
following this section of the NPRM should be removed.
    The definition of ``parent counseling and training'' should be 
changed to recognize the more active role acknowledged for parents 
under the IDEA Amendments of 1997 as participants in the education of 
their children. Parents of children with disabilities are very 
important participants in the education process for their children. 
Helping them gain the skills that will enable them to help their 
children meet the goals and objectives of their IEP or IFSP will be a 
positive change for parents, will assist in furthering the education of 
their children, and will aid the schools as it will create 
opportunities to build reinforcing relationships between each child's 
educational program and out-of-school learning.
    For these reasons, the definition of ``parent counseling and 
training'' should be changed to include helping parents to acquire the 
necessary skills that will allow them to support the implementation of 
their child's IEP or IFSP. This change is in no way intended to 
diminish the services that were available to parents under the prior 
definition in these regulations.
    It is not necessary to modify the definition of ``school health 
services'' in the NPRM to add more specificity because the current 
definition requires provision of health services, including those 
addressed by the comments, if they can be provided by a qualified nurse 
or other qualified individual who is not a physician, and the IEP team 
determines that any or all of the services are necessary for a child 
with a disability to receive FAPE. The commenters' description of the 
holding in the Tatro decision is consistent with the Department's 
longstanding interpretation regarding school health services.

[[Page 12550]]

    In any case, the list of examples of related services in 
Sec. 300.22 is not exhaustive, and other types of services not 
specifically mentioned may be required related services based on the 
needs of an individual child. The only type of service specifically 
excluded from ``related services'' are medical services that are not 
for diagnostic and evaluation purposes. ``Medical services,'' has 
always been defined by the regulations as services provided by a 
physician. The regulations already make clear that providers of school 
health services, as is the case for providers of special education and 
related services in general, must be qualified consistent with 
Secs. 300.23 and 300.136 of these regulations.
    Changes: Consistent with the above discussion, the definitions of 
``occupational therapy'' at Sec. 300.24(b)(5) of these final 
regulations and ``parent counseling and training'' at Sec. 300.24(b)(7) 
of these final regulations have been revised; Note 2 has been deleted; 
and a reference to travel training has been added under Sec. 300.26 
(Special education).
    Comment: Numerous comments were received relating to 
``psychological services.'' Many of these comments addressed the role 
of school psychologists under this part (e.g., stating that a 
psychologist should be a member of the evaluation team, be involved in 
IEP meetings, and conduct behavioral assessments). A few commenters 
recommended that ``other mental health services'' be added at the end 
of proposed Sec. 300.22(b)(9)(v), stating that this would ensure that 
schools use, and families have access to, a variety of strategies and 
interventions that go beyond psychological counseling. The commenters 
added that children and families have been denied these necessary 
mental health services because these services are not specifically 
stated.
    Some commenters expressed concern about the provision in the NPRM 
that designated school psychologists and school social workers as the 
personnel responsible for assisting in the development of positive 
behavioral interventions and strategies for IEP goal development. These 
commenters stated that, although psychologists and school social 
workers may participate in actions relating to student behavior, this 
function is too critical to be listed under a specific category of 
related services. A few of these commenters stated that specifically 
linking development of positive behavioral interventions and strategies 
could be interpreted narrowly and result in excluding a broad array of 
other professionals (such as school counselors and teachers) who may 
know the students best. A number of commenters favored retaining the 
provision in the NPRM. One commenter recommended that the regulations 
be clarified to include an explicit ban on the use of aversive behavior 
management strategies under this part.
    A few commenters requested that the definition of ``recreation'' in 
proposed Sec. 300.22(b)(10) be eliminated. One commenter indicated that 
the definition will overreach the intent of IDEA. Others stated that 
(1) the services listed would add costs to IDEA as well as 
administrative burden because those services would be difficult to 
arrange and schedule, and (2) participation in community-based 
recreation is a family responsibility. A few commenters requested that 
the definition of rehabilitation counseling be amended to add that 
counseling should be provided on the basis of individual need and not 
on a specific disability category. The commenters stated that because 
vocational rehabilitation was provided under the transition grants for 
students with significant disabilities, some school systems consider 
vocational rehabilitation for these students only.
    Some commenters also recommended that the definition of ``social 
work services in schools'' be broadened to include individual and group 
counseling and other mental health services. A few commenters requested 
that proposed Sec. 300.22(b)(13)(iii) be revised to require that school 
social work services include working in partnership with parents on 
those problems in a child's living situation (home, school and 
community) that affect the child's adjustment in school. Other 
commenters requested that a new paragraph (vi) be added to the list of 
functions relating to working with classrooms of children to help 
students with disabilities develop or improve social skills, self 
esteem, and self confidence. (See also the comment and discussion under 
``psychological services'' related to the role of psychologists and 
social workers in the development of positive behavioral interventions 
and strategies for IEP goal development.)
    One commenter recommended that the function ``Provision of speech 
and language services for the habilitation or prevention of 
communication impairments'' be deleted from proposed 
Sec. 300.22(b)(14)(iv), because it includes vague language, making the 
program more litigious and more difficult to administer.
    Discussion: The definition of ``psychological services'' in the 
NPRM is sufficiently broad to enable psychologists to be involved in 
the majority of activities described by commenters, and, therefore, the 
definition should not be revised to add other, more specific functions.
    Nor is there a need to make substantive changes to the definition 
of ``social work services in schools.'' Although psychologists (and 
school social workers) may be involved in assisting in the development 
of positive behavioral interventions, there are many other appropriate 
professionals in a school district who might also play a role in that 
activity. The standards for personnel who assist in the development of 
positive behavioral interventions will vary depending on the 
requirements of the State. Including the development of positive 
behavioral interventions in the descriptions of potential activities 
under social work services in schools and psychological services 
provide examples of the types of personnel who assist in this activity. 
These examples of personnel who may assist in this activity are not 
intended to imply either that school psychologists and social workers 
are automatically qualified to perform these duties or to prohibit 
other qualified personnel from serving in this role, consistent with 
State requirements.
    Regarding the comment requesting clarification to impose a ban on 
aversive behavior under this part, the new requirements in section 
614(d)(3)(B)(i) of the Act are sufficient to address this concern by 
strengthening the ability of the IEP team to address the need for 
positive behavioral interventions in appropriate situations. Under 
these new requirements, the IEP team must ``consider, if appropriate, 
including in the IEP of a student whose behavior impedes his or her 
learning or that of others, strategies, including positive behavioral 
interventions, strategies, and supports to address that behavior.'' 
These new requirements are sufficiently broad to address the 
commenter's concerns. In meeting their obligations under section 
614(d)(3)(B)(i) of the Act, public agencies must ensure that qualified 
personnel are used, and may select from a variety of staff for this 
purpose.
    The definition of ``social work services in schools'' should not be 
expanded to include group counseling and other mental health services, 
since under the definition as written, social workers could provide 
these services if doing so would be consistent with State standards and 
the students required such services in order to receive FAPE. However, 
the technical change in Sec. 300.22(b)(13)(iii) should be made to 
clarify that school social workers work

[[Page 12551]]

in partnership with parents and others on those problems in a child's 
living situation (home, school, and community) that affect the child's 
adjustment in school. The current definition is sufficiently broad to 
enable school social workers to help disabled students work on social 
skills.
    Recreation should not be deleted from the list of related services. 
This is a statutory provision that has been defined in the regulations 
since 1977.
    The commenters' request relating to ``rehabilitation counseling'' 
(i.e., to add clarification that it should be provided based on 
individual need) is generally the case with all related services. 
Adding a specific limitation to rehabilitation counseling could 
inappropriately suggest that other services are to be provided without 
regard to individual need.
    The definition of ``speech-language pathology services'' should not 
be revised. This is a longstanding definition that is useful to 
qualified speech-language pathologists who provide services to children 
with disabilities under these regulations.
    Changes: A technical change has been made to the definition of 
``social work services in schools.''
    Comment: A few commenters supported Note 3 (relating to the use of 
paraprofessionals). Some commenters recommended that the note be 
amended by requiring proper training and supervision in the areas in 
which paraprofessionals are providing services.
    Commenters also stated that the regulations must (1) ensure parents 
know which services are provided by paraprofessionals; (2) clarify the 
service limitations of paraprofessionals; (3) prohibit any independent 
development, substantive modification or unapproved provision of 
services independent of the supervising related services professional; 
(4) ensure that paraprofessionals are not used for IEP decision-making 
activities or development or revisions of the child's interventions or 
IEP; and (5) ensure these precautions are part of the policy 
requirements of Sec. 300.136(f).
    Other commenters requested that paraprofessionals who assist in 
providing speech-language pathology services must be supervised by a 
person who meets the highest requirements in the State for that 
discipline.
    Discussion: In light of the general decision not to use notes in 
these final regulations, Note 3 following this section should be 
removed. When paraprofessionals are used to assist in the provision of 
special education and related services under these regulations, they 
must be appropriately trained and supervised in accordance with State 
standards. Since concerns raised by commenters about the use of 
paraprofessionals and assistants are addressed in the analysis of 
comments under Sec. 300.136(f) of this attachment, it is not necessary 
to make further changes to this section.
    Changes: Note 3 to this section of the NPRM has been removed.
    Comment: Several comments were received on Note 4 relating to the 
definition of ``transportation.'' Some commenters recommended that the 
note be revised to include accommodations to achieve integrated 
transportation, including providing appropriate training to 
transportation providers, such as bus drivers, and including the use of 
aids.
    A few commenters stated that the second sentence in Note 4 implies 
that there is no limit to the adaptations that a school must make to 
bus equipment to afford a disabled child an opportunity to ride the 
regular bus. The commenters added that (1) the IEP team must retain the 
authority to determine the appropriate mode of transportation based on 
child's needs and financial and logistical burdens of various options, 
and (2) as with other related services, transportation must only be 
provided to assist a child with disabilities to benefit from special 
education.
    A number of commenters stated that transportation accommodations 
are an LRE issue and, as such, should be determined by each child's IEP 
team. These commenters added that accommodations also should be 
addressed through section 504 and the ADA, and recommended that the 
note be deleted. Another commenter recommended the need to clarify 
public agency responsibility to provide necessary transportation to 
disabled children even if that transportation is not provided to 
nondisabled children.
    Other commenters also recommended that Note 4 be deleted. One 
commenter stated that the note goes beyond the statute and adds costs 
in an outrageous extension of Federal authority. Another commenter 
stated that the note could lead school districts to conclude that they 
had to buy specialized equipment (e.g., lifts) for even more of their 
buses in order to provide integrated transportation, a concept found 
nowhere in the Act.
    Discussion: In light of the general decision not to use notes in 
these final regulations, Note 4 to this section of the NPRM should be 
deleted. In response to concerns of commenters, each disabled child's 
IEP team must be able to determine the appropriate mode of 
transportation for a child based on the child's needs. That team makes 
all other decisions relating to the provision of special education and 
related services; and transportation is a specific statutory service 
listed in the definition of related services.
    It is assumed that most children with disabilities will receive the 
same transportation provided to nondisabled children, unless the IEP 
team determines otherwise. However, for some children with 
disabilities, integrated transportation may not be achieved unless 
needed accommodations are provided to address each child's unique 
needs. If the IEP team determines that a disabled child requires 
transportation as a related service in order to receive FAPE, or 
requires accommodations or modifications to participate in integrated 
transportation with nondisabled children, the child must receive the 
necessary transportation or accommodations at no cost to the parents. 
This is so, even if no transportation is provided to nondisabled 
children.
    As with other provisions in these regulations relating to qualified 
personnel, all personnel who provide required services under this part, 
including bus drivers, must be appropriately trained.
    Changes: Note 4 to this section of the NPRM has been removed, the 
substance of Note 4 is reflected in the above discussion, and it is 
further discussed in Appendix A of these final regulations.

Special Education (Sec. 300.26)

    Comment: Some commenters requested that, in implementing the IEP 
for disabled students in school-funded placements outside of the school 
district, the cost of trips, phone calls, and other expenses incurred 
by parents should be covered. Some commenters stated that they are not 
reimbursed for official long-distance phone calls made regarding their 
child's needs or for trips to attend special IEP meetings. According to 
a commenter, one district will pay for the cost of driving the student 
to school, but not for the cost of the return trip of the parents.
    Several commenters requested that the definition of ``physical 
education'' in proposed Sec. 300.24(b)(2)(ii) be amended to change 
``adaptive'' to ``adapted,'' because the term was used in the original 
regulations, and no rationale has been provided for changing it.
    Some commenters expressed support for the definition of ``specially 
designed instruction'' as written, while other

[[Page 12552]]

commenters expressed support with modification. Other commenters took 
exception to the definition, characterizing it as overly prescriptive. 
Other commenters recommended dropping the reference to methodology, 
citing case law and the legislative history in support of their view 
that methodology should not be included in this definition.
    A few commenters stated that the definition of ``vocational 
education'' in proposed Sec. 300.24(a)(3) was not complete, and 
requested that it be amended to comply with the definition in the Carl 
D. Perkins Vocational and Applied Technology Education Act. Other 
commenters objected to including ``vocational education'' within the 
definition of ``special education,'' asserting that there is no 
statutory authority to do so. Other commenters recommended that some 
minor modifications be made to the current definition.
    A few commenters requested that the regulations clarify the 
difference between accommodations that do not change the content of the 
curriculum and modifications that do change it. Other commenters 
requested that access to the general curriculum be to the maximum 
extent appropriate for the child. A few commenters recommended adding 
clarifying language to accommodate the distinction between providing 
disabled students with a meaningful opportunity to meet the standards 
and actually meeting the standards, and stated that the Act recognizes 
this distinction by referencing involvement and progress in the general 
curriculum.
    Some commenters supported the note to proposed Sec. 300.24 (that a 
related services provider may be a provider of specially designed 
instruction if State law permits). Other commenters stated that the 
note should be deleted to eliminate the possibility that individuals 
may interpret it to mean that the term ``child with a disability,'' as 
defined under proposed Sec. 300.7, might include children who need only 
a related service.
    Discussion: It is not necessary to revise the definition of ``at no 
cost'' under paragraph (b)(1) of this section, since that definition 
already addresses the comment relating to the cost of trips, phone 
calls, and other expenses incurred by parents of disabled children when 
those children are placed outside the school district by a public 
agency. If the school district places the child, and the IEP team 
determines that the costs of phone calls and trips are relevant to the 
student's receipt of FAPE, the public agency placing the child would be 
expected to pay for such expenses.
    Paragraph (b)(2) concerning ``physical education'' should be 
amended to substitute the word ``adapted'' for the word ``adaptive,'' 
since this is the term that was in the original regulations.
    With regard to the definition of ``specially designed 
instruction,'' some changes should be made. The committee reports to 
Pub. L. 105-17 make clear that specific day-to-day adjustments in 
instructional methods and approaches are not normally the sort of 
change that would require action by an IEP team. Requiring an IEP to 
include such a level of detail would be overly-prescriptive, impose 
considerable unnecessary administrative burden, and quite possibly be 
seen as encouraging disputes and litigation about rather small and 
unimportant changes in instruction. There is, however, a reasonable 
distinction to be drawn between a mode of instruction, such as cued 
speech, which would be the basis for the goals, objectives, and other 
elements of an individual student's IEP and should be reflected in that 
student's IEP, and a day-to-day teaching approach, i.e., a lesson plan, 
which would not be intended to be included in a student's IEP.
    Case law recognizes that instructional methodology can be an 
important consideration in the context of what constitutes an 
appropriate education for a child with a disability. At the same time, 
these courts have indicated that they will not substitute a parentally-
preferred methodology for sound educational programs developed by 
school personnel in accordance with the procedural requirements of the 
IDEA to meet the educational needs of an individual child with a 
disability.
    In light of the legislative history and case law, it is clear that 
in developing an individualized education there are circumstances in 
which the particular teaching methodology that will be used is an 
integral part of what is ``individualized'' about a student's education 
and, in those circumstances will need to be discussed at the IEP 
meeting and incorporated into the student's IEP. For example, for a 
child with a learning disability who has not learned to read using 
traditional instructional methods, an appropriate education may require 
some other instructional strategy.
    Other students' IEPs may not need to address the instructional 
method to be used because specificity about methodology is not 
necessary to enable those students to receive an appropriate education. 
There is nothing in the definition of ``specially designed 
instruction'' that would require instructional methodology to be 
addressed in the IEPs of students who do not need a particular 
instructional methodology in order to receive educational benefit. In 
all cases, whether methodology would be addressed in an IEP would be an 
IEP team decision.
    Other changes to the definition of ``specially designed 
instruction'' are not needed. The distinction between accommodations 
that change the general curriculum and those that do not, as one 
commenter requests, would be difficult to make because of the 
individualized nature of these determinations. Regardless of the 
reasons for the accommodation or modification, it must be provided if 
necessary to address the special educational needs of an individual 
student.
    The words ``maximum extent appropriate'' should not follow the 
reference to participation in the general curriculum, because such a 
qualification would conflict with the Act's IEP requirements and the 
unequivocal emphasis on involvement and progress of students with 
disabilities in the general curriculum, regardless of the nature or 
significance of the disability.
    The term ``vocational education'' in paragraph (b)(5) should not be 
amended to conform to the definition in the Carl D. Perkins Vocational 
and Applied Technology Education Act. The definition of ``vocational 
education'' in the proposed regulations should be retained in these 
final regulations since it reflects the definition of that term 
contained in the original regulations for this program published in 
1977. While the regulatory definition includes all of the activities in 
the Perkins Act definition, the substitution of the definition from the 
Perkins Act would be too limiting since that definition would not 
encompass those activities included in the current definition. The 
inclusion of ``vocational education'' in the definition of ``special 
education'' is needed to ensure that students with disabilities receive 
appropriate, individually-designed vocational educational services to 
facilitate transition from school to post-school activities.
    In light of the general decision not to use notes in these final 
regulations, the note following this section of the NPRM should be 
removed. The removal of this note, however, should not be construed as 
altering eligibility requirements under these regulations--namely (1) a 
child is an eligible child with a disability under Part B if the child 
has a covered impairment and requires special education by reason of 
the

[[Page 12553]]

impairment; and (2) a child with a disability can receive a related 
service only if that service is required to assist the child to benefit 
from special education. However, consistent with Sec. 300.26(a)(2), any 
related service that is considered special education rather than a 
related service under State standards may be considered as special 
education. A provision has been added under the definition of ``child 
with a disability'' to reflect this concept.
    Changes: Paragraph (a)(2) has been amended to add travel training 
to the elements contained in the definition of ``special education,'' 
and a separate definition of travel training has been added to 
paragraph (b)(4) as discussed in this attachment under Sec. 300.24. 
Paragraph (b)(2) concerning physical education has been revised to 
substitute the word ``adapted'' for the word ``adaptive.'' Paragraph 
(b)(3) has been revised to make clear that adaptations to instruction, 
in the form of specially designed instruction, are made as appropriate 
to the needs of the child. The note following this section of the NPRM 
has been removed, and the substance of the note is reflected in the 
above discussion.

Supplementary Aids and Services (Sec. 300.28)

    Comment: A few commenters supported the definition of 
``supplementary aids and services,'' as written. Some commenters 
requested that the regulations define the term ``educationally related 
setting,'' and that examples of supplementary aids and services be 
included. Another commenter recommended that the definition be amended 
to state that related services could be considered supplementary aids 
and services. Other commenters recommended that assistive technology be 
considered in the same context as supplementary aids and services.
    Discussion: It is not necessary to define the terms used in this 
definition. As stated in the analysis of comments relating to 
Secs. 300.5 and 300.6 (assistive technology devices and services), 
assistive technology devices and services are already recognized as 
supplementary aids and services. Under IDEA, aids, supports and 
services would be considered during the IEP meeting and if determined 
appropriate by the IEP team would be integrated under the appropriate 
components of the IEP. Further, with respect to the language about 
``related services,'' a change is not needed. If a disabled child 
requires a related service in the regular classroom, that related 
service must be provided, and there is no reason to identify that 
service as a supplementary aid or service.
    Changes: None.

Transition Services (Sec. 300.29)

    Comment: Many commenters supported the transition services 
definition in these regulations, but recommended that the definition be 
amended to include, in paragraph (1)(c)(vi), self-advocacy, career 
planning, and career guidance. This comment also emphasized the need 
for coordination between this provision and the Perkins Act to ensure 
that students with disabilities in middle schools will be able to 
access vocational education funds.
    One commenter recommended that the definition of ``transition 
services'' either be narrowed to post-school transition or that other 
transitions, such as transition from Part C to Part B, be defined 
elsewhere in these regulations.
    Discussion: The Act's ``transition services'' definition should be 
retained as written. In light of the general decision not to use notes 
in these final regulations, the note following this section of the NPRM 
should be removed. It is important to clarify that transition services 
for students with disabilities may be special education if they are 
provided as specially designed instruction, or related services, if 
they are required to assist a student with a disability to benefit from 
special education, and that the list of activities in the definition is 
not intended to be exhaustive.
    Additional examples of transition services are not needed because 
the current definition is sufficiently broad to encompass these 
activities. Nor is it necessary to amend the definition to reference 
the Perkins Act, since, under current law, students with disabilities, 
including those in middle schools, can participate in these Federally-
funded programs, and must be provided necessary accommodations to 
ensure their meaningful participation.
    Further, the definition of ``transition services'' should not be 
narrowed or expanded to include other transitions, because to do so 
could be inconsistent with congressional intent that public agencies 
provide students with disabilities the types of needed services to 
facilitate transition from school to post-school activities.
    Changes: The note following this section of the NPRM has been 
removed, and the substance of the note has been added as a new 
paragraph (b).

Subpart B

Condition of Assistance (Sec. 300.110)

    Comment: A few commenters stated that the proposed regulations at 
Secs. 300.110-300.113, as written, would not ensure that States meet 
the requirements of section 612(a) and (c) of the Act.
    Discussion: It is appropriate to amend Sec. 300.110 to more 
explicitly state what is required for compliance with these provisions.
    Changes: Section 300.110 has been amended, as noted in the above 
discussion.

Free Appropriate Public Education (Sec. 300.121)

(For a brief overview of the changes made regarding the discipline 
sections of these regulations, please refer to the preamble.)

    Comment: A few commenters asked that the regulations be amended to 
adopt a ``no cessation of services'' policy, under which students with 
disabilities would be entitled to receive FAPE even during periods of 
less than ten days of suspension in a given school year. Some of these 
commenters stated that there is no basis to assume that Congress did 
not mean what is explicitly stated in section 612(a)(1)(A) of the Act--
that all children are entitled to FAPE, including children who have 
been suspended or expelled from school.
    A few commenters expressed support for the proposed language which 
defines the term ``children with disabilities who have been suspended 
or expelled from school'' as meaning children with disabilities who 
have been removed from their current educational placement for more 
than 10 school days in a given school year, but asked that the 
regulations clarify that the 10 school days are cumulative, not 
consecutive.
    Several commenters recommended deleting the phrase ``in a given 
school year,'' stating that the statute allows school personnel to 
suspend a disabled child for not more than ten consecutive school days 
without the provision of educational services, and that there is no 
statutory basis for defining 10 school days to be within a given year. 
A number of commenters supported the proposed ``11th day'' rule (i.e., 
that the right to FAPE for disabled children who have been suspended or 
expelled begins on the eleventh school day in a school year that they 
are removed from their current educational placement). Other commenters 
recommended deleting proposed Sec. 300.121(c)(2). Some of these 
commenters stated that they agreed with the Supreme Court decision in 
Honig versus Doe and with the Department's

[[Page 12554]]

long-standing interpretation of the Act--that a pattern of suspensions 
would constitute a change in placement, but objected to the regulations 
defining when the ``11th day'' occurs.
    One commenter asked whether the provisions of proposed 
Sec. 300.121(c) would apply if a child's disability is not related to 
the behavior in question. Some commenters were concerned that the 
standard from Sec. 300.522 would be unwieldy for short-term suspensions 
or should be modified to permit different services for children 
suspended or expelled for behavior determined not to be a manifestation 
of their disability. Another commenter recommended strengthening the 
language of Sec. 300.121 to ensure that the SEA is responsible for 
ensuring the provision of FAPE for children who are suspended or 
expelled.
    Discussion: Section 612(a)(1)(A) of the Act now makes explicit that 
FAPE must be available to children with disabilities who are suspended 
or expelled, in light of the adverse impact a cessation of educational 
services can have on a child with disabilities ability to achieve in 
school and to become a self-supporting adult who is contributing to our 
society. The Act, however, should not be read to always require the 
provision of services when a child is removed from school for just a 
few days. School officials need some reasonable degree of flexibility 
when dealing with children with disabilities who violate school conduct 
rules, and interrupting a child's participation in education for up to 
10 school days over the course of a school year, when necessary and 
appropriate to the circumstances, does not impose an unreasonable 
limitation on a child with disabilities right to FAPE.
    On the other hand, at some point repeated exclusions of a child 
with disabilities from the educational process will have a deleterious 
effect on the child's ability to succeed in school and to become a 
contributing member of society. The law ensures that even children with 
disabilities who are engaged in what objectively can be identified as 
dangerous acts, such as carrying a weapon to school, must receive 
appropriate services. (See sections 615(k)(1)(A)(ii) and 615(k)(2)).
    Therefore, it is reasonable that children with disabilities who 
have been repeatedly suspended for more minor violations of school 
codes not suffer greater consequences from exclusions from school than 
children who have committed the most significant offenses. For these 
reasons, once a child with a disability has been removed from school 
for more than 10 school days in a school year, it is reasonable for 
appropriate school personnel (if the child is to be removed for 10 
school days or less, or the child's IEP team, if the child is to be 
suspended or expelled for behavior that is not a manifestation of the 
child's disability) to make informed educational decisions about 
whether and the extent to which services are needed to enable the child 
to make appropriate educational progress in the general curriculum and 
toward the goals of the child's IEP.
    The change of placement rules referred to in the Supreme Court's 
decision in Honig v. Doe, which is based on the Department's long-
standing interpretation of what is now section 615(j) of the Act, are 
addressed in the discussion of comments received under Sec. 300.520 in 
this attachment, and changes are made in these final regulations as a 
result of those comments. However, determining whether a change of 
placement has occurred does not answer the question of at what point 
exclusion from educational services constitutes a denial of FAPE under 
section 612(a)(1)(A) of the Act.
    With regard to the standard for services that must be provided to 
children with disabilities who have been suspended or expelled from 
school, the statute at section 615(k)(3) specifically addresses only 
the services to be provided to children who have been placed in interim 
alternative educational settings under sections 615(k)(1)(A)(ii) and 
615(k)(2) (Secs. 300.520(a)(2) and 300.521), which contemplate 
situations in which children are removed for up to 45 days, without 
regard to whether the behavior is or is not a manifestation of the 
child's disabilities.
    In light of the comments received, the regulation would be revised 
to recognize that the extent to which services would need to be 
provided and the amount of service that would be necessary to enable a 
child with a disability to meet the same general standard of 
appropriately progressing in the general curriculum and advancing 
toward achieving the goals on the child's IEP may be different if the 
child is going to be out of his or her regular placement for a short 
period of time. For example, a one or two day removal of a child who is 
performing at grade level may not need the same kind and amount of 
service to meet this standard as a child who is out of his or her 
regular placement for 45 days under Sec. 300.520(a)(2) or Sec. 300.521. 
Similarly, if the child is suspended or expelled for behavior that is 
not a manifestation of his or her disability, it may not make sense to 
provide services in the same way as when the child is in an interim 
alternative educational setting.
    As part of its general supervision responsibility under 
Sec. 300.600, each SEA must ensure compliance with all Part B 
requirements, including the requirements of Sec. 300.121(d) regarding 
FAPE for children who are removed from their current educational 
placement for more than ten school days in a given school year.
    Changes: The regulation has been revised to provide that when a 
child with a disability who has been removed from his or her current 
educational placement for more than 10 school days in a school year is 
subjected to a subsequent removal for not more than 10 school days at a 
time and when a child with a disability is suspended or expelled for 
behavior that is not a manifestation of the child's disability, the 
public agency must provide services to the extent necessary to enable 
the child to appropriately progress in the general curriculum and 
appropriately advance toward achieving the goals in the child's IEP.
    In the case of a child who is removed pursuant to 
Sec. 300.520(a)(1) for 10 school days or less at a time, this 
determination is made by school personnel, in consultation with the 
child's special education teacher. In the case of a child whose removal 
constitutes a change of placement for behavior that is not a 
manifestation of the child's disability pursuant to Sec. 300.524, this 
determination is made by the child's IEP team.
    The regulation has also been revised to clarify that if a child is 
removed by school personnel for a weapon or drug offense under 
Sec. 300.520(a)(2) or by a hearing officer based on a determination of 
substantial likelihood of injury under Sec. 300.521, the public agency 
provides services as specified in Sec. 300.522.
    Comment: Some commenters expressed support for Note 1 (which 
clarifies the responsibility of public agencies to make FAPE available 
to children with disabilities beginning no later than their third 
birthday) and recommended that the substance of the note be 
incorporated into the text of the regulations. A few commenters 
suggested revising Note 1 to clarify that children with disabilities 
whose third birthday occurs during the summer are not entitled to 
receive special education and related services until school starts for 
the fall term.
    Discussion: The responsibility of public agencies to make FAPE 
available to children with disabilities beginning no later than their 
third birthday means that an IEP (or an IFSP consistent with 
Sec. 300.342) has been developed and is

[[Page 12555]]

being implemented for the child by that date, with the IEP specifying 
the special education and related services that are needed in order to 
ensure that the child receives FAPE, including any extended school year 
services, if appropriate. (Section 612(a)(9) of the Act). If a child 
with a disability is determined eligible to receive Part B services, 
the public agency must convene a meeting and develop an IEP by the 
child's third birthday, and must in developing the IEP determine when 
services will be initiated. For 2-year olds served under Part C, the 
public agency must meet with the Part C lead agency and the family to 
discuss the child's transition to Part B services at least 90 days 
(and, at the discretion of the parties, up to 6 months) before the 
child turns 3. (See section 637 (a)(8)) of the Act). In order to ensure 
a smooth transition for children served under Part C who turn 3 during 
the summer months, a lead agency under Part C may use Part C funds to 
provide FAPE to children from their third birthday to the beginning of 
the following school year. (See section 638 of the Act).
    Children with disabilities who have their third birthday during the 
summer months are not automatically entitled to receive special 
education and related services during the summer, and the public agency 
must provide such services during the summer only if the IEP team 
determines that the child needs extended school year services at that 
time in order to receive FAPE. The substance of Note 1 should be 
incorporated into the text of the regulation, because it sets forth 
long-standing requirements that are based on the statute (see analysis 
of ``General Comments'' relating to the use of notes under this part).
    Changes: The substance of Note 1 has been added to the text of the 
regulations, and the note has been deleted.
    Comment: Some commenters expressed support for Note 2 (regarding 
the determination of eligibility for children advancing from grade to 
grade), and recommended that the substance of the note be incorporated 
into the text of the regulations. A few of the commenters suggested 
deleting the second sentence of Note 2 (relating to the IEP team) 
before making the note a regulation. Other commenters recommended that 
Note 2 be deleted, as it confuses the IEP team with the team that 
determines eligibility.
    Discussion: The revised IEP requirements at Sec. 300.347 require 
public agencies to provide special education and related services to 
enable students with disabilities to progress in the general 
curriculum, thus making clear that a child is not ineligible to receive 
special education and related services just because the child is, with 
the support of those individually designed services, progressing in the 
general curriculum from grade-to-grade. The group determining the 
eligibility of a child who has a disability and who is progressing from 
grade-to-grade must make an individualized determination as to whether, 
notwithstanding the child's progress from grade-to-grade, he or she 
needs special education and related services. The substance of Note 2, 
as revised, should be incorporated into the text of the regulation, 
because it sets forth long-standing requirements that are based on the 
statute (see analysis of ``General Comments'' relating to the use of 
notes under this part).
    Changes: Section 300.121 has been revised to incorporate the 
substance of Note 2, and the note deleted.
    Comment: None.
    Discussion: To ensure that children with disabilities have 
available FAPE, consistent with the requirements of this part, it is 
important for the Department to be able to verify that each State's 
policies are consistent with their responsibilities regarding important 
aspects of their obligation to make FAPE available. Therefore, 
Sec. 300.121(b) should be revised to provide that each State's policy 
regarding the right to FAPE of all children with disabilities must be 
consistent with the requirements of Secs. 300.300-300.313.
    Changes: Section 300.121(b) has been revised to provide that the 
States' policies concerning the provision of FAPE must be consistent 
with the requirements of Secs. 300.300-300.313.

Exception to FAPE for Certain Ages (Sec. 300.122)

    Comment: Some commenters expressed support for Sec. 300.122(a)(2), 
which sets forth an exception to the FAPE requirement for certain youth 
who are incarcerated in adult correctional facilities, and Note 2 which 
includes clarifying language from the House Committee Report. A few 
commenters wanted the regulation to clarify the responsibility of a 
State where reasonable efforts to obtain prior records from the last 
reported educational placement have been made, but no records are 
available. The commenter also requested adding a note to clarify that, 
even if State law does not require the provision of FAPE to students 
with disabilities, ages 18 through 21, who, in the last educational 
placement prior to their incarceration in an adult correctional 
facility were not identified as a child with a disability and did not 
have an IEP under Part B of the Act, the State may choose to serve some 
individuals who fit within that exception and include those individuals 
within its Part B child count.
    Discussion: Before determining that an individual is not eligible 
under this part to receive Part B services, the State must make 
reasonable efforts to obtain and review whatever information is needed 
to determine that the incarcerated individual had not been identified 
as a child with a disability and did not have an IEP in his or her last 
educational placement prior to incarceration in an adult correctional 
facility. The steps a State takes to obtain such information may 
include a review of records, and interviewing the incarcerated 
individual and his or her parents.
    A State may include in its Part B child count an eligible 
incarcerated student with a disability to whom it provides FAPE, even 
if the State is permitted under Sec. 300.122(a)(2) and State law to 
exclude that individual from eligibility. It is not necessary to 
provide additional clarification regarding these issues in the 
regulations.
    Proposed Note 2 quoted from the House Committee Report on Pub. L. 
105-17 which, with respect to paragraph (a)(2) of this section 
(relating to certain students with disabilities in adult prisons), 
stated that:

    The bill provides that a State may also opt not to serve 
individuals who, in the educational placement prior to their 
incarceration in adult correctional facilities, were not actually 
identified as a child with a disability under section 602(3) or did 
not have an IEP under Part B of the Act. The Committee means to* * 
*make clear that services need not be provided to all children who 
were at one time determined to be eligible under Part B of the Act. 
The Committee does not intend to permit the exclusion from services 
under part B of children who had been identified as children with 
disabilities and had received services under an IEP, but who had 
left school prior to their incarceration. In other words, if a child 
had an IEP in his or her last educational placement, the child has 
an IEP for purposes of this provision. The Committee added language 
to make clear that children with disabilities aged 18 through 21, 
who did not have an IEP in their last educational setting but who 
had actually been identified should not be excluded from services. 
(H. R. Rep. No. 105-95, p. 91 (1997))

    The concepts in this note are important in the implementation of 
this program. Appropriate substantive portions of the note should be 
clarified and included in the regulations. Consistent with the decision 
to not include notes in these final regulations, the note should be 
removed.

[[Page 12556]]

    Changes: Section 300.122(a)(2) has been revised by adding 
appropriate substantive portions of Note 2 to the text of the 
regulation, to specify situations in which the exception to FAPE for 
students with disabilities in adult prisons does not apply.
    Comment: Some commenters expressed support for Sec. 300.122(a)(3) 
(which provides that the obligation to make FAPE available does not 
apply to students with disabilities who have graduated from high school 
with a regular high school diploma), and Note 1 (which clarifies that 
graduation with a regular high school diploma is a change of placement 
requiring notice and reevaluation), and recommended that the substance 
of the note be included in the text of the regulation. Other commenters 
requested that Sec. 300.122(a)(3) and Note 1 be deleted because there 
is no statutory basis for these regulatory interpretations. Several 
commenters stated that, in most States, graduation is dependent on a 
student's having met specific standards (State, local, or both).
    A few commenters stated that some States have developed procedures 
for disabled students to graduate with a diploma based on the IEP, and 
recommended that the term ``regular'' be deleted from 
Sec. 300.122(a)(3). Other commenters recommended deleting the language 
about graduating with a regular high school diploma, and added that 
many States have, with public input, established multiple graduation 
diplomas and certificates. Other commenters recommended deleting the 
provision, and added that some States are shifting from diplomas to 
certificates of mastery based on what students know. A few commenters 
stated that receipt of a diploma or age 21 is the only reason for 
termination of eligibility, and, therefore, the requirement is 
redundant and should be deleted.
    Many commenters recommended deleting Note 1, stating that 
graduation is not a change of placement, and that reevaluation is not 
necessary and should not be required. These commenters stated the basis 
for their recommendation by adding that: (1) With the addition of the 
new IEP requirements such as benchmarks, reporting to parents, and 
examination of transition needs at age 14, the reevaluation requirement 
becomes redundant; (2) if the parents and student are provided notice 
of the impending graduation and the IEP team concurs, the additional 
step of reviewing current data and determining the nature and scope of 
a reevaluation is unnecessary and will consume staff time and 
resources; and (3) if parents believe their child should not graduate, 
they have procedural avenues available to contest the graduation.
    A few commenters stated that Sec. 300.122(a)(3) should not be 
interpreted as prohibiting a State from using Part B funds to serve 
students aged 18 through 21 who have attained a regular diploma but who 
are still in the State-mandated age range.
    Discussion: Because the rights afforded children with disabilities 
under IDEA are important, the termination of a child's eligibility 
under Part B is equally important. When public agencies make the 
determination as to whether the Part B eligibility of a student with a 
disability should be terminated because the student has met the 
requirements for a regular high school diploma or that the student's 
eligibility should continue until he or she is no longer within the 
State-mandated age of eligibility, it is important to ensure that the 
student's rights under the Act are not denied.
    As the comment notes, a number of the new IEP requirements focus 
increased attention on how children with disabilities can achieve to 
the same level as nondisabled children. In implementing these new 
requirements, it is important that the parents, participating in 
decisions made in developing their child's IEP--including decisions 
about their child's educational program (e.g., the types of courses the 
child will take) and the child's participation in State and district-
wide high stakes assessments--understand the implications of those 
decisions for their child's future eligibility for graduation with a 
regular diploma.
    The commenters persuasively point out that, there is a less 
burdensome way to protect the interests of students with disabilities 
under the Act whose eligibility for services is ending because of 
graduation with a regular diploma or because they are no longer age 
eligible. If an eligibility change is the result of the student's aging 
out or receipt of a regular high school diploma, the statutory 
requirement for reevaluation before a change in a student's eligibility 
under section 614(c)(5) should not be read to apply.
    Graduation with a regular high school diploma ends a student's 
eligibility for Part B services, and is, therefore, a change in 
placement requiring notice under Sec. 300.503 a reasonable time before 
the public agency proposes to graduate the student. The new 
requirements for transition planning and for reporting to parents 
regarding the progress of their child, together with the notice to them 
regarding proposed graduation, are sufficient to ensure that parents 
are appropriately informed to protect the rights of their child. The 
parents would have the option, as with any public agency proposal to 
change the educational program or placement of a child with a 
disability, to seek to resolve a disagreement with the proposal to 
graduate the student through all appropriate means, including mediation 
and due process hearing proceedings.
    Exiting or graduating a student with a disability with a credential 
that is different from the diploma granted to students who do not have 
disabilities does not end an individual's eligibility for Part B 
services, and is not a change in placement requiring notice under 
Sec. 300.503. The second paragraph of proposed Note 1 clarified that if 
a high school awards a student with a disability a certificate of 
attendance or other certificate of graduation instead of a regular high 
school diploma, the student would still be entitled to FAPE until the 
student reaches the age at which eligibility ceases under the age 
requirements within the State or has earned a regular high school 
diploma. This clarification is consistent with the statute and final 
regulations. However, consistent with the decision to not include notes 
in the final regulations, the note should be deleted.
    An SEA or LEA may elect to use Part B funds for services for a 
student with a disability who has graduated with a regular high school 
diploma but who is still within the State-mandated age range for Part B 
eligibility, but may not include the student in its Part B child count. 
For children aged 19 through 21, eligibility for services is a matter 
of State discretion.
    Changes: Section 300.122(a)(3) has been revised to make clear that 
graduation from high school with a regular diploma is a change in 
placement requiring notice in accordance with Sec. 300.503. Section 
300.534(c), also has been revised to clarify that a reevaluation is not 
required before the termination of a student's Part B eligibility due 
to graduation with a regular high school diploma, or ceasing to be age-
eligible under State law. Note 1 has been removed.

Child Find (Sec. 300.125)

    Comment: A few commenters expressed support for the statutory 
provision reflected in Sec. 300.125(c), which states that nothing in 
the Act requires that children be classified by their disability. Some 
commenters believed that Sec. 300.125(c) is inconsistent with 
Sec. 300.125(b)(3), which requires a

[[Page 12557]]

description of the policies and procedures that the State will use to 
obtain the number of children by disability category, and Sec. 300.751, 
which requires the reporting of data by disability category.
    Some commenters recommended that Note 2 (which states that the 
services and placement needed by each child with a disability must be 
based upon the child's unique needs and may not be determined or 
limited based upon a category of disability) be incorporated into the 
regulations. Other commenters recommended deleting the phrase ``and may 
not be determined or limited based upon a category of disability,'' so 
as not to conflict with Sec. 300.346(a)(2)(iii) (consideration of 
special factors relating to children who are blind or visually 
impaired). Other commenters stated that Note 2 should be deleted 
because it deals with services and placements, rather than child find.
    A few commenters requested that the regulations clarify the child 
find requirements for children birth through age 3, because the 
requirements under Parts B and C are different, and it is not clear 
which must be followed. One commenter recommended that Note 3 (which 
describes the link between child find under Parts B and C) be 
incorporated into the regulations because it promotes interagency 
coordination. Other commenters stated that Note 3 is unnecessary and 
should be deleted because the text of Sec. 300.125 sufficiently covers 
the statutory requirement.
    Some commenters expressed support for Note 4 (relating to highly 
mobile children, such as the homeless and migrant children). A few 
commenters requested more guidance related to a State's obligation to 
migrant children. Other commenters stated that States are already doing 
their best to find these children, but added that it is (1) virtually 
impossible to meet fully an obligation to ensure that all of these 
children are found, and (2) extremely difficult to obtain accurate data 
on these populations.
    Discussion: Section 300.125(c), which clarifies that the Act does 
not require public agencies to label children by disability, is not 
inconsistent with the data reporting requirements in 
Secs. 300.125(b)(3) and 300.751. The statement in Note 2--that the 
services and placement needed by each child with a disability may not 
be determined or limited based upon a category of disability--is 
crucial in implementing both the child find and FAPE requirements. 
Thus, the substance of the note has been included in this discussion, 
and has been incorporated in the text of the regulations at 
Sec. 300.300(a)(3)(ii). Specifying that services and placement not be 
determined or limited based on category of disability is not 
incompatible with the special considerations related to children who 
are blind and visually impaired.
    It is clear, without the need for further clarification in the 
regulations, that the child find and evaluation procedures under Part C 
must be followed when the purpose is to locate, identify and evaluate 
infants and toddlers with disabilities who may be eligible for early 
intervention services under that Part, and that the child find and 
evaluation procedures under Part B must be followed when the purpose is 
to locate, identify and evaluate children with disabilities who may be 
eligible for special education and related services under that part.
    Note 3 provided needed clarification of long-standing statutory 
requirements, under Parts B and C regarding the respective 
responsibilities of the SEA and Part C lead agency for child find 
activities. In States in which the SEA and Part C lead agency are 
different, each agency remains responsible for ensuring that the child 
find responsibilities under its program are met, even if the agencies, 
through an interagency agreement, delegate to one agency the primary 
role in child find for the birth through two population. When 
different, the SEA and Part C lead agency are encouraged to cooperate 
to avoid duplication and ensure comprehensive child find efforts for 
the birth through two population. The substance of the note should be 
incorporated into the text of the regulation.
    Although it is difficult to locate, identify, and evaluate highly 
mobile children with disabilities, it is important to stress that the 
States' child find responsibilities under Sec. 300.125 apply equally to 
such children and that the substance of Note 4 should be added to the 
text of Sec. 300.125(a).
    Changes: The substance of Notes 1, 3, and 4 has been added to the 
text of the Sec. 300.125; the substance of Note 2 has been added to the 
text of Sec. 300.300(a)(3)(ii); and the four notes have been deleted.

Procedures for Evaluation and Determination of Eligibility 
(Sec. 300.126)

    Comment: A few commenters requested that the regulation specify 
best practices for evaluation and the determination of eligibility.
    Discussion: The use of best practices in all educational programs 
and activities in order to help ensure that all children, including 
children with disabilities, are prepared to meet high standards is, of 
course, strongly encouraged, and the Department funds many programs to 
identify and disseminate best practices. Section 300.126, however, 
addresses the eligibility requirements relating to evaluation and the 
determination of eligibility that States must meet, rather than best 
practices.
    Changes: None.

Confidentiality of Personally Identifiable Information (Sec. 300.127)

    Comment: None.
    Discussion: In the NPRM, Sec. 300.127 included a note that 
contained a reference to the Family Education Rights and Privacy Act 
(FERPA) in 34 CFR Part 99. There is a clear relationship between the 
confidentiality requirements in IDEA and those in FERPA. The 
regulations in Secs. 300.560--300.577 are drawn directly from the FERPA 
regulations.
    Changes: Consistent with the decision to eliminate notes from the 
final regulations, the note following this section has been removed.

Least Restrictive Environment (Sec. 300.130)

    Comment: A few commenters requested that ``State-approved private 
schools and facilities'' be added to the list of placement options 
included in the continuum, as set forth in the note following 
Sec. 300.130.
    A few commenters were concerned that the proposed regulations did 
not include the State eligibility requirement, set forth in the prior 
regulations at Sec. 300.132(b), that each State include in its State 
plan the number of children within each disability category who are 
participating in regular education programs, and the number of children 
with disabilities who are in separate classes or separate school 
facilities or otherwise removed from the regular education environment.
    A few commenters stated that the note and Sec. 300.551 should be 
deleted; they assert that there is no requirement in the statute for a 
continuum, and that the note and the regulation are inconsistent with 
the statute's strengthened requirement that children with disabilities 
be integrated.
    Discussion: As described in Sec. 300.551(b)(1), the continuum 
includes the placement option of ``special schools.'' The requested 
revision regarding State-approved private schools and facilities is, 
therefore, not necessary. State-approved private schools and facilities 
are already covered by the continuum.

[[Page 12558]]

    The requirement in the prior regulations at Sec. 300.132(b), that 
each State include in its State plan the number of children within each 
disability category who are participating in regular education 
programs, and the number of children with disabilities who are in 
separate classes or separate school facilities or otherwise removed 
from the regular education environment, was based upon an express 
provision in the prior statute at section 612(5)(B) that was removed 
from the statute by the IDEA Amendments of 1997. Those amendments also 
eliminated the requirement that each State submit a State plan, instead 
requiring that each State demonstrate eligibility under Part B by 
having specified policies and procedures on file with the Secretary. 
The Department will, however, continue to collect data regarding 
placement in the LRE under section 618 of the Act.
    The statute, at section 607(b), prohibits the Secretary from 
implementing or publishing regulations implementing IDEA that would 
procedurally or substantively lessen the protections provided to 
children with disabilities, as set forth in the Part B regulations as 
in effect on July 20, 1983, including those relating to placement in 
the least restrictive environment, except to the extent that the 
revised regulation reflects the clear and unequivocal intent of the 
Congress in legislation. The provisions of Sec. 300.551 in the NPRM 
were included in the regulations as in effect on July 20, 1983. 
Therefore, those provisions must, consistent with section 607(b) of the 
Act, be retained in the regulations. In fact, the Senate and House 
Committee Reports on Pub. L. 105-17 support the continuing importance 
of the continuum provision:

    The committee supports the longstanding policy of a continuum of 
alternative placements designed to meet the unique needs of each 
child with a disability. Placement options available include 
instruction in regular classes, special classes, special schools, 
home instruction, and instruction in hospitals and institutions. For 
disabled children placed in regular classes, supplementary aids and 
services and resource room services or itinerant instruction must 
also be offered as needed. (S. Rep. No. 105-17, p. 11; H. R. Rep. 
No. 105-95, p. 91 (1997))

    The substance of the note is helpful in implementing the LRE 
requirements, and should be included in the text of the regulations.
    Changes: Consistent with the decision to delete notes from the 
final regulations, the note following Sec. 300.130 in the NPRM has been 
removed. The substance of the note has been incorporated into paragraph 
(a) of this section.
    Comment: A number of commenters expressed concerns about the 
provisions of Sec. 300.130(b), regarding the steps that a State must 
take if it distributes State funds on the basis of the type of setting 
in which a child is served. Some commenters were concerned that this 
provision not be implemented in a way that would negatively impact 
State funding formulas for State schools for the deaf. Other commenters 
requested that the regulations provide clear guidance as to what a 
State must do to determine whether its funding mechanism is resulting 
in placements that violate the least restrictive environment 
requirements of the Act.
    A few commenters asked that the regulations make clear that 
individual needs, rather than a State's finding mechanism must drive 
placement decisions, but that a State is not required to change the way 
in which it distributes State funds to public agencies unless the 
funding mechanism results in placement decisions that violate Part B's 
LRE requirements. Other commenters requested that the regulations be 
revised to require that a State's assurance under Sec. 300.130(b)(2) 
must specify the steps the State will take by a date certain (no later 
than the end of the following fiscal year) to revise its funding 
mechanism.
    Discussion: The provisions of Sec. 300.130(b) are unchanged from 
section 612(a)(5)(B) of the Act. A State is not required to revise a 
funding mechanism by which the State distributes State funds on the 
basis of the type of setting in which a child is served, unless it is 
determined that the State does not have policies and procedures to 
ensure that the funding mechanism does not result in placements that 
violate the LRE requirements of Secs. 300.550-300.556. The Senate and 
House Committee Reports on Pub. L. 105-17 emphasize the importance of 
section 615(a)(5)(B), stating that:

    The bill amends the provisions on least restrictive environment 
* * * to ensure that the state's funding formula does not result in 
placements that violate the requirement.
    The committee supports the long standing policy that to the 
maximum extent appropriate, children with disabilities are educated 
with children who are nondisabled and that special separate 
schooling, or other removal of children with disabilities from the 
regular educational environment occurs only when the nature or 
severity of the disability is such that education in regular classes 
with the use of supplementary aids and services cannot be achieved 
satisfactorily. (S. Rep. No. 105-17, p. 11; H. R. Rep. No. 105-95, 
p. 91 (1997)) Further clarification in the regulation is not needed.

Changes: None.

Transition of Children From Part C to Preschool Programs (Sec. 300.132)

    Comment: A few commenters expressed concern regarding the cost of 
home visits, especially in large geographic areas, that would be needed 
to implement the transition requirements of Sec. 300.132.
    Discussion: The provisions of Sec. 300.132 are drawn from the 
statutory requirements at section 612(a)(9), and do not set forth any 
additional requirements. While Sec. 300.132(c) requires that each LEA 
participate in transition planning conferences arranged by the 
designated lead agency under section 637(a)(8) (which requires the lead 
agency to convene such a conference), Sec. 300.132 does not require any 
home visits. Therefore, no revision is necessary.
    Changes: None.
    Comment: A few commenters requested that the regulation be revised 
to make clear that the pendency provisions of Sec. 300.514 apply to 
children transitioning from early intervention services under Part C to 
preschool special education and related services under Part B.
    Discussion: The pendency provision at Sec. 300.514(a) does not 
apply when a child is transitioning from a program developed under Part 
C to provide appropriate early intervention services into a program 
developed under Part B to provide FAPE. Under Sec. 300.514(b), if the 
complaint requesting due process involves the child's initial admission 
to public school, the public agency responsible for providing FAPE to 
the child must place that child, with the consent of the parent, into a 
public preschool program if the public agency offers preschool services 
directly or through contract or other arrangement to nondisabled 
preschool-aged children until the completion of authorized review 
proceedings.
    Changes: None.
    Comment: One commenter expressed concern that Sec. 300.132(b) 
suggests that a program of special education and related services be in 
place for each child with a disability on his or her third birthday, 
even if the birthday occurs during the summer and the child does not 
need extended school year services.
    Discussion: Section 612(a)(9) of the Act requires that, by the 
third birthday of a child with a disability participating in early 
intervention programs assisted under Part C who will participate in 
preschool programs assisted under Part B, an IEP or, if consistent with 
Sec. 300.342(c) and section 636(d) of the

[[Page 12559]]

Act, an IFSP, has been developed and must be implemented for the child. 
This means that if a child with a disability is determined eligible to 
receive Part B services, the public agency must convene a meeting and 
develop an IEP by the child's third birthday, and must, in developing 
the IEP, determine when services will be initiated. Children with 
disabilities who have their third birthday during the summer months are 
not automatically entitled to receive special education and related 
services during the summer, and the public agency must provide such 
services during the summer only if the IEP team determines that the 
child needs extended school year services during the summer in order to 
receive FAPE.
    Changes: The regulation has been revised to clarify that decisions 
about summer services for children who turn three in the summer are 
made by the IEP team.
    Comment: A few commenters requested that the regulation be revised 
to clarify that representation of an LEA in the transition planning 
process would most appropriately include all members of the IEP team, 
in order to further ``smooth'' the transition process and ensure 
appropriate attention to the child's needs.
    Discussion: Section 612(a)(9) of the Act leaves to each LEA the 
responsibility to determine who will most appropriately represent the 
agency in transition planning conferences. The requested revision goes 
beyond the requirements of the Act.
    Changes: None.
    Comment: A few commenters requested that a definition of the term 
``effective'' be included in the regulations.
    Discussion: It is not necessary to provide a definition of the term 
``effective,'' and doing so would restrict the flexibility needed to 
implement the Act for a very heterogeneous group of children.
    Changes: None.
    Comment: A few commenters requested that the regulations be revised 
to require that: (1) the transition planning conference be incorporated 
into the required timelines under Part B of the Act for determining 
eligibility and developing an IEP; and (2) LEAs acknowledge and 
consider existing documentation related to eligibility and service 
planning prior to conducting an individual evaluation of a child 
referred from the Part C system.
    Discussion: The Part C regulations require, at Sec. 303.148(b)(2), 
that the lead agency convene, with family approval, a transition 
planning conference at least 90 days, and at the discretion of the 
parties, up to 6 months before the third birthday of a toddler 
receiving early intervention services. The Part B regulations require 
that an IEP be developed and implemented for children with disabilities 
by their third birthday. It is inappropriate to specify further 
timelines in Sec. 300.132. Section 300.533 permits an LEA, if 
appropriate, to review existing data regarding a child with a 
disability (including a child who has been referred by the lead agency) 
as part of an initial evaluation.
    Changes: None.
    Comment: A few commenters requested that the regulation be revised 
to emphasize the responsibility of the lead agency to ensure that the 
LEA receive advance notice of any transition planning conference at 
which the participation of the LEA is required.
    Discussion: The Part C regulations require at Sec. 303.148(b) that 
the lead agency notify the local educational agency in which a child 
with a disability resides when the child is approaching the age of 
three, and convene, with family approval, a transition planning 
conference which includes the lead agency, the family and the LEA at 
least 90 days, and at the discretion of the parties, up to 6 months 
before the child's third birthday. Implicit in these requirements is 
the requirement that the lead agency inform the LEA early enough so 
that the LEA can arrange to participate in the conference. Additional 
clarification in the Part B regulations is not necessary.
    Changes: None.

Private Schools (Sec. 300.133)

    Comment: A few commenters requested that the regulations be revised 
to require each State to include, as part of the policies and 
procedures that it must have on file with the Secretary in order to 
establish eligibility under Part B of the Act, the policies and 
procedures that the State has established to comply with the provisions 
of Sec. 300.454(b), which requires that each LEA consult with 
representatives of private school children with disabilities in making 
determinations regarding the provision of special education and related 
services to children with disabilities who have been placed by their 
parents in private schools.
    Discussion: Section 300.133 specifically requires that each State 
``have on file with the Secretary policies and procedures that ensure 
that the requirements of Secs. 300.400-300.403 and Secs. 300.450-
300.462 are met.'' Thus, the regulation already requires that the 
procedures required by Sec. 300.454(b) be included in the policies and 
procedures that each State must have on file to establish eligibility.
    Changes: None.

Comprehensive System of Personnel Development (Sec. 300.135)

    Comment: A few commenters requested that the regulation be revised 
to require that each State, in developing its comprehensive system of 
personnel development, consider the need for bilingual special 
education and assistive technology instructors. Other commenters 
requested that the regulations be revised to require that special 
education, regular education, and related services personnel be trained 
regarding the use of home instruction and the circumstances under which 
such instruction is appropriate. Other commenters requested that the 
regulation be revised to require that each State have on file with the 
Secretary policies and procedures on the equitable participation of 
private school personnel in staff development, inservice, etc.
    Discussion: The CSPD provisions in Secs. 300.380-300.382 require 
each State to develop and implement a CSPD to ensure ``an adequate 
supply of qualified special education, regular education, and related 
services personnel'' (Sec. 300.380(a)(2)), and that ``all personnel who 
work with children with disabilities * * * have the skills and 
knowledge necessary to meet the needs of children with disabilities'' 
(Sec. 300.382). This would include, for example, consideration of the 
needs of personnel serving limited English proficient students and 
students who need assistive technology services and devices. The Act 
and regulations leave to each State the flexibility to determine the 
specific personnel development needs in the State.
    Matters related to the participation of private school staff in 
inservice training and other personnel development activities are 
decisions left to the discretion of each State and LEA, and, therefore, 
should not be addressed under this part.
    Changes: None.
    Comment: None.
    Discussion: The Senate and House committee reports on Pub. L. 105-
17, in reference to the CSPD requirements of this section state that:

    Section 612, as [in] current law, requires that a State have in 
effect a Comprehensive System of Personnel Development (CSPD) that 
is designed to ensure an adequate supply of qualified personnel, 
including the establishment of procedures for acquiring and 
disseminating significant knowledge derived from educational 
research and for adopting, where appropriate, promising

[[Page 12560]]

practices, materials, and technology. (S. Rep. No. 105-17, p. ; H. 
R. Rep. No. 105-95, p. 93 (1997))

    The States will be able to use the information provided to meet the 
requirement in Sec. 300.135(a)(2) as a part of their State Improvement 
Plan under section 653 of the Act, if they choose to do so.
    Changes: Consistent with the decision to not include notes in the 
final regulations, the note following this section has been deleted.

Personnel Standards (Sec. 300.136)

    Comment: Commenters made a number of suggestions regarding general 
modifications to this section. Some commenters expressed concern that 
in no case should children with disabilities receive services from 
individuals who do not meet the highest requirements applicable to 
their professions. Commenters recommended clarification requiring LEAs 
to ensure that all personnel are adequately trained to meet all the 
requirements of the IDEA, with emphasis on any requirement on which the 
LEA has been found by the SEA to be out of compliance, such as the 
failure to provide necessary assistive technology devices and services.
    Some commenters recommended that the definition of ``appropriate 
professional requirements in the State'' in Sec. 300.136(a)(1) be 
amended to include an explicit reference to ``professionally-
recognized'' entry level requirements. Other commenters requested 
additional clarification regarding the term ``highest requirements in 
the State.'' Those commenters who interpreted the term as imposing the 
maximum standard recommended that the definition be amended to specify 
that every provider of special education and related services must have 
a doctorate. Some commenters recommended clarification that highest 
requirements in the State are the minimum requirements established by a 
State which must be met by personnel providing special education and 
related services to children with disabilities under Part B.
    Numerous comments were received regarding Note 1 to this section of 
the NPRM, and regarding Note 3 as it relates to paragraphs (b) and (c) 
of this section. A number of commenters indicated that they had found 
Note 1 to be extremely useful in understanding the scope of this 
section; however, other commenters recommended that Note 1 either be 
deleted entirely, or that the substance of the note be incorporated 
into the text of Sec. 300.136. While many commenters recommended that 
Note 3 either be retained as a note or incorporated into the 
regulations, other commenters recommended that Note 3 be deleted 
because it would ``nullify'' the requirements of this section.
    Discussion: The substance of Sec. 300.136 of the NPRM has been 
retained in these final regulations, but the notes have been removed. 
Section 300.136 incorporates the provisions on personnel standards 
contained in Sec. 300.153 of the current regulations, with the addition 
of the new statutory amendments in section 612(a)(15)(B)(iii) and (C) 
of the Act.
    The IDEA Amendments of 1997 do not alter States' responsibilities 
to (1) establish policies and procedures relating to the establishment 
and maintenance of standards for ensuring that personnel necessary to 
carry out the purposes of this part are appropriately and adequately 
prepared and trained, (2) establish their own minimum standards for 
entry-level employment of personnel in a specific profession or 
discipline providing special education and related services to children 
with disabilities under these regulations based on the highest 
requirements in the State across all State agencies serving children 
and youth with disabilities, and (3) if State standards are not based 
on the highest requirements in the State applicable to a specific 
profession or discipline, take specific steps to upgrade all personnel 
in that profession to appropriate State qualification standards by a 
specified date in the future.
    Contrary to the suggestion made by commenters, the Act's personnel 
standards provisions are not intended to be a mechanism for addressing 
problems that result from the denial of special educational services to 
children with disabilities under Part B. If an SEA finds that any of 
its public agencies are out of compliance with the requirements of Part 
B, the SEA, in accordance with the general supervision requirements of 
section 612(a)(11) of the Act and Sec. 300.600 of these regulations, 
must take whatever steps it determines are necessary to ensure the 
provision of FAPE to children with disabilities who are eligible for 
services under Part B. In addition, through the comprehensive system of 
personnel development (CSPD), an SEA must conduct a needs assessment 
and identify areas of personnel shortages, as well as describe the 
strategies it will use to address its identified needs for preparation 
and training of additional personnel necessary to carry out the 
purposes of Part B.
    There is no need to clarify the regulatory definitions of 
``appropriate professional requirements in the State'' in 
Sec. 300.136(a)(1) or ``highest requirements in the State applicable to 
a specific profession or discipline'' in Sec. 300.136(a)(2). Section 
300.136 incorporates verbatim the definitions of these terms contained 
in the current regulations implementing the Act's personnel standards 
provisions, which were added to Part B by the Education of the 
Handicapped Act Amendments of 1986, Pub. L. 99-457.
    These definitions are consistent with the congressional intent that 
all personnel in a specific profession or discipline meet the same 
standards across all State agencies; nevertheless, they still afford 
States flexibility in determining the steps that must be taken to 
upgrade all personnel in a specific profession or discipline to meet 
applicable State qualification standards if the SEA's standard is not 
based on the highest requirements in the State applicable to the 
profession. The definition of ``highest requirements in the State'' is 
based on the highest entry-level academic degree required for 
employment in a specific profession or discipline across all State 
agencies.
    As explained in Note 1 to this section of the NPRM, these 
regulations require a State to use its own existing requirements to 
determine the standards appropriate to personnel who provide special 
education and related services under Part B of the Act, and nothing in 
Part B requires that all providers of special education and related 
services attain a doctorate or any other specified academic degree, 
unless the State standard requires this academic degree for entry-level 
employment in that profession or discipline.
    While States may consider professionally-recognized standards in 
deciding what are ``appropriate professional requirements in the 
State,'' there is nothing in the statute that requires States to do so. 
Rather, these matters appropriately are left to States. Therefore, to 
clarify the extent of flexibility afforded to States in meeting the 
Act's personnel standards requirements, a new paragraph (b)(3) should 
be added to these final regulations, and provides, in accordance with 
Note 1 to this section, that nothing in these regulations requires 
States to set any specified training standard, such as a master's 
degree, for entry-level employment of personnel who provide special 
education and related services under Part B of the Act.
    States also have the flexibility to determine the specific 
occupational categories required to provide special education and 
related services and to revise or expand those categories as

[[Page 12561]]

needed. Therefore, the clarification regarding this issue contained in 
the note to the current regulation should be incorporated as part of 
paragraph (a)(3) in the definition of ``specific profession or 
discipline.''
    Despite commenters' concerns that Note 3 would ``nullify'' the 
requirements of this section, experience in administering the Act's 
personnel standards provisions has demonstrated that there is a need to 
afford States that have only one entry-level academic degree for 
employment of personnel in a particular profession or discipline the 
ability to modify that standard if the State determines that 
modification of the standard is necessary to ensure the provision of 
FAPE to all children with disabilities in the State. Therefore, the 
substance of Note 3 should be incorporated into this section as 
paragraph (b)(4).
    Changes: Note 1 has been removed as a note and incorporated, as 
appropriate, both into the above discussion and into Sec. 300.136. Note 
2 has been removed as a note, and, as discussed later in this 
attachment, the substantive portion of Note 2 has been incorporated 
into Sec. 300.136(g) of these final regulations. Note 3 has been 
removed as a note and has been incorporated into Sec. 300.136, as 
explained below.
    Paragraph (a)(3) has been amended by adding a new paragraph (iv), 
which states that the definition is not limited to traditional 
occupational categories.
    New paragraphs (b)(3) and (b)(4) have been added, which provide 
that (1) nothing in this part requires a State to establish a specified 
training standard (e.g., a masters degree) for personnel who provide 
special education and related services under Part B of the Act, and (2) 
a State with only one entry-level academic degree for employment of 
personnel in a specific profession or discipline, may modify that 
standard without violating the other requirements of this section.
    Comment: Numerous comments were received regarding the role of 
paraprofessionals and assistants under Part B. Some commenters strongly 
cautioned against additional regulation since determinations regarding 
the definitions of paraprofessionals and assistants and the scope of 
their responsibilities will vary widely from State to State and across 
disciplines. These commenters also pointed out that Congress chose to 
provide only minimal guidance in this area. Other commenters made a 
number of specific suggestions for regulatory changes. Some commenters 
recommended that the language in paragraph (f) be changed from ``may'' 
to ``shall'' to make it mandatory for States to use paraprofessionals 
and assistants. Other commenters, who did not support the use of 
paraprofessionals and assistants to assist in the provision of services 
under Part B, recommended regulations prohibiting their use.
    Many commenters recommended that the regulations clarify that 
paraprofessionals and assistants who assist in the provision of speech 
pathology and audiology services under these regulations must be 
supervised by an individual who meets the highest entry-level academic 
degree requirement applicable to that profession. Similarly, commenters 
requested clarification that all paraprofessionals and assistants 
assisting in the provision of special education and related services 
under Part B must meet their profession's or discipline's highest 
entry-level academic degree requirement.
    Some commenters recommended that the terms ``paraprofessionals'' 
and ``assistants'' be defined separately, and that the roles and 
responsibilities and training be set out in the regulations so that all 
States could have the same definitions, since differences in 
definitions and responsibilities among States could interfere with the 
rights of children with disabilities to receive appropriate services 
under Part B. These commenters also provided suggested definitions to 
address these concerns.
    Commenters also suggested specific language that (1) only those 
paraprofessionals and assistants who are appropriately trained and 
supervised are allowed to assist in the provision of services under 
Part B in accordance with State law, regulations, written policy, and 
accepted standards of professional practice, and only assist in the 
provision of services with the consent of their supervisors; (2) para-
professional and assistant services must be delivered under the direct, 
ongoing and regular supervision of a qualified professional with 
competency in the technique(s) employed by the paraprofessional or 
assistant; (3) paraprofessionals and assistants may not develop, 
modify, or provide services independent of or without such supervision, 
and may report findings but not make diagnostic or treatment 
recommendations to special education decision making teams; (4) the 
roles, supervision and training of paraprofessionals and assistants 
must be consistent with the professional standards of the different 
areas in which they work; (5) paraprofessionals and assistants, at a 
minimum, must receive organized in-service training under the direct, 
ongoing and regular supervision of a qualified professional with 
competency in the technique being employed by the paraprofessional or 
assistant; and (6) the State must have information on file with the 
Secretary that demonstrates that the State has laws, regulations, or 
written policies related to the training, use, and supervision of 
paraprofessionals and assistants.
    Some commenters recommended that Sec. 300.136 be amended to expand 
services that paraprofessionals and assistants could assist in 
providing under Part B. Other commenters maintained that the use of 
paraprofessionals and assistants to assist in the provision of some 
special education and related services should be prohibited. For 
example, some commenters recommended that the regulations be clarified 
to specify that paraprofessionals may not assist in the provision of 
mental health services, while other commenters recommended 
clarification indicating that paraprofessionals and assistants could 
assist in the provision of psychological services, including evaluation 
and treatment services, only under the supervision of a school 
psychologist.
    Other commenters requested clarification regarding whether 
paraprofessionals could ever be used in lieu of special education 
teachers. A few commenters stated that in no case should medical 
procedures be provided by untrained individuals, and requested 
clarification to this effect.
    A number of commenters recommended that parents must be notified 
whenever paraprofessionals or assistants are assigned to assist in the 
provision of services. Other commenters recommended that this type of 
notice is necessary whenever students with disabilities receive 
services from an individual who does not meet the highest requirement 
applicable to their professions, and that parents should have the right 
to challenge this issue through the IEP process.
    Discussion: Section 300.136(f) tracks the statutory requirement in 
section 612(a)(15)(B)(iii), which permits, but does not require, the 
use of paraprofessionals and assistants who are appropriately trained 
and supervised, in accordance with State law, regulations, or written 
policy, to assist in the provision of special education and related 
services under Part B. Since the statute affords a State the option of 
using paraprofessionals and assistants to assist in the provision of 
special education and related services to children with disabilities, 
it would be inappropriate to regulate in a manner

[[Page 12562]]

that would either require or prohibit the use of paraprofessionals and 
assistants under Part B.
    The statute makes clear that the use of paraprofessionals and 
assistants who are appropriately trained and supervised must be 
contingent on State law, regulation, or written policy, giving States 
the option of determining whether paraprofessionals and assistants can 
be used to assist in the provision of special education and related 
services under Part B, and, if so, to what extent their use would be 
permissible. Therefore, there is no need to provide definitions of the 
terms ``paraprofessionals'' and ``assistants'' in these regulations, 
since States have the flexibility to determine the scope of their 
responsibilities.
    Section 300.382 of these regulations requires States to include in 
their CSPD a plan for the inservice and preservice preparation of 
professionals and paraprofessionals. Appropriate training and 
supervision are prerequisites for use of paraprofessionals and 
assistants under Part B, and determinations of what constitutes 
``appropriate'' training and supervision are matters for each State to 
decide, based on factors relevant to each profession or discipline. 
Because these regulations do not specify any particular standard for 
persons providing special education and related services, but instead 
leave such determinations to States, there also is no need to specify 
any particular standards for paraprofessionals and assistants or their 
supervisors in these regulations.
    No regulatory changes are necessary regarding information that a 
State that uses paraprofessionals and assistants to assist in the 
provision of special education and related services must have on file 
with the Secretary, since this information already would be part of the 
personnel standards portion of the State's Part B State plan. If a 
State chose to adopt a policy regarding the use of paraprofessionals 
and assistants, the State would be required to submit its policy to the 
Department only if that policy constitutes a change from the 
information contained in the State's prior year Part B State 
submission, under section 612(c) of the Act.
    In addition, there is no need to specify whether paraprofessionals 
and assistants can assist in the provision of psychological services, 
including mental health services, under these regulations, or to what 
extent they can participate in the testing process, since State laws, 
regulations, and written policies, not Part B requirements, would 
govern these determinations. With respect to ``medical services,'' 
however, it should be noted that only those medical services that are 
for diagnostic and evaluation purposes are eligible related services 
under Part B. Another category of ``related services,'' ``school health 
services,'' may be provided by a school nurse or other qualified person 
in accordance with applicable State qualification standards. It is 
critical that States that use paraprofessionals and assistants do so in 
a manner that is consistent with the rights of children with 
disabilities to FAPE under Part B. Since the Act provides that 
paraprofessionals and assistants may assist in the provision of special 
education and related services, their use as teachers would be 
inconsistent with a State's duty to ensure that personnel necessary to 
carry out the purposes of Part B are appropriately and adequately 
prepared and trained.
    Part B does not require that public agencies give parents 
information on how paraprofessionals and assistants are assisting in 
the provision of services to their children. However, public agencies 
are encouraged to inform parents about whether paraprofessionals are 
assisting in the provision of special education and related services to 
their children, including the extent that these individuals are being 
supervised by appropriately trained and qualified staff.
    No clarification has been provided regarding which services are 
being provided by individuals who do not meet the ``highest entry-level 
requirements'' applicable to their profession. The Act's personnel 
standards provisions and these regulations at Sec. 300.136(c) make it 
permissible for States to use individuals who do not meet the highest 
entry-level academic degree requirement applicable to their profession, 
provided that the State is taking steps to upgrade all personnel in 
that profession to appropriate professional requirements in the State 
by a specified date in the future. IDEA allows State the discretion to 
determine the ``specified date'' and does not prevent a State from 
making changes to that date. Thus a State is not prohibited from 
extending its timeline for retraining or hiring of personnel to meet 
appropriate professional requirements in the State.
    Changes: None.
    Comment: A number of comments were received regarding 
Sec. 300.136(g). These commenters requested definitions of ``most 
qualified individuals available,'' ``good faith efforts,'' ``geographic 
area,'' ``satisfactory progress,'' and ``shortages of personnel,'' or 
the clarification of these terms.
    Numerous commenters objected to allowing States that have upgraded 
all personnel in a specific profession or discipline to appropriate 
professional requirements in the State to use personnel who did not 
meet those standards if they were experiencing personnel shortages. 
These commenters regarded this provision as permitting these States to 
waive applicable personnel standards. Some of these commenters 
advocated not allowing States to have a policy that would extend the 
three-year time frame for individual applicants who are hired under the 
``waiver provision'' to become fully qualified. Other commenters 
requested clarification to ensure that paragraph (g) not be applied on 
a system-wide basis but instead be applied to individuals on a case-by-
case basis.
    Other commenters believed that paragraph (g) and Note 2 must be 
deleted because under no circumstances should States that have achieved 
the goal of upgrading all personnel in the State to meet appropriate 
professional requirements have the option of employing personnel, even 
temporarily, who do not meet applicable State personnel standards.
    Commenters requested specific clarification that a State may 
exercise the option under paragraph (g) of this section even though the 
State has reached its established date, under paragraph (c) of this 
section, for training or hiring all personnel in a specific profession 
or discipline to meet appropriate professional requirements in the 
State.
    While some commenters recommended that Note 2 either be retained or 
incorporated into the regulations, many commenters believed that Note 2 
should be deleted because it encourages protracted delays in attaining 
the highest requirement in the State applicable to specific professions 
or disciplines.
    Discussion: Section 300.136(g) of the NPRM incorporates essentially 
verbatim the new statutory provision at section 612(a)(15)(C) of the 
Act. Section 300.136(g) affords States the necessary flexibility to 
serve children with disabilities if instructional needs exceed 
available personnel who meet appropriate State personnel qualification 
standards, even though the State has satisfied the requirements of 
paragraph (c) of this section for personnel in a specific profession or 
discipline. However, a State's ability to permit its LEAs to utilize 
this option is conditioned on a number of factors.
    Under Sec. 300.136(g), States are given the option of adopting a 
policy of allowing LEAs in the State, that have made a good faith 
effort to recruit and hire appropriately and adequately

[[Page 12563]]

trained personnel, in a geographic area of the State where there is a 
shortage of personnel that meet applicable State qualification 
standards, of using the most qualified personnel available who are 
making satisfactory progress toward completion of applicable course 
work necessary to meet applicable State qualification standards within 
a three-year period.
    Therefore, in order for Sec. 300.136(g) to be invoked, the State 
must have made good faith efforts to recruit and hire appropriately and 
adequately trained personnel. However, before other personnel can be 
utilized, there must be a shortage of qualified personnel as determined 
by the State, in a geographic area as defined by the State, to meet 
instructional needs. The personnel who are utilized under these 
circumstances also must be making satisfactory progress toward 
completion of applicable course work within a three-year period.
    While a State's decision to invoke the policy under Sec. 300.136(g) 
depends on a variety of State-specific factors, the statute does not 
restrict the State's ability to invoke this policy if the conditions in 
Sec. 300.136(g) are present. However, it is expected that the 
circumstances in which the policy under paragraph (g) of this section 
will be invoked will prove to be the exception rather than the rule.
    The information provided by commenters does not provide a 
sufficient basis for restricting to only one three-year period a 
State's ability to invoke Sec. 300.136(g). Therefore, to avoid 
confusion, and consistent with the determination explained in Note 2 to 
this section in the NPRM, the portion of Note 2 that explains that this 
section can be invoked even if a State has reached its established date 
for a specific profession or discipline under paragraph (c) of this 
section should be incorporated into the regulations. Also, the 
clarification from Note 2 that a State that continues to experience 
shortages of personnel meeting appropriate professional requirements in 
the State must address those shortages in its comprehensive system of 
personnel development should be incorporated into the regulations.
    Changes: Paragraph (g) of this section of the NPRM has been 
designated as paragraph (g)(1) of these regulations. New paragraphs 
(g)(2) and (g)(3) have been added, and provide that (1) a State that 
has met its established goal for a specific profession or discipline 
under paragraph (c) of this section is not prohibited from invoking 
paragraph (g)(1); and (2) each State must have a mechanism for serving 
children with disabilities if instructional needs exceed available 
personnel, and if a State continues to experience shortages of 
qualified personnel, it must address those shortages in its 
comprehensive system of personnel development.
    Comment: Some commenters requested that clarification be provided 
to ensure that personnel with disabilities were hired. One comment 
requested that a new paragraph (h) be added to the regulations to 
specify that States not utilize standards that ``may screen out or tend 
to screen out individuals with disabilities.'' Some commenters 
requested clarification regarding the applicability of the personnel 
standards provisions to private school staff serving children with 
disabilities parentally-placed in private schools, and recommended that 
this be a part of the consultation process.
    Other commenters recommended that these regulations require that 
students who are deaf or hearing impaired receive appropriate 
instruction in their native language, including sign language, and that 
sign language interpreters meet particular qualification standards.
    Discussion: For the most part, the issues raised by these 
commenters have been addressed elsewhere in these regulations or 
through other statutory requirements; therefore, no further 
clarification has been provided in this section. If State standards 
screen out individuals with disabilities from providing special 
education and related services under these regulations, they could 
violate Federal civil rights laws that prohibit discrimination on the 
basis of disability.
    In addition, as required by Section 427 of the General Education 
Provisions Act (GEPA), each State must have on file with its Part B 
application to the Secretary a description of the steps the State is 
taking to ensure equitable access to, and participation in programs and 
activities assisted with Part B funds and must have identified the 
barriers to equitable participation and developed strategies to address 
those barrier.
    The Part B CSPD provisions require each State to develop a plan for 
the in-service and preservice preparation of professionals and 
paraprofessionals who work with children with disabilities under these 
regulations. One of the strategies that must be included in this plan 
in accordance with Sec. 300.382(h) is how a State will [r]ecruit, 
prepare, and retain qualified personnel, including personnel with 
disabilities and personnel from groups that are under-represented in 
the fields of regular education, special education, and related 
services.''
    Therefore, in meeting their obligations under Part B and GEPA, 
States are required to take steps to ensure equitable access of 
individuals with disabilities to their programs and must take steps to 
remove barriers which prevent such access. It is expected that States 
that determine through their CSPD that they have employed an 
insufficient number of individuals with disabilities will identify and 
remove barriers to the employment of individuals with disabilities in 
the State. This will ensure that qualified individuals with 
disabilities are recruited and hired to provide special education and 
related services to children with disabilities under these regulations.
    While sign language interpreters must be able to provide 
appropriate instruction and services to children who are deaf or 
hearing impaired, no clarification is necessary, since States must 
establish and maintain standards for all personnel who are providers of 
special education and related services, including sign language 
interpreters. See discussion of Sec. 300.23 (qualified personnel) in 
Subpart A of this Attachment. In addition, section 614(d)(3)(B)(iv) of 
the Act requires the IEP team to consider the language and 
communication needs of children who are deaf or hard of hearing. To 
ensure that this occurs, Sec. 300.136 would require each State to 
ensure that the necessary personnel are appropriately and adequately 
prepared and trained.
    The personnel standards provisions of these regulations are 
applicable to persons providing services to children with disabilities 
who are publicly placed in private schools and to persons providing 
special education and related services to parentally-placed private 
school children the LEA, after consultation with representatives of 
private schools, has chosen to serve.
    Changes: None.

Performance Goals and Indicators (Sec. 300.137)

    Comment: Some commenters requested that the regulations be revised 
to clarify the responsibility of a State to establish performance goals 
and indicators for children with disabilities if the State has not 
established performance goals and indicators for general education 
students. They also requested clarification of States' responsibility 
to report to the Secretary and the public regarding progress toward 
achieving the performance goals.
    Discussion: Further clarification is not required. As set forth in 
Sec. 300.137(a),

[[Page 12564]]

each State is required to demonstrate that it has established 
performance goals that are ``consistent, to the maximum extent 
appropriate, with other goals standards for all children established by 
the State.'' However, regardless of whether a State has established 
goals for all children, it must establish goals for the performance of 
children with disabilities, and must establish indicators that the 
State will use to assess progress toward achieving those goals that, at 
a minimum, address the performance of children with disabilities on 
assessments, drop-out rates, and graduation rates (Sec. 300.137(a) and 
(b)).
    The regulation also specifies that each State report every two 
years to the Secretary and the public on the progress of the State, and 
of children with disabilities in the State, toward meeting the goals 
established under Sec. 300.137(a). The requested revisions are not 
necessary.
    Changes: None.
    Comment: Some commenters requested that the regulation be revised 
to require that, prior to each State's reporting to the Secretary and 
the public every two years, as required by Sec. 300.137(c), the State 
conduct widely publicized forums at which students, parents, and 
concerned citizens can comment on a draft report, and that the State 
include the comments it receives as part of its final report to the 
Secretary and the public. Other commenters requested that the 
regulation be revised to require that each State establish its goals 
for the performance of children with disabilities with the cooperation 
and input of parents and children with disabilities, teachers, and 
members of the community.
    Discussion: The Act requires that each State report every two years 
to the Secretary and the public on the progress of the State and of 
children with disabilities in the State toward meeting the State's 
performance goals, but neither requires nor prohibits States from 
implementing procedures to allow the public the opportunity to comment 
on draft reports. It is appropriate to leave the use of such procedures 
to the discretion of the States, and no additional procedures regarding 
the reports are needed.
    In demonstrating eligibility under Part B, States are required to 
submit information to the Department demonstrating that they meet the 
requirements of this section of the regulations. Before submitting that 
information to the Department, the States' proposal will be subjected 
to public comment and involvement consistent with the public 
participation provisions of Secs. 300.280-300.284. These provisions 
include public notice and public hearings, and an opportunity for the 
public to participate before that information is submitted to the 
Department. The process applies to the initial submission as well as 
any subsequent substantive provisions.
    Changes: None.

Participation in assessments (Sec. 300.138)

    Comment: A number of commenters raised concerns regarding the note 
following Sec. 300.138, which states that it is assumed that only a 
small percentage of children with disabilities will need alternative 
assessments; some commenters requested that the language of the note be 
incorporated into the regulation itself, while others requested that 
the note be deleted, and further commenters requested clarification 
regarding the meaning of 'small percentage' in the note and who would 
enforce that requirement.
    Other commenters asked that the regulation clarify that the IEP 
team must make the determination that a child will participate in an 
alternate assessment. Others asked that the regulation be revised to 
include criteria or guidelines in the regulation for determining if an 
alternate assessment can be used for a child, while others requested 
that the regulations require that each State provide such guidance for 
IEP teams. Some commenters said that the use of the term ``alternate 
assessment'' in the regulation and the use of the term ``alternative 
assessment'' in the note caused confusion, and asked that ``alternate 
assessment'' be defined. Other commenters stated that costs of 
alternate assessments would be prohibitive. Some commenters expressed 
concerns regarding the use of accommodations. Some commenters were 
concerned that the use of accommodations might affect test validity and 
standardization, while others requested further guidance as to who has 
the authority to determine whether a particular accommodation is 
necessary and how that determination must be made. Some of the 
commenters requested that the regulation specify that accommodations 
should address students' specific needs and afford maximum 
independence, while others said that a student's needs should be 
accommodated by tools or assistive technology that he or she uses on a 
daily basis or with which he or she is most familiar.
    Other commenters asked that a note be added to reaffirm the State's 
responsibility to ensure that children are provided the accommodations 
they need so that they can participate in State and district-wide 
assessments. Some commenters requested clarification as to whether 
students should participate in assessments according to their 
performance level or the grade they are in based upon their 
chronological age. Some commenters requested clarification as to 
whether participation in alternate assessments was not required until 
July 1, 2000. A few commenters requested a note to state that 
assessment practices appropriate for children in grades 4 and older 
might not be appropriate for younger children.
    Discussion: State and district-wide assessment programs are closely 
aligned with State and local accountability-based reform and 
restructuring initiatives. Therefore, it is important to allow the 
flexibility needed for State and local school districts to 
appropriately include disabled children in State and district-wide 
assessment programs. Only minimum requirements are included in these 
regulations for how public agencies provide for the participation of 
children with disabilities in State and district-wide assessments. The 
Department will be working with State and local education personnel, 
parents, experts in the field of assessment and others interested in 
the area of assessment to identify best practice that could serve as 
the basis for a technical assistance document. As provided in 
Sec. 300.347(a)(5), the IEP team must determine whether a child with a 
disability will participate in a particular State or district-wide 
assessment of student achievement, and if the child will not, the IEP 
must include a statement of why that assessment is not appropriate for 
the child and how the child will be assessed. If IEP teams properly 
make individualized decisions about the participation of each child 
with a disability in general State or district-wide assessments, 
including the use of appropriate accommodations, and modifications in 
administration (including individual modifications, as appropriate), it 
should be necessary to use alternate assessments for a relatively small 
percentage of children with disabilities. Consistent with the decision 
to not include notes in these final regulations, the note is deleted.
    Section 300.138 requires the State or LEAs, as appropriate, to 
develop alternate assessments and guidelines for the participation of 
children with disabilities in alternate assessments for those children 
who cannot participate in State and district-wide assessment programs. 
Alternate assessments need to be aligned with the general curriculum 
standards set for all students and should

[[Page 12565]]

not be assumed appropriate only for those student with significant 
cognitive impairments.
    Section 300.347(a)(5) requires that the IEP team have the 
responsibility and the authority to determine what, if any, individual 
modifications in the administration of State or district-wide 
assessments are needed in order for a particular child with a 
disability to participate in the assessment. Section 300.138(a) should 
be revised to reflect the requirement that modifications in 
administration of State or district-wide assessments must be provided 
if necessary to ensure the participation of children with disabilities 
in those assessments. As part of each State's general supervision 
responsibility under Sec. 300.600, it must ensure the appropriate use 
of modifications in the administration of State and district-wide 
assessments.
    Test validity is an important variable and the Department has 
invested discretionary funds in providing assistance to States 
regarding appropriate modifications. The determination of what level of 
an assessment is appropriate for a particular child is to be made by 
the IEP team. It should be noted, however, that out of level testing 
will be considered a modified administration of a test rather than an 
alternative test and as such should be reported as performance at the 
grade level at which the child is placed unless such reporting would be 
statistically inappropriate.
    Although SEAs and LEAs are not required by Sec. 300.138 to conduct 
alternate assessments until July 1, 2000, each SEA and LEA is required 
to ensure, beginning July 1, 1998, that, if a child will not 
participate in the general assessment, his or her IEP documents how the 
child will be assessed.
    Changes: Paragraph (a) has been revised to acknowledge that, for 
some children with disabilities, participation in State and district-
wide assessments may require appropriate modifications in 
administration of the assessments as well as appropriate 
accommodations. The note has been removed.

Reports Relating to Assessments (Sec. 300.139)

    Comment: Several commenters noted that the requirement in 
Sec. 300.139(b)(1) that each State's reports to the public include 
``aggregated data that include the performance of children with 
disabilities together with all other children'' exceeds the 
requirements of the Act at section 612(a)(17)(B), and should be deleted 
from the regulations. Other commenters requested clarification as to 
whether States are required to aggregate data regarding children who 
take alternate assessments with results for students who take the 
general assessment. Other commenters requested that the regulations 
require or suggest that States disaggregate assessment results by 
disability category in reporting results to the public. A few 
commenters requested that ``public agency'' be replaced with ``SEA'' in 
the note following Sec. 300.139.
    Discussion: In order to ensure that students with disabilities are 
fully included in the accountability benefits of State and district-
wide assessments, it is important that the State include results for 
children with disabilities whenever the State reports results for other 
children. When a State reports data about State or district-wide 
assessments at the district or school level for nondisabled children, 
it also must do the same for children with disabilities. Section 
300.139 requires that each State aggregate the results of children who 
participate in alternate assessments with results for children who 
participate in the general assessment, unless it would be inappropriate 
to aggregate such scores.
    Section 300.139 and the Act neither require nor prohibit States 
from disaggregating assessment results by disability category in 
reporting results to the public; this is a matter that should be left 
to the discretion of each State. The text of Sec. 300.139 tracks the 
statute, which addresses reporting requirements of the SEA.
    The proposed note clarified that Sec. 300.139(b) requires a public 
agency to report aggregated data that include children with 
disabilities, but that a public agency is not precluded from also 
analyzing and reporting data in other ways (such as, maintaining a 
trendline that was established prior to including children with 
disabilities in those assessments).
    Changes: Consistent with the decision to not include notes in the 
final regulations, the note following Sec. 300.139 of the NPRM has been 
removed.

Methods of ensuring services (Sec. 300.142)

    Comment: Commenters emphasized that a child's right to FAPE should 
not be adversely affected because the child is eligible for services 
under Title XIX of the Social Security Act (Medicaid). For example, 
commenters recommended adding clarification prohibiting a State 
Medicaid agency or a Medicaid managed care organization from refusing 
to pay for or provide a service for which it would otherwise be 
responsible under Medicaid because the service is part of FAPE for a 
child.
    Some commenters recommended that Sec. 300.142(a)(4) be amended to 
incorporate Senate language about use of Medicaid funds to finance the 
cost of services provided in a school setting in accordance with a 
child's IEP to ensure that Medicaid-funded services are provided in the 
LRE and not in accordance with a medical model. However, some 
commenters were concerned that Medicaid funding would only be available 
for services for children with disabilities in school settings, and 
that reimbursement for services for children in other settings, such as 
the home, in accordance with their IEPs, would be denied.
    Although many commenters acknowledged that Medicaid has been an 
effective funding source for services in children's IEPs, clarification 
was requested to ensure that there was not a delay in or denial of 
services or alteration in types of services provided to children with 
disabilities under these regulations, based on the rules of some other 
provider or contractor.
    Many commenters noted that some LEAs will delay initiating a 
service until Medicaid payments are made, and requested that 
Sec. 300.142(d) be amended to specify (1) a timeline to ensure that 
services are not delayed until payment is received from another agency; 
(2) a requirement that the LEA must provide the service and seek 
reimbursement from the entity that is ultimately found to be 
financially responsible; (3) a timeline for entering into interagency 
agreements; and (4) a timeline for the prompt provision of 
noneducational services specified in a child's IEP. Some commenters 
recommended that clarification be provided to specify that State 
interagency agreements are binding on contractors and managed care 
organizations.
    Other commenters recommended a specific enforcement mechanism to 
make State IDEA grants contingent upon the existence and effective 
operation of an interagency agreement that complies with IDEA. 
Alternatively, the commenters' recommendation was that the regulations 
be amended to provide a mechanism for school districts to seek legal 
redress through the Department of Education or the judiciary against 
any State agency which fails to act in accordance with an existing 
legally-appropriate interagency agreement.
    While many commenters found the explanation in Note 1 to this 
section of the NPRM useful in understanding the intent of these 
requirements and therefore recommended that the note either be retained 
or incorporated into the regulation, other commenters

[[Page 12566]]

recommended that Note 1 be removed because it exceeded the statute.
    Discussion: While the concerns expressed by these commenters are 
very significant, most of them either already are addressed in this 
section or elsewhere in these regulations. However, in light of the 
general decision to remove notes from these final regulations, Note 1 
should be removed as a note, but pertinent portions are incorporated in 
this discussion. Regarding the concern that a child's entitlement to 
FAPE not be construed as relieving a Medicaid provider or other public 
insurer of its responsibility to pay for required services under these 
regulations, Sec. 300.601 implements the statutory provision at section 
612(e) of the Act, which provides that Part B does not permit a State 
to reduce medical or other assistance or to alter eligibility under 
Titles V and XIX of the Social Security Act with respect to the 
provision of FAPE for children with disabilities in the State. Section 
612(a)(12) of the Act, which is implemented by Sec. 300.142, reinforces 
this important principle. This new statutory provision emphasizes the 
obligation for interagency coordination between educational and 
noneducational public agencies to ensure that all services necessary to 
ensure FAPE are provided to children with disabilities, and that the 
financial responsibility of the State Medicaid agency or other public 
insurer shall precede that of the LEA or State agency responsible for 
developing the child's IEP.
    However, there is nothing in this provision that alters who is 
eligible for, or covered services under Medicaid or other public 
insurance programs. Therefore, the regulations should make clear that 
the coverage of or service requirements for Title XIX or Title XXI of 
the Social Security Act as defined in Federal statute, regulation or 
policy or the coverage of or service requirements for any other public 
insurance program are not affected by the IDEA regulation.
    With regard to the concern that services paid for with Medicaid 
funds must be provided in the LRE, and, if appropriate, at home, 
payment for services cannot be conditioned solely on the setting in 
which necessary services are provided. Regardless of whether services 
are paid for with Part B or with Medicaid funds, all special 
educational services for children with disabilities under Part B must 
be individually-determined and provided in the least restrictive 
setting in which the disabled child's IEP can be implemented.
    In response to the suggestions of commenters, the concept explained 
in the Senate and House Committee Reports on Pub. L. 105-17 which had 
been incorporated into Note 1 to this section of the NPRM, should be 
added to paragraph (b)(1) of these regulations to emphasize that health 
services provided to children with disabilities who are Medicaid-
eligible and meet the standards applicable to Medicaid, may not be 
disqualified from Medicaid reimbursement because they are services 
provided in a school context in accordance with a child's IEP. However, 
if a public agency is billing a State Medicaid agency or other public 
insurance program for services provided under this part, the public 
agency must ensure that the services and the personnel providing those 
services meet applicable requirements under statute, regulation or 
policy applying to that other program.
    Similarly, if the IEP team determines that a child needs to receive 
a particular service at home in order to receive FAPE, that service 
would not be disqualified from Medicaid reimbursement under the terms 
of these regulations, and States must address such concerns in the 
context of their interagency agreements under the terms of paragraph 
(a) of this section.
    In response to numerous comments requesting clarification on the 
issue of timely delivery of services paid for by noneducational public 
agencies, it is particularly important to ensure that there are no 
undue delays in the provision of required services due to the failure 
of a noneducational public agency to reimburse the educational public 
agency for required services for which the noneducational public agency 
is responsible. Such delays could effectively nullify the requirements 
for interagency coordination in section 612(a)(12) of the Act.
    Although paragraph (a)(4) of this section already includes a 
requirement that agencies have procedures that promote the 
coordination, timely, and appropriate delivery of services under these 
regulations, in response to concerns of commenters, the concept from 
the language in the Senate and House Committee Reports on Pub. L. 105-
17, which is restated in Note 1 to this section of the NPRM, is 
important to clarify understanding of these final regulations. 
Paragraph (b)(2) of this section should be revised to clarify that the 
provision of services under this section must be provided in a timely 
manner.
    No specific timelines have been included in these regulations. 
However, States are required to take the necessary steps to enter into 
appropriate interagency agreements between educational and 
noneducational public agencies, including ensuring the prompt 
resolution of interagency disputes. Effective interagency coordination 
should facilitate the timely delivery of special educational services 
as well as minimize any undue delays in the delivery of such services 
financed by noneducational public agencies.
    Despite suggestions of commenters, no provision has been added 
regarding the responsibilities of contractors, since the noneducational 
public agency, not the contractor, is the party to the agreement.
    No enforcement mechanism has been specified in these regulations. 
Under paragraph (a) of this section, the SEA must develop a mechanism 
for resolving disputes between respective agencies regarding financial 
responsibility for required services, and must ensure that all services 
needed to ensure the provision of FAPE are provided, including during 
the pendency of any interagency dispute.
    Because a mechanism for interagency coordination is a condition of 
eligibility for assistance under Part B, a State that fails to develop 
an effective mechanism for resolving interagency disputes and ensuring 
the provision of required services during the pendency of such disputes 
could jeopardize its continued eligibility for IDEA funding.
    Further, under section 613(a)(1) of the Act, in order for an LEA to 
be eligible for Part B funds from the State for any fiscal year, the 
LEA must have in effect policies, procedures, and programs that are 
consistent with the State policies and procedures established under 
section 612 of the Act. This would include the requirement in section 
612(a)(12) relating to methods of ensuring services.
    Changes: Section 300.142 has been amended by adding language to 
paragraph (b)(1) to specify that a noneducational public agency may not 
disqualify an eligible service for Medicaid reimbursement because that 
service is provided in an educational context. Paragraph (b)(2) has 
been amended to indicate that services must be provided in a timely 
manner, by the LEA (or State agency responsible for developing the 
child's IEP). Note 1 to this section of the NPRM has been removed. A 
new paragraph (i) has been added to this section to clarify that 
nothing in this part should be construed to alter the requirements 
imposed on a State Medicaid agency, or any other agency administering a 
public insurance program under Federal statute, regulations or policy 
for Title XIX or

[[Page 12567]]

Title XXI of the Social Security Act, or any other public insurance 
program.
    Comment: Commenters recommended that a statement be added to 
Sec. 300.142(a)(4) to specify that services financed as a result of 
interagency coordination are to supplement, not supplant, services 
provided by the LEA. Other commenters asked that Sec. 300.142(a)(4) be 
amended to specify that school-employed personnel must be the first 
resource for providing related services. In addition, commenters also 
recommended that clarification be added to specify that the use of 
contract personnel or other arrangements should not supersede or 
supplant the use of school based personnel, with very limited 
exceptions.
    Discussion: The requirement in section 612(a)(12)(A) of the Act, 
also reflected in paragraph (a)(1) of this section (which specifies 
that the financial responsibility of the State Medicaid agency or other 
public insurer of children with disabilities must precede that of the 
LEA or State agency responsible for the provision of FAPE) should not 
be construed to mean that Medicaid-funded services are supplemental to 
the basic services provided under these regulations. Regardless of the 
source of payment, the public agency responsible for educating the 
disabled child still must ensure that the child receives all required 
services at no cost to the parents. Therefore, if Medicaid funds only a 
portion of required services based on service caps, the public agency 
responsible for the provision of FAPE must ensure that any remaining 
necessary services are provided at no cost to the parents. However, a 
public agency may not make decisions regarding the provision of 
required services to children with disabilities under these regulations 
based solely on availability of Medicaid funding. To the contrary, if a 
public agency determines that particular services are necessary to 
ensure the provision of FAPE to children with disabilities, those 
services must be provided at no cost to the parents, regardless of 
whether Medicaid funds the service.
    No clarification has been provided regarding selection of personnel 
to provide required services under these regulations. In ensuring the 
provision of FAPE, public agencies may use any personnel that meet 
applicable State standards in accordance with Secs. 300.136 and 300.23 
of these regulations. However, as noted above, if a public insurance 
program is billed for services provided under this part, those services 
must meet the requirements of that program, including personnel 
standards that apply to that program, in addition to conforming with 
the requirements of this part. Once determinations about personnel 
qualifications have been made, Part B does not govern the manner in 
which necessary personnel are selected to meet instructional needs 
under these regulations.
    Changes: None.
    Comment: Commenters recommended clarification to specify that all 
services must be free from direct and indirect costs to parents. A 
principal concern of commenters was that even in circumstances where it 
is highly probable that future financial costs will result, parents 
feel constrained to permit public agencies to access their insurance 
because of the fear of losing necessary services for their disabled 
children.
    Many commenters believe that there is always a cost associated with 
using private insurance, i.e., exhaustion of lifetime caps, decreased 
benefits, increased co-pays and costs, risk of future uninsurability 
with another insurance carrier, and possible termination of health 
insurance. These commenters recommended that a new paragraph be added 
to this section, which would require public agencies to inform parents 
that voluntary use of their private insurance could entail these risks, 
that parents have no obligation to permit access to their insurance 
payments, and have the right to say no. These commenters also 
recommended that Note 2 to this section of the NPRM be deleted.
    Some commenters also objected that Sec. 300.142(e) does not support 
the concept of obtaining parental permission for use of public 
insurance, and recommended that the regulation specify that parents 
must give informed consent to use of their public or private insurance 
which (1) must be voluntary on the part of parents, (2) renewed at 
least annually, (3) can be revoked at any time, and (4) must include a 
written description of ``potential financial costs'' associated with 
using their insurance. Other commenters agreed with proposed paragraph 
(e)(1) and Note 2 and urged that they be retained in the final 
regulations.
    Discussion: Proposed paragraph (e)(1) of this section of the NPRM 
incorporated the interpretation of the requirements of Part B and 
Section 504 contained in the Notice of Interpretation (Notice) on use 
of parents' insurance proceeds, published on December 30, 1980 (45 FR 
86390). Under the interpretation in the Notice, public agencies may not 
access private insurance if parents would incur a financial cost, and 
use of parent's insurance proceeds, if parents would incur a financial 
cost, must be voluntary on the part of the parent.
    In light of the concerns of numerous commenters that the use of 
private insurance always involves a current or future financial cost to 
the parents, and the Department's experience in administering Part B, 
the regulations regarding use of private insurance should be revised. 
As numerous commenters have indicated, parents who permit use of their 
private insurance often experience unanticipated financial 
consequences. These parents often act without full knowledge of the 
future impact of their decision. Public agencies should be permitted to 
access a parent's private insurance proceeds only if the parent 
provides informed consent to use.
    Consistent with the definition of ``consent'' in these regulations, 
such consent must fully inform parents that they could incur financial 
consequences from the use of their private insurance to pay for 
services that the school district is required to provide under the 
IDEA, such as surpassing a cap on benefits, which could leave them 
uninsured for subsequent services, and that the parents should check 
with their private insurance provider so that they understand the 
foreseeable future financial costs to themselves before they give 
consent. This consent should be obtained each time a public agency 
attempts to access private insurance, and be voluntary on the part of 
the parents.
    In addition, parents need to be informed that their refusal to 
permit a public agency to access their private insurance does not 
relieve the public agency of its responsibility to ensure that all 
required services are provided at no cost to the parents. However, the 
suggestion of commenters that parents be informed that they have the 
right to refuse use of their private insurance because of future risks 
of financial consequences has not been adopted because it is 
unnecessary, in light of the new requirement that public agencies 
obtain parental consent to use a parent's private insurance.
    Changes: A new paragraph (f) has been added to clarify the 
circumstances under which public agencies may access parent's private 
insurance to pay for required services under these regulations. Note 2 
to this section of the NPRM has been removed.
    Comment: The majority of commenters urged regulations on the use of 
public insurance that would parallel those governing use of private 
insurance. Commenters recommended that regulations clarify that the 
same protections available to parents when

[[Page 12568]]

public agencies access private insurance are available to parents when 
public agencies access public insurance. These commenters also 
disagreed with the statement on page 55036 of the preamble to the NPRM 
that suggested that regulation on this issue was not necessary because 
there is no financial loss to parents under current public assistance 
programs such as Medicaid.
    Examples of financial costs cited by commenters resulting from 
Medicaid use were (1) limitation or decrease in public insurance 
benefits available to children with disabilities and their families for 
non-school needs; (2) a requirement that private insurance initially be 
used before Medicaid funds are made available; (3) limitations on 
amounts of services that can be reimbursed with Medicaid funds; and (4) 
premiums or co-pays resulting from use of Medicaid funding.
    Commenters also requested that the definition of ``financial cost'' 
be expanded to include costs such as a risk of losing eligibility for 
home and community-based waivers based upon aggregate health-related 
expenditure, and costs associated with Medicaid buy-ins. These 
commenters also recommended that the regulations clarify that parental 
consent must be obtained before a public agency can access Medicaid or 
other public insurance benefits available to the parent.
    Some commenters urged the elimination of definitions or terms not 
included in the statute, such as the definition of financial cost. 
Other commenters recommended that changes not be made and agreed with 
the statement in the preamble to the NPRM that there is no financial 
cost to parents who access Medicaid or other public insurance benefits. 
These commenters believed that the regulation should state that 
parental permission need not be obtained before accessing public 
insurance. Some of these commenters also recommended further 
observation and study of current State practices to ensure that the 
regulations do not have an adverse impact on currently existing and 
effective financial systems. These commenters also recommended 
additional guidance to allow States maximum flexibility to utilize all 
available resources.
    Some commenters recommended that Note 3 be retained as a note or 
that pertinent portions be incorporated into the regulation, while 
others requested that Note 3 be deleted.
    Discussion: As numerous commenters pointed out, the statutory basis 
of the 1980 Notice of Interpretation governing use of private insurance 
proceeds also applies to children with disabilities who have public 
insurance. In both instances services under Part B must be at no cost 
to parents. In view of the comments received, it appears that the 
statement contained on page 55036 of the preamble to the NPRM, which 
indicates that there is no risk of financial cost to parents if public 
agencies use Medicaid or other Federal, State or local public insurance 
programs, is not entirely accurate.
    While it is essential that public agencies have the ability to 
access all available public sources of support to pay for required 
services under these regulations, services must be provided at no cost 
to parents. However, in the majority of cases, use of Federal, State or 
local public insurance programs by a public educational agency to 
provide or pay for a service to a child will not result in a current or 
foreseeable future cost to the family or child. For example, under the 
Early Periodic Screening, Diagnosis and Treatment (EPSDT) program of 
Medicaid, potentially available benefits are only limited based on what 
the Medicaid agency determines to be medically necessary for the child 
and are not otherwise limited or capped. Currently, approximately 90 
percent of the school-aged children who are eligible for public 
insurance programs are eligible for services under the EPSDT program. 
Where there is no cost to the family or the child, public educational 
agencies are encouraged to use the public insurance benefits to the 
extent possible. It also should be noted that a public educational 
agency is required to provide a service that is needed by a child and 
has been included on his or her IEP but that is not considered 
medically necessary under EPSDT or other public insurance program. As 
is the case for any other service required by a child's IEP, if a 
service on a child's IEP is provided by a public insurance program at a 
site that is separate from the child's school, the public educational 
agency is responsible for ensuring that the transportation is at no 
cost to the child or family.
    There are some situations, however, that should be addressed by the 
regulation to ensure that use of public insurance does not result to a 
cost to the child or family. In some public insurance programs, 
families are required to pay premiums or co-pay amounts in order to be 
covered by or use the public insurance. Parents of children with 
disabilities under Part B should not be required to assume those costs 
so that a school district can use the child's public insurance to cover 
services required under Part B. While these regulations do not affect 
the requirement under Medicaid that the State Medicaid agency pursue 
liable third party payers such as private insurance providers, for the 
reportedly relatively small number of children and families who are 
covered by both private and public insurance, under IDEA parents may 
not be required to assume costs incurred through use of private 
insurance so that the school can get reimbursement from the public 
insurer for services in the child's IEP. Under IDEA, if a Medicaid-
enrolled child also is covered by private insurance, the public agency 
must choose one of two options--either obtain the parent's consent to 
use the private insurance, or not use Medicaid to provide the service. 
One way a public agency might be able to obtain that consent would be 
to offer to cover the costs that would normally, under Medicaid, be 
assessed against the private insurer. Similarly, if under Medicaid a 
parent or family normally would incur an out-of-pocket expense such as 
a co-pay or deductible, a public agency may not require parents to 
incur that cost in order for their child to receive services required 
under the IDEA. In such a case, again, the public agency must choose 
one of two options--either cover the out-of-pocket expense so that the 
parent does not incur a cost, or not use Medicaid to provide the 
service. The regulations should make clear that a public agency is able 
to use Part B funds to pay the cost that under Medicaid requirements 
would otherwise be covered by a third party payer.
    Public insurance limits of the amounts of services that will be 
covered based on the public insurer's determination of what is 
medically necessary for the child are not prohibited by Part B. 
However, a public educational agency's use of a child's benefits under 
a public insurance program should not result in the family having to 
pay for services that are required for the child outside of the school 
day and that could be covered by the public insurance program. For 
example, if a public insurer were to determine that eight hours of 
nursing services were medically necessary for a child whose medical 
devices needed constant trained supervision, a school district's use of 
six of those hours during the school day would mean that family would 
have to assume the financial responsibility for those services 
throughout the night. In such a case, the family would be incurring a 
cost due to the school district's use of the public insurance benefit. 
Risk of loss

[[Page 12569]]

of eligibility for home and community-based waivers, based in aggregate 
health-related expenditures could also constitute a cost to a family 
for those few children with very extensive health related needs.
    A public agency may not require a parent to sign up for Medicaid or 
other public insurance benefits as a condition for the child's receipt 
of FAPE under Part B. A child's entitlement to FAPE under Part B exists 
whether or not a parent refuses to consent to the use of their Medicaid 
or public insurance benefits or is unwilling to sign up for Medicaid or 
other public insurance benefits. Children with disabilities are 
entitled to services under Part B, regardless of parents' personal 
choices to access Medicaid or other public insurance benefits.
    Although section 612(a)(12) of the Act makes clear States' 
obligations to ensure that available public sources of support precede 
responsibilities of public agencies under these regulations, Medicaid 
or other public insurance benefits cannot be considered available 
public sources of support when parents decline to access those public 
benefits. However, there is nothing in these regulations that would 
prohibit a public agency from requesting that a parent sign up for 
Medicaid or other public insurance benefits. Furthermore, a public 
agency would not be precluded from using a child's public insurance, 
even if parents incur a financial cost, so long as the public agency's 
use of a child's public insurance is voluntary on the part of the 
parent.
    In order to ensure that children with disabilities are afforded a 
free appropriate public education at no cost to their parents, the 
regulation should be amended to address children with disabilities who 
are covered by public insurance by specifying that a public agency may 
use Medicaid or other public insurance benefits programs in which a 
child participates with certain exceptions. Those exceptions would be 
that a public agency may not require parents to sign up for public 
insurance in order for their child to receive FAPE under Part B of the 
Act; require parents to incur out-of-pocket expenses related to filing 
a public insurance claim for Part B services; and may not use the 
public insurance if the use would decrease coverage or benefits, 
increase premiums, lead to discontinuation of insurance, result in the 
family paying for services that otherwise would be covered by the 
public insurance and that are required by the child outside of the time 
the child is in school, or risk loss of eligibility for home and 
community-based waivers. However, unlike the rule related to private 
insurance, Part B would not require the public agency to obtain parent 
consent each time it uses the public insurance. Under the terms of the 
public insurance program, consent may be required before a public 
educational agency may use a child or family's public insurance 
benefits.
    In light of the importance of the issues addressed in Note 3 to 
this section of the NPRM, Note 3 should be removed as a note, and a new 
paragraph (g), regarding use of Part B funds, should be added to this 
regulation. This paragraph would permit use of Part B funds for (1) the 
cost of those required services under these regulations, if parents 
refuse consent to use public or private insurance; and (2) the costs of 
accessing parent's insurance, such as paying deductible or co-pay 
amounts.
    Changes: Paragraph (e) has been amended to address circumstances 
under which a public agency can access a parent's Medicaid or other 
public insurance benefits to pay for required services under these 
regulations. The definition of financial costs in the NPRM has been 
deleted. Note 3 to this section of the NPRM has been removed, and the 
substance of Note 3 has been incorporated into a new paragraph (g) of 
this section.
    Comment: Several commenters were concerned that Sec. 300.142(f) of 
the NPRM makes it permissible for public agencies not to use funds 
reimbursed from another agency to provide special education and related 
services to children with disabilities. Suggestions made by commenters 
were that this paragraph either be deleted or changed to require that 
these reimbursed funds must be used in this program.
    Commenters recommended that Note 4 be deleted since it gives public 
agencies the option of dedicating these funds to the Part B program 
only if they choose to do so. These commenters believe that this change 
is necessary for this regulation to be consistent with the purpose of 
section 612(a)(12) of the Act, which places financial responsibility 
for the provision of special education and related services on agencies 
other than schools. Other commenters recommended that Note 4 be deleted 
because it is redundant of Sec. 300.3, which provides that the 
regulations in 34 CFR part 80 apply to this program.
    Discussion: In response to concerns of commenters, Note 4 should be 
removed, but pertinent portions of Note 4 should be incorporated into 
the text of the final regulations. This section should clarify that, if 
a public agency receives funds from public or private insurance for 
services under these regulations, the public agency is not required to 
return those funds to the Department or to dedicate those funds for use 
in the Part B program, which is how program income must be used, 
although a public agency retains the option of using those funds in 
this program if it chooses to do so. Reimbursements are similar to 
refunds, credits, and discounts which are specifically excluded from 
program income in 34 CFR 80.25(a).
    In addition, the regulations should clarify that funds expended by 
a public agency from reimbursements of Federal funds will not be 
considered State or local funds for purposes of Secs. 300.154 and 
300.231. If Federal reimbursements were considered State and local 
funds for purposes of the maintenance of effort provisions in 
Secs. 300.154 and 300.231 of these regulations, SEAs and LEAs would 
experience an artificial increase in their base year amounts and would 
then be required to maintain a higher, overstated level of fiscal 
effort in the succeeding fiscal year.
    Changes: Section 300.142(f) has been redesignated as 
Sec. 300.142(h) and revised to clarify that (1) A public agency that 
receives proceeds from public or private insurance for services under 
these regulations is not required to return those funds to the 
Department or to dedicate those funds to this program because they will 
not be treated as program income under 34 CFR 80.25; and (2) funds 
expended by a public agency from reimbursements of Federal funds will 
not be considered State or local funds for purposes of Secs. 300.154 
and 300.231 of these regulations. Note 4 to this section of the NPRM 
has been removed.

Recovery of Funds for Misclassified Children (Sec. 300.145)

    Comment: Some commenters requested that the regulation be revised 
to provide a State the opportunity for a hearing before a student is 
declared ineligible for Part B funding.
    Discussion: Section 300.145 requires that each State have on file 
with the Secretary policies and procedures that ensure that the State 
seeks to recover any funds it provided to a public agency under Part B 
of the Act for services to a child who is determined to be erroneously 
classified as eligible to be counted under section 611(a) or (d) of the 
Act. There is no need to revise the regulation to provide for 
administrative review of a decision by this Department that Part B 
funds should be recovered from a State because of an erroneous child 
count. The Department uses the administrative appeal procedures set out 
at 34 CFR Part 81 in recovering funds because of an erroneous child

[[Page 12570]]

count for cases where the Department is attempting to recover grant 
funds, including Part B funds.
    Changes: None.

Suspension and Expulsion Rates (Sec. 300.146)

    Comment: Some commenters requested the regulation be revised to 
permit States to use sampling procedures to obtain the data that they 
will examine pursuant to Sec. 300.146(a).
    Discussion: Obtaining complete and accurate data on suspension and 
expulsion is too critical to be collected on a sampling basis.
    Changes: None.
    Comment: Some commenters requested that Sec. 300.146(b) be revised 
to require that a State review and if appropriate revise its 
comprehensive system of personnel development, if the State finds that 
significant discrepancies are occurring in the rate of long-term 
suspensions and expulsions of children with disabilities among LEAs in 
the State or compared to the rates for nondisabled children within 
LEAs.
    Discussion: Section 300.146(b) requires that, if an SEA finds that 
significant discrepancies are occurring in the rate of long-term 
suspensions and expulsions of children with disabilities among LEAs in 
the State or compared to the rates for nondisabled children within 
LEAs, the SEA must, if appropriate, revise (or require the affected 
State agency or LEA to revise) its policies, procedures, and practices 
relating to the development and implementation of IEPs, the use of 
behavioral interventions, and procedural safeguards, to ensure that 
these policies, procedures, and practices comply with the Act.
    Among the policies that a State would review and if necessary 
revise are its CSPD policies and procedures related to ensuring that 
personnel are adequately prepared to meet their responsibilities under 
the Act. Further, Sec. 300.382 specifically requires each State to 
develop strategies to ensure that all personnel who work with children 
with disabilities (including both professional and paraprofessional 
personnel who provide special education, general education, related 
services, or early intervention services) have the skills and knowledge 
necessary to meet the needs of children with disabilities; and these 
strategies must include how the State will ``* * * enhance the ability 
of teachers and others to use strategies, such as behavioral 
interventions, to address the conduct of children with disabilities 
that impedes the learning of children with disabilities and others'' 
(Sec. 300.382(f)). Further guidance is not needed.
    Changes: None.

Public Participation (Sec. 300.148)

    Comment: None.
    Discussion: Section 300.148 requires each State to ensure that, 
prior to the adoption of any policies and procedures needed to comply 
with this part, there are public hearings, adequate notice of the 
hearings, and an opportunity for comment available to the general 
public, including individuals with disabilities and parents of children 
with disabilities consistent with Secs. 300.280-300.284.
    In the past, a number of States have indicated that certain State 
special education policies that are also required under this part had 
previously been subjected to public review and comment under the 
State's own public participation process, and the States have expressed 
concern about having to repeat the process for those policies under 
Secs. 300.280-300.284.
    The need for an effective public participation process is critical 
to the adoption and implementation of policies and procedures that 
comply with the requirements under this part. However, if a State, in 
adopting State special education policies had previously submitted 
those policies through a public participation process that is 
comparable to and consistent with the requirements of Secs. 300.280-
300.284, it would be unnecessary and burdensome to require the State to 
repeat the process.
    Therefore, a provision would be added to Sec. 300.148 to clarify 
that a State will be considered to be in compliance with this provision 
if the State has subjected the policy or procedure to a public review 
and comment process that is required by the State for other purposes 
and that State public participation process with respect to factors 
such as the number of public hearings, content of the notice of 
hearings, and length of the comment period, is comparable to and 
consistent with the requirements of Secs. 300.280-300.284.
    Changes: Section 300.148 has been amended to include the provision 
described in the above discussion.

Prohibition Against Commingling (Sec. 300.152)

    Comment: None.
    Discussion: The proposed note clarified that the assurance required 
by Sec. 300.152 is satisfied by the use of a separate accounting system 
that includes an audit trail of the expenditure of the Part B funds and 
that separate bank accounts are not required, and referred the reader 
to 34 CFR Sec. 76.702 in EDGAR, regarding Fiscal control and fund 
accounting procedures. Because this information provides useful 
guidance to States, it should be incorporated into the regulations.
    Changes: The substance of the note is incorporated into the text of 
the regulation.

Maintenance of State Financial Support (Sec. 300.154)

    Comment: None.
    Discussion: States should be able to demonstrate that they have not 
reduced the amount of State financial support for special education and 
related services for children with disabilities, whether made directly 
available for those services or otherwise made available in recognition 
of the excess costs of educating children with disabilities on either a 
total or per child basis. A number of States, for example, have State 
funding formulas that are based on enrollment which could result in a 
decrease in the total amount of State financial support if enrollment 
declines.
    Changes: Paragraph (a) of this section has been revised to clarify 
that either a total or per child level of State financial support is 
acceptable.

Annual Description of Use of Part B Funds (Sec. 300.156)

    Comment: Some commenters requested that the regulation be made 
consistent with the statutory provision at section 611(f)(5) of the Act 
by deleting Sec. 300.156(b).
    Discussion: It is reasonable and appropriate to permit a State, if 
the information which it would submit pursuant to Sec. 300.156(a) for a 
given fiscal year is the same as the information that it submitted for 
the prior fiscal year, to submit a letter to that effect rather than 
resubmitting information that it has previously submitted.
    Changes: None.

Excess Cost Requirement (Sec. 300.184)

    Comment: Some commenters asked that the regulation be revised to 
require regular financial audits to ensure compliance with the excess 
cost requirements.
    Discussion: Each SEA, as part of its general supervision 
responsibility under Sec. 300.600, must ensure that LEAs comply with 
all requirements of Part B, including the requirements of Sec. 300.184 
regarding excess cost. Each SEA may meet this requirement through a 
variety of methods, including monitoring and financial audits.
    Changes: None.

[[Page 12571]]

Meeting the Excess Cost Requirement (Sec. 300.185)

    Comment: None.
    Discussion: The proposed note clarified the Department's 
longstanding position that: (1) The excess cost requirement means that 
the LEA must spend a certain minimum amount for the education of its 
children with disabilities before Part B funds are used, ensuring that 
children served with Part B funds have at least the same average amount 
spent on them, from sources other than Part B, as do the children in 
the school district in elementary or secondary school as the case may 
be; (2) excess costs are those costs of special education and related 
services that exceed the minimum amount; (3) if an LEA can show that it 
has (on the average) spent the minimum amount for the education of each 
of its children with disabilities, it has met the excess cost 
requirement, and all additional costs are excess costs; and (4) Part B 
funds can then be used to pay for these additional costs. However, 
several commenters requested that the substance of all Notes be 
incorporated into the text of the regulations or the Notes deleted.
    Changes: The note has been deleted.

Requirements for Establishing Eligibility (Sec. 300.192)

    Comment: Section 300.192(c) requires that, ``Notwithstanding any 
other provision of Secs. 300.190-300.192, an educational service agency 
shall provide for the education of children with disabilities in the 
least restrictive environment, as required by Sec. 300.130.'' Some 
commenters requested that the regulation be revised to emphasize the 
appropriateness of children's educational programs as strongly as 
placement in the least restrictive environment.
    Discussion: Section 300.192(c) clarifies that notwithstanding 
whether an LEA establishes Part B eligibility as a single LEA or 
jointly with other LEAs, it must ensure compliance with the LRE 
requirements of the Act. This provision does not in any way diminish an 
LEA's responsibility to ensure that FAPE is made available to all 
eligible children with disabilities.
    Changes: None.

LEA and State Agency Compliance (Sec. 300.197)

    Comment: Some commenters requested that the regulations be revised 
to require that each SEA conduct sufficient monitoring activities in 
each LEA and State agency, at least once every three years, to enable 
the SEA to make findings regarding the extent to which the agency is in 
compliance. Other commenters requested that Sec. 300.197(a) be revised 
to reduce or cease to provide further payments under Part B to an LEA 
or State agency if SEA finds that the agency is engaging in a pattern 
of noncompliance or has failed promptly to remedy any individual 
instance of noncompliance.
    Section 300.197(c) requires that an SEA consider any decision 
resulting from a hearing under Secs. 300.507-300.528 that is adverse to 
the LEA or State agency involved in the decision in carrying out its 
functions under Sec. 300.197. Some commenters requested that the 
regulation be revised to require that the SEA also consider adverse 
decisions on complaints filed under Secs. 300.660-300.662.
    Discussion: Each SEA, as part of its general supervision 
responsibility under Sec. 300.600, must ensure that all public agencies 
meet the educational standards of the SEA, including the requirements 
of Part B; and the General Education Provisions Act requires that each 
SEA use effective monitoring methods to identify and correct 
noncompliance with Part B requirements. In implementing this 
requirement, each SEA must determine: (1) the frequency with which it 
must monitor each of the public agencies in the State in order to 
ensure compliance; and (2) whether a single act or pattern of 
noncompliance demonstrates substantial noncompliance necessitating the 
SEA to pursue financial sanctions.
    Unlike hearings that are resolved by impartial due process hearing 
officers who are not SEA employees, all complaints under the State 
complaint procedures alleging a violation of Part B are resolved 
directly by the SEA, which must also ensure correction of any 
violations it identifies in response to such complaints. Therefore, the 
SEA will, as part of its general supervision responsibilities, consider 
any adverse complaint decisions in meeting its responsibilities under 
Sec. 300.197, and the requested revision is not necessary.
    Changes: None.

Maintenance of Effort (Sec. 300.231)

    Comment: Some commenters expressed concern that the provision on 
local maintenance of effort (MOE) would mean that even in years when 
State legislatures increased State appropriations to offset financial 
expenditures of LEAs, those funds could not be included in making 
determinations as to whether the maintenance of effort provision had 
been met.
    Discussion: The statutory LEA-level maintenance of effort provision 
requires that LEAs do not use the funds they are awarded under the IDEA 
to reduce the level of expenditures that they make from local funds 
below the level of those expenditures for the preceding year (except as 
provided in Secs. 300.232 and 300.233). The statutory provision 
replaces a prior regulatory provision that had required LEAs to 
maintain the same total or per capita expenditures from State and local 
funds as in prior years, which was viewed as financially burdensome by 
LEAs when they were required, because of this prior regulatory 
provision, to replace out of local funds any amount by which a State 
reduced the amount of State funds going to an LEA.
    Therefore, in recognition of this change, the regulation would 
allow a comparison of local funding in the grant year to local funding 
in a prior year. If a State assumes more responsibility for funding 
these services, such as when a State increases the State share of 
funding for special education to reduce the fiscal burden on local 
government, an LEA may not need to continue to put the same amount of 
local funds toward expenditures for special education and related 
services in order to demonstrate that it is not using IDEA funds to 
replace prior expenditures from local funds.
    On the other hand, an LEA should not be able to replace local funds 
with State funds when the combination of local and State funding is not 
at least equal to a base amount from the same sources, as this would 
result in reductions in expenditures not contemplated by the statute. 
Since those Federal funds for which accountability is not required to a 
Federal or State agency are expended at the discretion of an LEA, they 
may be included in computations of local funds budgeted and expended 
for special education and related services for children with 
disabilities.
    In determining whether an LEA could receive a subgrant in any year, 
an SEA should compare the amount of funds from appropriate sources 
budgeted for the grant year to the amount actually expended from those 
sources in the most recent fiscal year for which data are available. 
Reductions in the amount budgeted would be permissible for the 
conditions described in Secs. 300.232 and 300.233, if applicable. An 
LEA that did not expend in a grant year from those sources at least as 
much as it had in the year on which the maintenance of effort 
comparison for that year is based, would be liable in an audit for 
repayment of the amount by which it failed to expend to equal the prior 
year's expenditures,

[[Page 12572]]

up to the total amount of the LEA's grant.
    Changes: A new paragraph has been added to clarify the maintenance 
of effort provision.

Exception to Maintenance of effort (Sec. 300.232)

    Comment: Some commenters requested that the regulation be revised 
to specifically require that lower-salaried staff who replace special 
education and related services personnel, who depart voluntarily or for 
just cause, meet entry-level academic degree requirements that are 
based on the highest requirements in the State for the relevant 
profession or discipline. Other commenters requested retention of the 
provision in Sec. 300.233(a) that an LEA may reduce its expenditures 
from one year to the next if the reduction is attributable to the 
voluntary departure, by retirement or otherwise, or departure for just 
cause, of special education or related services personnel, but that the 
language specifying that these personnel must be replaced by qualified, 
lower-salaried staff and the note following this regulation be deleted.
    Discussion: The requirements of Sec. 300.136 regarding personnel 
standards apply to personnel who replace special education and related 
services personnel, who depart voluntarily or for just cause. It is 
important to make clear in the regulation that all staff providing 
special education and related services must be qualified.
    The Senate and House committee reports on Pub. L. 105-17, with 
respect to the voluntary departure of special education personnel 
described in Sec. 300.232(a), clarify that the intended focus of this 
exception is on special education personnel who are paid at or near the 
top of the salary schedule, and sets out guidelines under which this 
exception may be invoked by an LEA. These guidelines (which provide 
that the agency must ensure that such voluntary retirement or 
resignation and replacement are in full conformity with existing school 
board policies in the agency, with the applicable collective bargaining 
agreement in effect at that time, and with applicable State statutes) 
are important in the implementation of this section and, therefore, 
should be added to the regulation. (S. Rep. No. 105-17, p. 16, H. R. 
Rep. No. 105-95, p. 96 (1997)).
    Changes: Paragraph (a) has been amended to include the substance of 
the note, consistent with the above discussion, and the note has been 
removed.
    Comment: Some commenters requested that Sec. 300.232(c)(3) be 
revised to specify that an LEA may reduce its expenditures from one 
year to the next if the reduction is attributable to the termination of 
the LEA's obligation to provide a program of special education to a 
child with a disability that is an exceptionally costly program, as 
determined by the SEA, because the child no longer needs the program of 
special education, as determined in accordance with the IEP 
requirements at Secs. 300.346 and 300.347.
    Discussion: Because any change in the special education and related 
services provided to a child with a disability must be made in 
accordance with the IEP requirements, the requested revision is not 
necessary. The circumstances under which an LEA may reduce effort 
because it no longer needs to provide an exceptionally costly program 
are addressed by the regulations at Sec. 300.232(c).
    Changes: None.
    Comment: Some commenters requested that the regulation be revised 
to require an LEA to submit to the SEA an assurance that all students 
with disabilities in the LEA are receiving a free appropriate public 
education, before the LEA would be permitted to reduce its 
expenditures.
    Discussion: As part of its general supervision responsibility under 
Sec. 300.600, each SEA is required to ensure that all public agencies 
in the State are complying with the requirement that they make FAPE 
available to all eligible children in their respective jurisdictions. 
Therefore, the requested revision is not necessary.
    Changes: None.

Schoolwide Programs Under Title 1 of the ESEA (Sec. 300.234)

    Comment: A commenter requested that, in Sec. 300.234(b), the 
reference to Sec. 300.230(a) be changed to also include Sec. 300.230(b) 
or Sec. 300.231(a). Another commenter asked if an LEA can use its State 
and local special education funds in a schoolwide program without 
accounting for expenditures of those funds for special education and 
related services, and added that if such use is allowable, could the 
State and local funds be considered in the LEA's maintenance of effort 
calculation.
    Discussion: The reference in Sec. 300.234 to Sec. 300.230(a) in the 
NPRM should be changed to Sec. 300.230(b). If Part B funds are used in 
accordance with Sec. 300.234, the funds would not be limited to the 
provision of special education and related services. They could also be 
used for other school-wide program activities. However, children with 
disabilities in school-wide programs must still receive special 
education and related services in accordance with properly developed 
IEPs and must still be afforded all the rights and services guaranteed 
under the IDEA.
    The use of IDEA funds in a school-wide program does not change the 
LEA's obligation to meet the maintenance of effort requirement in 
Sec. 300.231.
    Consistent with the general decision regarding the disposition of 
notes, the note following Sec. 300.234 would be removed. However, the 
note includes important guidance related to ensuring that children with 
disabilities in schoolwide program schools still receive services in 
accordance with a properly developed IEP, and still be afforded all of 
the rights and services guaranteed to children with disabilities under 
the IDEA. Therefore, this guidance should be added to the text of the 
regulation as a specific provision.
    It should be pointed out that the use of funds under Part B of the 
Act in accordance with Sec. 300.234 is beneficial to children with 
disabilities, and, contrary to informal concerns that have been raised, 
the use of the Part B funds in schoolwide programs does not deplete 
resources for children with disabilities. Rather, it helps to ensure 
effective inclusion of those children into the regular education 
environment with nondisabled children.
    Changes: Paragraphs (b), (c), and (d) have been reorganized as 
paragraph (b) and (c) and revised to include the substance of the note. 
The note has been deleted.

Permissive Use of Funds (Sec. 300.235)

    Comment: Some commenters requested clarification as to whether LEAs 
are still required to maintain ``time and effort'' or other records to 
document that Part B funds have been expended only on allowable costs. 
Other commenters expressed their concern that, with no limitation on 
the number of children who do not have disabilities who may benefit 
from special education and related services, the needs of children with 
disabilities will not be met. Some commenters asked that the regulation 
be revised to require regular financial audits to ensure compliance 
with the excess cost requirements.
    Discussion: Section Sec. 300.235 sets forth circumstances under 
which an LEA may use Part B funds to pay for the costs of special 
education and related services and supplementary aids and services 
provided in a regular class or other education-related setting to a 
child with a disability and to develop and implement a fully integrated 
and coordinated services system; this

[[Page 12573]]

section does not impact the documentation requirements where an LEA 
uses a particular individual to provide special education or related 
services during one portion of the day or week and to perform other 
functions at other times for which the LEA cannot pay using Part B 
funds.
    Although Sec. 300.235 makes clear that Part B does not prohibit 
benefit to nondisabled children, it does not permit Part B funds to be 
expended in a regular class except for special education and related 
services and supplementary aids and services to a child with a 
disability in accordance with the child's IEP. If special education and 
related services are being provided to meet the requirements of the IEP 
for a child with a disability, this provision permits other children to 
benefit, and in such circumstances no time and effort records are 
required under Federal law, thus reducing unnecessary paperwork.
    This provision does not in any way diminish an SEA or other public 
agency's responsibilities under Part B to ensure that FAPE is made 
available to each eligible child with a disability. Each SEA must, as 
part of its general supervision responsibility under Sec. 300.600, 
ensure compliance with the requirements of Sec. 300.235; the methods 
that the SEA uses to ensure compliance may include monitoring and 
financial audits of LEAs. Under the Single State Audit Act, SEAs are 
required to ensure that periodic audits are conducted, and the General 
Education Provisions Act requires periodic monitoring.
    Changes: None.

Treatment of Charter Schools and Their Students (Sec. 300.241)

    Comment: None.
    Discussion: The proposed note clarified that the provisions of this 
part that apply to other public schools also apply to public charter 
schools, and, therefore, children with disabilities who attend public 
charter schools and their parents retain all rights under this part. 
The Senate and House Committee Reports on Pub. L. 105-17, which, in 
reference to this provision states:

    The Committee expects that charter schools will be in full 
compliance with Part B. (S. Rep. No. 105-17, p 17, H. R. Rep. No. 
105-95, p. 97 (1997))

    Thus, to ensure the protections of the rights of children with 
disabilities and their parents, this concept should be incorporated 
into the regulations.
    Changes: The substance of the note has been incorporated into the 
discussion under Sec. 300.18, and in the regulations under 
Sec. 300.312. The note has been deleted.

Subpart C

Provision of FAPE (Sec. 300.300)

    Comment: Some commenters expressed support for a seamless system of 
services for disabled children from birth through age 21, and 
recommended that Note 3 under Sec. 300.300 be added to the regulation 
to highlight the need for States to plan their child find and other 
activities to meet the age range for FAPE. A few commenters stated 
their understanding that the exemption to the ``50% rule'' in 
Sec. 300.300 (related to FAPE for disabled children aged 3 through 5 in 
States receiving a Preschool grant) was temporary, and asked if the 
exemption would continue in effect.
    Discussion: In light of the previous discussion regarding the 
disposition of notes under this part (see ``General Comments''), Note 
3, which provides only clarifying information to explain why the age 
range for child find (birth through age 21) is greater than the age 
range for providing FAPE, should be deleted and not moved into the 
regulation. Further, Note 1 (FAPE applies to children in school and 
those with less severe disabilities) is no longer relevant as the 
statute now is commonly understood to apply to all children with 
disabilities, not just those out of school or with severe disabilities, 
and should be deleted. The substance of Note 2 (importance of child 
find to the FAPE requirement) should be incorporated into the text of 
the regulation at Sec. 300.300(a)(2) because of the crucial role that 
an effective child find system plays as part of a State's obligation of 
ensuring that FAPE is available all children with disabilities.
    The provision in Sec. 300.300(b)(4) clarifies that if a State 
receives a Preschool Grant under section 619 of the Act, the ``50% 
rule'' does not apply with respect to disabled children aged 3 through 
5 years, because the State must ensure that FAPE is available to 
``all'' disabled children in that age range within the State--as a 
condition of receiving such a grant. (See Secs. 301.10 and 301.12) 
Therefore, this provision should be included, without change, in these 
final regulations.
    Changes: The substance of Note 2 has been added as a new paragraph 
(a)(2). Notes 1--3 have been removed.

FAPE--Methods and Payment (Sec. 300.301)

    Comment: One commenter stated that there is no authority in Federal 
law to permit a State to use unlimited local resources to meet the 
State's requirement for FAPE, and recommended that the statement in 
Sec. 300.301(a) related to using whatever State, local, or private 
sources of support be replaced by providing that a State may use all of 
its State funds to ensure FAPE. Some commenters requested that a new 
paragraph (c) be added to clarify that there can be no delay in the 
provision of FAPE while the SEA determines the payment source for IEP 
services.
    Discussion: Section 300.301 is a long-standing provision that was 
included, without change, in the NPRM. The section merely clarifies 
that each State may use other sources of support for meeting the 
requirements of this part, in addition to State education funds or Part 
B funds.
    It would be appropriate to add a new paragraph to Sec. 300.301 to 
clarify that there can be no delay in implementing a child's IEP in any 
case in which the payment source for providing or paying for special 
education and related services to the child is being determined. 
Section 300.142 also addresses the role of the public agency in 
ensuring that special education and related services are provided if a 
noneducational agency fails to meet its responsibility and specifies 
that services must be provided in a timely manner, while the payment 
source for services is being determined. Further, because Secs. 300.342 
and 300.343 also address the timely development and implementation of a 
child's IEP, it is appropriate to include a reference to those sections 
in Sec. 300.301.
    Changes: A new paragraph (c) has been added to ensure, consistent 
with the above discussion, that there is no delay in providing services 
while the payment source is being determined.

Residential Placement (Sec. 300.302)

    Comment: A few commenters requested that the regulations clarify 
that costs for residential placements include the expenses incurred by 
parents' travel to and from the program and the cost of telephone calls 
to the placement. One commenter stated that the LEA should be 
responsible for the educational costs if the system cannot meet the 
needs of the student, and that other appropriate related service 
agencies should assume the cost of care and treatment.
    Discussion: Section 300.302 is a long-standing provision that 
applies to placements that are made by public agencies in public and 
private institutions for educational purposes. The note following this 
section should be deleted in light of the general decision to remove 
all notes from these final regulations.

[[Page 12574]]

    A statement clarifying that costs for residential placements 
include the expenses incurred by parents' travel to and from the 
program and the cost of telephone calls to the placement is included in 
the analysis of comments on the definition of ``special education'' 
(see Sec. 300.26). The regulations already address the respective 
responsibilities of the SEA, LEAs, and noneducational agencies under 
this part (see, for example, Secs. 300.121, 300.142, and 300.220).
    Changes: The note has been deleted.

Proper Functioning of Hearing Aids (Sec. 300.303)

    Comment: Comments received on Sec. 300.303 included requests to: 
(1) clarify that LEAs cannot ensure proper functioning of hearing aids 
unless students report non-working devices, especially students who are 
in private or out-of-school placements (because it is beyond the LEAs' 
capability to monitor whether devices are working); (2) provide that 
LEAs are not responsible for hearing aids damaged by misuse within non-
school environments; (3) revise the section to address other AT 
devices; (4) ensure the provision is consistently met, using qualified 
persons who check aids on a regular basis, and (5) delete the note 
because it reflects 20 year-old appropriations committee report 
language, and, therefore, is no longer relevant. Other comments 
expressed concern that the section adds unnecessary paperwork and an 
unfair financial burden.
    Discussion: Section 300.303 has been included in the Part B 
regulations since they were initially published in 1977. The note 
following Sec. 300.303, which incorporated language from a House 
Committee Report on the 1978 appropriation bill, served as the basis 
for the requirement in Sec. 300.303. That report referred to a study 
done at that time that showed that up to one-third of the hearing aids 
for public school children were malfunctioning; and the report stated 
that the [Department] must ensure that hearing impaired school children 
are receiving adequate professional assessment, follow-up, and 
services.
    Section 300.303 was added to address that Congressional directive, 
and has been implemented since 1977. The Department has routinely 
monitored Sec. 300.303; and when a violation has been identified, 
appropriate corrective action has been taken. Although it is important 
that Sec. 300.303 be retained in the final regulations, the note is no 
longer relevant, and should be deleted.
    Questions relating to damage of hearing aids are addressed in the 
analysis of comments on the definitions of assistive technology devices 
and services (see Secs. 300.5 and 300.6).

Changes: The note following Sec. 300.303 has been deleted.

Full Educational Opportunity Goal (Sec. 300.304)

    Comment: Some commenters expressed support for Sec. 300.304. One 
commenter stated that SEAs and LEAs should be required to improve the 
general quality of education in ways that will benefit the disabled, 
including submitting plans and timetables relating to such 
improvements. Another commenter recommended updating the note to use 
``people first'' language consistent with the IDEA, as amended in 1990, 
and to make reference to quality education programs. Other commenters 
recommended that the note be deleted.
    Discussion: The requirement that there be a goal of ensuring full 
educational opportunity to all children with disabilities predates the 
FAPE requirement in Pub L. 94-142. The IDEA Amendments of 1997 are 
sufficiently clear to not require an elaboration of the full 
educational opportunity goal. Further, in light of the general tenor of 
comments received on this section, and the comments and discussion 
relating to the disposition of notes (see analysis of general 
comments), it is clear that there would not be sufficient benefit 
gained to justify updating or retaining the note.
    Changes: The note following Sec. 300.304 has been deleted.

Program Options (Sec. 300.305)

    Comment: Some commenters expressed support for this section, 
stating that disabled children must have the same opportunities as 
their nondisabled peers. One commenter stated that Secs. 300.305 and 
300.306 go beyond the new statute and are made moot by the provisions 
about including students in the regular curriculum as much as possible. 
Another commenter requested that the section be amended to make it 
clear that the list of items is not exhaustive.
    Discussion: The provisions of Secs. 300.305 and 300.306 do not go 
beyond the requirements of Part B of the Act. These are long-standing 
regulatory provisions that were included, unchanged, in the NPRM, and 
have been reinforced by the IDEA Amendments of 1997, through provisions 
requiring that children with disabilities be included in the general 
curriculum, and enabling them to meet State standards. The definition 
of the term ``include'' in Sec. 300.13 makes it clear that the list of 
programs and services is not exhaustive. Therefore, the note following 
Sec. 300.305 is unnecessary.
    Changes: The note following Sec. 300.305 has been deleted.

Nonacademic Services (Sec. 300.306)

    Comment: One commenter stated that this section will require 
documenting an array of non-academic and extracurricular services and 
activities, and that it should be rephrased so that it will not lead to 
more unnecessary paperwork. Another commenter requested that the 
section be amended to clarify that participation in extracurricular 
activities is not a component of a disabled child's program.
    Discussion: Section 300.306, as well as Sec. 300.553 (``Nonacademic 
settings'') are long-standing provisions that were included, without 
change, in the NPRM. There is no basis for assuming that the provisions 
in these sections will result in any unnecessary or increased 
paperwork.
    Changes: None.

Physical Education (Sec. 300.307)

    Comment: Several commenters requested that the regulations clarify 
that each public agency is responsible for making sure that special 
physical education (PE) (including adapted PE) is provided by qualified 
personnel, and not by classroom teachers, aides, related services 
personnel, or other unqualified personnel. One commenter stated that 
Sec. 300.307(b) should replace ``available to nondisabled children'' 
with the phrase ``to the extent available to all children.''
    Discussion: Section 300.307(b), which provides that each child with 
a disability has the opportunity to participate in the regular PE 
program available to nondisabled children, is clear as written, and 
there is no basis for making the change recommended by the commenters. 
It is not necessary to amend Sec. 300.307 to state that specially 
designed PE must be provided by qualified personnel because SEAs are 
already required under Sec. 300.136 to determine what standards must be 
met for all special education and related services personnel within the 
State. The note following Sec. 300.307, which provided important 
guidance in the original regulations under this part, is no longer 
necessary, in light of the comments relating to the disposition of 
notes.
    Changes: The note following Sec. 300.307 has been deleted.

[[Page 12575]]

Assistive Technology (300.308)

    Comment: Some commenters expressed support for Sec. 300.308, 
stating that disabled students must have the tools they need to 
succeed. A few commenters requested that a note be added to describe 
what assistive technology (AT) devices would be available for children 
with hearing impairments, including deafness. One of the commenters 
requested listing specific devices (e.g., captioning, computer 
software, FM systems, and hearing aids).
    Discussion: The AT devices for children with hearing impairments 
identified by the commenters are appropriate AT devices under this 
part. However, it is not necessary to list such devices in these 
regulations. Moreover, it would be inappropriate to list AT devices for 
one disability category without listing such devices for other 
disability categories. This position is consistent with the previously 
stated position related to including examples of AT devices in these 
regulations (see analysis of comments under Secs. 300.5 and 300.6). 
Some examples of AT devices include word prediction software, adapted 
keyboards, voice recognition and synthesis software, head pointers, and 
enlarged print.
    Under Section 504 of the Rehabilitation Act of 1973, 34 CFR Part 
104, and the Title II of the Americans with Disabilities Act of 1990, 
28 CFR Part 35, local educational agencies are responsible for 
providing a free appropriate public education to qualified students 
with disabilities who are within their jurisdiction. To the extent that 
assistive technology devices are required to meet the obligation to 
provide FAPE for an individual student, the devices must be provided at 
no cost to the student or his or her parents or guardians.
    Changes: No change has been made to this section in response to 
these comments. See discussion under Sec. 300.6 regarding a change to 
Sec. 300.308.

Extended School Year Services (Sec. 300.309)

    Comment: A number of commenters expressed support for this 
regulation. Because Notes 1 and 2 following Sec. 300.309 provide 
important clarification regarding criteria for providing extended 
school year (ESY) services, some commenters recommended that these 
notes be added to the regulations.
    Other commenters requested that Sec. 300.309 be deleted because it 
has no statutory base, and could be interpreted to require ESY services 
for all disabled children regardless of what the child's IEP indicates 
is appropriate for the child. One comment noted that responsibility for 
providing ESY services will be extremely costly and likely will require 
large expenditures of local dollars.
    Several commenters requested that both notes be deleted because 
Note 1 is ambiguous and unnecessary since the regulation is 
sufficiently clear, and Note 2 is not appropriate because all children 
regress in the summer.
    Numerous comments were received regarding the standards referenced 
in Note 2 that States can establish for use in determining a child's 
eligibility for ESY services. One comment urged the adoption of a 
Federal standard and formula for determining unacceptable rates of 
recoupment. One recommendation was that while Note 2 should be added to 
the regulation, it should be changed to clarify that the list of 
factors is not exhaustive.
    Another comment stated that ``regression/recoupment'' is a minimum 
standard that should be used in determining a child's eligibility for 
ESY services. Other commenters indicated that regression/recoupment is 
too narrow a standard, and recommended adding to the regulations 
additional criteria that courts have used to determine eligibility 
(e.g., whether the child has emerging skills, the nature or severity of 
the disability, and special circumstances, such as prolonged absence or 
other serious blocks to learning progress, which in the view of the IEP 
team could be addressed by ESY services).
    Another comment recommended that the list of factors be revised to 
specify ``evidence or likely indication of significant regression and 
recoupment.'' One comment recommended that the reference to 
``predictive data'' be expanded to ``predictive data and other 
information based on the opinion of parents and professionals.''
    Another comment stated that, although the regulation should 
incorporate Note 2 and permit States to establish standards for 
determining ESY eligibility, public agencies also should be required to 
make these standards available to parents either at IEP meetings or on 
request.
    One comment recommended deleting Note 2 because it is too narrow 
and inconsistent with case law. According to the comment, the ESY 
standard should be flexible and permit consideration of a variety of 
factors (e.g., whether the child's current level of performance 
indicates that the child will not make ``meaningful progress'' during 
the regular school year in the general curriculum or in other areas 
pertinent to child's disability-related needs).
    Several comments recommended other specific changes to 
Sec. 300.309, such as the following: (1) Section 300.309(a)(2) should 
be revised to state that the determination of whether a child needs ESY 
services, including the type and amount of services, must be made by 
the IEP team and should be specified in the child's IEP; (2) the 
regulation should specify a timeline for determining eligibility for 
ESY services to enable the parents to take appropriate steps to 
challenge the denial of services; (3) the regulation should clarify 
whether ESY services are limited only to summer programming or to other 
breaks in the school calendar; and (4) no one factor can be the sole 
criterion for determining whether a child receives ESY services.
    Another comment requested that clarification be added to specify 
that ESY services must be provided in the least restrictive 
environment, and that to ensure that this occurs, students with 
disabilities may have to receive ESY services in noneducational 
settings.
    One comment requested that a note be added to clarify that the 
process for determining the length of a preschool child's school year 
must be individualized and described in the child's IEP/IFSP, and added 
that the decision is not necessarily based on school-aged ESY practices 
or formulas, which may be inappropriate for younger children, and that 
if a child turns three during the summer, the child should receive ESY 
services if specified in the IEP or IFSP.
    Other comments requested that the regulations: add a new paragraph 
(c) to address the needs of disabled children enrolled in private 
facilities and include additional guidance relating to an LEA's 
obligation to conduct necessary evaluations during the summer when a 
child arrives in an LEA in the summer with an IEP from another LEA that 
requires ESY services.
    Discussion: The regulation and notes related to ESY services were 
not intended to create new legal standards, but to codify well-
established case law in this area (and, thus, ensure that the 
requirements are all in one place). Since the requirement to provide 
ESY services to children with disabilities under this part who require 
such services in order to receive FAPE is not a new requirement, but 
merely reflects the longstanding interpretation of the IDEA by the 
courts and the Department, including it in these regulations will not 
impose any additional financial burden on school districts.
    On reflection and in view of the comments, it has been determined 
that

[[Page 12576]]

this regulation should be retained, and that Note 1 following 
Sec. 300.309, with some modifications, should be incorporated into the 
text of the regulation. Section 300.309 and accompanying notes clarify 
the obligations of public agencies to ensure that students with 
disabilities who require ESY services in order to receive FAPE have 
necessary services available to them, and that individualized 
determinations about each disabled child's need for ESY services are 
made through the IEP process. The right of an individual disabled child 
to ESY services is based on that child's entitlement to FAPE. Some 
disabled children may not receive FAPE unless they receive necessary 
services during time periods when other children, both disabled and 
nondisabled, normally would not be served. Both parents and educators 
have raised issues for many years about how determinations about ESY 
services can be made consistent with the requirements of Part B.
    The clarification provided in Note 1 in the NPRM is essential to 
ensuring that public agencies do not limit eligibility for ESY services 
to children in particular disability categories, or the duration of 
these necessary services. Since these issues are key to ensuring that 
each disabled child who requires ESY services receives necessary 
services in order to receive FAPE, this concept from Note 1 should be 
incorporated into this regulation.
    In the past, the Department has declined to establish standards for 
States to use in determining whether disabled children should receive 
ESY services. Instead, the Department has said that States may 
establish State standards for use in making these determinations so 
long as the State's standards ensure that FAPE is provided consistent 
with the individually-oriented focus of the Act and the other 
requirements of Part B and do not limit eligibility for ESY services to 
children in particular disability categories. These regulations 
continue this approach.
    Within the broad constraints of ensuring FAPE, States should have 
flexibility in determining eligibility for ESY services, and a Federal 
standard for determining eligibility for ESY services is not needed. As 
is true for other decisions regarding types and amounts of services to 
be provided to disabled children under Part B, individual 
determinations must be made in accordance with the IEP and placement 
requirements in Part B.
    Regarding State standards for determining eligibility for ESY 
services, Note 2 was not intended to provide an exhaustive list of such 
standards. Rather, the examples of standards that were included in Note 
2 (e.g., likelihood of regression, slow recoupment, and predictive data 
based on the opinion of professionals) are derived from well-
established judicial precedents and have formed the basis for many 
standards that States have used in making these determinations. See, 
e.g., Johnson v. Bixby ISD 4, 921 F.2d 1022 (10th Cir. 1990); Crawford 
v. Pittman, 708 F.2d 1028 (5th Cir. 1983); GARC v. McDaniel, 716 F.2d 
1565 (11th Cir. 1983). It also should be pointed out that nothing in 
this part is intended to limit the ability of States to use variations 
of any or all of the standards listed in Note 2. Whatever standard a 
State uses must be consistent with the individually-oriented focus of 
the Act and may not constitute a limitation on eligibility for ESY 
services to children in particular disability categories.
    To ensure that children with disabilities who require ESY services 
receive the services that they need, a high priority is being placed on 
monitoring States' implementation of this regulation in the next 
several years to ensure that State standards are not being applied in a 
manner that denies children with disabilities who require ESY services 
in order to receive FAPE access to necessary services. However, to give 
States needed flexibility in this area, the regulations should clarify 
that States may establish their own standards for determining 
eligibility for ESY services consistent with the requirements of this 
part.
    To respond to a concern expressed in the comments that this 
regulation could require the provision of ESY services to every 
disabled child, regardless of individual need, paragraph (a)(2) has 
been revised to make clear that ESY services must be provided only if a 
child's IEP team determines, on an individual basis, in accordance with 
Secs. 300.340-300.350, that the services are necessary for the 
provision of FAPE to the child.
    Although it is important that States inform parents about standards 
for determining eligibility for ESY services, a regulatory change is 
not necessary. Since this matter is relevant to the provision of FAPE, 
it already would be included in the information contained in the 
written prior notice to parents provided under this part for children 
for whom ESY services are an issue.
    There is no need to incorporate the IEP team's responsibility to 
specify the types and amount of ESY services. Section 300.309(a)(2) 
already specifies that the determination of whether a child with a 
disability needs ESY services must be made on an individual basis by 
the IEP team in accordance with Secs. 300.340-300.350. These IEP 
requirements include specifying the types and amounts of services 
consistent with the individual disabled child's right to FAPE.
    The determination of whether an individual disabled child needs ESY 
services must be made by the participants on the child's IEP team. In 
most cases, a multi-factored determination would be appropriate, but 
for some children, it may be appropriate to make the determination of 
whether the child is eligible for ESY services based only on one 
criterion or factor. In all instances, the child's IEP team must decide 
the appropriate manner for determining whether a child is eligible for 
ESY services in accordance with applicable State standards and Part B 
requirements. Therefore, no requirements have been added to the 
regulation regarding this issue.
    There is no need to specify a timeline for determining whether a 
child should receive ESY services. Public agencies are expected to 
ensure that these determinations are made in a timely manner so that 
children with disabilities who require ESY services in order to receive 
FAPE can receive the necessary services.
    No further clarification has been provided regarding the times when 
ESY services can be offered. Section 300.309(b)(1)(i) specifies that 
ESY services are provided to a child with a disability ``[b]eyond the 
normal school year of the public agency.'' For most public agencies, 
the normal school year is 180 school days. Typically, ESY services 
would be provided during the summer months. However, there is nothing 
in the definition of ESY services in Sec. 300.309(b) that would limit 
the ability of a public agency to provide ESY services to a student 
with a disability during times other than the summer, when school is 
not in session, if the IEP team determines that the child requires ESY 
services during these time periods in order to receive FAPE.
    There is no need to provide clarification regarding the comment 
that public agencies may wish to use different standards in determining 
eligibility of preschool-aged children with disabilities for ESY 
services from those used for school-aged children. Since Part B does 
not prescribe standards for determining eligibility for ESY services, 
regardless of the child's age, the issue of whether a State should 
establish a different standard for school-aged and preschool-aged 
children is a matter for State and local educational authorities to 
decide.

[[Page 12577]]

    The IEP or IFSP will specify whether services must be initiated on 
the child's third birthday for children with disabilities who 
transition from the Part C to the Part B program, if the child turns 
three during the summer. This means that ESY services would be provided 
in the summer if the IEP or IFSP of a child with a disability specifies 
that the child must receive ESY services during the summer. In any 
case, the IEP or IFSP must be developed and implemented in accordance 
with the terms of those documents by the child's third birthday. These 
responsibilities are clarified elsewhere in these regulations.
    No additional clarification is being provided in this portion of 
the regulations as to whether parentally-placed disabled students can 
receive ESY services. As is true for determinations regarding services 
for children with disabilities placed in private schools by their 
parents, determinations regarding the services to be provided, 
including the types and amounts of such services and which children 
will be served, are made through a process of consultation between 
representatives of public agencies and representatives of students 
enrolled by their parents in private schools. Through consultation, if 
a determination is made that ESY services are one of the services that 
a public agency will offer one or more of its parentally-placed 
disabled children, Part B funds could be used for this purpose.
    No regulatory change has been made regarding the application of LRE 
requirements to ESY services. While ESY services must be provided in 
the LRE, public agencies are not required to create new programs as a 
means of providing ESY services to students with disabilities in 
integrated settings if the public agency does not provide services at 
that time for its nondisabled children. However, consistent with its 
obligation to ensure that each disabled child receives necessary ESY 
services in order to receive FAPE, nothing in this part would prohibit 
a public agency from providing ESY services to an individual disabled 
student in a noneducational setting if the student's IEP team 
determines that the student could receive necessary ESY services in 
that setting. No further clarification is needed regarding the comment 
about requirements for evaluating students who move into LEAs during 
the summer to determine eligibility for ESY services. Requirements for 
child find are addressed elsewhere in these regulations.
    Changes: Consistent with the above discussion, paragraph (a)(2) of 
Sec. 300.309 has been revised, and a new paragraph (a)(3) has been 
added to this section to specify that (1) ESY services must be provided 
only if a child's IEP team determines the services are necessary for 
the provision of FAPE to the child; and (2) Public agencies may not 
limit eligibility for ESY services based on category of disability, and 
may not unilaterally limit types and amounts of ESY services. Notes 1 
and 2 have been removed.

FAPE Requirements for Students With Disabilities in Adult Prisons 
(Sec. 300.311)

    Comment: Several commenters requested that the regulation include a 
definition of ``bona fide security or compelling penological interest 
that cannot otherwise be accommodated.'' Several commenters requested a 
definition that would clarify that this exception is to be used only in 
unique situations. These commenters requested that the definition 
specifically exclude routine issues of prison administration and 
convenience, cost-reduction measures, and policies to promote 
discipline or rehabilitation through systematic withholding of 
educational services which are otherwise required. Another commenter 
requested that the terms be defined to include prudent correctional 
administration, and physical or mental health determinations by prison 
health officials.
    One commenter stated that the regulation should include guidance as 
to when an IEP or placement can be modified under the stated exception 
for modifications. Another commenter requested that the regulations 
clarify that modifications to IEP or placement may only be made by the 
IEP team and these changes are covered by the notice requirements of 
the Act.
    Another commenter opposed services to students alleged to have 
committed heinous crimes and requested that a free appropriate public 
education be limited to those students who would otherwise be denied 
access to education services by virtue of their incarceration.
    One commenter requested a definition of the term ``last educational 
placement'' to clarify that this means a public or private school 
placement.
    Another commenter requested that a student's ``potential'' 
eligibility for early release be considered in determining eligibility 
for transition services.
    Discussion: The requirement that the student's IEP team make an 
individualized determination regarding modifications to IEP or 
placement are clearly stated in the regulations. This requirement 
ensures that a team of professionals with knowledge about the student 
will be able to weigh the request of the State and make an 
individualized determination as to whether the State has demonstrated a 
bona fide security or compelling penological interest. In addition, the 
IEP team would need to consider possible accommodations of these 
interests and only decide to modify the IEP or placement in situations 
where accommodations are not possible. This provision also allows the 
State to address any issues specific to persons alleged of committing 
heinous crimes.
    This provision does not impact an individual's eligibility for 
services, rather it allows the IEP team to make temporary modifications 
to the IEP or placement. These modifications are to be reviewed 
whenever there is a change in the State's bona fide security or 
compelling penological interest and at least on a yearly basis when the 
IEP is reviewed.
    A definition of the terms ``bona fide security or compelling 
penological interest'' is not appropriate, given the individualized 
nature of the determination and the countless variables that may impact 
on the determination. Further, a State's interest in not spending any 
funds on the provision of special education and related services or in 
administrative convenience will not rise to the level of a compelling 
penological interest that cannot otherwise be accommodated, because 
States must accommodate the costs and administrative requirements of 
educating all eligible individuals with disabilities.
    Further, since a modification to the IEP or placement is a change 
in the placement or in the provision of a free appropriate public 
education, the notice requirements under the Act would clearly be 
invoked.
    There is no need to define the term ``last educational placement'' 
because the term is sufficiently clear.
    Finally, there is no need to further clarify eligibility for 
transition services. Since consideration for transition services is 
also part of the IEP process, eligibility determinations should be 
addressed by the IEP team based upon the State's sentencing and parole 
policies, which may include potential eligibility for early release.
    Changes: None.

Children With Disabilities in Public Charter Schools (Sec. 300.312)

    See comments, discussion, and changes under Sec. 300.18.

[[Page 12578]]

Children Experiencing Developmental Delays (Sec. 300.313)

    See comments, discussion, and changes under Sec. 300.7.

Initial Evaluations (Sec. 300.320)

    Comment: A few commenters requested that the regulation be amended 
to require that initial evaluations be comprehensive so that each child 
is tested in all areas of possible disability, not just areas of 
suspected disability (e.g., a child who is having behavior problems may 
be acting out of frustration over unrecognized learning disabilities). 
Another commenter expressed concern that terms such as ``in all areas 
of suspected disability'' and the requirement to conduct evaluations in 
the native language do not appear in the NPRM, although they were in 
prior regulation and in Appendix A. Another commenter recommended that 
at least three diagnosticians from different disciplines actually 
evaluate a child, and added that this helps ensure that the evaluation 
is broad-based, nondiscriminatory, and relies on more than one method 
to determine eligibility.
    One commenter recommended that Sec. 300.320(a) repeat the language 
of the statute (i.e., that the LEA ``shall conduct'' initial 
evaluations, rather than ``shall ensure that initial evaluations are 
conducted''); that the reference to applicable sections under 
Secs. 300.530-300.536 be revised; and that other technical and 
conforming changes be made. A few commenters recommended amending 
Sec. 300.320(b)(2) to add a provision requiring the IEP team to provide 
copies of all evaluations to the parents and all team members 
sufficiently in advance of the meeting at which they will be reviewed 
so that all have time to review the results prior to the meeting.
    Discussion: The general requirement to conduct evaluations and 
reevaluations was added to Subpart C (Secs. 300.320-300.321) in the 
NPRM to sequentially place evaluations as a preliminary step in 
determining a child's eligibility before convening an IEP team to 
develop the child's IEP. However, the specific evaluation requirements 
are included in Subpart E (Secs. 300.530-300.536). Those requirements, 
especially the ones in Sec. 300.532, are long-standing provisions that 
require the evaluations to be multifactored and administered in the 
child's native language or other mode of communication, unless it is 
clearly not feasible to do so. Section 300.532(g) makes clear that the 
evaluation must include ``all areas related to the suspected 
disability.''
    If public agencies are in full compliance with these evaluation 
requirements, the initial evaluations will be sufficiently 
comprehensive to identify any disability that an individual child may 
have, including any disability that was not initially suspected. 
Further, the failure to provide such an evaluation is an implementation 
issue and not a regulatory issue. Therefore, no change is needed in 
this provision.
    Section 300.320(a) of the NPRM states that each public agency 
``shall ensure that'' a full and individual evaluation is conducted for 
each child with a disability. It is not necessary to substitute ``shall 
conduct'' for the language in the NPRM. The term used in the NPRM and 
in these final regulations places the burden squarely on the public 
agency to implement the evaluation requirements either directly, by 
using public agency staff to conduct the evaluations, or by contracting 
with other agencies or individuals to do so.
    Technical and conforming changes that have been recommended should 
be reflected in these final regulations to the extent that they are 
determined to be relevant. For example, contrary to the commenter's 
recommendation, Sec. 300.533 (determination of needed evaluation data) 
may be germane to initial evaluations as well as reevaluations, and, 
therefore should be included in the listed sections under 
Sec. 300.320(b)(ii).
    To the extent feasible, the results of evaluations conducted under 
this part should be provided to parents and appropriate school 
personnel before any meeting to discuss the identification, evaluation, 
or educational placement of the child, or the provision of FAPE to the 
child. However, this is an implementation matter that should be left to 
the discretion of individual public agencies. In administering the Part 
B program over the past 22 years, concerns about evaluation teams not 
having timely access to evaluation results have seldom been raised with 
the Department.
    Changes: The authority citation for the section has been revised to 
add a reference to section 614(c) of the Act.

Reevaluations (Sec. 300.321)

    Comment: Some commenters expressed support for Sec. 300.321, and 
stated that the importance of sharing the evaluation information with 
the IEP team is vital. One commenter recommended that a wording change 
be made in Sec. 300.321(b); that the reference to applicable sections 
under Secs. 300.530-300.536 be revised; and that other technical and 
conforming changes be made.
    Discussion: Technical and conforming changes as recommended by the 
commenter should be reflected in these final regulations, if relevant.
    Changes: Paragraph (a) of Sec. 300.321 has been amended to delete 
``Secs. 300.530-300.536'' from the list of applicable sections and 
replace it with ``Sec. 300.536.'' Paragraph (b) has been revised to 
replace the term ``used'' with ``addressed.''

Definitions Related to IEPs (Sec. 300.340)

    Comment: None.
    Discussion: To clarify that IEPs are developed, reviewed, and 
revised at IEP meetings, a change would be made to paragraph (a) of 
this section. However, as the Committee reports to the Act noted:
    Specific day to day adjustments in instructional methods and 
approaches that are made by either a regular or special education 
teacher to assist a disabled child to achieve his or her annual goals 
would not normally require action by the child's IEP team. However, if 
changes are contemplated in the child's measurable annual goals, 
benchmarks, or short-term objectives, or in any of the services or 
program modifications, or other components described in the child's 
IEP, the LEA must ensure that the child's IEP team is reconvened in a 
timely manner to address those changes. (S. Rep. No. 105-17, p. 5 
(1997); H. Rep. No. 105-95, pp. 100-101 (1997))

SEA Responsibility for IEPs(Sec. 300.341)

    Comment: A few commenters stated that the manner in which the term 
``that agency'' is used in Sec. 300.341 is confusing because it is not 
always clear whether the term is applying to the SEA or to other 
agencies described in the section and in Note 1, and requested that 
appropriate changes be made. One commenter stated that additional 
language is needed in the section to expand on the State's ultimate 
obligation to ensure district compliance with all IDEA requirements.
    Several comments were received relating to Sec. 300.341(b). One 
commenter stated that ``religiously-affiliated'' may be broader than 
parochial, but it inadvertently excludes private schools with a 
religious focus that are not affiliated but rather are freestanding, 
and recommended using ``religiously-oriented'' instead. Another 
commenter recommended using only ``private school,'' and deleting 
``religiously affiliated,'' stating that there is no basis for using 
that term.

[[Page 12579]]

    Some commenters stated that the term ``IEP'' has an explicit 
meaning in IDEA--as an inherent component of FAPE, and recommended that 
another term other than ``IEP'' be used with respect to children in 
private schools, who are not entitled to FAPE. Another commenter 
recommended that the statement requiring that an IEP is developed and 
implemented be revised to include a reference to the proportionate 
expenditure requirements in Subpart D.
    One commenter recommended that the statement in 
Sec. 300.341(b)(2)(ii) regarding ``special education or related 
services'' be amended to replace ``or'' with ``and'' in order to avoid 
any implication that a child may receive only related services. Another 
commenter suggested deleting the entire reference to related services.
    One commenter recommended requiring that (1) any nonpublic school 
that is licensed by the SEA or receives any other tax or benefit from 
the State must develop an IEP for each disabled student, and (2) LEAs 
provide the student with a supplemental IEP showing the additional 
services that the LEA will provide.
    Discussion: The language of this section, and especially the note, 
should be modified to ensure that the term ``SEA'' is used 
consistently, to avoid the confusion identified by the commenters. This 
can best be accomplished, and the section strengthened, by moving the 
substance of the note into the text of the regulation. The comment 
related to ensuring compliance with all provisions of IDEA is addressed 
by Sec. 300.600, which provides that the SEA is responsible for 
ensuring such compliance.
    In drafting the NPRM the term ``religiously-affiliated'' was 
adopted instead of the statutory term ``parochial,'' based on the 
assumption that Congress intended that all religious schools be 
included, not just those organized on a parish basis. The intent was 
for the broadest possible coverage. However, in light of the comment 
related to this matter, the term ``religiously-affiliated'' does not 
account for other religious schools that are not affiliated. The term 
should be replaced with the more comprehensive term ``religious 
schools.'' That term will be used throughout these regulations to 
replace ``religiously-affiliated.''
    Another term other than ``IEP'' should be used with respect to 
disabled children who are enrolled by their parents in private schools. 
As noted by the commenters, (1) ``IEP'' is an inherent component of, 
and an explicit term used in, the statutory definition of ``FAPE'', and 
(2) the private school provisions in the IDEA Amendments of 1997 and 
Sec. 300.454(a) make it clear that these children have no individual 
right to receive some or all special education and related services 
that they would be entitled to if enrolled in a public school.
    Therefore, if it is determined, in accordance with Sec. 300.454(b) 
(Consultation with representatives of private school children with 
disabilities), that a given child is to receive special education and 
related services under this part, the document used to denote those 
services should have a different name. The term ``services plan'' has 
been adopted as an appropriate term for use with these children.
    Further, in light of the comments related to this section, and the 
discussion in the preceding paragraph, all provisions related to 
parentally-placed children in religious or other private schools 
(including the provisions in proposed Secs. 300.341(b)(2) and 300.350) 
should be incorporated, in revised form, under Subpart D (Children in 
Private Schools).
    The statute does not require a private school to unilaterally 
develop an IEP for each disabled child enrolled in the school, or to 
require a supplemental IEP for additional services that the LEA will 
provide.
    Changes: The name of Sec. 300.341 has been changed to 
``Responsibility of SEA and other public agencies for IEPs.'' The 
paragraph headings have been deleted, and Sec. 300.341 has been revised 
consistent with provisions in Subpart D regarding parentally-placed 
children with disabilities in religious or other private schools. A new 
paragraph (b) incorporates the substance of the note following 
Sec. 300.341, to clarify that the provisions of the section (related to 
public agencies) also apply to the SEA, if the SEA provides direct 
services under Sec. 300.370(a) and (b)(1). The note has been deleted. 
The section has been further revised by making other technical and 
conforming changes. A new paragraph has been added to Sec. 300.452(b) 
related to the SEA's responsibility for eligible children enrolled in 
religious schools.
When IEPs Must Be in Effect (Sec. 300.342)
    Comment: Some commenters stated that, as used in Sec. 300.342(b)(2) 
and Note 1, the terms ``as soon as possible'' and ``undue delay'' are 
not meaningful and should be defined or clarified. The commenters 
recommended that an outside timeline (e.g., 15 days following the IEP 
meetings described in Sec. 300.343) be established for implementing 
IEPs. Other commenters requested that Note 1 be deleted. A few 
commenters indicated that the statement in Note 1 (regarding services 
not being provided during the summer or a vacation period unless the 
child requires such services) does not adequately identify LEAs' 
obligations.
    Discussion: It would not be appropriate to add an outside timeline 
under Sec. 300.342(b) for implementing IEPs, especially when there is 
not a specific statutory basis to do so. However, with very limited 
exceptions, IEPs for most children with disabilities should be 
implemented without undue delay following the IEP meetings described in 
Sec. 300.342(b)(2).
    There may be exceptions in certain situations. It may be 
appropriate to have a short delay (e.g., (1) when the IEP meetings 
occur at the end of the school year or during the summer, and the IEP 
team determines that the child does not need special education and 
related services until the next school year begins); or (2) when there 
are circumstances that require a short delay in the provision of 
services (e.g., finding a qualified service provider, or making 
transportation arrangements for the child).
    If it is determined, through the monitoring efforts of the 
Department, that there is a pattern of practice within a given State of 
not making services available within a reasonable period of time (e.g., 
within a week or two following the meetings described in 
Sec. 300.343(b)), this could raise a question as to whether the State 
is in compliance with that provision, unless one of the exceptions 
noted above applies.
    Changes: Paragraph (b) of this section is amended (consistent with 
the discussion under Sec. 300.344(a)(2) and (3) of this Analysis) to 
require that each public agency must ensure that (1) a child's IEP is 
accessible to each regular education teacher, special education 
teacher, related services provider and other service provider who is 
responsible for its implementation; and (2) each of the child's 
teachers and providers is informed of his or her specific 
responsibilities related to implementing the child's IEP, and of the 
specific accommodations, modifications, and supported that must be 
provided for the child in accordance with the IEP. Note 1 has been 
deleted. Note 2 (related to a 1997 date certain for certain 
requirements regarding students with disabilities incarcerated in adult 
prisons) also has been deleted. Subject headings have been added to 
each paragraph in the section.
    Comment: Several commenters expressed concern about Sec. 300.342(c) 
and Note 3 (related to using an IFSP for a child aged 3 through 5), and 
some of

[[Page 12580]]

the commenters recommended deleting paragraph (c)(2) and the reference 
to it in Note 3. The commenters stated (for example) that (1) IFSPs 
should be used for children under age 3, and IEPs for older children, 
and parents should not have a choice; (2) an IFSP may not be 
appropriate in the educational setting; (3) the requirement is 
inconsistent with OSEP policy letters; (4) the use of an IFSP or IEP 
requires only the two factors in Sec. 300.342(c)(1) (i.e., it is 
consistent with State policy, and agreed to by the parents and the 
agency); and (5) because Note 3 and the preamble to the NPRM indicate a 
clear preference for an IEP rather than IFSP, a specific rationale 
should be given.
    One commenter requested that Note 3, or Appendix A, be amended to 
underscore that special care must be taken by LEAs in agreeing to 
continue children's IFSPs when they become eligible for an IEP--
especially if the IFSP does not have an educational component, because 
research has shown a significant positive difference in school 
readiness for kindergarten when children whose (prekindergarten) 
program included an educational component, as compared to those who 
attend custodial day care without an educational component. Another 
commenter requested that Sec. 300.342(c) be revised to allow use of 
IFSPs for children aged 3 and above without meeting the requirements in 
paragraph (b)(2).
    Discussion: It is important to retain in these final regulations 
the general thrust of Sec. 300.342(c) from the NPRM (related to 
requiring parental consent to using an IFSP in lieu of an IEP for a 
child who moves from the Early Intervention Program under Part C of the 
Act to preschool services under Part B of the Act). As a result of the 
IDEA Amendments of 1997, there have been significant changes in the 
statute, including an increased emphasis on the participation of 
children with disabilities in the general curriculum, and on ensuring 
better results for children with disabilities. Because of the 
importance of the IEP as the statutory vehicle for ensuring FAPE to a 
child with a disability, paragraph (c)(2) of this section provides that 
the parents' agreement to use an IFSP for the child instead of an IEP 
requires written informed consent by the parents that is based on an 
explanation of the differences between an IFSP and an IEP.
    As noted by at least one commenter, research has shown a 
significant positive difference in school readiness for kindergarten if 
children's ``prekindergarten'' programs included an educational 
component, compared to those who attend custodial day care without an 
educational component. In addition, the provisions related to the IFSP 
under Part C can generally be replicated under Part B. Because of the 
definition of ``FAPE,'' services that are determined necessary for a 
child to benefit from special education must be provided without fees 
and without cost to the parents.
    Changes: Note 3 has been deleted.
    Comment: Some commenters expressed support for Sec. 300.342(d) in 
the NPRM (i.e., that all IEPs in effect on July 1, 1998 must meet the 
new requirements in Secs. 300.340-300.351), stating that public 
agencies have had since June 4, 1997 to prepare for changes in the IEP 
requirements, many of which have already been in use in some agencies. 
A few of the commenters requested that all IEPs developed during the 
spring and summer of 1998 be in full compliance with the new 
requirements.
    A large number of commenters expressed concern about 
Sec. 300.342(d), stating (for example) that it (1) is inconsistent with 
section 201(a)(2)(A) of the Act; (2) will result in massive national 
noncompliance and public financial liability; and (3) force pro forma 
IEPs that will result in frustration and resentment on the part of 
parents and local providers. The commenters requested that the 
requirements be changed to provide that IEPs written on or after July 
1, 1998 must meet the new requirements.
    Discussion: It is appropriate to amend Sec. 300.342(d) to provide 
that IEPs developed, reviewed, or revised on or after July 1, 1998 must 
comply with the requirements in section 614(d) of the Act and 
Secs. 300.340-300.350 of these final regulations. While we commend the 
many public agencies that began as soon as the IDEA Amendments of 1997 
was enacted to implement the new statutory requirements and already 
have in place IEPs that meet these requirements, other public agencies 
argued compellingly that they simply did not have the wherewithal to 
ensure that, on July 1, 1998, all IEPs would fully comply with the new 
IEP requirements, and that a phase-in period should be adopted in which 
the anniversary date for each child's IEP meeting would be the basis 
for revising the child's IEP to comply with the new requirements.
    Requiring IEPs developed on or after July 1, 1998 to meet the new 
requirements should result in more meaningful IEPs that focus on 
effective implementation, consistent with the purposes of the IDEA 
Amendments of 1997. At the same time, public agencies are strongly 
encouraged to grant any reasonable requests from parents for an IEP 
meeting to address the new IEP provisions. Public agencies are also 
encouraged to inform parents of the important changes resulting from 
the new IEP requirements so that they may be effective partners in the 
education of their children.
    Changes: Section 300.342(d) has been revised to state that all IEPs 
developed, reviewed, or revised on or after July 1, 1998 must meet the 
requirements of Secs. 300.340-300.350.

IEP Meetings (Sec. 300.343)

    Comment: One commenter stated that, as written, Sec. 300.343(b)(1) 
implies that an LEA is required to make an offer of services in 
accordance with an IEP whether or not the child qualifies (i.e., before 
the child is evaluated), and requested clarification of the provision. 
Other commenters stated that the requirement should begin with 
referral, not consent, and ``services'' should be referenced as 
``special education and related services.''
    Some commenters expressed support for the 30 day timeline in 
Sec. 300.343(b)(2) (i.e., that an IEP meeting is conducted within 30 
days of determining that a child needs special education). A few 
commenters requested changing the provision to 30 ``school days.'' One 
commenter recommended amending the provision to recognize that regular 
education teachers are not available in the summer, because to the 
extent participation of a regular education teacher is required at the 
IEP meeting, the meeting would have to wait until teachers return.
    A number of comments were received relating to Sec. 300.343(c)(1) 
(Review and revision of IEPs). One commenter requested that paragraph 
(c)(1) be amended to clarify that a child's IEP is reviewed 
periodically if warranted, or requested by the child's parent or 
teacher, and to include additional language related to determining if 
the child is making meaningful progress toward attaining the goals and 
standards for all children as well as goals and short term objectives 
or benchmarks. Other commenters recommended requiring that a review 
meeting be held when requested by an IEP team member, and that LEAs 
honor ``reasonable'' requests from parents for timely IEP review 
meetings.
    One commenter requested amending paragraph (c)(2)(i) (related to 
revising a child's IEP to address any lack of progress in the annual 
goals) by adding benchmarks or short term objectives to the statement 
related to annual goals. A

[[Page 12581]]

few commenters recommended deleting the reference to ``Other matters'' 
in Sec. 300.343(c)(2)(v) as the language is redundant and confusing.
    A few commenters requested that a new Sec. 300.343(d) be added to 
incorporate the statutory requirement in section 614(c)(4) (i.e., 
procedures to follow when the IEP team determines that no additional 
data are needed to determine whether the child continues to be a child 
with a disability). One commenter felt that an additional note should 
be added to encourage combining the eligibility meeting with the 
initial IEP meeting.
    Discussion: There is potential for confusion with the language in 
Sec. 300.343(b)(1) of the NPRM regarding whether a child must be 
evaluated before the offer of services is made. It also would be more 
appropriate to refer to ``special education and related services'' 
rather than referring simply to ``services.''
    While the basic position taken in the NPRM with respect to 
Sec. 300.343(b)(1) has been retained (i.e., an offer of services will 
be made to parents within a reasonable period of time from the public 
agency's receipt of parent consent to initial evaluation), the concept 
of ``making services available'' to a child with a disability seems 
more relevant to these final regulations than ``offer of services'' in 
ensuring that FAPE is available to a child with a disability in a 
timely manner.
    Therefore, the regulations should be amended to clarify that, 
within a reasonable period of time following consent to an initial 
evaluation, the evaluation is conducted; and if the child is determined 
eligible under this part, special education and related services are 
made available to the child, in accordance with an IEP.
    It would not be appropriate to change the reference to 
Sec. 300.343(b)(1) from ``parent consent'' to ``referral'' because 
informed consent of the parents is a necessary step in ensuring that 
the evaluation will be conducted.
    It also would not be appropriate to change the 30 day timeline in 
Sec. 300.343(b)(2) to 30 ``school days.'' That timeline is a long-
standing provision that has been appropriately implemented since the 
inception of the regulations under this part, and there is no basis to 
make such a change.
    A provision is not necessary to clarify that public agencies will 
honor ``reasonable'' requests by parents for a meeting to review their 
child's IEP. Public agencies are required under the statute and these 
final regulations to be responsive to parental requests for such 
reviews. If a public agency believes that the frequency or nature of 
the parents' requests for such reviews is unreasonable, the agency may 
(consistent with the prior notice requirements in Sec. 300.503) refuse 
to conduct such a review, and inform the parents of their right to 
request a due process hearing under Sec. 300.507. It should be noted, 
however, that as a general matter, when a child is not making 
meaningful progress toward attaining goals and standards applicable to 
all children, it would be appropriate to reconvene the IEP team to 
review the progress.
    It is inappropriate and unnecessary to add ``benchmarks or short-
term objectives'' to the statement on annual goals in 
Sec. 300.343(c)(2)(i). The language in that paragraph, which 
incorporates the language from the statute, refers to ``the annual 
goals described in Sec. 300.347(a).'' Section 300.347(a) states that 
each child's IEP must include ``A statement of measurable annual goals, 
including benchmarks or short-term objectives * * *''. Therefore, 
benchmarks or short-term objectives are inherent in 
Sec. 300.343(c)(2)(i), and do not need to be repeated.
    It is not necessary to include a note encouraging public agencies 
to combine the eligibility and initial IEP meetings. This is an 
individual State option that many States have unilaterally elected to 
follow in implementing Part B of the Act over the past 22 years, while 
other States have determined that the better course is to hold separate 
meetings.
    Changes: The title of Sec. 300.343(b) has been changed from 
``Timelines'' to ``Initial IEPs; provision of services.'' Paragraph 
(b)(1) has been amended to (1) clarify that, within a reasonable period 
of time from the agency's receipt of consent to an initial evaluation, 
``the evaluation is conducted'', and (2) clarify the timing issue by 
replacing ``offer of services * * * is made to parents'' with ``special 
education and related services are made available to the child * * *''. 
Paragraph (b)(2) has been changed by replacing the phrase ``In meeting 
the timeline in paragraph (b)(1)'' with ``In meeting the requirement in 
paragraph (b)(1).'' In the title to Sec. 300.343(c), the term ``IEP'' 
has been changed to ``IEPs.'' Paragraph (c)(2)(ii) has been revised to 
correctly cite Sec. 300.536. The authority cite has been changed from 
``1414(d)(3)'' to ``1414(d)(4)(A).''
    Comment: A number of comments were received on the note following 
proposed Sec. 300.343 (regarding the offer of services within 60 days 
of parent consent to initial evaluation). Some commenters expressed 
support for the 60 day time frame, stating that (1) many LEAs 
experience significant delays in completing evaluations, especially 
during the summer, and delay providing FAPE for a very long time, and 
(2) if LEAs respond to requests for evaluation in a timely manner, 60 
days is reasonable. Many of these commenters recommended that the note 
be added to the regulation.
    Other commenters recommended deleting the 60 day timetable in the 
note, stating that (1) the timeline is not a reflection of the statute, 
and Federal guidance is not necessary because most States have set 
reasonable, child-friendly timetables for the initial provision of 
services; (2) it is unrealistic, unreasonable, and ambiguous (3) it 
would override time frames set by States, (4) the Department could 
continue to monitor the issue of reasonableness in each State without 
the timeline; and (5) while IEPs generally can be implemented within 60 
days, this non-statutory requirement should not become the standard for 
all cases.
    Some commenters recommended changing the length of the timelines 
(e.g., to 75 days, 80 days, 90 days, or 120 days), or using the 
designation of ``school days'' or ``operational days,'' or adding a 
caveat exempting school breaks and holidays from the 60 day timeline. 
One commenter requested a clarification of timelines when the initial 
evaluation occurs with less than sixty days remaining in the school 
year.
    Discussion: While it is critical that each public agency make FAPE 
available in accordance with an IEP within a reasonable period of time 
after the agency's receipt of parent consent to an initial evaluation, 
imposing specific timelines could result in the timelines being 
implemented only in a compliance sense, without regard to meeting the 
spirit of the requirement, and this may not always serve the best 
interests of the children involved.
    Moreover, as indicated by some of the commenters, most States are 
able to meet a timeline of 60 days. The Department considers this to be 
reasonable, and will not make a finding of noncompliance when 
monitoring a State that is meeting the 60 day timeline for most 
children.
    It is recognized, however, that it may, for some children, take 
longer, and for some, it could be done in a shorter period of time. 
Therefore, the note following Sec. 300.343 should be deleted, and no 
timelines should be added to the final regulations relating to the 
concept of ``within a reasonable period of time.'' Although no specific 
timeline is given, implementation should be done with all due haste.
    Changes: The note following Sec. 300.343 has been removed.

[[Page 12582]]

IEP Team (Sec. 300.344)

    Comment: A wide variety of general comments was received regarding 
this section. Some commenters believe that anyone expected to implement 
the IEP should attend the IEP meeting. Numerous comments were received 
regarding the note to this section of the NPRM. Some commenters 
believed that the note should be deleted in its entirety because it 
went beyond the statute, while other commenters recommended that only 
portions be deleted, or that the note be included in the regulations 
instead. Other commenters requested a limitation on the number of 
people that could attend IEP meetings, with provision for an exception 
when necessary.
    Other commenters suggested that there should be a requirement that 
an appropriate member of the IEP team meet with every teacher that 
works with a student to explain goals and objectives contained in the 
IEP and accommodations and modifications required by the teachers.
    Discussion: In response to commenters' recommendations and in light 
of the general decision not to use notes in these final regulations, 
the note following this section of the NPRM should be removed as a 
note. However, substantive portions should be incorporated, as 
appropriate, into pertinent provisions of this section, reflected in 
questions and answers on IEP requirements that are contained in 
Appendix A to these regulations, or addressed in the discussion of 
comments regarding this section.
    No limitation on the number of individuals who can attend IEP 
meetings should be imposed, as requested by commenters, since these 
determinations are left to parents and public agencies, based on the 
requirements of this section. These requirements are sufficient to 
ensure that membership on the IEP team is limited to individuals who 
have particular knowledge or expertise to bring to the meeting. No 
clarification is needed here with regard to accommodations and 
modifications for all personnel who implement a child's IEP, since that 
requirement is addressed under Sec. 300.346(d)(2) of these regulations.
    Changes: The note following this section of the NPRM has been 
removed.
    Comment: Some commenters recommended that this regulation be 
amended to specify that parents can bring ``advocates of their choice'' 
to their child's IEP meetings. Other commenters recommended that the 
regulation be clarified to state that parent support personnel can 
attend IEP meetings if requested by the parent, and that if the 
district disagrees with the attendance of a person invited by the 
parent, they may file a complaint but must not prohibit that person 
from attending the meeting.
    Commenters also requested clarification regarding how the public 
agency would document that it has ensured that the parent actually has 
been given the opportunity to participate meaningfully at their child's 
IEP meeting.
    Discussion: As numerous commenters emphasized, it is essential that 
parents are given the opportunity to participate meaningfully as 
members of their child's IEP team. In many situations, an IEP meeting 
can be a very intimidating experience for many parents, even if the LEA 
encourages their active participation. Frequently, as commenters have 
suggested, parents would be assisted greatly at their child's IEP 
meetings if another person could accompany them. It is important to 
point out that under IDEA and the original regulations for this 
program, parents always have been afforded the opportunity to bring a 
friend or neighbor to accompany them at their child's IEP meeting. 
Question 26 in the Notice of Interpretation on IEP requirements, 
published as Appendix A to 34 CFR part 300, in 1981, stated in a note 
that, in some instances, parents might elect to bring another 
participant to the meeting, e.g., a friend or neighbor, someone outside 
of the agency who is familiar with applicable laws and with the child's 
needs, or a specialist who conducted an independent evaluation of the 
child.
    Many parents traditionally have brought other individuals to 
accompany them to their child's IEP meeting as a way of ensuring their 
meaningful participation. Therefore, in response to commenters' 
suggestions and to ensure that meaningful parent participation at their 
child's IEP meeting is preserved, a new paragraph (c) should be added 
to this section.
    Changes: Section 300.344 has been amended by adding a new paragraph 
(c) to clarify that ``[T]he determination of the knowledge or special 
expertise of any individual described in paragraph (a)(6) of this 
section shall be made by the party (the parents or the public agency) 
who invited the individual to be a member of the IEP team.''
    Comment: Numerous commenters addressed the requirement in proposed 
Sec. 300.344(a)(2) and the pertinent portions of the note regarding the 
role of the regular education teacher as a member of the child's IEP 
team if the child is, or may be, participating in the regular 
educational environment. Some commenters were supportive of the 
participation of the regular education teacher at an IEP meeting, 
agreeing that at least one regular education teacher of the child 
should be an IEP team member. Some commenters also pointed out that 
problems surrounding placement of a child with a disability in the 
regular classroom cannot be addressed without adequate preparation or 
participation of teachers of those classes in the IEP meeting.
    Those commenters opposed to the requirement cited potential costs. 
Some commenters also pointed out that, for children with disabilities 
taking a number of subjects, it will be impossible to bring all 
teachers together, while a single teacher will not have the requisite 
expertise on a variety of subjects.
    Other commenters who were supportive of the regular education 
teacher's participation in principle, and acknowledged the importance 
of obtaining input from a regular education teacher, recommended a more 
flexible approach. These commenters felt that a requirement that a 
regular education teacher be present at every IEP meeting would 
interfere with the ability of regular education teachers to provide the 
necessary instruction to all children in their classrooms, both with 
and without disabilities. Specific recommendations that commenters made 
for regulatory changes were (1) the reference to regular educational 
environment in Sec. 300.344(a)(2) should be replaced with language such 
as, if the child is, or may be, participating in a non-special 
education classroom; (2) the reference to regular education teacher 
should be replaced with general education teacher or person 
knowledgeable about the general education curriculum at the child's 
grade level; (3) the participation of a regular education teacher is 
required only if issues arise regarding behavior or socialization, 
making the input necessary; and (4) a regular education teacher must 
attend if the child with a disability is, or may be, receiving 
instruction from a regular education teacher during the period of time 
covered by the proposed IEP.
    Commenters made a number of other suggestions concerning which IEP 
meetings the regular education teacher needs to attend and how those 
determinations could be made, such as, (1) the regular education 
teacher must attend only the annual IEP review meeting, but that 
attendance at other meetings should be on an as-needed basis; (2) there 
should be no requirement that the regular education

[[Page 12583]]

teacher be physically present at the IEP meeting, but must be given the 
opportunity to provide oral or written input about the child and 
appropriate instructional strategies; (3) the regular education teacher 
must attend to the extent appropriate; (4) the IEP team must consult 
with the regular education teacher to the extent appropriate, and 
determine whether it is necessary for the regular education teacher to 
attend all or part of the meeting; and (5) attendance is at the option 
of the regular education teacher, who also can appoint an individual of 
his or her choice who has had experience with the child and/or has had 
adequate pre-planning time with special education personnel.
    Other commenters asked whether other individuals could be 
substituted for the regular education teacher's participation at IEP 
meetings, such as, (1) a special education teacher who is knowledgeable 
about the general curriculum; (2) a school counselor, particularly for 
high school students; (3) an individual certified as a regular 
education teacher, regardless of whether that individual is currently 
working with the child; and (4) for children who are receiving only 
speech-language services, a regular education teacher need not 
participate.
    Commenters also requested that the regulations be clarified to 
state that school officials will not be deemed to have predetermined 
placement solely because a regular education teacher is not present at 
an IEP meeting. In the event that a regular education teacher does not 
attend, commenters asked if that regular education teacher would be 
required to provide input regarding the regular curriculum, and, if so, 
how this would be accomplished and documented.
    Numerous commenters expressed concerns regarding confidentiality of 
IEPs if regular education teachers who did not attend the meeting are 
provided copies. Some commenters suggested that there be a central 
location for all IEPs, and the regulation make explicit that there are 
limitations on redisclosure of information in IEPs to others.
    Discussion: Based on careful consideration of comments as well as 
applicable statutory requirements, Sec. 300.344(a)(2) should be 
retained in these final regulations, but additional clarification 
should be provided in Appendix A and in Sec. 300.342(b) of these 
regulations.
    Section 614(d)(1)(B)(ii) of the Act specifies that the IEP team 
must include ``at least one regular education teacher of such child (if 
the child is, or may be, participating in the regular education 
environment).'' This statutory provision therefore prescribes that for 
any child who is, or may be participating in the regular educational 
environment, that child's regular education teacher must be a member of 
the child's IEP team. The child's regular education teacher's 
membership on the IEP team is particularly important to meeting the 
statutory requirement in section 614(d)(1)(A)(ii)(I) of the Act that 
the IEP explain how the child's needs will be met so that the child can 
be involved in and progress in the general curriculum.
    In implementing the requirement for membership of a regular 
education teacher on the IEP team, the public agency will determine 
which teacher or teachers of the child will fulfill that function to 
ensure participation of at least one regular education teacher in the 
development, review, and revision of the child's IEP, to the extent 
appropriate, in accordance with section 614(d)(3)(C) of the Act. (See 
discussion of Sec. 300.346(d) of these regulations).
    In addition, it would be highly beneficial to the education of 
children with disabilities to ensure that those regular education 
teachers and other service providers of the child who are not members 
of the child's IEP team are informed about the contents of a child's 
IEP to ensure that the IEP is appropriately implemented.
    Whether the child's regular education teacher must be physically 
present at an IEP meeting, and to what extent that individual must 
participate in all phases of the IEP process, are matters that must (1) 
be determined on a case-by-case basis by the public agency, the 
parents, and other members of the IEP team, and (2) be based on a 
variety of factors. This issue is discussed in more detail in a 
question and answer contained in Appendix A to these final regulations. 
Since the statutory language is incorporated into this regulation 
verbatim, no changes should be made regarding the use of the term 
``regular education teacher,'' or the statutory language regarding the 
regular educational environment.
    It is important to point out that the statute specifies that at 
least one regular education teacher of the child is a member of the IEP 
team. Therefore, the suggestions of commenters that other individuals 
could participate in lieu of the child's regular education teacher as 
the regular education teacher member of the child's IEP team should not 
be adopted; however, as stated in the note to this section in the NPRM, 
the regular education teacher participating in a child's IEP meeting 
should be the teacher who is, or may be, responsible for implementing 
the IEP, so that the teacher can participate in discussions about how 
best to teach the child.
    If the child has more than one regular education teacher, the LEA 
may designate which teacher or teachers of the child will participate 
on the IEP team. While all regular education teachers of the child need 
not attend the child's IEP meeting, their input should be sought, 
regardless of whether they attend. In addition, each public agency must 
ensure that (1) the child's IEP is accessible to each regular education 
teacher (and to each special education teacher, related services 
provider and other service provider) who is responsible for its 
implementation, and (2) each of the child's teachers and providers is 
informed of his or her specific responsibilities related to 
implementing the child's IEP, and of the specific accommodations, 
modifications, and supports that must be provided to the child in 
accordance with the IEP. This provision is necessary to ensure proper 
implementation of the child's IEP and the provision of FAPE to the 
child. However, the mechanism that the public agency uses to inform 
each teacher or provider of his or her responsibilities is left to the 
discretion of the agency.
    It is expected that the circumstances will be rare in which a 
regular education teacher would not be required to be a member of the 
child's IEP team. However, there may be situations in which a child is 
placed in a separate school and participates only in meals, recess 
periods, transportation, and extracurricular activities with 
nondisabled children and is not otherwise participating in the regular 
educational environment, and no change in that degree of participation 
is anticipated during the next twelve months. In these instances, since 
there would be no current or anticipated regular education teacher for 
a child during the period of the IEP, it would not be necessary for a 
regular education teacher to be a member of the child's IEP team.
    No further clarification should be provided in response to 
commenters' concerns about the potential for violation of requirements 
regarding confidentiality of information if copies of a child's IEP are 
distributed to regular education teachers or other school personnel who 
did not attend the IEP meeting. These regulations contain 
confidentiality requirements at Secs. 300.560-300.577 that are modeled 
after those in the Family Educational Rights and Privacy Act of 1974 
(FERPA), 20 U.S.C. Sec. 1232(g), which also applies to this program.

[[Page 12584]]

    While FERPA does not protect the confidentiality of information in 
general, it prohibits the improper disclosure of information from 
education records and generally protects parents' and students' privacy 
interests in ``education records.'' Records regarding an individual 
student's disability maintained by an educational agency or institution 
or by a party acting for the agency or institution are education 
records under FERPA. Therefore, a child's IEP is an ``education 
record'' which is subject to FERPA.
    Under FERPA and Part B, the prior written consent of the student's 
parent or of the eligible student must be obtained for disclosure of 
personally identifiable information in education records, unless one of 
the authorized exceptions to the prior written consent requirement is 
applicable. (34 CFR 99.30 and 300.571 (a)(2) and (b)).
    Under 34 CFR 99.31(a)(1), educational agencies or institutions, 
under certain circumstances, may disclose personally identifiable 
information in education records without prior written consent to 
school officials with legitimate educational interests. Each 
educational agency or institution must provide annual notification 
regarding how it meets the requirements of FERPA. This annual 
notification under FERPA must include a statement indicating that the 
parent or eligible student has a right to consent to disclosure of 
personally identifiable information, and the exception permitting 
nonconsensual disclosures to school officials with legitimate 
educational interests must be described.
    The criteria for determining which parties are school officials and 
what the agency or institution considers to be a legitimate educational 
interest also must be specified in this annual notification. (34 CFR 
99.7(a)(3)). Accordingly, an educational agency or institution may 
disclose information from education records to teachers and other 
school officials who meet the criteria set forth in the agency's or 
institution's notice and must restrict access by other school employees 
who do not fall within an exception, unless consent to the disclosures 
is obtained. Although regular education teachers who fall within this 
exception also may disclose education records to other school officials 
with legitimate educational interests, those officials are subject to 
the restrictions on redisclosure in 34 CFR 99.33.
    Public agencies also may find it practical to store education 
records in one central location to limit access to those individuals to 
whom the agency or institution is permitted to disclose personally 
identifiable information without prior consent.
    Changes: Section 300.342(b) has been amended, consistent with the 
above discussion.
    Comment: Commenters requested that ``special education provider'' 
be defined and that clarification be provided to indicate when a 
special education provider could attend an IEP meeting in lieu of a 
special education teacher. Other commenters asked if a paraprofessional 
could attend an IEP meeting in lieu of a special education teacher or 
special education provider. Some commenters recommended that the 
regulations clarify that it would not be permissible for a 
paraprofessional to be substituted for a qualified special education 
teacher or provider as an IEP team member.
    Commenters also recommended clarification that parents should be 
informed about the qualifications of the IEP team members and degree to 
which the IEP is being implemented by what commenters referred to as 
``non-qualified personnel.''
    Discussion: Section 300.344(a)(3) of these final regulations 
implements section 614(d)(1)(B)(iii) of the Act, which gives the public 
agency the flexibility to determine whether the child's special 
education teacher or special education provider should be a member of 
the child's IEP team. The special education teacher or provider who is 
a member of the child's IEP team should be the person who is, or will 
be, responsible for implementing the IEP. For example, if the child's 
disability is a speech impairment, the special education teacher or 
special education provider could be the speech-language pathologist.
    While there is no statutory requirement that public agencies inform 
parents of the qualifications of members of the IEP team, there is 
nothing in these regulations that would preclude public agencies from 
providing parents with this type of information. Public agencies are 
encouraged to grant reasonable requests from parents for such 
information.
    Changes: None.
    Comment: Numerous commenters requested that language from Appendix 
A about the public agency's ability to commit agency resources be added 
to the regulation. Commenters emphasized that it was especially 
important that the individual attending an IEP meeting in the capacity 
of public agency representative must be an individual such as an LEA 
administrator who is qualified to develop specially designed 
instruction and have authority to make decisions regarding LEA 
resources.
    To give LEAs flexibility in their representation, some commenters 
suggested that the public agency representative should be an individual 
who can interpret the instructional implications of evaluation results 
and may be a member previously described. Other commenters emphasized 
that the requirement for participation of a public agency 
representative could be burdensome for rural States, and recommended 
that the regulations be clarified to indicate that IEP team members 
could fulfill dual functions so that responsibility of the public 
agency representative could be delegated to another team member.
    Some commenters requested that the regulation be amended to provide 
that if particular services are not available in the district, lack of 
availability does not relieve the school district of its obligation 
either to provide needed services to a disabled child, or to include 
those services on a child's IEP.
    Discussion: The three criteria enumerated in the statute at section 
614(d)(1)(B)(iv) describing the representative of the public agency who 
is a member of the IEP team are incorporated into Sec. 300.344(a)(4) of 
these final regulations. The statute should not be read to prohibit the 
public agency from designating another member of the IEP team to act as 
the public agency representative, if that individual meets the 
specified criteria for each role. Therefore, a new paragraph (d) should 
be added to Sec. 300.344 regarding a public agency's authority to 
designate another IEP team member as the public agency representative 
member of the IEP team, so long as the criteria in Sec. 300.344(a)(4) 
are satisfied.
    Changes: Section 300.344 has been amended by adding a new paragraph 
(d), which authorizes a public agency to designate another IEP team 
member as the public agency representative, provided the criteria in 
Sec. 300.344(a)(4) are satisfied.
    Comment: Many commenters emphasized the need to link the IEP and 
evaluation processes to ensure that participants on the IEP team were 
knowledgeable about the deliberations during the evaluation process and 
eligibility determination. Some commenters believed that the language 
about interpretation of evaluation results needs to be modified to 
specify that the individual in this capacity had contributed to the 
evaluation process. Many commenters requested that the regulation 
should specify that the initial IEP team must include a member of the 
eligibility team who is qualified to interpret the instructional 
implications

[[Page 12585]]

of the evaluation results. Some commenters favored having such an 
individual present at all IEP meetings.
    Discussion: Section 300.344(a)(5) essentially reflects the 
statutory requirement at section 614(d)(1)(B)(v), which requires the 
participation of an individual who is knowledgeable about the 
instructional implications of evaluation results, who may be another 
member of the IEP team. No further clarification should be provided 
since the statute specifically affords public agencies the flexibility 
to select another member of the IEP team to fulfill the requirement of 
Sec. 300.344(a)(5), provided that individual is knowledgeable about the 
instructional implications of evaluation results.
    Although commenters requested that the regulation be amended to 
require the participation of a member of the eligibility team who is 
knowledgeable about evaluation results to fulfill the requirement of 
Sec. 300.344(a)(5), there is no statutory authority to impose such a 
requirement, either for initial or subsequent IEP meetings. However, it 
is expected that public agencies will find it helpful to have members 
of the eligibility team as IEP team members for initial and subsequent 
meetings to develop a child's IEP.
    Changes: None.
    Comment: Numerous comments were received regarding the 
participation of related services personnel at IEP meetings. Some 
commenters believed that any time a child is receiving a related 
service, or whenever a related service is reflected in the child's 
goals and objectives, the relevant related services personnel must 
attend the IEP meeting. Other commenters requested that the 
clarification in Appendix A regarding related services personnel who 
have special knowledge and expertise regarding the child be included in 
the regulations as well.
    Many commenters requested a regulatory change to specify that 
related services personnel must attend IEP meetings, if appropriate, 
and need not be invited by the LEA. Other commenters recommended that 
to assist parents, clarification should be provided that related 
services personnel and the parents always must be notified of the IEP 
meeting whenever the child's need for a related service is being 
discussed. Other commenters recommended that Sec. 300.344(a)(6) be 
changed to other individuals with special knowledge and expertise 
regarding the child, the child's disability and unique needs, and that 
criteria for attending the IEP meeting should include persons who can 
contribute to the quality of the final document.
    Many commenters recommended that the regulations specify which 
related services personnel must attend IEP meetings. Several commenters 
recommended that IEP teams always must include school psychologists who 
are knowledgeable about clinical testing administration, particularly 
when evaluation results are being used to determine IEP goals, behavior 
impedes learning, reevaluations are required or are being determined, 
and functional behavioral assessments and reviews of behavioral 
interventions are necessary.
    A number of comments were received regarding making the school 
nurse or other qualified provider of school health services a required 
participant on the IEP team. Some commenters limited this 
recommendation to situations in which the child has medical concerns or 
specialized health needs, and urged the participation of these 
individuals to the greatest extent practical, and when appropriate on 
the IEP team.
    Many commenters were concerned that paragraph (a)(6) of this 
section was too restrictive, because it (1) could prevent parents from 
bringing support personnel, representatives of PTIs and other parent 
organizations, and other advocates to their child's IEP meetings, and 
(2) could place an unreasonable burden on the parent to prove the 
individual's ``special knowledge or expertise'' regarding their child.
    Several commenters requested that the regulations list the 
conditions under which speech-language pathologists and audiologists 
will or may serve on the IEP team. Some commenters recommended that the 
regulations be amended to make the participation of the speech-language 
pathologist at the IEP meeting mandatory, while other commenters 
suggested that the number of individuals required to be on IEP teams 
for students for whom speech is the only special education service was 
excessive.
    Some commenters recommended that the regulations specify that a 
person knowledgeable about the language and communication needs of deaf 
children must be present for their IEP meetings. Numerous commenters 
favored including in the regulation the portion of the note regarding 
the attendance of persons knowledgeable about positive behavior 
interventions and strategies at IEP meetings, if the student's behavior 
impedes the learning of the student or others. Some of these commenters 
recommended that the reference be changed to a person trained in the 
design and use of effective positive behavior support strategies.
    Several comments were received regarding an attorney's 
participation at IEP meetings, and a recommendation was made that the 
discussion regarding the attorney's role at IEP meetings in Appendix A 
should be incorporated into the regulations. Another commenter 
recommended that the regulation should state that attorneys should 
never be in attendance at IEP meetings unless such a meeting is 
convened as a result of an administrative proceeding or judicial 
review. Other commenters suggested that adults with disabilities should 
be required members of the IEP team.
    Discussion: Section 300.344(a)(6) adopts verbatim the statutory 
language at section 614(d)(1)(B)(vi) of the Act. Under this section, 
parents and public agencies have the discretion to bring to IEP 
meetings as IEP team members other individuals who have knowledge or 
special expertise regarding the child, including related services 
personnel, as appropriate. Under this statutory provision, the parent's 
and public agency's right to bring other individuals to the IEP meeting 
at their discretion must be exercised in a manner that ensures that all 
members of the IEP team have the knowledge or special expertise 
regarding the child to contribute meaningfully to the IEP team.
    Individuals with knowledge about the child could include neighbors 
or friends of the parents, or advocates, who, in the judgement of the 
parents, are able to advise or assist them at the meeting. Individuals 
with special expertise could include professionals in evaluation or 
special education and related services who have been directly involved 
with the child, as well as those who do not know the child personally, 
but who have expertise in (for example) an instructional method or 
procedure, or in the provision of a related service that the parents or 
agency believe can be of assistance in developing an appropriate IEP 
for the child.
    There is no need to make the participation of school nurses on the 
IEP team mandatory, as requested by commenters. As providers of the 
related service ``school health services,'' their participation would 
be subject to the requirements of this section, and they could be 
members of the IEP team at the discretion of the parents or public 
agency, provided that they possess the requisite knowledge and special 
expertise regarding the child. The same is true of providers of speech-
language and audiology services and individuals knowledgeable about the 
communication needs of students who are deaf or hard of hearing. In the 
case of a child whose behavior impedes the

[[Page 12586]]

learning of the child or that of others, the public agency is 
encouraged to have a person with special expertise in positive behavior 
interventions and strategies on the IEP team at the IEP meeting.
    Individuals such as representatives of PTIs may, at the parent's 
discretion, serve as members of the IEP team, provided they possess the 
requisite knowledge or expertise regarding the child.
    Regarding attorneys participation at IEP meetings, it is important 
to note that a new statutory provision at section 615(i)(3)(D)(ii) 
provides that attorneys' fees may not be awarded for an IEP team 
meeting unless the meeting is convened as the result of an 
administrative proceeding or judicial action, or at the discretion of 
the State, for a mediation conducted prior to initiating a due process 
hearing under the Act. Issues raised related to attorneys' fees 
regarding IEP meetings are also addressed under Sec. 300.513 of this 
attachment and in Appendix A.
    It is not necessary to require the participation of adults with 
disabilities on the IEP team. As is true of other related services 
personnel, as well as other individuals selected as IEP team members at 
the parent's or agency's discretion, an adult with a disability could 
be a member of an IEP team at the parent's or public agency's 
discretion if that individual possesses the requisite knowledge and 
expertise regarding the child.
    Changes: A new Sec. 300.344(c) has been added to clarify that ``The 
determination of the knowledge or special expertise of any individual 
described in paragraph (a)(6) of this section shall be made by the 
parents or public agency who invited the individual to be a member of 
the IEP team.''
    Comment: Commenters recommended that the word ``appropriate'' be 
deleted from Sec. 300.344(a)(7), since a student always should be 
permitted to be at his or her IEP meeting, and that students eighteen 
years of age and older always should be considered members of the IEP 
team.
    Commenters also recommended that language be added to the 
regulation to clarify that students under age 14 be included on the IEP 
team on an as-appropriate basis, and that students 14 and older be 
included as members of the team. Other commenters recommended 
clarification that the decision as to when it is ``appropriate'' for a 
child to attend his or her IEP meeting rests with the child and his or 
her parents.
    Other commenters expressed a concern that students could be coerced 
into accepting instructional plans and that the IEP provisions should 
be amended to require that an advocate employed by the LEA must be 
present at every consultation involving teachers and students regarding 
IEP or implementation.
    Discussion: Section 300.344(a)(7) of these regulations adopts 
verbatim the statutory requirement at section 614(d)(1)(B)(vii) of the 
Act regarding the child's participation as a member of his or her IEP 
team, as appropriate. Consistent with this statutory requirement, 
public agencies must invite students to attend IEP meetings in 
appropriate situations.
    No regulatory change deleting the reference to ``if appropriate'' 
should be made, as requested by commenters, since to do so would alter 
the explicit statutory provision limiting the student's participation 
in IEP meetings to appropriate situations. However, if a purpose of the 
meeting will be the consideration of a student's transition services 
needs or needed transition services or both, Sec. 300.344(b)(1) of 
these regulations would provide that the student must be invited to 
attend, because it is important to afford students an opportunity to 
participate and have a voice in planning for their transition from 
school to post-school activities, including postsecondary education and 
employment.
    The change requested by commenters regarding the participation of a 
student over eighteen years of age as a member of their IEP team should 
not be made. Even if, under section 615(m) of the Act, all rights 
accorded parents under Part B transfer to students who have reached the 
age of majority under State law, ages of majority differ among States, 
and not all States regard age eighteen as the age at which parental 
rights transfer to children. In addition, under section 615(m) of the 
Act, there are circumstances in which parental rights accorded under 
Part B may not be transferred, even in a State that transfers rights at 
the State age of majority.
    No change should be made regarding the commenters' concerns that 
students would be coerced into accepting instructional plans. It would 
be more appropriate to address these implementation issues at the State 
and local levels.
    Changes: None.
    Comment: Commenters requested that this section be revised to 
require SEAs and LEAs to enter into interagency agreements with non-
school agencies that include participation by non-school agencies in 
transition meetings. Other suggestions made by commenters were that a 
statement be added to the regulations to require the attendance of an 
advocate or staff member from an independent living center and a 
transition coordinator at an IEP meeting whenever transition services 
are discussed. Other commenters requested additional information about 
boundaries and parameters for enlisting the involvement of other agency 
personnel in transition meetings.
    Some commenters suggested that not only the public agency should 
have the ability to invite representatives of other agencies, but so 
should the parents. If a student is unable to attend an IEP meeting, 
other commenters asked what steps will be taken to ensure that the 
student's preferences and interests are being considered, especially if 
transition services are being discussed.
    Discussion: Section 300.344(b)(1) of these regulations would 
require that a student of any age be invited to an IEP meeting if a 
purpose of the meeting is to meet a requirement of Sec. 300.347(b)(1) 
(transition services) of these regulations. If the student cannot 
attend, the public agency must take whatever steps are necessary to 
ensure that the student's preferences and interests are being 
considered. No further clarification should be provided since these 
steps necessarily will vary based on a variety of factors, including 
the needs of the student.
    There is no need for clarification regarding interagency 
agreements, since Sec. 300.142 of these regulations already contains a 
requirement that agreements be in place between educational and 
noneducational public agencies to govern the provision and financing of 
all required services under these regulations, including transition 
services. There is no need to require the participation of advocates 
and transition coordinators at IEP meetings at which transition 
services needs or the statement of needed transition services is being 
discussed.
    Changes: None.

Parent participation (Sec. 300.345)

    Comment: A number of comments were received on the notice 
requirement in Sec. 300.345(a), including comments requesting that (1) 
the regulations require that the notice be in a format and in language 
that is usable by parents; (2) because of the prior written notice 
requirement in the statute, public agencies should not have the option 
to provide verbal notice (i.e, by telephone); (3) LEAs generally should 
not be allowed to reject a parent's proposal for a time and place of 
the meeting, and meetings should be held at times that accommodate 
parents' work schedules; (4) the term ``early enough'' in 
Sec. 300.345(a)(1) be replaced with a

[[Page 12587]]

specific number of days; and (5) a draft IEP be given to parents not 
less than 10 days before the meeting.
    Discussion: The ``notice'' requirement in Sec. 300.345(a) of these 
final regulations implements provisions under prior regulations that 
were not changed by the IDEA Amendments of 1997, and, therefore, does 
not need to be revised with respect to the comments received. This 
requirement is a long-standing provision that is intended mainly to 
inform parents about the IEP meeting and provide them with relevant 
information about it (e.g., the purpose, time, and place of the 
meeting, and who will be in attendance). The requirement is not the 
same as the prior notice provision in Sec. 300.503 (which requires 
written notice to parents whenever the public agency proposes, or 
refuses, to initiate or change the identification, evaluation, or 
educational placement of the child or the provision of FAPE to the 
child).
    In implementing Sec. 300.345(a), some LEAs elect to contact parents 
by telephone or to send less formal notes about IEP meeting 
arrangements than would be required under Sec. 300.503. These 
approaches are consistent with the long-standing regulatory 
requirement. With respect to Sec. 300.345(a)(1) (i.e., notifying 
parents early enough of the meeting to ensure that they will have an 
opportunity to attend), there is no information to justify replacing 
the term ``early enough'' with a specified timeline. Because 
communicating with parents about IEP meeting arrangements is generally 
a less formal process than the procedures required by certain other 
provisions in this part, the use of timelines could have a negative 
effect.
    The key factor in Sec. 300.345(a) is that public agencies 
effectively communicate with parents about the up-coming IEP meeting, 
and attempt to arrange a mutually agreed upon time and place for the 
meeting. This process should accommodate the parents' work schedules to 
ensure that one or both parents are afforded the opportunity to 
participate.
    The commenter's request that the public agency provide parents with 
a copy of the IEP 10 days before the meeting is inconsistent with the 
requirements of this part, which requires that the IEP be developed at 
the IEP meeting. However, to the extent that preliminary information is 
available in the agency that may affect discussions and decisions at 
the meeting related to their child's IEP, it is expected that the 
information would be provided to the parents sufficiently in advance of 
the meeting so that they can participate meaningfully in those 
discussions and decisions on an equal footing with other members of the 
IEP team. It is not necessary to set out a specific timeline for this 
information to be provided.
    Changes: None.
    Comment: A number of comments were received requesting that the 
first sentence of the note following Sec. 300.345 (related to informing 
parents of their right to bring other people to the IEP meeting) be 
added to the regulation, and specifically to Sec. 300.345(b) to ensure 
that this would be a specific requirement. Other commenters recommended 
deleting the note, stating that it is misleading, and will confuse 
parents and school staff and lead to unneeded difficulties.
    Discussion: It is important for parents of children with 
disabilities to be aware that, under the provisions of 
Sec. 300.344(a)(6) and (c), other individuals may be included on their 
child's IEP team, provided that the individuals have knowledge or 
special expertise regarding the child (see discussion under 
Sec. 300.344 of this analysis). To ensure that parents know about those 
provisions, public agencies should be required to include information 
about the provisions in the notice of IEP meetings specified under 
Sec. 300.345(a)(1) and (b)(1)(ii).
    Changes: Section 300.345(b) has been amended to provide that the 
notice required under Sec. 300.345(b) must ``Inform the parents of the 
provisions in Sec. 300.344(a)(6) and (c) (relating to the participation 
of other individuals on the IEP team who have knowledge or special 
expertise about the child).''
    Comment: A few comments were received on Sec. 300.345(d) (related 
to holding an IEP meeting without the parents if the LEA is unable to 
convince them to participate). The commenters stated that the term 
``convince'' should be replaced because it connotes an adversarial 
situation between the LEA and the parents, and suggested other terms. 
Some commenters requested that Sec. 300.345(d)(3) (related to visits to 
a parent's home or place of employment) be deleted, stating (for 
example) that such a provision is overly intrusive, invasive, and could 
anger employers, and could cause some parents to be negatively impacted 
or insulted; and that the remaining methods in Sec. 300.345(d)(3) are 
sufficient.
    Another commenter suggested replacing the language in this 
paragraph with language that would require LEAs to demonstrate what 
they have done in attempting to involve parents.
    Discussion: Section 300.345(d) is a longstanding provision that is 
intended to enable a public agency to proceed to conduct an IEP meeting 
if neither parent elects to attend, after repeated attempts by the 
public agency to ensure their participation. In administering and 
monitoring the provisions of this part over the past 22 years, few, if 
any, questions or concerns have been identified, or raised, with 
respect to the implementation of Sec. 300.345(d), and there is no 
information to justify amending the paragraph at this time, either with 
respect to the word ``convince'' or the reference to maintaining 
records of efforts to involve the parents.
    The regulation makes it clear that paragraphs (d)(1) through (d)(3) 
of this section are examples of what a public agency ``may do'' to 
maintain a record of its attempts to arrange a mutually agreed on time 
and place for conducting an IEP meeting. Public agencies are not 
required to go to the parent's place of employment to attempt to seek 
the parents' involvement in their child's IEP; and it is expected that 
a public agency would pursue that option very judiciously. However, 
there may be situations in which the agency believes that it is 
important to do so because it is otherwise unable to contact the 
parent. Implementation of this specific provision is left to the 
discretion of each public agency. In any case in which the agency is 
unable to contact the parents or otherwise ensure their participation, 
Sec. 300.345(d) sets out options that the agency may elect to follow.
    Changes: None.
    Comment: Several commenters recommended that Sec. 300.345(f) be 
amended to delete the term ``on request'' from the statement, so that 
parents are given a copy of the IEP without having to ask for it. One 
commenter requested that the copy be given within 5 days of the 
meeting.
    Discussion: The new statute has given parents a more active voice 
in the education of their children with disabilities than existed under 
prior law. Because of the role parents play in the development, review, 
and revision of their child's IEP, it is appropriate to amend the 
regulation to require that each public agency must give the parents a 
copy of their child's IEP at no cost to the parents.
    Changes: Section 300.345(f) has been amended consistent with the 
above discussion.

Development, Review, and Revision of IEP (Sec. 300.346)

    Comment: A few comments were received on Sec. 300.346(a)(1). 
Commenters recommended that (1) examples be added related to the 
strengths of the child and the concerns of the parents for

[[Page 12588]]

enhancing the child's education; (2) the IEP team also consider the 
child's performance results on any State or district-wide assessments, 
in addition to the results of the initial or most recent evaluation of 
the child; and (3) the term ``consider'' be replaced with ``examine and 
address;'' or with ``incorporate,'' to ensure that the IEP team 
incorporates the listed items into a child's IEP, rather than simply 
considering them.
    While some commenters recommended that Note 1 be retained, other 
commenters recommended that the clarification in the note either be 
included in the text of the regulation or deleted in its entirety. One 
of the concerns expressed by commenters was that in considering special 
factors, the statement in Note 1 concerning review of valid information 
data, as appropriate, sets up a demand of separate or more expansive 
evaluation procedures for special consideration.
    Discussion: Section 300.346(a)(1) adopts the statutory requirements 
related to considering the strengths of the child and the concerns of 
the parents. No examples regarding this provision have been 
incorporated into these final regulations, since these determinations 
would differ for each student, based on a variety of unique factors in 
light of the abilities and needs of the parents and children involved. 
Because the requirement to ``consider'' the strengths of the child and 
the concerns of the parent, as well as the special factors, is 
statutory, a word other than ``consider'' should not be substituted. 
The requirements in paragraph (a)(1) and (a)(2) of this section impose 
an affirmative obligation on the IEP team to ensure that the child's 
IEP reflects those considerations.
    Paragraph (c) of this section also makes clear that if the IEP team 
determines, through consideration of special factors, that a child 
requires a particular service, intervention, or program modification, a 
statement to this effect must be included in the child's IEP. 
Therefore, no further clarification is necessary. Because the 
requirements in Sec. 300.346(a) are evident from the text of this 
regulation, there is no need to retain Note 1 to this section of the 
NPRM in these final regulations.
    Section 300.346(a)(1)(ii) also requires consideration of the 
results of the initial or most recent evaluation of the child, and this 
consideration must include, as appropriate, a review of valid 
evaluation data and the observed needs of the child resulting from the 
evaluation process. Because Pub. L. 105-17 strengthens collaboration 
between the IEP and evaluation processes, it is expected that this 
consideration will occur, as appropriate, through examination of 
existing evaluation data. Therefore, the commenters' concern that 
separate or expansive evaluation procedures would be required is not 
warranted.
    The commenters' suggestion regarding the IEP team's consideration 
of the child's performance results on any State and district-wide 
assessment programs is consistent with the emphasis in the Act on the 
importance of ensuring that children with disabilities participate in 
the general curriculum and are expected to meet high achievement 
standards. Effective IEP development is central to helping these 
children meet these high standards. Section 612(a)(17) of the Act and 
Sec. 300.138 of these regulations require, as conditions for receipt of 
IDEA funds, that States ensure that children with disabilities are 
included in general State and district-wide assessment programs, with 
appropriate accommodations where necessary, and must report the 
performance results of these children on such assessments. Therefore, 
Sec. 300.346(a)(1) should be amended by adding paragraph (iii) to 
require that in considering the results of the initial or most recent 
evaluation of the child, the IEP team also consider, as appropriate, 
the results of the child's performance on any general State or 
district-wide assessment programs.
    Changes: Section 300.346(a)(1) has been amended by adding paragraph 
(iii) to provide that, in considering the child's initial or most 
recent evaluation, the IEP team also consider, as appropriate, the 
results of the child's performance on any general State or district-
wide assessment programs. Note 1 to this section of the NPRM has been 
removed.
    Comment: Numerous comments were received on Sec. 300.346(a)(2) 
(i.e., consideration of special factors). With respect to the factor 
under paragraph (a)(2)(i), in the case of a child whose behavior 
impedes his or her learning or that of others, commenters requested 
that (1) the term ``if appropriate'' be deleted because it will be used 
only for those children exhibiting dangerous behavior; (2) a note be 
added to state that consideration should be given to whether the 
behavior that impedes learning is due to frustration over a lack of 
services; (3) the IEP team also consider behavior exhibited both in and 
outside the school, and behavior that must be addressed to sustain in-
school learning; (4) aversive behavior management strategies are banned 
under these regulations; (5) a child not be subjected to physical 
restraints or interventions unless agreed to by the child's parent and 
teacher; and (6) a plan between the parent and teacher be required to 
specify what disciplinary actions would occur if a child violated his 
or her behavioral intervention plan.
    Discussion: Paragraph (a)(2) of this section (relating to 
consideration of special factors) implements the new statutory 
requirement in section 614(d)(3)(B) of the Act. It should be emphasized 
that, under prior law, IEP teams were required to consider these 
special factors in situations where such consideration was necessary to 
ensure the provision of FAPE to a particular child with a disability. 
Therefore, this new statutory provision makes explicit what was 
inherent in each child's entitlement to FAPE under prior law.
    Paragraph (a)(2)(i) of this section adopts the statutory 
requirement at section 614(d)(3)(B)(i) of the Act, that, in the case of 
a child whose behavior impedes his or her learning or that of others, 
the IEP team consider, if appropriate, strategies, including positive 
behavioral interventions, strategies, and supports to address that 
behavior. The commenters' concern that the retention of the words ``if 
appropriate'' would mean that the provision would be applied only in 
situations where a child exhibited dangerous behavior seems to ignore 
that school officials have powerful incentives to implement positive 
behavioral interventions, strategies and supports whenever behavior 
interferes with the important teaching and learning activities of 
school. Since the word ``strategies'' is used two times in the 
statutory provision, contrary to commenters' suggestion, the word 
strategies should not be deleted the second time it appears in this 
section.
    Although the commenters' suggestions that behavior may be exhibited 
that impedes learning due to a frustration over lack of services and 
that the IEP team needs to examine in and out-of-school behavior to 
develop interventions to sustain learning are extremely important, no 
clarification should be provided in these regulations, to avoid 
overregulation in this area. It would be more appropriate to provide 
technical assistance on Sec. 300.346(a)(2)(i) on an as needed basis, 
instead of developing general rules to which numerous exceptions would 
most likely apply. The Department funds a number of research efforts in 
this area, as well as technical assistance providers. Of course, in 
appropriate cases it might be helpful to all parties for the IEP to 
identify the circumstances or behaviors of others that may result in 
inappropriate behaviors by the child.
    Regarding what behavioral interventions and strategies can be used, 
and whether the use of aversive

[[Page 12589]]

behavioral management strategies is prohibited under these regulations, 
the needs of the individual child are of paramount importance in 
determining the behavioral management strategies that are appropriate 
for inclusion in the child's IEP. In making these determinations, the 
primary focus must be on ensuring that the behavioral management 
strategies in the child's IEP reflect the Act's requirement for the use 
of positive behavioral interventions and strategies to address the 
behavior that impedes the learning of the child or that of other 
children.
    It would not be appropriate for these regulations to require a 
specific plan between the teacher and parent, as described by 
commenters, that would specify consequences for a student's failure to 
comply with a behavioral intervention plan. A child's need for this 
type of plan, and the specific elements of that plan, would vary 
depending on the child and the behavior involved. Of course, in 
appropriate circumstances, the IEP team which includes the child's 
parents, might agree upon a behavioral intervention plan that included 
specific regular or alternative disciplinary measures that would result 
from particular infractions of school rules.
    Parents who disagree with the behavioral interventions and 
strategies included in their child's IEP can utilize the Act's 
procedural safeguard requirements, which afford them the right to 
request an impartial due process hearing under Sec. 300.507 and the 
option to use mediation under Sec. 300.506 of these regulations.
    Changes: None.
    Comment: Numerous comments were received on Sec. 300.346(a)(2)(ii) 
and Note 3 (factors related to a child with limited English proficiency 
(LEP). Commenters recommended changes in the regulation, such as: (1) 
replacing ``IEP'' with ``disability'' in Sec. 300.346(a)(2)(ii); (2) 
clarifying that the consideration include how the child's level of 
English language proficiency affects the provision of special education 
and related services needed to receive FAPE, and how the child will be 
provided meaningful and full participation in the general curriculum, 
including through the use of alternative language services; (3) 
clarifying that special education and related services be provided in 
the language identified by the school district, with appropriate 
support services; (4) clarifying whether English language tutoring is a 
related service that must be included in a child's IEP or part of the 
general curriculum; and (5) recognizing that second language 
acquisition might take precedence over the general curriculum.
    A few commenters expressed support for Note 3, stating (for 
example) that it is helpful in recognizing that special education 
services may need to be provided in a language other than English. 
Other commenters requested that Note 3 be moved to the text of the 
regulation, or deleted in its entirety since it expands 
responsibilities under these regulations to requirements of Federal 
laws other than Part B.
    Discussion: Section 300.346(a)(2)(ii) of these regulations adopts 
verbatim the statutory requirement at section 614(d)(3)(B)(ii) of the 
Act, that in the case of a child with limited English proficiency, the 
IEP team consider the language needs of the child as such needs relate 
to the child's IEP. Modifications to this paragraph that would involve 
changes to statutory language should not be made.
    Issues such as the extent to which a LEP child with a disability 
receives instruction in English or the child's native language, the 
extent to which a LEP child with a disability can participate in the 
general curriculum, or whether English language tutoring is a service 
that must be included in a child's IEP, are determinations that must be 
made on an individual basis by the members of a child's IEP team.
    In light of the general decision to remove all notes, Note 3 has 
been removed. However, in developing an IEP for a LEP child with a 
disability, it is particularly important that the IEP team consider how 
the child's level of English language proficiency affects the special 
education and related services that the child needs in order to receive 
FAPE, consistent with Sec. 300.346(a)(2)(ii) and (c). Under Title VI of 
the Civil Rights Act of 1964, school districts are required to provide 
LEP children with alternative language services to enable them to 
acquire proficiency in English and to provide them with meaningful 
access to the content of the educational curriculum that is available 
to all students, including special education and related services.
    A LEP child with a disability may require special education and 
related services for those aspects of the educational program which 
address the development of English language skills and other aspects of 
the child's educational program. For a LEP child with a disability, 
under paragraph (c) of this section, the IEP must address whether the 
special education and related services that the child needs will be 
provided in a language other than English.
    Changes: Note 3 has been removed.
    Comment: With respect to the special factor considered for a child 
who is blind or visually impaired, commenters requested that the 
regulation clarify that (1) Braille materials must be provided to 
students who are blind or visually impaired at the same time that their 
sighted peers receive the materials; (2) a child may not be denied 
Braille services on the basis that modified reading and writing media, 
other than Braille, are being provided; (3) when there is a 
disagreement about the use of Braille, Braille instruction must be 
provided until lawful procedures have culminated in a final decision; 
and (4) any child who meets the legal definition of blindness should be 
taught Braille.
    Commenters also stated that other options besides Braille may be 
needed for certain students, as described in the ``Policy Guidance on 
Educating Blind and Visually Impaired Students'' (OSEP 96-4, dated 11-
3-95), and requested that a note be added that includes much of the 
content of that document, or that a reference be made to that policy 
guidance paralleling Note 2 relating to students who are deaf or hard 
of hearing.
    Discussion: Section 300.346(a)(2)(iii) of these final regulations 
adopts verbatim the statutory language at section 614(d)(3)(B)(iii) of 
the Act. Under this requirement, in the case of a child who is blind or 
visually impaired, the IEP team must make provision for instruction in 
Braille and the use of Braille, unless the IEP team determines, after 
the evaluations described in the statutory provision, that instruction 
in Braille or the use of Braille is not appropriate for the child. 
Changes to statutory language requested by commenters should not be 
made.
    Contrary to a suggestion of commenters, a regulatory provision 
making it mandatory for Braille to be taught to every child who is 
legally blind would contravene the individually-oriented focus of the 
Act, as well as the statutory requirement that the IEP team must make 
individual determinations for each child who is blind or visually 
impaired based on relevant evaluation data. As explained in OSEP 
Memorandum 96-4, Policy Guidance on Educating Blind and Visually 
Impaired Students, the IEP team's determination as to whether a child 
who is blind or visually impaired receives instruction in Braille or 
the use of Braille cannot be based on factors such as availability of 
alternative reading media, such as large print, recorded materials, or 
computers with speech output.
    Additionally, although these regulations do not specify that a 
child

[[Page 12590]]

for whom Braille instruction is determined appropriate must receive 
Braille materials at the same time they are provided to their sighted 
peers, once the IEP team determines that a child requires instruction 
in Braille, such instruction, along with other aspects of the child's 
IEP, must be implemented as soon as possible following the child's IEP 
meeting, and in any case, without undue delay. If there is disagreement 
between the parents and school district over what constitutes an 
appropriate program for a child who is blind or visually impaired, when 
the IEP team has determined that instruction in Braille would not be 
appropriate for the child, the parents of the child would have the 
right to request a due process hearing and mediation. In addition, 
parents have available to them mediation and complaint resolution by 
which they can file a complaint with the SEA under the State complaint 
procedures in these regulations.
    Although the LEA would not be required to provide instruction in 
Braille while the dispute is being resolved, the LEA would be required, 
both by Part B and Section 504, to ensure that the child receives 
instructional materials in an alternative medium to enable the child to 
participate in the LEA's program.
    The OSEP Policy Guidance on Educating Blind and Visually Impaired 
students should not be included in these final regulations since many 
of the statutory and regulatory provisions cited in the policy guidance 
have been replaced by the requirements of Pub. L. 105-17. In some 
important respects, particularly with regard to consideration of 
instruction in Braille, Pub. L. 105-17 substantially revised the 
requirements of prior law. It also should be pointed out that Note 2 to 
this section of the NPRM, which contained a reference to corresponding 
policy guidance regarding educating deaf students, is being removed as 
a note, and pertinent references to that policy guidance are 
incorporated into the discussion of Sec. 300.346(a)(2)(iv).
    Changes: None.
    Comment: With respect to considering the communication needs of the 
child and factors related to a child who is deaf or hard of hearing, 
commenters expressed support for Note 2 (related to policy guidance on 
Deaf Students Education Services that was published in the Federal 
Register in 1992), and requested that the entire statement be published 
as an attachment to these regulations. Some commenters favored deleting 
Note 2 because they objected to citation of policy guidance documents 
in the regulations without following applicable procedures in section 
607(b) and (c) of the Act.
    Commenters recommended adding to the regulations proposed 
definitions of the terms ``direct communication,'' ``the child's 
language,'' and ``full range of needs,'' or adding clarifying language 
relating to those terms (e.g., that the child's primary language could 
be American Sign Language, and that the full range of needs includes 
social, emotional, and cultural needs).
    Commenters also recommended (1) requiring that counselors of the 
deaf assess each deaf child's language and speech communication in 
spontaneous conversation at age 5, to determine whether the child has 
the skill to stay in an oral program or should be transferred to a 
program that uses sign language; (2) that the regulations make it clear 
that the communication needs of a deaf child are fundamental to the LRE 
decision; (3) that many deaf children need to be in an environment 
where they can communicate directly through a visual mode with those 
around them; and (4) that the IEP team document that it considered the 
language and communication needs of a hard of hearing child and how 
such needs will be met in the proposed placement.
    A few commenters requested that children with cochlear implants be 
included with other deaf children in the structure of educational 
placements and language and communication needs, and that the IEP state 
what will be done to assist the child to best utilize the hearing 
acquired.
    Some commenters requested adding children with deafness and 
blindness because they also have communication needs and require this 
consideration.
    Discussion: Section 300.346(a)(2)(iv) of these regulations adopts 
verbatim the statutory requirement in section 614(d)(3)(B)(iv) of the 
Act that the IEP team consider the communication needs of the child, 
and, in the case of a child who is deaf or hard of hearing, those 
additional special factors relating to the child's language and 
communication needs. Additional guidance in the form of changes to the 
regulations requested by commenters should not be provided.
    In the interest of not using notes in these final regulations, Note 
2 to this section of the NPRM should be removed. It is important to 
emphasize that this policy guidance on Deaf Students Educational 
Services merely interprets existing statutory and regulatory 
requirements, and does not impose new requirements on the public. 
Nevertheless, LEAs are not relieved of their responsibilities to ensure 
that paragraph (a)(2)(iv) of this section is implemented consistent 
with the published policy guidance on Deaf Students Education Services, 
and that the full range of communication and related needs of deaf and 
hard of hearing students are appropriately addressed in evaluation, 
IEP, and placement decisions under these regulations.
    The Senate and House Committee Reports on Pub. L. 105-17 reinforce 
this principle in their statements that ``the IEP team should implement 
the [new statutory] provision in a manner consistent with the policy 
guidance entitled ``Deaf Students Education Services'' published in the 
Federal Register (57 FR 49274, October 30, 1992) by the Department.'' 
S. Rep. No. 105-17, p. 25., H.R. Rep. No. 105-95, p. 104 (1997). The 
Department fully expects LEAs to ensure that Sec. 300.346(a)(2)(iv) of 
these regulations is implemented consistent with these statements.
    Changes: Note 2 has been removed.
    Comment: With respect to considering whether a child needs 
assistive technology (AT), some commenters stated that if AT devices or 
services are recommended and not provided, the IEP must include a 
statement to that effect and the basis on which the determination was 
made. Other commenters stated that having to document that such devices 
and services were considered is an unnecessary paperwork burden.
    Commenters also recommended (1) requiring that decisions about the 
need for AT are made early enough so that they are in effect by the 
beginning of the school year; (2) clarifying that if an AT device is 
needed, the child has the right to take it home; (3) adding 
clarification of liability issues (e.g., where a child uses a family 
owned device at school and other waiver of liability issues); and (4) 
adding a note that AT can have a significantly positive effect on the 
attainment of annual goals and participation in the general curriculum.
    Discussion: Section 300.346(a)(2)(v) of these regulations adopts 
verbatim the new statutory requirement at section 614(d)(b)(3)(v) of 
the Act, making it mandatory for the IEP team to consider each child's 
AT needs. This statutory provision reinforces the requirement in 
Sec. 300.308 of these regulations that if an IEP team determines that a 
disabled child requires an AT device or service in order to receive 
FAPE, the required AT must be provided at no cost to the parents. In 
all instances, the IEP team must determine whether an individual 
disabled child should receive AT, and if so, the nature and extent of 
AT provided to the child.

[[Page 12591]]

    Because in many situations, parents were reporting that LEAs were 
not properly considering their children's AT needs on an individual 
basis, this new provision should ensure that each child's IEP team 
considers the child's need for AT. Since IEP teams must consider each 
child's need for AT on an individual basis, determinations regarding 
the provision of AT must be made when the child's IEP for the upcoming 
school year is finalized so that the AT can be implemented with that 
IEP at the beginning of the next school year.
    In the interest of not adding paperwork burdens to these 
regulations, there is no additional requirement that LEAs document that 
the IEP team considered a child's AT needs, or considered a child's AT 
needs and determined that AT not be provided to the child. It is not 
necessary to add the clarification regarding the importance of 
reflecting a child's AT needs in IEP goals and objectives or in issues 
relating to the child's participation in the general curriculum.
    All of needs identified through consideration of the special 
factors contained in paragraph (a)(2) of this section must be reflected 
in the contents of the child's IEP, including, as appropriate, the 
instructional program and services provided to the child, the annual 
goals, and the child's involvement in and progress in the general 
curriculum. In addition, individual consideration of a child's AT needs 
is essential to ensuring that the child's unique needs arising from his 
or her disability are appropriately addressed so that the child can be 
involved in and progress in the general curriculum.
    Issues regarding whether AT devices or services can be used at 
home, and issues regarding liability for family-owned AT devices used 
at school are addressed either in discussions of Secs. 300.5-300.6 or 
300.308 of the attachment, and, as appropriate, are reflected in 
changes to those regulations.
    Changes: None.
    Comment: Commenters stated that, in light of the fact that IEP 
teams must consider special factors in five specific instances, and are 
responsible for significant decisions as a result of changes made by 
Pub. L. 105-17, a new paragraph (a)(3) should be added to Sec. 300.346 
to provide specific guidance to IEP teams (e.g., requiring that the 
teams draw upon information from a variety of sources, including 
teacher observation, input from parents, and other specified 
information). Other commenters requested that a new paragraph be added 
to Sec. 300.346 to ensure that all children with disabilities receive 
the services in their IEPs and retain the rights and privileges 
included under the Act.
    Discussion: While the concerns expressed by these commenters are 
extremely important, no regulatory changes should be made. 
Consideration of the five specific factors outlined in the statute and 
these regulations, of necessity, will require consideration of 
information from a variety of sources, and Sec. 300.346(c) of these 
regulations also requires that such consideration be reflected in the 
contents of a child's IEP. In addition, it is not necessary to add a 
provision to clarify that all children with disabilities must receive 
services listed in their IEPs. This requirement is already reflected in 
Sec. 300.350 of these regulations, which provides that each child with 
a disability must receive special education and related services in 
accordance with an IEP.
    Changes: None.
    Comment: A few comments were received on Sec. 300.346(d)(2) 
(relating to the determination of supplementary aids and services, 
program modifications, and supports for school personnel, consistent 
with Sec. 300.347(a)(3)). The commenters stated that (1) the term 
``supports for school personnel'' focuses the need from the student to 
the staff, and recommended adding a note to narrow this provision, 
because it could be interpreted broadly by staff and have a negative 
effect on resources that are needed to directly meet student needs; (2) 
the provision may be used by teachers to block admission of children 
with disabilities to their class by demanding unreasonable supports; 
(3) additional guidance be provided, since this is the first time that 
the IEP has addressed needs not specific to the child; and (4) language 
be added indicating that the LEA and not the teacher should be the 
focus of responsibility in the provision of such supports.
    Discussion: With respect to Sec. 300.346(d)(2), including the 
statement relating to supports for school personnel, it is critical 
that those determinations are ``consistent with Sec. 300.347(a)(3).'' 
Section 300.347(a)(3) makes clear that the focus of the supports is to 
assist the child to advance appropriately toward (for example) 
attaining the annual goals, and to be involved in and progress in the 
general education curriculum. Therefore, while certain supports for 
school staff may be provided (such as specific training in the 
effective integration of children with disabilities in regular 
classes), the ultimate focus of those supports to school personnel is 
to ensure the provision of FAPE to children with disabilities under 
Part B, their integration with nondisabled peers and their 
participation and involvement in the general curriculum, as 
appropriate. Consistent with the Act's emphasis on ensuring the 
provision of FAPE to children with disabilities, and, to the maximum 
extent appropriate, educating those children in regular classes with 
nondisabled children with appropriate supplementary aids and services, 
it is critical that at least one regular education teacher of the child 
be a member of the IEP team and provide input on appropriate 
supplementary aids and services, including program modifications and 
supports for school personnel. It also is essential that the child's 
teachers and other service providers who are not members of the IEP 
team are informed about the contents of the child's IEP, in whatever 
manner deemed appropriate by the public agency, so that the IEP is 
properly implemented by all school personnel.
    Changes: None.

Content of IEP (Sec. 300.347)

    Comment: A number of general comments were received relating to 
Sec. 300.347. Some commenters expressed concerns that the IEP 
requirements were burdensome. A commenter requested that a sample IEP 
be provided in order to cut down on paperwork and keep the IEP to the 
essentials of Federal and State law. Commenters also (1) requested that 
a provision addressing assistive technology be added, as it is often 
not provided, and (2) stated that Sec. 300.347 should contain a 
requirement that the IEP document be in a user-friendly format and 
written in language that can be understood by parents, and that the 
mandatory contents of IEPs include ESY services, if a child is eligible 
for such services, and necessary services that will be provided by 
another agency and the name of the provider.
    Other commenters requested (1) documenting how special factors were 
considered; (2) clarifying the role of the regular education teacher in 
IEPs of children who are in self-contained, restrictive placement 
settings, or private placements; (3) providing the necessary 
flexibility to change how and where services are delivered to meet the 
child's changing needs; and (4) forbidding the practice of LEAs 
providing interim plans which promise that a full IEP will be developed 
at a later date--a device used by LEAs to avoid specifying what they 
will do for a child, so that the IEP can be discussed

[[Page 12592]]

and litigated (if necessary) well before the start of a school year.
    Discussion: In developing these final regulations, efforts have 
been made to ensure that the regulatory requirements related to the 
content of IEPs are consistent with the IDEA Amendments of 1997, and 
that no additional burden is added. The Department will explore the 
extent to which a sample IEP addressing the Federal requirements as 
part of a technical assistance effort, would be useful to parents and 
State and local administrators in developing IEPs that meet Federal, 
State, and local rules.
    With respect to concerns about added burden, the provisions of 
Sec. 300.347 are drawn directly from the statute. While the statute did 
add some new requirements regarding content, it also gave the 
flexibility to use benchmarks of progress as opposed to short term 
objectives, and to determine how to regularly report on a child's 
progress instead of the more burdensome objective criteria, evaluation 
procedures and schedules required under prior law.
    Except for including, essentially verbatim, the statutory content 
requirements in the regulations, the format and specific language used 
in developing IEPs are matters left to the discretion of individual 
States, and, to the extent consistent with State requirements, 
individual LEAs within the States. In providing such discretion, the 
assumption is that each State and LEA would attempt to make the format 
and language of the IEP as understandable and meaningful for parents as 
possible. Within this general framework, IEP teams develop the specific 
detail that is necessary to address each child's individual needs.
    The importance of assistive technology devices and services in 
meeting the special educational needs of children with disabilities is 
addressed in several sections of these regulations (e.g., Secs. 300.5, 
300.6, 300.308, and 300.346). The importance of ESY services and the 
requirements related to addressing the need for those services is 
included under Sec. 300.309. Therefore, no additional provisions are 
warranted in this section.
    With respect to the comment regarding the role of the regular 
education teacher, the IDEA Amendments of 1997 require that at least 
one regular education teacher of the child be a member of the child's 
IEP team if the child is or may be participating in the regular 
education environment.
    The development of an interim IEP (or the use of a diagnostic 
placement, on a case-by-case basis) may be appropriate for an 
individual child with a disability if there is some question about the 
child's special education or related services needs. However, it would 
not be consistent with the requirements of this part for an LEA to 
adopt an across-the-board policy of developing interim IEPs for all 
children with disabilities. Clearly, in any case in which the IEP for a 
child with a disability does not seem to effectively address the needs 
of the child, the IEP team should be reconvened (at the request of the 
child's parent or teacher(s)) to reconsider the nature and scope of the 
IEP.
    Changes: None.
    Comment: A few comments were received related to the statement of 
the present levels of educational performance in the IEP 
(Sec. 300.347(a)(1)), including requesting that (1) the statement 
include the results of any independent assessment that has been done, 
and any reasons the LEA has for not accepting the assessment; and (2) 
the provision requiring a description of how the child's disability 
affects the child's involvement in the general curriculum be deleted. 
One commenter recommended that this requirement and the provision on 
goals and objectives in Sec. 300.347(a)(2) be revised to address the 
concept of ``meaningful'' participation in the general curriculum. 
Commenters also requested that, in the requirements for a description 
of how a preschool child's disability affects the child's participation 
in appropriate activities, the term ``appropriate activities'' be 
clarified or examples given.
    A number of comments were received regarding the ``statement of 
measurable annual goals, including benchmarks or short-term 
objectives'' (Sec. 300.347(a)(2)). Several commenters requested that 
the term ``benchmarks'' be defined or clarified or that a note be added 
to include examples, and that the term be distinguished from ``short-
term objectives.'' Other commenters requested that (1) the term 
``measurable'' apply to short-term objectives and not to annual goals, 
(2) the regulation clarify if ``measurable'' means statements of the 
amount of progress expected; (3) a child's report card be used to 
report annual goals; and (4) a provision be added requiring the IEP 
team to be reconvened if the benchmarks indicate that the child is not 
making satisfactory progress.
    Comments were received on Sec. 300.347(a)(2)(i) (regarding enabling 
a child to be involved in and progress in the general curriculum), as 
follows: (1) make the provision clearer, including requiring that the 
LEA list, for each goal and objective, each obstacle to full, effective 
participation in the general curriculum, and justify use of the 
resource room instead of supports in the regular classroom, and (2) 
clarify what the expectations are for children with significant 
cognitive disorders.
    Discussion: It is important that the statement of a child's present 
levels of educational performance be based on current, relevant 
information about the child, that is obtained from a variety of 
sources, including (1) the most recent reevaluation of the child under 
Sec. 300.536, (2) assessment results from State and district-wide 
assessments, (3) inputs from the child's special and regular education 
teachers, and (4) information from the child's parents. 
(Sec. 300.346(a)(1)). If an independent educational evaluation has been 
conducted, the results of that evaluation also must be considered if it 
meets agency criteria for such evaluations. (Sec. 300.502(c)(1)).
    Consideration of all of the information described above is inherent 
in the requirement that the IEP include ``a statement of the present 
levels of educational performance.'' Therefore, it is not necessary to 
amend the regulation to address this requirement.
    The provision in Sec. 300.347(a)(1)(i) that requires a description 
of how a child's disability affects the child's involvement in the 
general curriculum (i.e., the same curriculum as for nondisabled 
children) is a statutory requirement and cannot be deleted. The 
requirement is important because it provides the basis for determining 
what accommodations the child needs in order to participate in the 
general curriculum to the maximum extent appropriate.
    A basic assumption made in both the statute and these final 
regulations is that the programming and services for each 
``individual'' child would be tailored to address the child's unique 
needs that impede the child's ability to make meaningful progress in 
the general curriculum. (As explained elsewhere in this attachment, the 
reference to the general curriculum in Sec. 300.347(a)(2) has been 
modified to clarify that the general curriculum is the same curriculum 
for nondisabled children.)
    With respect to preschool-aged children, the term ``appropriate 
activities,'' as used in Sec. 300.347(a)(1)(ii), includes activities 
that children of that chronological age engage in as part of a formal 
preschool program or in informal activities (e.g., coloring, pre-
reading activities, sharing-time, play time, and listening to stories 
told or read by the parent or pre-school teacher). In order to 
recognize that for some preschool-aged children appropriate goals will 
be related to participation in appropriate

[[Page 12593]]

activities, as these children are not of an age for which there is not 
a general curriculum for nondisabled children, a change should be made 
to Sec. 300.347(a)(2).
    A delineation and description of the difference between 
``benchmarks'' and ``short term objectives'' is included in Appendix A.
    Regarding the commenter's request that the LEA (1) list obstacles 
to the child's full, effective participation in the general curriculum, 
and (2) justify the use of a resource room instead of supports in the 
regular classroom, no further regulation will be provided. Parents are 
equal members of their child's IEP team, and can participate in the 
discussion about whether there are any obstacles to ensuring the 
child's full and effective participation in the general curriculum. In 
any case in which the parents are not satisfied with the outcome of the 
IEP meeting, they have avenues available to them under both the Act and 
regulations for redressing their concerns.
    See comments and discussion in Sec. 300.550 related to children 
with significant cognitive disorders.
    Changes: Section 300.347(a)(2)(i) has been revised to clarify that 
``general curriculum'' is the same curriculum as for nondisabled 
children and to recognize that a general curriculum is not available 
for all preschool-aged children.
    Comment: With respect to the provision in Sec. 300.347(a)(3) 
(related to describing services to be provided to a child, or on behalf 
of the child * * *), a few commenters requested clarification of the 
term ``on behalf of the child.'' Commenters also recommended that, in 
the ``statement of program modifications or supports for school 
personnel,'' the regulation clarify that ``staff training'' is one form 
of program support, and added that a necessary support service for 
staff can often be obtained more easily if it is identified as an IEP 
service.
    A few commenters recommended that, in order to ensure full access 
to the general curriculum, Sec. 300.347(a)(3)(ii) be amended to state 
that a child's involvement and progress in the general curriculum be 
``to the maximum extent appropriate to the needs of the child.'' Other 
commenters requested that the provision in Sec. 300.347(a)(3)(ii) 
(related to a child's participation in extracurricular activities) be 
deleted because it is inconsistent with Part B. Commenters also 
requested that the regulations clarify that participation in 
extracurricular activities is not a part of the child's educational 
program, and that such participation is subject to the same rules as 
other children.
    With respect to Sec. 300.347(a)(4) (an explanation of the extent to 
which the child will not participate with nondisabled children), a few 
commenters recommended that the provision be deleted, or that it be 
stated in positive terms (extent to which the child ``will'' 
participate with nondisabled children). Commenters also stated that 
documenting what will not happen is burdensome paperwork.
    Discussion: As used in Sec. 300.347(a)(3), the term ``on behalf of 
the child'' includes, among other things, services that are provided to 
the parents or teachers of a child with a disability to help them to 
more effectively work with the child. For example, as used in the 
definition of ``related services'' under Sec. 300.24, the term `` 
`parent counseling and training' means (i) Assisting parents in 
understanding the special needs of their child * * * and (iii) Helping 
[them] to acquire the necessary skills that will allow them to support 
the implementation of their child's IEP or IFSP.''
    Supports for school personnel could also include special training 
for a child's teacher. However, in order for the training to meet the 
requirements of Sec. 300.347(a)(3), it would normally be targeted 
directly on assisting the teacher to meet a unique and specific need of 
the child, and not simply to participate in an inservice training 
program that is generally available within a public agency.
    In order to ensure full access to the general curriculum, it is not 
necessary to amend Sec. 300.347(a)(3)(ii) to clarify that a child's 
involvement and progress in the general curriculum must be ``to the 
maximum extent appropriate to needs of the child.'' The 
individualization of the IEP process, together with the new 
requirements related to the general curriculum, should ensure that such 
involvement and progress is ``to the maximum extent appropriate to the 
needs of the child.''
    The provision in Sec. 300.347(a)(3)(ii) related to participation in 
``extracurricular and other nonacademic activities'' is statutory.
    The provision in Sec. 300.347(a)(4) (that requires a statement of 
the extent to which a child with disabilities will not participate with 
nondisabled children) is also a statutory requirement and cannot be 
deleted. The basic principle underlying this requirement is that 
children with disabilities will be educated in the regular education 
environment along with their nondisabled peers, and that these children 
are only removed from that environment if it is determined that they 
cannot be appropriately served in the regular education environment, 
even with the use of supplementary aids and services.
    This new provision is designed to ensure that each IEP team 
carefully considers the extent to which a child can be educated with 
his or her nondisabled peers; and if the team determines that the child 
cannot participate full time with nondisabled children in the regular 
classroom and in the other activities described in 
Sec. 300.347(a)(3)(ii), the IEP must include a statement that explains 
why full participation is not possible.
    If (for example) a child needs speech-language pathology services 
in a separate setting two to three times a week, but will otherwise 
spend full time with nondisabled children in the activities described 
in Sec. 300.347(a)(4), the ``explanation'' would require only the 
statement described in the preceding sentence. A similar explanation 
would be required for any other child with a disability who, in the 
judgement of the IEP team, will not participate on a full time basis 
with nondisabled children in the regular class. Thus, while the IEP 
needs to clearly address this situation, the required explanation does 
not have to be burdensome.
    Changes: None.
    Comment: A few comments were received on Sec. 300.347(a)(5) 
(related to State or district-wide assessments), including requesting 
that: (1) the regulations clarify that if the individual modifications 
necessary for a child to participate in the assessment are not known at 
the time of the IEP meeting, a subsequent meeting be required to make 
this determination, as long as the decision is made before the 
assessment is conducted; and (2) an alternate assessment not be 
construed as an exemption and a separate assessment system, but, 
rather, that the provision in Sec. 300.347(a)(5)(ii)(B) be amended to 
require a statement of how the child will be included in the State or 
district-wide assessment program with an alternative assessment.
    Discussion: If the individual modifications necessary for a child 
to participate in the assessment are not known at the time of the IEP 
meeting, it would be necessary for a subsequent meeting to be conducted 
early enough to ensure that any necessary modifications are in place at 
the time the assessment is administered. It is not necessary, however, 
to add a regulation to address this matter.
    The IDEA Amendments of 1997 require that all children with 
disabilities be included in general State and

[[Page 12594]]

district-wide assessment programs, with appropriate accommodations, 
where necessary. (Sec. 300.138). In some cases, alternate assessments 
may be necessary, depending on the needs of the child, and not the 
category or severity of the child's disability.
    Changes: None.
    Comment: Several comments were received on Sec. 300.347(a)(6) 
(related to the projected date for beginning services and modifications 
and their anticipated frequency, location, and duration). A few 
commenters requested that the term ``anticipated'' be defined so that 
it does not diminish an LEA's obligation to provide services. Some 
commenters requested that the term ``location'' be defined as the 
placement on the continuum and not the exact building where the IEP 
service is to be provided, especially if the service is not available 
in the LEA and must be provided via contract. Other commenters 
similarly stated that a note be added clarifying that ``location'' 
means the general setting in which the services will be provided and 
not a particular school or facility.
    Discussion: Use of the term ``anticipated'' to diminish the 
agency's obligation to provide services would be inconsistent with the 
requirements of this part. Moreover, a public agency could not alter 
the basic nature and scope of the child's IEP without reconvening the 
child's IEP team.
    The ``location'' of services in the context of an IEP generally 
refers to the type of environment that is the appropriate place for 
provision of the service. For example, is the related service to be 
provided in the child's regular classroom or in a resource room?
    Changes: None.
    Comment: With respect to Sec. 300.347(a)(7) (related to a statement 
of how a child's progress toward annual goals will be measured and 
reported), commenters requested that a definition of ``progress 
report'' be added; and stated that the provision is burdensome, and 
should be changed to require that report cards for children with 
disabilities contain information about the child's progress in meeting 
annual goals.
    Commenters also requested that the regulations (1) clarify the 
manner and frequency in which parents are kept informed of their 
child's progress; (2) clarify the extent to which this requirement can 
be met in writing as opposed to conducting an IEP meeting; (3) require 
a detailed written narrative report of how a child is progressing 
toward meeting IEP objectives instead of using a grade, because a grade 
is related to the system and not the child, and gives no indication of 
what is right or wrong; and (4) include a provision requiring action to 
be taken if satisfactory progress in not being made.
    Discussion: It is not appropriate or necessary to include a 
definition of ``progress report'' because that term is not used in 
either the statute or these final regulations. The provision in 
Sec. 300.347(a)(7)(ii) is incorporated verbatim from the statute. No 
additional burden was added by the NPRM or these final regulations.
    Under the statute and regulations, the manner in which that 
requirement is implemented is left to the discretion of each State. 
Therefore, a State could elect to ensure that report cards used for 
children with disabilities contain information about each child's 
progress toward meeting the child's IEP goals, as suggested by 
commenters, but would not be required to do so.
    With respect to the frequency of reporting, the statute and 
regulations are both clear that the parents of a child with a 
disability must be regularly informed of their child's progress at 
least as often as parents are informed of their nondisabled children's 
progress.
    Requiring a ``detailed written narrative'' of how a child is 
progressing toward meeting the IEP objectives, as suggested by a 
commenter, could add an unnecessary burden. However, the commenter's 
concern about using a grade to designate a child's progress in meeting 
the IEP objectives in some cases may be valid because a grade does not 
always lend itself to sufficiently describing progress toward the 
annual goals. The statute and regulations make clear that a written 
report is sufficient, although in some instances, an agency may decide 
that a meeting with the parents (which does not have to be an IEP 
meeting) would be a more effective means of communication.
    The agency must ensure that whatever method, or combination of 
methods, is adopted provides sufficient information to enable parents 
to be informed of (1) their child's progress toward the annual goals, 
and (2) the extent to which that progress is sufficient to enable the 
child to achieve the goals by the end of the year.
    Generally, reports to parents are not expected to be lengthy or 
burdensome. The statement of the annual goals and short term objectives 
or benchmarks in the child's current IEP could serve as the base 
document for briefly describing the child's progress.
    Changes: None.
    Comment: A number of comments were received on Notes 2 through 5 
(which focus on matters related to the child's participation in the 
general curriculum, the expected impact on the length and scope of the 
IEP from such participation and from discussing teaching methodologies, 
and reporting to parents) are addressed in the following sections of 
this analysis. Some commenters requested that all notes be deleted. 
Other commenters requested that Notes 2, 3, and 4 be incorporated into 
the regulations. A few commenters recommended that for Notes 2 and 3, 
the regulations define the terms ``adaptations,'' ``modifications,'' 
``accommodations,'' and ``adjustments.''
    Regarding Note 3, some of the commenters recommended deleting the 
idea that the general curriculum is not intended to significantly 
increase the size of the IEP. One commenter recommended replacing the 
word ``accessing'' with ``fully participating in'' the general 
curriculum. The commenter stated that the language in the note (from 
the House Committee Report) could be used by LEAs as a basis for 
limiting the use of the IEP as a tool for enabling children with 
disabilities to participate fully in the general curriculum. Other 
commenters recommended that Note 3 be deleted.
    Discussion: The IDEA Amendments of 1997 emphasize providing greater 
access by children with disabilities to the general curriculum and to 
educational reforms, as an effective means of ensuring better results 
for these children. Both the Senate and House Committee Reports on Pub. 
L. 105-17 state that:

    The Committee wishes to emphasize that, once a child has been 
identified as being eligible for special education, the connection 
between special education and related services and the child's 
opportunity to experience and benefit from the general education 
curriculum should be strengthened. The majority of children 
identified as eligible for special education and related services 
are capable of participating in the general education curriculum to 
varying degrees with some adaptations and modifications. This 
provision is intended to ensure that children's special education 
and related services are in addition to and are affected by the 
general education curriculum, not separate from it. (S. Rep. No. 
105-17, p. 20; H.R. Rep. No. 105-95, p. 99 (1997))

    These are important principles to keep in mind when implementing 
the new IEP requirements. However, in light of the general decision to 
remove notes from the final regulation, Note 2 would be removed.
    The concepts in the committee reports cited in Note 3 also are 
valid. The new focus of the IEP is intended to address the 
accommodations and adjustments necessary to enable children with 
disabilities to be able to participate in

[[Page 12595]]

the general curriculum to the maximum extent appropriate. Although the 
annual goals and short term objectives (and the service accommodations 
described above) would be basic components of the IEP, it would not be 
appropriate for the IEP to include specific details related to the 
general curriculum itself (and to daily lesson plans).
    Generally, the overall length of the IEP should not be greatly 
affected by including relevant information about the accommodations and 
adjustments needed by the child, along with the other required 
information. But the IEP should provide sufficient information 
necessary to enable parents, regular education teachers, and all 
service providers to understand what is required to effectively 
implement its provisions. However, consistent with the general decision 
made with respect to notes, Notes 2 and 3 would be deleted.
    Because Note 3 has been deleted, it is not necessary to replace the 
word ``accessing'' with ``fully participating in'' the general 
curriculum. Clearly, the intent of the IDEA is full participation of 
each child with a disability in the general curriculum to the maximum 
extent appropriate to the needs of child; and the IDEA Amendments of 
1997, as reflected in these final regulations, have given greater 
emphasis to that intent.
    It is not necessary to include a regulatory definition of the terms 
``adaptations,'' ``modifications,'' ``accommodations,'' and 
``adjustments.'' The terms are essentially self-explanatory, and may 
overlap to some extent.
    Certain changes may need to be made in a regular education 
classroom to make it possible for a child with a disability to 
participate more fully and effectively in general curricular activities 
that take place in that room. These changes could involve (for example) 
providing a special seating arrangement for a child; using professional 
or student ``tutors'' to help the child; raising the level of a child's 
desk; allowing the child more time to complete a given assignment; 
working with the parents to help the child at home; and providing extra 
help to the child before or after the beginning of the school day.
    ``Modifications'' or ``accommodations'' could involve providing a 
particular assistive technology device for the child, or modifying the 
child's desk in some manner that facilitates the child's ability to 
write or hold books, etc.
    Changes: Notes 2 and 3 have been removed.
    Comment: Several comments were received on Note 4 (related to 
teaching and related services methodologies). A few commenters 
expressed support for Note 4, and stated that the note should be added 
to the regulations. Other commenters requested that the note be 
deleted. Some of these commenters stated that, in some instances, it 
may be appropriate to include teaching methods and approaches in the 
IEP, and added that when methodologies differ significantly, one 
approach may be appropriate while others are inappropriate, based on 
the unique needs of each individual child. Other commenters pointed out 
that methodologies are an inherent part of the definition of special 
education, and it would be inconsistent with the definition to not 
include them in the IEP.
    With respect to Note 5 (i.e., that the reporting provision in 
Sec. 300.347(a)(7)(ii), related to the child's progress on the annual 
goals, is intended to be in addition to regular reporting for all 
children), a few commenters expressed appreciation for the provision. 
Some commenters stated that the note be deleted. Other commenters 
recommended that the note either be deleted, or changed to state that 
the provision in Sec. 300.347(a)(7)(ii) may be incorporated as part of 
the regular reporting to all parents.
    Discussion: In some cases, it may be appropriate to include 
teaching methods and approaches in a child's IEP. As used in the 
definition of ``special education'' under Sec. 300.26, the term 
``specially-designed instruction'' means ``adapting, as appropriate to 
each eligible child under this part, the content, methodology, or 
delivery of services * * * (i) to meet the unique needs of an eligible 
child under this part that result from the child's disability * * *''
    In general, however, specific day-to-day adjustments in 
instructional methods and approaches that are made by either a regular 
or special education teacher to assist a disabled child to achieve his 
or her annual goals would not normally require action by the child's 
IEP team.
    With respect to Note 5 (that the reporting provision in 
Sec. 300.347(a)(7)(ii) is intended to be in addition to regular 
reporting for all children), as addressed earlier in this attachment, 
the report described in Sec. 300.347(a)(7)(ii) may be incorporated in 
the regular reporting to all parents. Therefore, Note 5 is not needed.
    Changes: Notes 4 and 5 have been deleted.
    Comment: Several comments were received on the transition services 
provision in Sec. 300.347(b)(1), including requests that the 
regulations: (1) clarify what is meant by transition services for 14 
year-old students; (2) add ``daily living'' and independent living'' to 
the example in paragraph (b)(1)(i) because transition is much broader 
than employment; and (3) require that transition plans analyze and 
report the prospect of a student benefiting from higher education and 
if so what kind; and if vocational education is recommended and not 
general higher education, the transition plans specify the reason why 
general higher education is not a meaningful alternative.
    A few commenters recommended that language be added to more clearly 
distinguish between ``a statement of the transition service needs'' of 
a student at age 14, and ``a statement of needed transition services'' 
at age 16. The commenters included a proposed definition that requires 
the identification of targeted post-school activities.
    Discussion: The terms ``a statement of the transition service 
needs'' and ``a statement of needed transition services'' are 
incorporated verbatim from the statute. The purpose of ``a statement of 
the transition service needs'' is to focus on the planning of a 
student's courses of study during the student's secondary school 
experience (e.g., whether the student will participate in advanced 
placement or vocational education courses).
    With respect to a statement of needed transition services, the 
focus is on the student's need for such services as he or she moves 
from school to postschool experiences, and any linkages that may be 
needed. These statements, as with the other components of the IEP, must 
be individualized in accordance with the needs of the student.
    The Department has invested considerable resources in providing 
technical assistance in the area of transition services, and has a 
number of technical assistance resources available to public agencies 
in implementing these statutory provisions.
    Changes: None.
    Comment: A number of comments were received related to the 
provision in Sec. 300.347(b)(2), that requires that if the IEP team 
determines that services are not needed in one or more of the areas 
specified in the definition of transition services, the IEP must 
include a statement to that effect and the basis upon which the 
determination was made. These commenters recommended that the provision 
be deleted because it is not statutory, not needed, and adds 
unnecessary and excessive paperwork.

[[Page 12596]]

    Discussion: It is appropriate to remove the provision in 
Sec. 300.347(b)(2) because, as stated by the commenters, the provision 
is not statutory and adds unnecessary paperwork.
    That provision was based on the definition of ``transition 
services'' that was in effect prior to June 4, 1997, and did not 
account for the change in the definition of ``transition services'' 
that was made by the IDEA Amendments of 1997.
    The ``prior law'' definition mandated the inclusion of specific 
components under the coordinated set of activities described in the 
definition. In recognition that all students with disabilities may not 
require services in all of the mandated areas, the final regulations 
implementing that provision (published in 1992) included a statement 
that ``If the IEP team determines that services are not needed in one 
or more of the areas specified in [the definition of transition 
services], the IEP must include a statement to that effect, and the 
basis upon which the determination was made.'' However, while the new 
definition of ``transition services'' added by Pub L. 105-17 includes 
the same components as in prior law, the provision requiring the 
inclusion of all components in a student's IEP was removed.
    Changes: Sec. 300.347(b)(2) has been deleted.
    Comment: Comments were received related to Notes 1, 6, and 7 
following Sec. 300.347 of the NPRM, all of which focus on the 
transition services requirements. Some commenters recommended that all 
three notes be deleted. Other commenters recommended that Note 7 be 
modified to encourage public agencies to begin transition services 
before age 14. A few commenters stated that Note 7 is not needed 
because the regulations are already clear.
    Discussion: Consistent with the Department's decision to not 
include notes in the final regulations, the notes should be deleted.
    Changes: Notes 1, 6, and 7 have been deleted.
    Comment: With respect to the transfer of rights at the age of 
majority (Sec. 300.347(c)), one commenter stated that the provision 
should be deleted. Another commenter stated that there is general 
confusion about this provision, especially when parents are unable 
financially or unwilling to seek legal guardianship for their child, 
and added that schools need guidance. A commenter asked, how do LEAs 
determine which students get transfer rights at age 18; and once 
transferred, does the LEA still have to notify the parents.
    Another commenter requested that the regulations allow a student to 
authorize the continued participation of the student's parent or 
guardian after the age of majority to develop, review, or revise an 
IEP, and added that if the student authorizes parent participation, the 
parent should be considered a member of the IEP team.
    Discussion: The provision at Sec. 300.347(c) is statutory. Whether 
or not rights transfer at the age of majority depends on State law, 
and, consistent with Sec. 300.517, whether or not the student has been 
determined incompetent under State law. State law also determines what 
constitutes the age of majority in that jurisdiction. The discussion 
concerning Sec. 300.517 in this attachment provides a fuller 
explanation of the provision concerning the transfer of rights at the 
age of majority. Generally, a public agency will satisfy 
Sec. 300.347(c) if, at least one year before the student reaches the 
age of majority under State law, the agency informs the student of the 
rights that transfer at the age of majority (and includes a statement 
to that effect in the IEP). If the public agency receives notice of the 
student's legal incompetency, so that no rights transfer to the student 
at the age of majority, the IEP need not include this statement.
    The composition of the IEP team is discussed in Sec. 300.344. There 
is nothing in the regulation that would prevent a student to whom 
rights have been transferred at the age of majority from exercising his 
or her discretion under Sec. 300.344(a)(6) to include in the IEP team a 
parent as an individual with knowledge regarding the child.
    Changes: None.

Private School Placements by Public Agencies (Sec. 300.349)

    Comment: Some commenters suggested that Sec. 300.349(a) be amended 
to require a public agency to conduct a subsequent IEP meeting before 
or shortly after actual enrollment with the participation of a 
representative of the private school.
    A few commenters objected to the requirement in Sec. 300.349(a)(2) 
that the public agency ensure that a representative of a private school 
or facility at which a disabled student is publicly-placed or referred 
must attend the initial IEP meeting initiated by the public agency. 
These commenters recommended that a private school representative be 
invited but not be forced to attend, since distance could prevent that 
individual from attending.
    Another recommendation made by commenters was that private school 
staff should not be required to attend the IEP meeting required under 
Sec. 300.349(a)(2), but that the IEP team should be allowed to confer 
with private school staff after the meeting. One commenter asked 
whether if the private school initiates an IEP meeting, all of the 
individuals identified in Sec. 300.344 must participate.
    Another commenter was concerned that this section implies that the 
team has predetermined placement, and recommended requiring that a 
second meeting should be held with private school staff to determine if 
they could provide the services.
    One commenter also indicated that Sec. 300.349(b)(2)(ii) is 
confusing, because it suggests that if either the parent or public 
agency disagrees with the changes proposed by the private school, those 
changes will not be implemented. This commenter also questioned why 
either party should have veto authority, and requested clarification 
regarding the responsibility to request a hearing. However, another 
commenter objected that this section gives a private school veto 
authority over a decision of the IEP team.
    One commenter also objected to the use of ``must ensure'' in 
Sec. 300.349(a) and (b), and recommended that more qualified language 
be substituted. Another commenter requested clarification that parents 
have the right to be reimbursed for costs incurred as a result of their 
participation at IEP meetings associated with their children's public 
placements at private schools or facilities.
    Discussion: Section 612(a)(10)(B) of the Act makes clear that, as a 
condition of eligibility for receipt of Part B funds, States must 
ensure that children with disabilities placed in or referred to private 
schools or facilities by public agencies receive special education and 
related services, in accordance with an IEP, at no cost to their 
parents. This statutory requirement substantially reflects prior law in 
this area. Section 300.401 also provides that IEPs for children with 
disabilities who are publicly placed at or referred to private schools 
must meet the requirements of Secs. 300.340-300.350.
    Because these disabled children are publicly-placed or referred to 
private schools or facilities as a means of ensuring that they are 
provided FAPE, it would not be appropriate to change the regulatory 
language in the manner suggested by these commenters. The regulation 
gives public agencies and private schools and facilities some 
flexibility in the manner in which IEP

[[Page 12597]]

meetings are conducted; however, there is no need to require additional 
meetings, since these meetings can be initiated by the public agency or 
requested by the private school or facility at any time.
    Regarding concerns about participation of representatives of 
private schools at meetings to develop the child's IEP, 
Sec. 300.349(a)(2) provides that before a child with a disability is 
placed or referred to a private school or facility, a representative of 
that private school must be invited to the meeting to develop the 
student's IEP. However, if the private school representative is unable 
to attend in person, the public agency must use other methods to ensure 
that individual's participation at the meeting, including individual or 
conference telephone calls. Therefore, this regulation does not require 
participation of a private school representative if that individual is 
unable to attend the IEP meeting initiated by the public agency.
    If a public agency initiates an IEP meeting in connection with a 
disabled child's placement at or referral to a private school or 
facility, the requirements of Sec. 300.344 regarding participants at 
meetings apply. However, after the disabled child enters the private 
school or facility, Sec. 300.349(b)(1) provides that the private school 
or facility, at the public agency's discretion, may initiate and 
conduct meetings for purposes of reviewing or revising the child's IEP. 
Section 300.344 applies to all IEP meetings for which a public agency 
is responsible, including those conducted by a private school or 
facility for a publicly-placed child with a disability.
    If a public agency exercises its discretion under 
Sec. 300.349(b)(1) to permit the private school or facility to initiate 
and conduct certain IEP meetings, Sec. 300.349(b)(2) specifies that the 
public agency is still responsible for ensuring that the parents and a 
public agency representative are involved in those IEP decisions and 
agree to any changes in the child's program before they are 
implemented.
    Section 300.349(b) does not afford veto authority either to the 
parents and the public agency, or to the private school, if there is a 
disagreement about the IEP for the child to be implemented at the 
private school. This is equally true for IEPs developed for public 
placements of children with disabilities at private schools.
    Further, Sec. 300.349(c) makes clear that the public agency is 
ultimately responsible for ensuring that the publicly-placed disabled 
student receives FAPE. Therefore, regardless of whether the public 
agency initiates meetings for the purpose of reviewing and revising 
IEPs of children with disabilities publicly-placed at private schools 
or facilities, the public agency must ensure that the child's IEP is 
reviewed at least once every twelve months, and that the child's 
placement at the private school or facility is in accordance with that 
child's IEP.
    If the public agency disagrees with changes proposed by the private 
school, the public agency nevertheless remains responsible for ensuring 
that the student receives an appropriate program. If the private school 
or facility is unwilling to provide such a program, the public agency 
either must ensure that the student's IEP can be implemented at that or 
another private school or facility, or must develop an appropriate 
public placement for the child to address that child's needs. In all 
instances, the child's placement at the private school or facility must 
be based on the child's IEP, and that placement must be the LRE 
placement for the child.
    The commenter's assumption that normal due process rights would 
apply is correct. The due process rights of Part B are available to 
parents and public educational agencies to resolve issues such as the 
appropriateness of the child's program at the private school, but 
representatives of private schools or facilities at which children with 
disabilities are publicly placed or referred do not have due process 
rights.
    Regarding a parent's right to reimbursement for costs associated 
with their child's private school placement, Sec. 300.401 reflects the 
statutory requirements of section 612(a)(10)(B) and requires that a 
disabled student's placement at a private school by a public agency 
must be at no cost to the child's parents, and public agencies must 
ensure that all of the rights guaranteed by Part B are afforded to 
publicly-placed children with disabilities and their parents. The ``at 
no cost'' requirements of the Act also would require public agencies to 
reimburse parents for transportation and other costs associated with 
their participation at IEP meetings conducted in a geographic area 
outside of the jurisdiction of the LEA, and such expenditures 
traditionally have been considered the responsibility of the public 
agency. See discussion under Sec. 300.24 of this attachment.
    Changes: None.

Children With Disabilities in Religiously-Affiliated or Other Private 
Schools

    Comment: One commenter suggested that this section be amended to 
require IEPs for all children with disabilities in the LEA's 
jurisdiction who are placed by their parents at private schools, 
regardless of whether these children receive services from the public 
agency. Another commenter requested that the requirement for IEPs for 
children with disabilities who are publicly-placed at private schools 
be removed, and that requirements regarding service plans for children 
with disabilities placed by their parents at private schools be 
substituted and moved to Subpart D.
    Discussion: There is no statutory authority to require public 
agencies to develop IEPs for every child with a disability in their 
jurisdiction placed by their parents at a private school, regardless of 
whether that child receives services from the LEA. Section 
612(a)(10)(A) of the Act requires States to make provision for the 
participation of private school children with disabilities in programs 
assisted or carried out under this part, through the provision of 
special education and related services, to the extent consistent with 
their number and location in the State.
    Because private school children with disabilities do not have an 
individual entitlement to services under Part B, it would be 
inconsistent with the statute to require public agencies to develop 
service plans for those private school children with disabilities who 
do not receive services from the public agency. However, the 
commenter's suggestion that proposed Sec. 300.350 should be deleted and 
that a requirement for service plans for children with disabilities 
parentally-placed at private schools should be substituted and moved to 
Subpart D is reasonable.
    Since private school children with disabilities are not entitled to 
receive FAPE in connection with their private school placements (See 
Sec. 300.403(a)), it is misleading to use the term IEP to refer to the 
plans that are developed to serve them. IEPs must contain, among other 
elements, the full range of special education and related services 
provided to children with disabilities under these regulations.
    By contrast, Sec. 300.455(b) makes clear that a private school 
child with a disability receives only those services that an LEA 
determines it will provide that child, in light of the services that 
the LEA has determined, through the requirements of Secs. 300.453-
300.454, it will make available to private school children with 
disabilities.
    Therefore, proposed Sec. 300.350 should be deleted and its content 
incorporated in Sec. 300.454 with appropriate revisions, and 
Sec. 300.455(b) should be revised to reflect a new requirement for 
service

[[Page 12598]]

plans for those private school children with disabilities in the LEA's 
jurisdiction that the LEA has elected to serve in light of the services 
it makes available to its private school children with disabilities in 
accordance with the requirements of Secs. 300.453-300.454.
    Changes: Proposed Sec. 300.350 has been deleted, and a new 
Sec. 300.454(c) has been added to specify LEA responsibilities 
regarding development of service plans for private school children. 
Section 300.455(b) has been changed to reflect the new provision 
regarding service plans for private school children with disabilities.

IEP--Accountability (Sec. 300.350)

    Comment: Some commenters agreed with this regulation, while other 
commenters recommended that the note either be revised or deleted. Some 
commenters believe that both the section and note are inconsistent with 
Congressional findings on low achievement and new performance 
standards.
    Commenters also recommended that the regulation be strengthened to 
clarify (1) the district's obligation to monitor, review and revise the 
IEP if it is not having the desired impact on the student's progress; 
(2) the parent's responsibility to request an IEP meeting when progress 
reports indicate that the child's IEP is not effective; (3) the extent 
of the teacher's responsibility compared with that of the parent and 
child; and (4) that public agencies and personnel will not be held 
accountable if a child does not achieve the growth projected in annual 
goals and benchmarks or objectives if they were implementing an IEP 
that provided the child appropriate instruction, services and 
modifications.
    Other commenters were concerned about the potential negative effect 
of this section on the effective implementation of transition services.
    Discussion: Section 300.351 has been included in the IEP provisions 
of the Part B regulations since those regulations first were issued in 
1977. It continues to be necessary to make clear that the IEP is not a 
performance contract and does not constitute a guarantee by the public 
agency and the teacher that a child will progress at a specified rate. 
Despite this, public agencies and teachers have continuing obligations 
to make good faith efforts to assist the child in achieving the goals 
and objectives or benchmarks listed in the IEP, including those related 
to transition services.
    In addition, it should be noted that teachers and other personnel 
who must carry out portions of a child's IEP must be informed about the 
content of the IEP and their responsibility regarding its 
implementation. Because the clarification of this issue that was 
previously included in the note to this section is essential to the 
proper implementation of the Act's IEP requirements, a statement 
regarding the responsibilities of public agencies and teachers to make 
good faith efforts to ensure that a child achieves the growth projected 
in his or her IEP has been included at the conclusion of this section.
    In order to meet the new emphasis in the Act that children with 
disabilities be involved in and progress in the general curriculum and 
be held to high achievement standards, the IEP provisions must be 
effectively utilized to ensure that appropriate adjustments can be made 
to address performance issues as early as possible in the process.
    This section does not limit a parent's right to complain and ask 
for revisions of the child's IEP or to invoke due process procedures if 
the parent feels that these efforts are not being made. Further, this 
section does not prohibit a state or public agency from establishing 
its own accountability systems regarding teacher, school or agency 
performance if children do not achieve the growth projected in their 
IEPs.
    Changes: The note to this section has been removed. Section 300.351 
is redesignated as Sec. 300.350 of these final regulations, and the 
substance of the note has been added to this section.

Use of LEA Allocation for Direct Services (Sec. 300.360)

    Comment: Very few comments were received regarding this section. 
One comment recommended that the words ``or unwilling'' be added to 
Sec. 300.360(a)(2) to correspond to the language of Sec. 300.360(a)(3) 
of the current regulations. Another comment asked that the language in 
the second paragraph in the note following Sec. 300.360 be updated to 
substitute the word ``disabled'' for the word ``handicapped.'' This 
comment also requested that a similar change be made to the note 
following Sec. 300.552.
    Discussion: Section 300.360(a) essentially incorporates the text of 
the current regulatory provision verbatim, except with the minor 
modifications contained in section 613(h)(1) of Pub. L. 105-17. The 
legislative history makes clear that Sec. 613(h)(1) has been ``retained 
without substantive alteration'' from prior law. (S. Rep. No. 105-17 at 
15). It is true that under Sec. 300.360(a)(3) of the regulations, an 
SEA may use funds that would have gone to an LEA for direct services if 
the SEA finds that the LEA either is unable or unwilling to establish 
and maintain programs of FAPE for children with disabilities. This 
regulatory provision implemented section 614(d)(1) of prior law which 
contained the reference to LEAs that were unwilling to establish and 
maintain programs of FAPE. However, since these words have not been 
retained in section 613(h)(1) with regard to an LEA's or State agency's 
failure to establish and maintain programs of FAPE, yet remain in the 
statute with regard to an LEA's failure to consolidate with other LEA's 
in applying for Part B funds, it is not appropriate to make the change 
requested by this comment.
    Consistent with the general decision to not include notes in these 
final regulations, the note following Sec. 300.360 should be deleted. 
However, the substance of the note related to the SEA's responsibility 
to ensure the provision of FAPE if an LEA elects not to apply for its 
Part B funds, or the amount of Part B funds is not sufficient to 
provide FAPE should be added to the text of the regulations because of 
its importance in ensuring that the purposes of this part are 
appropriately implemented.
    A new paragraph also should be added to clarify, by referencing 
Sec. 300.301, that the SEA may use whatever funding sources are 
available in the State to carry out its responsibilities under 
Sec. 300.360.
    Regarding the note following Sec. 300.360, it is important to point 
out that the language that uses ``handicapped'' instead of disabled was 
taken verbatim from the original regulations for this program issued in 
1977. Included in this note were direct quotations from the 
Department's regulation implementing Section 504 of the Rehabilitation 
Act of 1973 at 34 CFR Part 104, which has not yet been updated to 
substitute the term ``disabled'' or ``disability'' for the term 
``handicapped'' or ``handicap.'' While the term ``handicapped'' is not 
consistent with current statutory language, it is not appropriate to 
modify the quoted language in the notes until the terminology in the 
Section 504 regulation is updated.
    Changes: The substance of the note relating to SEA's 
responsibilities to ensure FAPE when the LEA elects not to receive its 
Part B funds, or there are not sufficient funds to ensure the provision 
of FAPE has been added to the text of the regulation. The note has been 
deleted. A reference is made to other funding sources under 
Sec. 300.301.

[[Page 12599]]

Use of SEA Allocations (Sec. 300.370)

    Comment: Several favorable comments were received regarding this 
section. One comment supported paragraph (a)(4), which permits the use 
of State agency allocations to assist LEAs with personnel shortages. 
One comment requested that a new paragraph (c) be added to reflect the 
statutory requirement ``that LEAs participate in the priority setting 
for the allocation of these funds.'' One comment requested that a note 
be added following this section to clarify that direct services ``can 
include using the State allocation of Part B funds to help LEAs cover 
unexpected and extraordinary costs of providing FAPE to a child with a 
disability in any setting along the continuum.''
    Discussion: There is no statutory requirement that would require a 
State to obtain input from LEAs in setting priorities for how the State 
agency allocation should be spent. So long as the expenditures are 
consistent with the requirements of this part, States have discretion 
to determine the manner in which the funds are allocated.
    Regarding the suggestion that a note be added following 
Sec. 300.370, consistent with the decision to not include notes in 
these regulations, a note will not be added. However, the State agency 
allocation may be used for direct and support services, including the 
expenditure described in this comment. Nothing in this part would 
preclude an SEA from using its State allocation to assist an LEA in 
defraying the expenses of a costly placement for a student with a 
disability if it is determined that such a placement is necessary to 
ensure the provision of FAPE to that disabled student.
    Changes: No change has been made in response to these comments. See 
discussion of comments received under Sec. 300.712 regarding a change 
to Sec. 300.370.

General CSPD Requirements (Sec. 300.380)

    Comment: A number of comments were received regarding the 
recruitment and training of hearing officers included as part of CSPD. 
One comment recommended that Sec. 300.380(a)(2) regarding an adequate 
supply of qualified special education, regular education, and related 
services personnel be expanded to include hearing officers and 
mediators.
    Some commenters recommended that Sec. 300.381 include a provision 
requiring each state ``to establish a council of parents, educators, 
attorneys, hearing officers, and mediators to develop and oversee the 
recruitment, training, evaluation, and continuing education of hearing 
officers and mediators'' and to ensure that they receive pre-service 
training and at least annual in-service training on special education 
law and promising practices, materials and technology.
    A number of commenters indicated that, in order for personnel to be 
``qualified'' under this part or a State's CSPD, ``the personnel must 
meet the State's legal licensing or certification requirements'' and 
``must have the skills and knowledge necessary to ensure that personnel 
are qualified to work with children with disabilities.'' Another 
comment sought clarification regarding use of Part B funds for the 
training of regular education personnel.
    Consistent with the emphasis on implementation, one comment 
recommended that Sec. 300.380(a)(4) be amended to require that a 
State's CSPD be updated at least every two years, instead of at least 
every five years, as stated in the NPRM, ``and as often as the quality 
of education for children with disabilities within the State may 
require.'' The comment also objected that the regulation provides that 
States that have a State Improvement Plan under section 653 of the Act 
have met their CSPD requirements. Therefore, the comment recommended 
that Sec. 300.380(b) be deleted, and instead be replaced with the last 
paragraph of the note following Sec. 300.135, which gives a State that 
has a State Improvement Plan the option of using it to meet its CSPD, 
if it chooses to do so.
    Discussion: States must ensure that mediators and hearing officers 
are appropriately trained and have the requisite knowledge and 
expertise regarding the requirements of this part. Otherwise, the due 
process rights of children with disabilities and their parents may not 
be adequately safeguarded under this part.
    With respect to mediators, section 615(e)(2)(A)(iii) requires that 
SEA or LEA procedures for mediation ensure that the mediation is 
conducted by a qualified and impartial mediator who is trained in 
effective mediation techniques. Section 615(e)(2)(C) requires the State 
to maintain a list of individuals who are qualified mediators and 
knowledgeable in laws and regulations relating to the provision of 
special education and related services to children with disabilities.
    Under current regulations, public agencies must maintain a list of 
impartial hearing officers and their qualifications. Further, the SEA's 
responsibility under section 615 of the Act to ensure that the 
procedural safeguard requirements of the Act are established and 
implemented includes the responsibility to ensure that impartial due 
process hearing officers are appropriately trained. In addition, 
Sec. 300.370 makes clear that one of the support services for which the 
Part B funds reserved for State level activities may be expended is the 
training of hearing officers and mediators.
    The comments regarding ensuring that personnel meet State licensing 
or certification requirements or are otherwise qualified under this 
part are addressed elsewhere in this attachment in the discussions of 
qualified personnel and personnel standards. With regard to the 
training of regular education personnel, consistent with a State's CSPD 
responsibilities, the State must ensure an adequate supply of special 
education, regular education, and related services personnel. Further, 
the training of regular education personnel is necessary to the proper 
administration of the Act and regulations, including carrying out the 
Act's LRE provisions, and personnel development is an appropriate 
expenditure of funds under this part and is one of the support services 
for which the State level allocation under Sec. 300.370 may be 
expended.
    Finally, there is nothing in this part that would prevent a State 
from updating its CSPD more frequently than at least every five years 
if the State chooses to do so. Therefore, there is no reason to 
incorporate the language from the second paragraph of the note 
following Sec. 300.135 in place of Sec. 300.380(b), since 
Sec. 300.380(b) gives a State that has a State Improvement plan under 
section 653 the option of using it to satisfy its CSPD obligations, if 
the State chooses to do so.
    Changes: The section has been retitled ``General CSPD 
requirements.''

Adequate Supply of Qualified Personnel (Sec. 300.381)

    Comment: Only a few comments were received regarding this section. 
Some commenters requested that a provision be added to Sec. 300.381(b) 
``requiring the State to describe the strategies it will use to address 
personnel vacancies and shortages'' identified under that section. 
Another comment recommended that this section highlight shortages of 
personnel to do behavioral assessments and programming. Another comment 
recommended that additional language be included in Sec. 300.381 
requiring additional recruitment strategies and fiscal arrangements to 
ensure an adequate supply of qualified personnel.
    Discussion: It is acknowledged that it is very important to ensure 
that appropriately-trained and

[[Page 12600]]

knowledgeable individuals conduct behavioral assessments of children 
with disabilities under this part. However, the obligation under 
Sec. 300.381 is a general obligation to analyze State and local needs 
for professional development, including areas in which there are 
shortages, to ensure an adequate supply of qualified special education, 
regular education, and related services personnel under this part. 
Therefore, the regulation does not identify specific categories of 
personnel. In addition, States already have the ability to develop 
additional recruitment strategies and fiscal arrangements if they 
determine that they are needed to address their particular personnel 
needs.

Changes: None.

Improvement Strategies (Sec. 300.382)

    Comment: One comment recommended that the name of this section be 
changed to ``Comprehensive system strategies'' to avoid confusion with 
Part D. Another comment recommended that the words ``content knowledge 
and collaborative skills'' to meet the needs of infants and toddlers 
and children with disabilities be expanded to specify which skills are 
involved, and suggested that skills such as instruction, behavioral 
management, communication, and collaboration be included.
    One comment expressed concern that the section in the NPRM was not 
sufficiently strong to ensure that States design their CSPD to ensure 
that core instructional and related needs of children with disabilities 
are appropriately addressed. One comment requested clarification 
regarding which entity in the State is responsible for ensuring that 
the requirements of Sec. 300.382 are met. One comment suggested that 
the reference to behavioral interventions in Sec. 300.382(f) should be 
changed to positive behavioral supports to be more consistent with 
other provisions of these regulations.
    Several comments were receive regarding Sec. 300.382(g), 
particularly regarding the use of the phrase, ``if appropriate.'' One 
comment requested clarification on how ``appropriate'' would be 
defined, as well as guiding principles ``for directing the adoption of 
promising practices.'' Another comment recommended that the phrase, 
``if appropriate'' be eliminated when referring to the State's adoption 
of promising practices and materials and technology.
    One comment was particularly favorable about the requirement for 
joint training of parents, special education and related services 
providers, and general education personnel. Another comment recommended 
that this section be expanded to include joint training of hearing 
officers and mediators with parents and education personnel.
    One comment recommended that this section be amended ``to require 
reports to the Department by the SEA bi-annually, including a survey of 
parents of students with IEPs regarding the effectiveness of the 
strategies and other tools being taught to teachers,'' and that parents 
``should also be given the chance to state what tools they think ought 
to be taught'' to teachers. One comment recommended that a note be 
added following this section to clarify that the assurance that regular 
education and special education personnel be prepared means that ``they 
must be required to be prepared rather than simply `offered the 
opportunity.' ''
    Discussion: There is no need to change the name of this section 
since it is unlikely that, even if it were changed, it would reduce the 
potential for confusion between CSPD responsibilities under Part B and 
those under Part D. While the delineation of content and skills for 
personnel serving infants and toddlers and children with disabilities 
is important, inherent in CSPD is the obligation of each State to 
identify its particular personnel development needs in light of factors 
that are specific to each individual State. The same is true with 
respect to strategies and needs. The CSPD is one of several mechanisms 
that States have to ensure that children with disabilities receive 
appropriate instruction and services consistent with the purposes of 
this part; therefore, the regulations do not specify which needs must 
be addressed through CSPD.
    References throughout this part to State mean the SEA, unless the 
State has designated an entity other than the SEA to carry out the 
functions of this part. Regarding Sec. 300.380(f), that section is 
directed at the State's enhancement of the ability of teachers and 
others to use strategies, including behavioral interventions. The 
regulatory language about behavioral interventions parallels the 
language in section 614(d)(3)(B)(i) of the Act.
    It also should be pointed out that the term behavioral 
interventions is a broad term that includes positive behavioral 
supports. Regarding the use of ``appropriate'' in Sec. 300.382(g), a 
State's obligation to adopt promising educational practices, materials, 
and technology is dependent on the State's needs. Hence, the use of the 
words ``if appropriate'' in this regulation ensures States have 
flexibility in this area.
    The discussion of the role of hearing officers and mediators in 
response to comments on Sec. 300.380 also applies to the suggestion on 
joint training of parents and special education and related services 
and general education personnel required by Sec. 300.382(j) of these 
regulations. It is important to point out that there is nothing in this 
part that would preclude a State from including hearing officers and 
mediators in the joint training activities if it chooses to do so.
    The comment's suggestion for additional reporting requirements has 
not been accepted. While input from parents regarding the effectiveness 
of personnel development strategies would be useful, the Department is 
committed to reducing paperwork burdens rather than increasing them.
    Finally, with regard to training of general education personnel, 
Sec. 300.382(j) already requires the participation of these individuals 
in joint training activities.
    Changes: None.

Subpart D

Responsibility of SEA (Sec. 300.401)

    Comment: Several commenters asked that Sec. 300.401(a)(3) specify 
whether the standards that apply to private schools are limited to 
those necessary for the comparable provision of special education and 
related services to those provided in public agencies (for example, do 
private schools have to comply with SEA personnel standards beyond the 
qualifications needed to provide special education and related 
services).
    Discussion: Children with disabilities who are placed by public 
agencies in private schools are entitled to receive FAPE to the same 
extent as they would if they were placed in a public school. FAPE 
includes not just the special education and related services that a 
child with a disability receives, but also includes an appropriate 
preschool, elementary and secondary school education in the State 
involved and must be provided in conformity with the child's IEP.
    The IDEA Amendments of 1997 made a number of changes to reinforce 
the importance of the participation of children with disabilities in 
the regular education curricula and the need for children with 
disabilities to have the opportunity to receive the same substantive 
content as nondisabled students. These include provisions that tie IEP 
goals and objectives to the regular education curriculum (section

[[Page 12601]]

614(d)(1)(A)), establish performance goals and indicators for children 
with disabilities consistent with those that a State establishes for 
nondisabled children (section 612(a)(16)), and require the 
participation of children with disabilities in the same general State 
and district-wide assessments as nondisabled students (section 
612(a)(17)).
    Because of these changes in the statute and the confusion that has 
existed over whether all aspects of the education provided by private 
schools to publicly-placed children with disabilities had to meet the 
standards that apply to public agencies, a change should be made in the 
regulations to ensure that children who are publicly-placed in private 
schools receive services consistent with the SEAs' statutory obligation 
to ensure that FAPE is provided. SEAs must ensure that public agencies 
that place children with disabilities in private schools as a means of 
providing FAPE make sure that the education provided to those publicly-
placed children with disabilities meets all standards that apply to 
educational services provided by the SEA and LEA that are necessary to 
provide FAPE.
    With respect to personnel standards, for example, this would mean 
that all personnel who provide educational services (including special 
education and related services and non-special education services) meet 
the personnel standards that apply to SEA and LEA personnel providing 
similar services. The responsibility for determining what constitutes 
the appropriate personnel standard for any given profession or 
discipline is a State and local matter and State and local officials 
have great flexibility in exercising this responsibility. With regard 
to special education and related services personnel, however, the 
regulations provide some parameters for how personnel standards are 
developed. (See, Secs. 300.21, 300.135, and 300.136).
    Changes: A change has been made to specify that a child with a 
disability placed by a public agency as the means of providing FAPE to 
the child must receive an education that meets the standards that apply 
to the SEA and LEA.

Implementation by SEA (Sec. 300.402)

    Comment: Another issue raised by comment was whether the term 
``public agency'' in Sec. 300.402(b) referred to just public schools or 
included other agencies. Some commenters requested that the term 
``applicable standards'' in that paragraph be clarified to include 
application, compliance, on-site visits, monitoring, curriculum and 
evaluation standards. Several commenters requested various expansions 
of Sec. 300.402(c) such as adding a 120-day consultation period prior 
to adoption of standards that apply to private schools, and requiring 
consultation in all phases of the development and design of SEA 
standards and compliance and monitoring procedures that apply to these 
private schools.
    At least one commenter requested a new provision be added 
establishing a mechanism for appeals to the Secretary on standards that 
an SEA wants to apply to private schools.
    Discussion: The term ``public agency'' as used in these regulations 
is defined in Sec. 300.22. The term ``applicable standards'' is 
sufficient to encompass the variety of standards that SEAs may have 
that apply to private schools accepting public agency referrals of 
children with disabilities for the provision of FAPE. Further 
regulation about how States provide opportunities for private schools 
and facilities to participate in the development and design of State 
standards that apply to them is inappropriate. States should have 
flexibility in developing standards that meet the requirements of the 
IDEA.
    The standards that SEAs apply to private schools accepting public 
agency referrals of children with disabilities for the provision of 
FAPE are, so long as they meet the requirements of Part B and its 
regulations, a State matter, so no appeal to the Secretary is 
appropriate.
    Changes: None.

Placement of Children by Parent if FAPE is at Issue (Sec. 300.403)

    Comment: Some commenters stated that some school districts may be 
using this provision as the basis for denying special education 
services to children with disabilities voluntarily enrolled in a 
private school and requested that the regulations make clear that these 
children are covered by the provisions of the regulations regarding 
participation of private school children in the Part B program.
    Discussion: The statute in section 612(a)(10)(C)(i) is clear that 
an LEA must provide for the participation of parentally-placed private 
school children with disabilities in the Part B program with 
expenditures proportionate to their number and location in the State, 
even though the LEA is not otherwise required to pay the costs of 
education, including special education and related services, for any 
individual child with a disability who is voluntarily placed in a 
private school under the terms of Sec. 300.403.
    Changes: A change has been made to Sec. 300.403(a) to clarify that 
the provisions of Secs. 300.450-300.462 apply to children with 
disabilities placed voluntarily by their parents in private schools, 
even though the LEA made FAPE available to those children.
    Comment: One commenter requested that the regulations clearly state 
whether a public agency must evaluate and develop an IEP for each 
private school child with a disability each year in order to avoid 
potential reimbursement claims.
    Discussion: The new statutory provisions, incorporated in the 
regulations in Sec. 300.403 (c), (d), and (e), provide that, as a 
general matter for children with disabilities who previously received 
special education and related services under the authority of a public 
agency, the claim for reimbursement of a private placement must be made 
before a child is removed from a public agency placement. It would not 
be necessary for a public agency to develop an IEP that assumes a 
public agency placement for each private school child each year. LEAs 
do have ongoing, independent responsibilities under the child find 
provisions of Secs. 300.125 and 300.451 to locate, identify and 
evaluate all children with disabilities in their jurisdiction, 
including children whose parents place them in private schools. This 
would include scheduling and holding a meeting to discuss with parents 
who have consented to an evaluation, the results of the evaluation, the 
child's needs, and whether the child is eligible under Part B. (See 
Secs. 300.320, and 300.530-300.535.)
    In addition, the LEA must offer to make FAPE available if the child 
is enrolled in public school. A new evaluation need not be performed 
for each private school child each year, but evaluations for each 
private school child must meet the same evaluation requirements as for 
children in public agency placements, including the requirement for 
reevaluation in Sec. 300.536. In addition, since LEAs must make FAPE 
available to all children with disabilities in their jurisdiction 
(Secs. 300.121, 300.300), public agencies must be prepared to develop 
an IEP and to provide FAPE to a private school child if the child's 
parents re-enroll the child in public school.
    Changes: None.
    Comment: Several commenters requested that paragraph (c) be revised 
to prohibit reimbursement if the private placement is inappropriate, 
which was a part of the Supreme Court's standard on reimbursement 
announced in School Comm. of Burlington v. Department of

[[Page 12602]]

Ed. of Mass., 471 U.S. 359 (1985) (Burlington). Another commenter 
requested that the term ``timely manner'' be defined.
    Another commenter requested that the Department clarify that the 
provisions of Sec. 300.403 (c), (d), and (e) apply only in situations 
in which the child previously has received special education and 
related services under the authority of a public agency. In other 
situations, where the child has not yet been provided special education 
and related services, the Department should recognize that hearing 
officers and courts still retain broad equitable powers to award 
relief, and will continue to apply the reimbursement standard in 
Burlington.
    Discussion: It is not in the public interest to require that public 
funds be spent to support inappropriate private placements. For these 
reasons, paragraph (c) should be revised consistent with the basic 
standard for reimbursement articulated by the Supreme Court in the 
Burlington and Carter cases. Since, as the Supreme Court made clear in 
Carter, in instances where the school district has not offered FAPE, 
the standard for what constitutes an appropriate placement by parents 
is not the same as the standards States impose for public agency 
placements under the Act, this new provision makes clear that parental 
placements do not need to meet State standards in order to be 
``appropriate'' under this requirement.
    As a commenter noted, hearing officers and courts retain their 
authority, recognized in Burlington and Florence County School District 
Four v. Carter, 510 U.S. 7 (1993) (Carter) to award ``appropriate'' 
relief if a public agency has failed to provide FAPE, including 
reimbursement and compensatory services, under section 
615(l)(2)(B)(iii) in instances in which the child has not yet received 
special education and related services. This authority is independent 
of their authority under section 612(a)(10)(C)(ii) to award 
reimbursement for private placements of children who previously were 
receiving special education and related services from a public agency.
    The term ``timely manner'' should not be defined, since what 
constitutes timely provision of FAPE is best evaluated within the 
specific facts of individual cases. (See, e.g., Secs. 300.342(b) and 
300.343(b)).
    Changes: Paragraph (c) has been revised to include the requirement 
that the private placement by the parents must be appropriate (as 
determined by a court or hearing officer) in order to be eligible for 
reimbursement, and to make clear that a parental placement does not 
need to meet the State standards that apply to education provided by 
the SEA and LEAs in order to be found to be appropriate.
    Comment: A number of commenters suggested definitions of various 
terms used in Sec. 300.403(d) and (e) and other changes to the 
provisions of these paragraphs, some of which would have made 
recovering reimbursement more difficult for parents and others which 
would have limited school districts' use of these provisions in defense 
of a reimbursement claim.
    Discussion: With the exception of making clear that the regulation 
also applies when parents choose to enroll their child in a private 
preschool program, no change is necessary. The regulation in 
Sec. 300.403(d) and (e) reflects the statutory language, which balances 
the interests of parents and public agencies. (See the explanation of 
the definition of ``business day,'' under the discussion of comments to 
Sec. 300.8, a term which is used in several places in these 
regulations.)
    Changes: Paragraph (c) has been revised to specify that the 
reimbursement provisions of Sec. 300.403 also apply if parents of a 
child with a disability who previously received special education and 
related services under the authority of a public agency enroll the 
child in a private preschool program.

Definition of ``Private School Children With Disabilities'' 
(Sec. 300.450)

    Comment: Several commenters asked that the Department clarify 
whether children with disabilities who are home-schooled are included 
in the definition of ``private school children with disabilities''.
    Discussion: State law determines whether home schools are ``private 
schools.'' If the State recognizes home schools as private schools, 
children with disabilities in those home schools must be treated in the 
same way as other private school children with disabilities. If the 
State does not recognize home schools as private schools, children with 
disabilities who are home-schooled are still covered by the child find 
obligations of SEAs and LEAs, and these agencies must insure that home-
schooled children with disabilities are located, identified and 
evaluated, and that FAPE is available if their parents choose to enroll 
them in public schools.
    Changes: None.

Child Find for Private School Children With Disabilities (Sec. 300.451)

    Comment: Some commenters stated that there have been major 
difficulties in many areas of the country in ensuring that private 
school children with disabilities are identified and evaluated. Some 
commenters also noted the new statutory provision limiting the amount 
of funds that must be spent on parentally-placed private school 
children with disabilities based on the number of identified 
parentally-placed private school children with disabilities creates an 
additional need for timely and effective child find for this 
population. These commenters requested that the regulation be revised 
to require that consultation with appropriate representatives of 
private school children occur before the public agency conducts child 
find activities and to provide that child find activities for 
parentally-placed private school children be done on the same or 
comparable timetable as for public school children. Another commenter 
requested that child find activities include children placed by their 
parents in private residential facilities.
    Discussion: The role of child find for parentally-placed private 
school children is very important for services for this population. 
Section 612(a)(10)(A)(i) and the regulations in Sec. 300.452 tie the 
amount of money that will be used for parentally-placed private school 
children with disabilities to the number of parentally-placed private 
school children with disabilities in each LEA. Clearly, the adequacy of 
the LEA's child find activities for parentally-placed private school 
children with disabilities will be crucial to determining how many 
children with disabilities are parentally-placed in private schools, 
and consequently, the amount of funds that must be spent by an LEA on 
special education and related services to parentally-placed private 
school children with disabilities. For these reasons, LEAs should 
consult with representatives of private school children with 
disabilities on how to conduct child find activities for parentally-
placed private school children with disabilities in a manner that is 
comparable, which would include timing, to child find for public school 
children with disabilities.
    LEAs are required to conduct child find activities for children 
residing in their jurisdiction. Generally, as a matter of State law, 
children are considered to reside in the home of their parents even if 
they physically do not live there. Whether children who are in private 
residential facilities are residing in the jurisdiction of an LEA when 
that facility is within the boundaries of the LEA will be dependent on 
State law.
    Changes: The term ``religiously-affiliated'' has been replaced with

[[Page 12603]]

``religious,'' to more accurately reflect the types of schools. The 
term ``public agency'' has been replaced with ``LEA,'' a technical 
change. Paragraph (a) has been revised (see description of comments 
received under Sec. 300.453 regarding that revision). A new paragraph 
(b) has been added requiring public agencies to consult with 
representatives of parentally-placed private school students with 
disabilities on how to conduct child find activities for that 
population in a manner that is comparable to that for public school 
children.

Provision of Services--Basic Requirement (Sec. 300.452)

    Comment: None.
    Discussion: None.
    Changes: Consistent with the comments, discussion, and changes 
under Sec. 300.341, a new paragraph (b) has been added to Sec. 300.452 
regarding the SEA's responsibility for ensuring that a services plan is 
developed and implemented for each private school child with a 
disability who has been designated to receive special education and 
related services under this part.

Expenditures (Sec. 300.453)

    Comment: One commenter asked for clarification that there is no 
obligation to spend more than the total per capita Federal allocation 
to the LEA, and use of State or local funds are not required, for 
private school children. Another commenter requested that the note 
following this section be integrated into the regulation, as it 
provided valuable guidance to States. Several commenters were concerned 
that LEAs were suggesting that no services needed to be provided to 
private school students as a proportional share of the Federal funds 
was being used to conduct evaluations of these children. Another 
commenter asked whether a longstanding State program that allocates 
funding to be used for private school children for certain special 
education and related services and evaluations can be used to satisfy 
the requirements of this section.
    Several commenters noted the importance of determinations of the 
number of parentally-placed private school children with disabilities 
in calculating required expenditures and asked for specificity in how 
this number is determined. Another commenter requested that the 
Department require that each LEA separately account for funds used for 
private school children with disabilities and clarify that these funds 
are only to provide special education and related services and cannot 
be used to carry out activities such as child find.
    Discussion: It is important to clarify that there is a distinction 
under the statute between the obligation to conduct child find 
activities, including individual evaluations, for parentally-placed 
private school children with disabilities, and the obligation to use an 
amount of funds equal to a proportional amount of the Federal grant to 
provide special education and related services to parentally-placed 
private school children with disabilities. The obligation to conduct 
child find, including individual evaluations, exists independently from 
the services provision described in Secs. 300.452-300.456, and the 
costs of child find activities, such as evaluations, may not be 
considered in determining whether the LEA has spent the amount 
described in Sec. 300.453 on providing special education and related 
services to parentally-placed private school children with 
disabilities.
    The statute describes the minimum amount that must be spent on 
these services and does not specify that only Federal funds can be used 
to satisfy this obligation. Thus, if a State or LEA uses other funds to 
provide special education and related services to private school 
children, those funds can be considered in satisfying the provisions of 
Sec. 300.453, so long as the services are provided in accordance with 
the other provisions of Secs. 300.452-300.462.
    The statute does not prohibit a State or LEA from spending 
additional State or local funds to provide special education and 
related services to private school children. To make this important 
point, in light of the general decision to remove all notes from these 
regulations, the note that followed this section in the NPRM should be 
incorporated into this section as paragraph (d).
    Determining the number of parentally-placed private school children 
with disabilities is particularly important. Child find, which includes 
locating, identifying and evaluating children, is an ongoing activity 
that SEAs and LEAs should be engaged in throughout the year for all 
children in order to meet the statutory obligations to ensure that all 
children in the State are located, identified and evaluated and that 
all children have the right to FAPE. The statute does not distinguish 
between child find activities for children enrolled in public schools 
and those conducted for children enrolled in private schools.
    In addition, the importance of child find for determining the 
amount to be spent on services for parentally-placed private school 
children with disabilities also argues for clarity in the regulations 
that child find activities for private school children with 
disabilities must be comparable to child find activities conducted for 
children in public schools. Further regulation also is necessary on 
determining the number of parentally-placed private school children 
with disabilities so as to eliminate the potential for disputes about 
how to determine the number of private school children with 
disabilities that will be used as the basis for the calculation and to 
provide a clear standard for LEAs to meet. Possible alternative 
standards for who to count, such as private school children referred 
for evaluation, or private school children with disabilities who are 
receiving services pursuant to Secs. 300.450-300.462 are not consistent 
with the statutory language.
    Since LEAs and SEAs are already counting children with disabilities 
who are receiving special education and related services on December 1 
or the last Friday in October of each year (the State decides which 
date to use on a State-wide basis) for funding and data reporting 
purposes, conducting the count of eligible parentally-placed private 
school children with disabilities on that date as well is reasonable, 
reduces the amount of double counting of private school children with 
disabilities who move from one location to another, and gives States 
the same flexibility they have with regard to counting children with 
disabilities who are receiving services. Furthermore, this count will 
provide the public agencies the basis on which they will be able, 
consistent with Sec. 300.454, to plan for the services that will be 
provided during the subsequent school year.
    Changes: A new paragraph (c) has been added to Sec. 300.453 to 
specify that the costs of child find activities for private school 
children with disabilities may not be considered in determining whether 
the LEA met the expenditures requirements of this section. A paragraph 
(d) has been added to clarify that States and LEAs are not prohibited 
from spending additional funds on providing special education and 
related services to private school children with disabilities. The note 
has been removed.
    Section 300.451 has been revised to specify that child find 
activities for parentally-placed private school children with 
disabilities be comparable to child find activities for children with 
disabilities in public schools.
    Section 300.453 has been revised to add a new paragraph (b) that 
specifies that each LEA consult with representatives of private school 
children with disabilities to decide how to conduct the count of the 
number of parentally-placed children with

[[Page 12604]]

disabilities in private schools on December 1 or the last Friday of 
October for determining the amount that must be spent on providing 
special education and related services for private school children for 
the subsequent school year, and that the LEA ensure that count is 
conducted.

Services Determined (Sec. 300.454)

    Comment: Several commenters requested clarification of ``timely and 
meaningful'' so that parents, private school representatives and LEAs 
would have a better understanding of how this process works. Various 
other suggestions included public notice of the consultation meetings, 
public transcripts of those meetings, and requiring explanations of 
refusals to provide service, and decisions on allocations of funds for 
services for private school children.
    Discussion: The needs of private school children with disabilities, 
their number and their location will vary over time and, depending on 
the circumstances in a particular LEA, will differ from year to year. 
However, an annual consultation with representatives of private school 
children is not required, since States and LEAs are best able to 
determine the appropriate period between consultations based on 
circumstances in their jurisdictions.
    Paragraph (b)(3) specifies that consultation must take place before 
decisions are made affecting the opportunities of private school 
children with disabilities to participate in the State's special 
education program which is assisted or carried out with Part B funds. 
The regulations on this consultation process have not been amended, in 
the expectation that all parties will treat others in the process with 
reason and respect.
    Changes: No change was made in response to these comments. See 
discussion of comments received under Sec. 300.350 regarding a change 
to Sec. 300.454.

Services Provided (Sec. 300.455)

    Comments: Several commenters expressed concern that using the term 
``IEP'' in this section added to confusion over whether private school 
children served under these provisions were to receive all the services 
they need, or just those services that had been decided through the 
consultation process would be provided. Several suggested that a 
different term, ``statement of special education and related services 
to be provided'' be substituted. Other commenters objected to the 
definition of a term ``comparable in quality'' not used in the statute.
    Discussion: The use of the term ``IEP'' could result in confusion 
about whether these children receive all the services they would have 
received if enrolled in a public school. A different term, services 
plan, will be used. However, to the extent appropriate given the 
services that the LEA has selected through the consultation process 
described in Sec. 300.454, that services plan must meet the 
requirements for an IEP in order to ensure that the services are 
meaningfully related to a child's individual needs. For example, in 
almost all instances, the services plan developed for an individual 
private school child with a disability would have to meet the 
requirements of Sec. 300.347(a)(1)-(4), (6) and (7).
    Whether those statements would also have to meet the requirements 
of Sec. 300.347(a)(5), (b) and (c) would depend on the services that 
are to be provided to the parentally-placed private school student with 
a disability. Paragraph (c) provides useful guidance to LEAs and 
parents that will prevent disputes. That content will be retained, but 
the definition should be eliminated.
    Changes: Paragraph (a) has been retitled ``General.'' Paragraph (b) 
has been revised by referring to a services plan instead of an IEP and 
by specifying that, for the services that are provided, the services 
plan, to the extent appropriate, must meet the content requirements for 
an IEP (Sec. 300.347) and be developed consistent with Secs. 300.342-
300.346. The useful content from paragraph (c) of the NPRM has been 
incorporated into paragraph (a).

Location of Services; Transportation (Sec. 300.456)

    Comment: Some commenters requested that the Department require 
services to children in private schools be provided on-site, stating 
that providing services at a neutral site is disruptive and time 
consuming. Another asked for more specificity as to the phrase 
``consistent with law.'' Several commenters objected to the treatment 
of transportation in Sec. 300.456(b), some stating that there is no 
individual right to transportation under the Act, while others noted 
that providing transportation services could use all the funds 
available for special education and related services. Others asked why 
a certain related service (transportation) had been singled out for 
special treatment.
    Discussion: Decisions about whether services will be provided on-
site or at some other location should be left to LEAs, in consultation 
with representatives of private school children. Although in many 
instances on-site services are most effective, local considerations 
should allow flexibility in this regard. A change should be made to 
Sec. 300.454(b)(1) to make clear that where services are provided is 
subject to consultation with representatives of private school 
children.
    The phrase ``consistent with law'' is statutory. As Note 1 
following this section indicated, the Department's position, based on 
the decisions of the Supreme Court in Zobrest v. Catalina Foothills 
School Dist. (1993) and Agostini v. Felton (1997) is that there is no 
Federal constitutional prohibition on providing publicly-funded special 
education and related service on-site at private, including religious 
schools. These decisions make clear that LEAs may provide special 
education and related services on-site at religious private schools in 
a manner that does not violate the Establishment Clause of the First 
Amendment to the U.S. Constitution.
    While the statute and regulation do not require the provision of 
services on-site to private school children, to the extent it is 
possible to do so, LEAs are encouraged to provide those services at 
private school sites so as to minimize the amount spent on necessary 
transportation and to cause the least disruption in the children's 
education. However, State constitutions and laws must also be consulted 
when making determinations about whether it is consistent with law to 
provide services on-site at a religious school.
    If services are offered at a site separate from the child's private 
school, transportation may be necessary in order to get the child from 
one site to the other, or the child may be effectively denied an 
opportunity to benefit. In this sense then, transportation is not a 
related service but is a means of making the services that are offered 
accessible. LEAs should work in consultation with representatives of 
private school children to ensure that services are provided at sites 
that will not require significant transportation costs. In light of the 
decision to remove notes from the final regulations, paragraph (b) of 
this section should be revised to incorporate the concept from the note 
that transportation does not need to be provided between the child's 
home and the private school.
    Changes: Section 300.456 has been re-titled ``Location of services; 
transportation.'' A technical change has been made to paragraph (a) to 
refer to religious schools rather than religiously-affiliated schools. 
Paragraph (b) has been revised to explain when

[[Page 12605]]

transportation is required. Section Sec. 300.454(b)(1)(iii) has been 
revised to specify that where services are provided is a subject of 
consultation between the LEAs and representatives of private school 
children. The notes following this section in the NPRM have been 
removed.

Complaints (Sec. 300.457)

    Comment: Several commenters objected to Sec. 300.457(a) because 
they believed that a child in a private school should be able to 
receive a due process hearing on complaints about services once the LEA 
has decided to provide services to that child. Most of those commenters 
indicated that there may be legitimate issues regarding whether the LEA 
complied with obligations to a specific child it had agreed to serve.
    One commenter agreed with the position in the NPRM that if FAPE 
does not apply to private school children, due process also would not 
apply. Another commenter suggested that due process also should not 
apply to the child find obligations described in Sec. 300.451.
    Discussion: Section 615(a) of the Act specifies that the procedural 
safeguards of the Act apply with respect to the provision of FAPE to 
children with disabilities. The special education and related services 
provided to parentally-placed private school children with disabilities 
are independent of the obligation to make FAPE available to these 
children.
    While there may be legitimate issues regarding the provision of 
services to a particular parentally-placed private school child with 
disabilities an LEA has agreed to serve, due process should not apply, 
as there is no individual right to these services under the IDEA. 
Disputes that arise about these services are properly subject to the 
State complaint procedures, which are available to address 
noncompliance with any requirement of Part B.
    On the other hand, child find is a part of the basic obligation to 
make a FAPE available to all children with disabilities in the 
jurisdiction of the public agency, and so failure to properly evaluate 
a parentally-placed private school child would be subject to due 
process.
    Changes: A new paragraph (b) has been added to specify that due 
process procedures do apply to child find activities, including 
evaluations.

Requirement That Funds not Benefit a Private School (Sec. 300.459)

    Comment: One commenter asked how an LEA is to discern whether funds 
are being used to benefit the private school. Another questioned 
whether this provision is consistent with other provisions that allow 
funds to be used by an LEA to provide staff development for special and 
regular education personnel, consultative services and provisions that 
permit other children to also benefit when a teacher or other provider 
is providing special education or related services to a child with a 
disability.
    Discussion: LEAs should use reasonable measures in assessing 
whether Federal funds are being used to benefit private schools. This 
provision does not prohibit private school teachers from participating 
in staff development activities regarding the provisions of IDEA when 
their participation can be accommodated.
    If consultation services are provided to a private school teacher 
as a means of providing special education and related services to a 
particular private school child with a disability and that teacher uses 
the acquired skills in providing education to other children, whatever 
benefit those other children receive is incidental to the publicly 
funded services and is not prohibited by this provision.
    On the other hand, if an LEA simply gave a private school an amount 
of money rather than itself providing or purchasing services for 
parentally-placed private school children with disabilities, in 
addition to violating the requirements of Secs. 300.453 and 300.454, 
would raise very significant concerns about compliance with 
Sec. 300.459(a).
    In the interest of regulating only where necessary, the regulations 
do not further specify measures of when a private school is benefiting 
from the Federal funds.
    Changes: None.

Use of Private School Personnel (Sec. 300.461)

    Comment: One commenter noted that private school personnel used to 
provide services to private school children under Part B should be 
required to meet the same standards as public school employees 
providing those services to public or private school children.
    Discussion: Section 300.455 specifies that services provided to 
private school children must be provided by personnel meeting the same 
standards as those providing services in public schools. This would 
apply to private school personnel who, under Sec. 300.461, are being 
used to provide services under Secs. 300.450-300.462 to private school 
children with disabilities.
    Changes: A technical change has been made to Sec. 300.461 to make 
clear that the services addressed are those provided in accordance with 
Secs. 300.450-300.462.

Requirements Concerning Property, Equipment and Supplies for the 
Benefit of Private School Children With Disabilities (Sec. 300.462)

    Comment: One commenter asked whether costs for inventory control 
can be considered as a part of the proportionate share of the LEA's 
Part B funds that are to be expended for providing services to private 
school children. The commenter also asked for specificity regarding the 
procedures to be used for maintaining administrative control of all 
property, equipment and supplies acquired for the benefit of private 
school children.
    Discussion: Reasonable and necessary costs for inventory control of 
property, equipment and supplies located in a private school related to 
providing special education and related services to private school 
children with disabilities can be considered a part of the cost of 
providing special education and related services to private school 
children with disabilities. Effective procedures for ensuring 
administrative control will vary depending on local considerations.
    Changes: None.

Subpart E Procedural Safeguards

General Responsibility of Public Agencies; Definitions (Sec. 300.500)

    Comment: One commenter asked whether the definition of 
``evaluation'' at Sec. 300.500(b)(2) precludes the use of tests which 
are based on the general curriculum and which may be used with all 
children in a school or class as the primary means of evaluation. 
Another commenter asked if any evaluation after an initial evaluation 
is considered a reevaluation. It was also suggested that the revocation 
of consent only be allowed before the first day of the child's 
placement. There was also a request that the note (which concerns the 
non-retroactivity of a revocation by a parent of their consent) be 
included in the text of the regulation.
    Some commenters also wanted a definition of ``educational 
placement'' included in Sec. 300.500(b), consistent with prior policy 
issuances regarding the definition.
    Discussion: The statutory changes to the evaluation procedures that 
are reflected in Secs. 300.530-300.536 make clear that an 
``evaluation'' will include review of existing data, which may include 
results on tests or other procedures that are based on the general 
curriculum and may be used with all children in a grade, school, or 
class. The definition of ``evaluation'' in the NPRM

[[Page 12606]]

at proposed Sec. 300.500(b)(2) had not been updated to recognize this 
change in the statute. Therefore, a change has been made to eliminate 
the last sentence in the proposed definition of ``evaluation'' so that 
it does not imply that an evaluation may not include a review of a 
child's performance on a test or procedure used with all children in a 
grade, school or class. This change does not mean that a public agency 
must obtain parental consent before administering a test used with all 
children unless otherwise required. (See Sec. 300.505(a)(3)). Section 
300.532 sets forth the procedures required to individually evaluate a 
child. Section 300.533 addresses the use of existing evaluation data 
which can include information available on the results of tests and 
procedures used for all children in a school, grade or class.
    To distinguish an initial evaluation from a reevaluation, an 
initial evaluation of a child is the first completed assessment of a 
child to determine if he or she has a disability under IDEA, and the 
nature and extent of special education and related services required. 
Once a child has been fully evaluated the first time in a State, a 
decision has been rendered that a child is eligible under IDEA, and the 
required services have been determined, any subsequent evaluation of a 
child would constitute a reevaluation.
    Regarding revocation of parental consent, parents cannot be forced 
to consent to decisions related to their child's education. However, it 
would be impractical to allow a parent to retroactively apply a 
revocation of consent where parental consent is required. Thus, once a 
parent consents to an educational decision concerning their child, be 
it an evaluation or provision of service(s), any revocation of their 
consent once the action to which they initially consented has been 
carried out will not affect the validity of the action. Since the non-
retroactivity of a parent's revocation of consent is based on the 
Department's interpretation of the statute, and is important to make 
clear to all parties, it should be set forth in the regulation itself.
    The educational placement of a child focuses on the implementation 
of a child's IEP and cannot be defined generally given that each child 
has different educational needs. Section 300.552 addresses the meaning 
of educational placement by describing the factors involved in making a 
placement decision and explains the concept in the context of the least 
restrictive environment. There is no additional benefit to defining 
further the term educational placement at Sec. 300.500.
    Changes: The note following this section has been deleted and 
Sec. 300.500(b)(1)(iii) has been amended by adding language to clarify 
that a revocation of consent does not have retroactive effect if the 
action consented to has already occurred. Section Sec. 300.500(b)(2) 
has been amended by removing the last sentence of that paragraph.

Opportunity to Examine Records; Parent Participation in Meetings 
(Sec. 300.501)

    Comment: Some commenters asked that the term ``all'' with respect 
to meetings in Sec. 300.501(a)(2) be deleted as that term is not used 
in the statute, as well as delete the term ``all'' with respect to the 
term ``education records'' and replace it with ``special.'' Another 
suggestion was to require in Sec. 300.501(a)(1) that copies of tests 
given to a child and manuals to interpret such tests be made available 
for the parents to review. One commenter asked whether therapy notes 
are considered educational records and another asked that the public 
agency be required to specify time periods within which the inspection 
and review right must be carried out.
    Several commenters expressed concern that the definition of 
``meetings'' was too narrow; the commenters recommended the definition 
be drafted to insure that it means any event where decisions are made 
regarding a child's identification, evaluation or placement. Others 
asked that the definition be removed entirely. It was also requested 
that the potential for any confusion regarding informal meetings held 
by school personnel be eliminated. Several commenters recommended 
deleting the reference at Sec. 300.501(a)(2)(ii) to the provision of 
FAPE, claiming this would overly broaden the meetings at which parents 
should be given the chance to attend, precluding the ability for 
internal meetings without the parents. A commenter also asked that 
Sec. 300.501(a)(2) include the opportunity to attend eligibility 
meetings.
    Commenters also asked that Sec. 300.501(b)(2) be amended to include 
in the definition of ``meetings'' those that occur via conference call 
or video conferencing, not just face-to-face meetings. Several comments 
advised that the language as proposed at Sec. 300.501(b)(2) might 
result in parents being excluded from curriculum planning meetings for 
individual children under the guise of ``teaching methodology, lesson 
plans or coordination of service provision'' meetings. There were 
several recommendations that there be a specific timeline for giving 
parents notice of meetings, such as at least 10 business days before a 
meeting.
    Regarding placements, many commenters stated that parents should be 
informed by public agencies of the various alternative placements 
available, not just the one ultimately chosen, and the reasons for 
rejecting the other potential placements. Further, it was suggested 
that the language in Sec. 300.501(c)(1) be placed in the IEE section of 
the regulations.
    Several commenters also stated that video-conferencing (referenced 
in Sec. 300.501(c)(3)) would be costly and prohibitive for many 
schools. Some thought the language in Sec. 300.501(c)(5), ``whatever 
action is necessary'', was too broad and should be a reasonable or 
feasible standard. There were also concerns that Sec. 300.501(c)(5) 
should not require schools to ensure participation and comprehension by 
the parents, but that they should make reasonable attempts to ensure 
parents participate and understand.
    Discussion: The statute specifically states that parents have the 
right to participate in meetings regarding identification, evaluation, 
placement or FAPE. Paragraph (b)(2) describes the types of discussions 
that do not fall within this requirement. The term ``all'' should be 
deleted to be consistent with the statutory language.
    The term ``all education records'' is from the statutory reference 
to ``all records relating to such child'' at section 615(b)(1) of the 
Act. The Department has always interpreted the term to mean all of the 
child's education records to be consistent with the purpose of IDEA and 
the applicable confidentiality provisions of the General Education 
Provisions Act at 20 U.S.C. 1232g, also known as the Family Educational 
Rights and Privacy Act of 1974 (FERPA) as directed by section 617(c) of 
the Act.
    Education records are defined at Sec. 300.560 by reference to the 
definition of education records in 34 CFR part 99 (the regulations 
implementing FERPA). The term means those records that are directly 
related to a student and are maintained by an educational agency or 
institution or by a party acting for the agency or institution. Given 
the definition, it follows that tests taken by a child are included in 
the education records available for review by a parent. The discussion 
following Sec. 300.562 in the attachment further discusses what is 
considered an education record of a child and the timelines for 
parental inspection and review of education records.
    Regarding the definition of ``meetings,'' the proposed definition 
was

[[Page 12607]]

intended to make clear that parents have the right to be notified of 
and attend meetings which, generally, are scheduled in advance, and in 
which public agency personnel are to come together at the same time, 
whether face-to-face or via conference calls or video-conferencing, to 
discuss, and potentially resolve, any of the issues described in 
paragraph (b)(2).
    Informal discussions among teachers and administrators, which may 
or may not be pre-arranged, are not meetings for which parents must 
receive notice and the opportunity to attend. Whether or not a meeting 
is prearranged is not the deciding factor in determining whether 
parents would have the right to attend; rather, the fact that the 
meeting is to discuss and potentially resolve one or more of the issues 
identified in paragraph (b)(2) triggers the parents' right to be 
involved.
    In practical terms, this means that meetings to which the child's 
parents must be afforded the opportunity to attend cannot be convened 
without providing parents with reasonable notice. However, in the 
interest of regulating only where necessary, the first sentence of 
paragraph (b)(2) would be removed and no specific timeline regarding 
parental notice of meetings would be added.
    The right of parents to participate in meetings where the provision 
of FAPE to their child is being discussed is statutory. The point of 
the provision is to ensure parents have the opportunity to participate 
in discussions where substantive decisions regarding their child's 
education are made--a key principle of the IDEA Amendments of 1997. 
Eligibility determinations are the focus of the identification process 
and are already part of Sec. 300.501(a)(2). A parent's role in the 
eligibility determination also is addressed under Sec. 300.534 of these 
regulations.
    With respect to placement, if parents are to be meaningfully 
involved in the placement decision for their child it is necessary that 
they understand the various placement options. It is implicit in the 
requirement that parents be ensured the opportunity to be members of 
any group making the placement decision, that whatever placement 
options are available to a child will be fully discussed and analyzed 
at placement meetings, allowing input from all the participants.
    Relocating the language at Sec. 300.501(c)(1) in the IEE section of 
the regulations does not make sense since the purpose of 
Sec. 300.501(c) is placement and that of IEE's is evaluation.
    Whether or not video-conferencing, as well as other methods for 
enabling full participation in meetings by those with a right to 
attend, are used is dependent on the particular circumstances, and no 
one method is mandated. If one effective option would be more costly in 
a particular situation than another, there is no mandate that the more 
costly alternative be chosen.
    Section 300.501(c)(4) explains that placement decisions may be made 
by public agencies without the parents if the agency is unable to 
obtain the parents' participation in the decision and documents its 
attempts to ensure their involvement. Once a parent makes clear that he 
or she will be involved in the placement decision-making process, 
Sec. 300.501(c)(5) requires that the agency ensure that the parent is 
actually able to participate in, which includes understanding, the 
process. However, it is possible that even if an agency makes 
reasonable efforts, consistent with Sec. 300.501(c)(5), to ensure a 
parent's participation, the parent is still not able to meaningfully 
participate. Thus, it appears useful to clarify the regulation.
    Changes: Section 300.501(a)(2) has been amended to delete the word 
``all'; Sec. 300.501(b)(2) (definitions of ``meetings'') has been 
amended by replacing ``a prearranged event in which'' with ``when;'' 
and deleting ``and place;'' and Sec. 300.501(c)(5) has been revised to 
refer to reasonable efforts to ensure parent participation.

Independent Educational Evaluation (Sec. 300.502)

    Comment: Some commenters thought that allowing the public agency to 
initiate a hearing regarding parental requests for independent 
educational evaluations (IEE), without allowing parents the right to 
likewise initiate a hearing, would cause excessive litigation. Further, 
it was suggested that States be required to develop clear criteria for 
acceptance of IEEs as the primary means of determining eligibility.
    One commenter asked that a formula be established for reimbursing 
parents who assume the responsibility of establishing eligibility for 
their children. Several commenters urged that an IEE must be consistent 
with the requirements of a full and individual evaluation under 
Secs. 300.530-300.536. It was also suggested that although the criteria 
under which an IEE is obtained at public expense should be the same as 
the criteria used by the public agency when it initiates an evaluation, 
reasonable travel should be allowed when community professional 
resources are limited.
    A few comments requested limiting the cost of an IEE to a 
reasonable and customary charge, as well as restricting the type of 
evaluation conducted, such as evaluating only educational, not medical, 
needs.
    Comments were received recommending that before a parent may 
request an IEE, there must have been an LEA evaluation, the results 
with which the parents disagree. The commenters stated that parents who 
refuse to consent to a public evaluation and then demand an IEE at 
public expense should not receive an IEE, unless they can demonstrate a 
legitimate reason for refusing to consent to the undertaking of a 
public evaluation.
    Commenters both supported and opposed Notes 1 and 2, some wishing 
their deletion and some wanting them included as part of the 
regulations. Many commenters suggested that parents should explain why 
they disagreed with the public evaluation, or that the public agency 
should be able to request such information and have time to alleviate 
the parents' concerns, and that the parent should request a hearing if 
he or she wants one so the burden to demonstrate that the evaluation 
was appropriate would not fall solely on the public agency.
    There were several requests for a definition of unnecessary delay 
in Sec. 300.502(b), some proposing 10 calendar or school days from the 
receipt of a request for an IEE.
    Discussion: The purpose of requiring the public agency to either 
initiate a due process hearing if it wishes to challenge a parent's 
request for an IEE, or otherwise provide an IEE at public expense, is 
to require public agencies to respond to IEE requests and to ensure 
parents are able to obtain an IEE as set forth in section 615(b)(1) of 
the Act. There is no corresponding need to specify that a parent also 
has the right to initiate a due process hearing since if a public 
agency does not do so it must provide the IEE at public expense.
    IEEs would be only one element in the eligibility determination 
since the evaluation team reviews the existing evaluation data and then 
determines what additional data are needed to determine whether the 
child has or continues to have a covered disability, the child's 
present levels of performance and whether the child needs or continues 
to need special education and related services (see Sec. 300.533(a) and 
(b)). Methods in addition to IEEs are to be used to determine whether a 
child is eligible under IDEA. Therefore, the results of IEEs cannot be 
the sole determining factor for eligibility.
    Under IDEA, it is the public agency's responsibility to establish 
eligibility. If parents are willing to assume the

[[Page 12608]]

responsibility, on behalf of the public agency, for having the 
assessment of their child under IDEA done, they should be reimbursed 
for the assessment methods agreed upon by the public agency and 
parents. The agreement between the parents and public agency would 
depend on their special circumstances so regulating on this issue would 
not be helpful. However, this procedure would not be an IEE.
    Since Sec. 300.502(e)(1) states that IEEs at public expense are to 
be conducted pursuant to the same criteria that apply to evaluations 
conducted by public agencies, it follows that the requirements at 
Secs. 300.530-300.536 would apply to the IEEs. Note also that for an 
IEE obtained by a parent either at public or private expense to be 
considered by the public agency, such IEE must meet agency criteria. 
Therefore, the parents must be able to have access to the relevant 
agency criteria. To that end, Note 2 should be deleted and, in modified 
form, included in the text of the regulation at Secs. 300.502(a)(2), 
300.502(c)(1), and 300.502(e)(1).
    There is nothing in the regulations with respect to IEEs, or 
evaluations in general, that would prevent reasonable travel for 
necessary services not available in the community.
    Since public agencies must provide parents with information about 
where IEEs may be obtained, provided the options are consistent with 
Secs. 300.530-300.536, public agencies have some discretion in the cost 
if it is at public expense. Further, evaluations of children under IDEA 
are to cover all areas of suspected disability, which may include 
medical examinations for purposes of determining the child's 
disability. There may be situations in which a child's educational 
needs are intertwined with a child's health needs, therefore, stating 
that the types of evaluations conducted are only those regarding 
educational need does not add any useful clarity.
    The right of a parent to obtain an IEE is triggered if the parent 
disagrees with a public initiated evaluation. Therefore, if a parent 
refuses to consent to a proposed public evaluation in the first place, 
then an IEE at public expense would not be available since there would 
be no public evaluation with which the parent can disagree. If the 
parent believes the proposed public evaluation is inappropriate, he or 
she may pursue an appropriate publicly-funded evaluation via the 
mediation or due process procedures under Secs. 300.506-300.509.
    With respect to Note 1, while it would be helpful for parents to 
explain their disagreement over a public evaluation, there is nothing 
in the statute which prevents parents from obtaining an IEE if they did 
not express their concerns first. Therefore, Note 1 would be deleted 
and the regulation changed to state that the public agency may request 
an explanation from the parents regarding their concerns when the 
parent files a request for an IEE at public expense. However, such an 
explanation may not be required of the parents and the provision of an 
IEE, or initiation of a due process hearing to defend the public 
evaluation, may not be delayed unreasonably regardless of whether or 
not the parent explains his or her concerns to the public agency.
    Since the necessity or reasonableness of a delay is case specific, 
no definition of these terms has been added.
    Changes: Note 2 has been deleted and Sec. 300.502(a)(2) and (e)(1) 
have been amended to provide that on request for an IEE, parents are 
provided with information about where an IEE may be obtained and the 
agency criteria applicable to IEEs and that those criteria are 
consistent with the parent's right to an IEE.
    Note 1 has been deleted and Sec. 300.502(b) has been revised to 
explain that an explanation of parent disagreement with an agency 
evaluation may not be required and the public agency may not delay 
either providing the IEE at public expense or, alternatively, 
initiating a due process hearing.

Prior Notice by the Public Agency; Content of Notice (Sec. 300.503)

    Comment: One commenter stated that Sec. 300.503(b)(8) should be 
removed, believing it to exceed the statute and because an explanation 
of State complaint procedures is given in the procedural safeguards 
notice. The commenter also believed it is inconsistent to inform 
parents about the State complaint process without the other two 
(mediation and due process appeals) being explained.
    Several commenters asked for specific types of organizations to be 
listed in Sec. 300.503(b)(7), such as parent training institutes. 
Another commenter wanted the title of Sec. 300.503 to be changed to 
``Prior Notice by the Public Agency Before Implementing an IEP.''
    Several commenters asked that a note be added to explain when the 
notice needs to be sent.
    Requests were received to delete Sec. 300.503(b)(6) and to insert 
the phrase ``unless it is clearly not feasible to do so'' as stated in 
Sec. 300.503(c)(ii) whenever language or mode of communication is 
addressed. It was also suggested that a note be added that an LEA must 
document its attempts at accessing resources to assist in translating 
or interpreting information.
    Discussion: Section 300.503(b)(8) was proposed to enhance the 
awareness of parents of low cost and less adversarial mechanisms for 
resolving disputes with school districts. Therefore, it makes sense to 
require State complaint procedures to be explained along with due 
process and mediation rather than in this notice. Since 
Sec. 300.503(b)(6) requires that parents be advised of the existence of 
procedural safeguards and, if the written notice is not part of an 
initial referral for an evaluation, be told how a copy of the 
procedural safeguards notice can be obtained, it would be useful and 
appropriate to add a specific requirement for an explanation of the 
State complaint process in Sec. 300.504(b).
    Procedural safeguard notices must be given to the parents, at a 
minimum, upon the four events set forth at Sec. 300.504(a); between 
those events and the statement mandated at Sec. 300.503(b)(6), agencies 
should have ample instances in which they must provide parents with 
effective notice of the various processes for challenging proposed 
action. Therefore, Sec. 300.503(b)(8) should be deleted and moved to 
Sec. 300.504(b).
    The types of organizations which exist to help parents understand 
IDEA are varied and depend on the particular State. Therefore, a list 
of such organizations in the regulations would not be feasible.
    The regulation is already clear on when the prior written notice 
must be given: a reasonable time before the public agency proposes or 
refuses to initiate or change the child's identification, evaluation, 
educational placement or provision of FAPE. If parental consent is 
required for the proposed action, the notice may be given when parental 
consent is requested. Further, the notice is required at times other 
than only before implementing a child's IEP so the title should not be 
changed.
    Section 300.503(b)(6) is taken directly from the statute. In 
addition, it is difficult to understand when it would not be feasible 
to add the statement required by Sec. 300.503(b)(6).
    It is not necessary to add a note requiring an agency to document 
its efforts to translate or interpret the notice pursuant to 
Sec. 300.503(c)(2)(i) and (ii) since Sec. 300.503(c)(2)(iii) requires 
that the agency can show that Sec. 300.503(c)(2)(i) and (ii) have been 
met.
    Changes: Section 300.503(b)(8) has been deleted and moved to 
Sec. 300.504(b).

[[Page 12609]]

Procedural Safeguards Notice (Sec. 300.504)

    Comment: Several commenters were opposed to specifying the times 
procedural safeguards notice are to be given to the parents, claiming 
such requirements are expensive and burdensome. One commenter asked 
that the terms ``opportunity to present complaints'' and ``due process 
hearings'' be clarified since the two terms seem to mean the same thing 
for purposes of the procedural safeguards notice. Other commenters 
objected to Secs. 300.504(a)(2), 300.504(b)(7), and 300.507(c)(2)(iii).
    There were several suggested additions to the timing and contents 
of the procedural safeguards notice. Commenters suggested that the 
procedural safeguards notice: (1) Also be required when there is a 
decision to remove a child from his or her current educational 
placement for disciplinary actions resulting from behaviors described 
in Sec. 300.520 or Sec. 300.521, or for a period of more than 10 school 
days for other violations; (2) contain information with respect to the 
transfer of rights at the age of majority and the circumstances under 
which tuition reimbursement may be denied; (3) contain information on 
the use of private and public insurance to pay for Part B services; (4) 
contain information as to where parents can receive help in 
understanding procedural safeguards; (5) state that a public agency may 
not deny a parent's right to a due process hearing if the parent fails 
to participate in a meeting to encourage mediation; and (6) include a 
complete listing of all times when the safeguards notice is to be 
provided.
    Discussion: The minimum times the procedural safeguards notice must 
be given to parents is set forth in the statute at section 615(d)(1). 
The fourth requirement, that the notice be given upon receipt of 
request for a due process hearing, comes from the requirement at 
section 615(d)(1)(C) that the notice be given upon registration of a 
complaint under section 615(b)(6).
    The longstanding interpretation of the statutory mandate at section 
615(b)(6) that parents have the opportunity to present complaints 
relating to their child's identification, evaluation, educational 
placement and provision of FAPE, is that they have an opportunity to 
request a due process hearing. Therefore, Sec. 300.504(b)(5) should be 
modified to make clear that the opportunity to be explained is that of 
presenting complaints to initiate due process hearings pursuant to 
Sec. 300.507. Section 300.504(b)(10) as stated is then clearer in that 
it refers to an explanation of the actual due process hearing 
procedures. Also, in adding Sec. 300.504(b)(14), a corresponding change 
to the first paragraph of Sec. 300.504(b) must be made to reference 
State complaint process.
    Sections 300.504(a)(2) and (b)(7) are required by the statute. The 
provision in Sec. 300.504(c)(2)(iii) has been in the regulations since 
1977 and there is no basis for changing the requirement given that 
purpose is to ensure that parents receive assistance in understanding 
the notice.
    Regarding the several suggested additions to the timing and 
contents of the procedural safeguards: (1) Sec. 300.504(b)(7) as 
written addresses situations where children are disciplined and placed 
in interim alternative educational placements; (2) Sec. 300.504(b)(8) 
as written addresses situations resulting in reduction of reimbursement 
of private school tuition; (3) Sec. 300.347(c) requires that at least 
one year before the student reaches the age of majority under State law 
the parents and the student will receive notice of the projected 
transfer of rights through the IEP; (4) Sec. 300.142(e) specifies that 
private insurance can only be used with informed parent consent and 
that public insurance can only be used if it will not result in a cost 
to parents; (5) Sec. 300.503(b)(7) already includes sources for parents 
to use to help in understanding their rights; and (6) 
Sec. 300.504(b)(9) already requires that the mediation process, which 
includes parental rights therein, be fully explained.
    The information on the content and timing of the procedural 
safeguards notice is not included in the statutory description of the 
contents of this notice.
    Changes: As discussed under Sec. 300.503, a new Sec. 300.504(b)(14) 
has been added to address State complaint procedures. The first 
paragraph of Sec. 300.504(b) is amended to recognize this change. 
Section 300.504(b)(5) is amended to refer to presenting complaints to 
initiate due process hearings.

Parental Consent (Sec. 300.505)

    Comment: A few comments suggested that the term ``informed'' be 
inserted before ``parental consent'' in Sec. 300.505(a)(1).
    Several commenters believe that parental consent should be required 
for all reevaluations, not just those where new tests are necessary. 
Other commenters also requested that the term ``new test'' be changed 
to encompass other evaluation procedures. Others stated that the term 
``new test'' confused rather than clarified when consent needed to be 
obtained and requested that it be clarified or deleted. Some commenters 
suggested that an explanation be added to clarify that where additional 
data are needed in order to reevaluate a child, parental consent is 
required. There were also questions regarding the necessity of consent 
for adapted or modified assessments if not part of a reevaluation, such 
as ongoing classroom evaluations (e.g. the Brigance) and counseling.
    Several commenters believe that parental consent should be required 
before special education services are discontinued, for example, upon 
graduation. A few commenters recommended that reevaluations for 
children who are suspended for more than 10 days or expelled should be 
able to proceed even if parental consent is not given.
    The use of Sec. 300.345(d) procedures to meet the reasonable 
measures requirement of Sec. 300.505(c) was opposed by some commenters, 
several of whom believe that documenting efforts to obtain parental 
consent should be sufficient. Some also wanted reasonable measures to 
be defined more specifically.
    Several comments advocated deleting Note 3 and others believed Note 
3 should be incorporated into the regulation. Further, it was 
recommended that the clarification in Note 2 be revised to state that 
the public agency consider implementing its procedures to override a 
parent's refusal to consent to services the public agency believes are 
necessary for the child to receive FAPE, rather than requiring the 
public agency to implement such override procedures.
    Discussion: Parental consent must be informed to be consistent with 
the statute and meaningful. Further, adding the word ``informed'' at 
Sec. 300.505(a)(1) is consistent with the definition, in 
Sec. 300.500(b)(1), of consent.
    In order for children to receive FAPE, the IDEA Amendments of 1997 
emphasized the importance of parent involvement in their children's 
evaluation and placement. The statute requires informed parental 
consent prior to a child's initial evaluation for special education and 
related services, as well as any reevaluations. The intent of this 
statutory change was not to require school districts to obtain parental 
consent before reviewing existing data about the child and the child's 
performance, an activity that school districts, as a matter of good 
practice, should be engaged in as an on-going practice.

[[Page 12610]]

    To require parental consent for collection of this type of 
information would impose a significant burden on school districts with 
little discernable benefit to the children served under these 
regulations. The statute provides that in some instances, an evaluation 
team may determine that additional data are not needed for an 
evaluation or reevaluation. In all instances, parents have the 
opportunity to be part of the team which makes that determination. 
Therefore, no parental consent is necessary if no additional data are 
needed to conduct the evaluation or reevaluation.
    To make this clear and to respond to commenters who believed that 
requiring parental consent only when conducting a new test as part of 
the reevaluation was too narrow, the regulation should be revised to 
specify that parental consent must be obtained before conducting an 
evaluation or reevaluation, to delete proposed paragraph (a)(1)(iii) 
and add a new provision to state that parental consent need not be 
obtained before reviewing existing data as a part of an evaluation or 
reevaluation or before administering a test or other evaluation that is 
administered to all children unless consent is required of all parents.
    Parental consent would be necessary if a test is conducted as a 
part of an evaluation or reevaluation, and when any assessment 
instrument is administered as part of an evaluation or reevaluation. 
However, schools would not be required by these regulations to obtain 
parental consent for teacher and related service provider observations, 
ongoing classroom evaluation, or the administration of or review of the 
results of adapted or modified assessments that are administered to all 
children in a class, grade, or school.
    If a child is about to graduate or otherwise stop receiving special 
education and related services, Sec. 300.503's prior notice 
requirements would be triggered. Section 300.503 requires that written 
notice must be sent to the parents before a proposed change in 
identification, evaluation, placement, or the provision of FAPE is 
effective, thereby allowing the parent the opportunity to object to the 
proposal. It is not appropriate to regulate further on this issue here.
    Paragraph (b) of this section addresses the procedures an agency 
can use if it wants to pursue an evaluation or reevaluation, but the 
parents have refused consent. The agency may seek to do the evaluation 
or reevaluation by using the due process or mediation procedures under 
Part B of the Act unless doing so would be inconsistent with State law 
relating to parent consent. Proposed Notes 1 and 3, and the second part 
of proposed Note 2 were attempts to clarify the interplay between the 
Federal requirement to provide FAPE and any State laws and policies 
which may not permit educational agencies to override refusals of 
parents to consent to evaluations and reevaluations.
    In practical terms, if a State does not allow the agency to 
override a parent's refusal for an initial evaluation or reevaluation 
which the agency deems necessary in order to provide FAPE, the agency, 
under paragraph (b), must follow the requirements of State law. In 
cases where the evaluation or reevaluation is necessary in order to 
determine that the child is or continues to be a child with a 
disability under Part B of the Act, and State law prohibits an agency 
from overriding a parental refusal to consent, the agency may have no 
recourse but to not provide, or not continue to provide, services under 
the Act to the child.
    On the other hand, if State law does not prohibit the agency from 
overriding a parental refusal to consent to an evaluation or 
reevaluation, and the agency believes that an evaluation or 
reevaluation is necessary in order to provide FAPE, the agency would 
have to take appropriate action.
    If State law provided a mechanism different than due process or 
mediation under Part B as the means to override a parent refusal of 
consent, and the agency deems the evaluation or reevaluation necessary 
in order to provide FAPE, the agency would use the State mechanism to 
pursue the evaluation. If State law permits agencies to override a 
parental refusal to consent to an evaluation or reevaluation, but does 
not specify the procedures to use, and the agency determines that the 
evaluation or reevaluation was necessary in order to provide FAPE to 
the child, the agency would use the due process and mediation 
procedures under Part B of the Act.
    Of course, if an agency proposed an evaluation or reevaluation and 
the parent refused consent, the agency could reconsider whether its 
proposed evaluation or reevaluation was necessary, if the circumstances 
warrant. However, in light of the general decision to remove all notes 
from the regulations implementing Part B of the Act, the notes should 
be removed.
    Paragraph (c) of this section addresses situations in which an 
agency seeks parental consent for a reevaluation, but the parent fails 
to respond. Given the importance of parental involvement, the 
procedures a public agency must use to demonstrate that it has taken 
reasonable measures to obtain parental consent pursuant to 
Sec. 300.505(d) should be consistent with the procedures in 
Sec. 300.345(d) that a public agency must use to inform and encourage 
parents to attend IEP meetings. The methods described in 
Sec. 300.345(d) are examples of how to attempt and document the steps 
that the public agency has taken to obtain parental participation in an 
IEP meeting, and are applicable to a public agency's attempts to obtain 
parental consent pursuant to 34 CFR 300.505.
    Section 300.345(d) does not require a public agency to take all of 
the steps mentioned before conducting the meeting. A public agency may 
use a method which is different from the ones listed at Sec. 300.345(d) 
to demonstrate that it has attempted to obtain parental consent as long 
as it can demonstrate that its methods were appropriate. Therefore, the 
language concerning the use of the Sec. 300.345(d) procedures to meet 
the reasonable measure requirement of Sec. 300.505(c) should be 
retained.
    Under paragraph (d) of this section if a State adopts consent 
requirements in addition to those required in Sec. 300.505(a)(1), 
public agencies are not excused from their obligation to provide FAPE 
because a parent refuses to consent unless the public agency has taken 
the steps necessary to resolve the matter. In order to resolve the 
disagreement with the parent, it is appropriate for the public agency 
to use informal means initially, such as a parent conference. However, 
if these informal means prove unsuccessful, the public agency must use 
its override procedures if it continues to believe that the disputed 
service or activity is needed in order for the child to receive FAPE.
    Paragraph (e) of this section contained a typographical error 
because it should have referred to consent required under paragraphs 
(a) and (d), consistent with the prior regulations. With regard to 
paragraph (e), it is important to recognize that except for the service 
or activity for which consent is required under paragraphs (a) and (d), 
parent refusal to consent to one service or benefit may not be used to 
deny the parent or child any other service or benefit available to 
them. For example, if a State requires parental consent to the 
provision of all services identified in the IEP, and the parent refuses 
to consent to physical therapy services included in the IEP, the agency 
is not relieved of its obligation to implement those portions of the 
IEP to which the parent consents. Similarly, a parent

[[Page 12611]]

refusal to consent to a reevaluation may not be used to deny a child 
the right to participate in a class trip. A parent refusal to consent 
to the collection of additional data that a public agency believes is 
needed as a part of a reevaluation may not be used to deny the child 
the services that are not in dispute. In addition, a parent refusal to 
consent to the collection of additional data that the agency thinks 
necessary to determine whether the child continues to be a child with a 
disability may not result in the exclusion of the child from special 
education and related services because Sec. 300.534(c)(1), which 
reflects the statutory requirements of section 614(c)(5), requires a 
full evaluation before determining that a child is no longer a child 
with a disability. To make this point more clearly, paragraph (e) would 
be revised.
    Changes: Section 300.505(a)(1) has been amended to refer to 
``informed parent consent,'' and to delete the unnecessary reference to 
programs providing special education and related services. A reference 
to reevaluation has been added to paragraph (a)(1)(i), paragraph 
(a)(1)(iii) has been deleted, and a new paragraph (a)(3) added to 
specify that parental consent is not required before reviewing existing 
evaluation data as a part of an evaluation or reevaluation or for 
administering a test used with all children unless consent is required 
of all parents. Paragraph (e) has been revised to provide that a public 
agency may not use a parental refusal to consent to one service or 
benefit under paragraphs (a) and (d) to deny the parent or child 
another service, benefit, or activity, except as may be required by 
these regulations. The notes following this section have been removed.

Mediation (Sec. 300.506)

    Comment: Several commenters asked that the terms ``SEA'' and 
``LEA'' be used in lieu of ``public agency'' since the statute uses 
those terms. There were also requests for a clarification of the 
State's responsibility for the costs of the mediation process.
    There were a few requests for clarification of who may be 
mediators, such as whether or not former LEA employees would be able to 
be mediators. There were comments asking for more restrictions on who 
could be a mediator and comments asking for fewer restrictions, 
especially where a public school district already has certain mediators 
under state law or regulation. The latter commenters believe the 
restrictions should only address employees of an agency that is 
providing direct services to a child who is the subject of the 
mediation or any state agency described in Sec. 300.20.
    There was also the suggestion that LEA employees be permitted to 
serve as mediators, however, either party would have the right to 
reject such selection. The commenters pointed out that there is no 
similar prohibition against LEA employees being hearing officers and 
several questioned whether the restrictions were therefore necessary. 
Some commenters suggested that the regulation make clear that multiple 
mediators or mediation panels are allowed, i.e., that a single mediator 
is not required for each mediation.
    Other comments recommended that Note 1 be deleted, while others 
asked that it be included in the text of the regulation. With regard to 
Note 1, for situations in which agreement on a mediator could not be 
reached, commenters sought additional guidance in the regulation.
    Other suggestions for the mediation process included promoting 
mediation even before a due process hearing is requested and allowing 
an LEA to select a mediator who it believes is best able to resolve 
issues in dispute. There were comments that mediation should be allowed 
to occur via telephone when necessary. Several commenters asked that 
the agreement reached in mediation be added to the child's IEP as soon 
as possible after the agreement is reached, however not later than 10 
days from the agreement. Commenters also requested that the regulation 
specify that the written mediation agreement would be as enforceable as 
a due process hearing decision, and that mediation discussions may be 
disclosed in any proceeding brought to enforce a mediation agreement.
    Some comments stated that there appeared to be a conflict between 
Secs. 300.506(d)(1) and 300.506(d)(2). The former allows a public 
agency to require parents who elect not to go to mediation to meet with 
a disinterested party to learn about the mediation process. The latter 
states that if a parent does not participate in the informational 
meeting regarding mediation the public agency may not deny or delay the 
parent's right to due process hearing. The comments suggested changing 
Sec. 300.506(d)(1) to state that the procedures may ``request'' not 
``require'' the parents to learn about mediation. A few comments 
requested a specific definition of the term ``disinterested party'' and 
parent information and training centers, as well as clarification of 
any supervision required over disinterested parties. There were also 
comments which asked that LEAs be required to mediate if the parents 
agree, as well as be required to attend a mediation informational 
meeting if it chooses not to mediate.
    Discussion: Mediation is an important alternative system for 
resolution of disputes under Part B. However, in order for mediation to 
be effective, it must be an attractive alternative to both public 
agencies and parents and it must be an impartial system which brings 
the proper parties into a confidential discussion of the issues and 
allows for a binding agreement that resolves the dispute.
    The statute clearly states that the option of mediation must be 
available whenever a due process hearing is requested. No further 
requirement would be added to the regulations. However, States or other 
public agencies are strongly encouraged to offer mediation or other 
alternative systems of dispute resolution prior to the filing of a 
request for a due process hearing, and whenever a dispute arises.
    An expanded use of mediation should enable prompt resolution of 
disputes and lead to a decrease in the use of costly and divisive due 
process proceedings and civil litigation. Mediation may also be useful 
in resolving State complaints under Secs. 300.660-300.662.
    The term ``public agency'' in the regulation appropriately includes 
State and local educational agencies as well as other agencies in the 
State that may have responsibility for the education of children with 
disabilities because it ensures access to the mediation process, 
regardless of the agency that provides educational services. The 
requirement that the State bear the cost of the mediation process is 
clearly set out in the regulation; however, the regulation should be 
revised to correctly refer to the meetings to encourage the use of 
mediation. In addition, the potential savings of mediation, when 
compared to litigation, make it an attractive, low-cost option for most 
public agencies.
    While there is nothing in the Part B regulations that precludes 
parents and LEA employees from attempting to resolve disputes through 
an informal process, the use of current LEA employees as mediators 
would make mediation a much less attractive alternative to parents. The 
regulatory provisions regarding the impartiality of mediators and the 
requirement of specialized expertise in laws and regulations relating 
to the provision of special education and related services are intended 
to be more stringent than the Federal requirements for impartial 
hearing officers to ensure that mediation is a more attractive option 
for parents, and an effective option for both parties. The use of a 
single mediator in the

[[Page 12612]]

mediation process is important for clear communication and 
accountability.
    Paragraph (b)(1)(iii) of this section, which repeats statutory 
language, is clear that each mediation be conducted by one mediator, as 
opposed to a panel or multiple mediators.
    Another factor that will determine the success of mediation within 
a State is the selection process for mediators. It is important to note 
that with respect to paragraph (b)(2) of this section, the Senate and 
House Committee Reports on Pub. L. 105-17 include the following 
statement:

    * * * the bill provides that the State shall maintain a list of 
individuals who are qualified mediators. The Committee intends that 
whenever such a mediator is not selected on a random basis from that 
list, both the parents and the agency are involved in selecting the 
mediator, and are in agreement with the individual who is selected. 
(S. Rep. No. 105-17, p. 27 (1997); H. Rep. No. 105-95, p. 106 
(1997).)

    The success of a mediation system will be closely related to both 
parties' trust and commitment to the process. The first test of that 
process will be the selection of the mediator. Parties that mistrust 
the mediator selection process may be less likely to reach agreement on 
substantive issues. Therefore, reflecting the language of the 
Committees' reports on this topic, a change should be made to the 
regulation to specify that if a mediator is not selected on a random 
basis from the State-maintained list, both parties are involved in 
selecting the mediator and are in agreement with the selection of the 
individual who will mediate.
    Like hearing officers, mediators must be able to be paid by the 
State, without impacting their impartiality. Language similar to that 
used for impartial hearing officers should be added to the regulation 
to clarify that even though a mediator is paid for his or her services 
as a mediator, such payment does not make that mediator an employee for 
purposes of impartiality.
    The regulatory requirement for the use of a qualified mediator 
instructed in effective mediation techniques will ensure that decisions 
about the effectiveness of specific techniques, such as the need for 
face-to-face negotiations, telephone communications, or IEP 
implementation provisions, will be based upon the mediator's 
independent judgment and expertise. Therefore, it is not necessary to 
regulate on these issues.
    The enforceability of a mediation agreement, like the 
enforceability of other binding agreements, including settlement 
agreements, will be based upon applicable State and Federal law. With 
regard to the provision in paragraph (b)(6) of this section that 
mediation discussions must be confidential and may not be used in any 
subsequent due process hearings or civil proceedings, the Senate and 
House Committee Reports on Pub. L. 105-17 note that ``nothing in this 
bill shall supersede any parental access rights under the Family 
Educational Rights and Privacy Act of 1974 or foreclose access to 
information otherwise available to the parties.'' (S. Rep. No. 105-17, 
p. 27 (1997); H. Rep. No. 105-95, p. 107 (1997)). The Reports also 
include an example of a confidentiality pledge, which makes clear that 
the intent of this provision is to protect discussions that occur in 
the mediation process from use in subsequent due process hearings and 
civil proceedings under the Act, and not to exempt from discovery, 
because it was disclosed during mediation, information that otherwise 
would be subject to discovery.
    Regarding the perceived conflict between Sec. 300.506(d)(1) and 
(d)(2), the mediation process, including meetings to discuss the 
benefits of mediation, should not be used to deny or delay parents' due 
process hearing rights. The purpose behind Sec. 300.506(d)(2) is to 
ensure that in situations where parents are unwilling or unable to 
cooperate with a public agency regarding a meeting to discuss the 
benefits of mediation, there is still a timely resolution of the due 
process hearing. In general, a hearing officer should not extend the 
timelines for a due process hearing based on the fact that there is a 
pending mediation in the case unless both parties have agreed to that 
extension. If mediation is used in the resolution of a State complaint, 
it should not be viewed as creating, in and of itself, an exceptional 
circumstance justifying an extension of the 60 day time line. While the 
State or local educational agency may require that the parent attend 
the meeting to receive an explanation of the benefits of mediation and 
to encourage its use, a parent's failure to attend this meeting prior 
to the due process hearing should not be used to justify delay or 
denial of the hearing or the hearing decision.
    It is not necessary to define the terms ``parent training and 
information centers'' or ``community parent resource center'' since 
they are established by statute. To allow flexibility with regard to 
the designation of a ``disinterested party'' by the parent 
organizations or an appropriate alternative dispute resolution entity, 
no definition would be provided. Consistent with the general decision 
to remove all notes from these final regulations, Notes 1 and 2 would 
be removed.
    Changes: A new paragraph (b)(2)(ii) is added to specify that the 
mediator be selected from the list on a random basis, such as a 
rotation, or that both parties are involved in selecting the mediator 
and agree with the selection of the individual who will mediate. Notes 
1 and 2 have been removed. Paragraph (b)(3) has been revised to refer 
to the meetings to encourage the use of mediation.
    Another new paragraph (c)(2) is added to clarify that payment for 
mediator services does not make the mediator an employee for purposes 
of impartiality.

Impartial Due Process Hearing; Parent Notice (Sec. 300.507)

    Comment: There were several comments requesting changes to 
Sec. 300.507. With regard to the model form for hearing requests, some 
commenters requested that where the public agency requests the due 
process hearing, the public agency would provide the notice requested 
of the parents at Sec. 300.507(c)(1) and (c)(2). Others requested that 
parent information and training centers and the general public be 
required to assist in developing the model form required in 
Sec. 300.507(a)(3).
    The Department also received comments asking that 
Sec. 300.507(c)(4) be modified so that LEAs can ask a hearing officer 
to delay a due process hearing for a reasonable period of time until 
the parents provide the district with the required pre-hearing notice. 
Some commenters suggested that parents be informed of free and low cost 
legal advocacy as a matter of routine, not just after requesting a due 
process hearing. Other commenters sought additional language specifying 
that LEAs be barred from coming to a due process hearing with a new IEP 
developed without direct parental input and based on the information 
given by the parents in the hearing request.
    Commenters also requested that the statutory provisions regarding 
attorneys' fees at sections 615(i)(3)(D) and (F) of the Act be included 
in this regulation. Others requested that the term ``or refusal to 
initiate or change'' be added to Sec. 300.507(c)(2)(iv).
    Some commenters asked that the Department delete Note 1, while 
others asked that Note 1 be written into the regulation itself.
    Discussion: The prior written notice requirement of Sec. 300.503 is 
sufficient to inform parents of what the public agency is proposing. 
Therefore, any hearing request by the public agency on

[[Page 12613]]

that proposal would not require an additional notice by the agency. 
Another notice would be repetitive and overly burdensome. Likewise, 
many public agencies already have existing model forms for hearing 
requests. Since the statute and regulation specify the information 
which parents must disclose in the hearing request, additional input 
from parent information and training centers or the general public is 
unnecessary and would create additional burdens without much benefit.
    The Senate and House Committee Reports on Pub. L. 105-17 note that 
attorneys' fees to prevailing parents may be reduced if the attorney 
representing the parents did not provide the public agency with 
specific information about the child and the basis of the dispute 
described in paragraphs (c)(1) and (2) of this section. With respect to 
the intent of the new notice provision, the Reports include the 
following statement:

    * * * The Committee believes that the addition of this provision 
will facilitate an early opportunity for schools and parents to 
develop a common frame of reference about problems and potential 
problems that may remove the need to proceed to due process and 
instead foster a partnership to resolve problems. (S. Rep. No. 105-
17, p. 25 (1997); H. R. Rep. No. 105-95, p. 105 (1997)).

    The changes to Sec. 300.513 clarify the potential for reduction of 
attorneys' fees in cases where proper notice is not given by the 
parents' attorney. Therefore, a reference to attorneys' fees is not 
necessary here.
    Matters such as what evidence should and should not be presented 
and requests for extensions of time, should be handled on a case-by-
case basis by the impartial hearing officer presiding over the hearing. 
It has also been the Department's long-standing position that Part B of 
the Act and the regulations under Part B do not provide any authority 
for a public agency to deny a parent's request for an impartial due 
process hearing, even if the agency believes that the parent's issues 
are not new. Thus, the determination of whether or not a parent's 
request for a hearing is based on new issues can only be made by an 
impartial hearing officer.
    The request for modification of the regulation at 
Sec. 300.507(c)(2)(iv) to include situations where the nature of the 
problem is the public agency's refusal to initiate or change the 
provision of a free appropriate public education, is consistent with 
the requirements of Sec. 300.507(a)(1). In light of the general 
decision to remove all notes from these final regulations, Notes 1 and 
2 should be removed.
    Changes: Section 300.507(c)(2)(iv) is amended to make clear that a 
problem may have arisen as a result of an agency's proposal or refusal 
to act. Notes 1 and 2 have been removed.

Impartial Hearing Officer (Sec. 300.508)

    Comment: The Department received several comments requesting 
amendments to the regulation on hearing officers in two main aspects--
qualifications and public notice of such qualifications. In the first 
area, commenters stated that persons who are employees of any LEA, 
persons who were employees of an SEA or LEA and were involved in the 
care or education of any child in the past 5 years, and attorneys who 
represent primarily the school district or parents cannot be hearing 
officers. In the second area, commenters requested that hearing 
officers be required to take training and competency examinations 
designed by this Department and supplemented with State-specific 
elements. Several commenters also want SEAs to publish the criteria 
they use to choose hearing officers and that the list of all the 
hearing officers and their credentials be provided to parents 
requesting a due process hearing. Commenters also suggested that the 
regulation require that if a sublist of hearing officers is generated 
for a particular hearing, the parents or their representative be 
present at the meetings where the sublist is selected. Further, 
commenters asked that the statement of the qualifications of hearing 
officers be updated annually and the impartiality of a hearing officer 
be determined by an objective standard, such as a State's Code of 
Judicial Conduct.
    Discussion: The regulation, in conjunction with State ethics 
requirements for attorneys and judges, are sufficient to address the 
concerns raised by commenters with regard to potential conflicts. In 
States where there are no formal ethical standards for administrative 
hearing officers, the issue should be addressed within the State. A 
prior employee of an LEA or SEA should not be barred from serving as a 
hearing officer where there is no personal or professional interest 
that would conflict with his or her objectivity in the hearing. Hearing 
officers, like judges, are capable of making independent determinations 
of potential conflicts of interest, including a determination of 
whether he or she has knowledge or information about a particular child 
derived from outside the hearing process which would impact upon his or 
her impartiality.
    Although numerous commenters asked for national standards, 
training, and examinations for impartial hearing officers, decisions 
about training and hearing officer selection, including the use of 
sublists, should be left to States. Since hearing officers' decisions 
are subject to judicial review, there is a strong incentive for States 
to choose qualified hearing officers, conduct appropriate training and 
establish standards of expertise. Hearing decisions that are not 
soundly decided will lead to further litigation, be more likely to be 
reversed and create higher costs. In addition, reviewing courts are 
less likely to give judicial deference to a hearing officer where his 
or her qualifications show no expertise in the area of special 
education.
    Changes: None.

Hearing Rights (Sec. 300.509)

    Comment: There were several specific comments regarding hearing 
rights. With respect to the additional disclosure of information, some 
commenters stated that the time frame should be 5 school days, not 
business days, prior to a hearing, and the recommendations should be 
clarified as written recommendations which may be summaries of oral 
recommendations. A few commenters also suggested that 
Sec. 300.509(a)(3) and (b) use the same standard of business days to 
avoid confusion.
    With respect to the parental hearing rights, some commenters 
suggested that since it sometimes not in the interest of the child to 
be present at the hearing, the parents should have the right to have 
the child who is the subject of the hearing present for only a portion 
of the hearing. There were also comments that a free written record is 
too expensive for States to provide, as well as comments that a 
verbatim recording should be at no cost to the parents.
    With respect to general hearing rights, commenters asked that 
evidence that has not been disclosed within the appropriate time frame 
not be allowed unless agreed to by both parties or for good cause shown 
for the failure to disclose in advance. Commenters also asked that the 
regulations state that the only pre-hearing discovery allowed is the 
exchange of information set forth in Sec. 300.509. Finally, commenters 
requested that hearing decisions be made available to the public at 
least on a quarterly basis.
    Discussion: The establishment of two separate time frames for the 
prehearing disclosure of documents because the term ``5 business days'' 
is used in Sec. 300.509(b)(1) and the term ``5 days'' is used in 
paragraph (a)(3) of this section will lead to confusion and additional 
litigation and costs. In order to prevent

[[Page 12614]]

this, the time frame for disclosure would be set to 5 business days 
prior to the hearing. This change would be consistent with prior 
interpretations by the Department, which recognized that the intent of 
prehearing disclosure is to avoid surprise by either party at the 
hearing. The hearing officer has discretion to determine the 
consequences of not meeting the disclosure time line, and may prohibit 
the introduction of the evidence or may allow the rescheduling of the 
hearing so that timely disclosure is possible.
    Some States chose to allow the use of other discovery procedures 
prior to a due process hearing. States should continue to have this 
discretion as they are not prohibited from doing so by Part B.
    Access to a written verbatim record of the hearing is vital for 
parents to exercise their full due process rights. Although there are 
costs associated with the statutorily mandated shift of the choice 
between an electronic or written record of the hearing from the public 
agency, as newer technologies are better capable of generating accurate 
transcriptions, these costs will decrease.
    Parents must continue to have the choice to have the child be 
present for all or part of the hearing, at their discretion. For some 
youth with disabilities, observing and even participating in the 
hearing will be a self-empowering experience in which they can learn to 
advocate for themselves. This long-standing choice should not be taken 
away from parents. This choice takes on added significance in light of 
the new provisions that allow States to transfer parental rights to 
students at the age of majority. Under this new authority, there may be 
more situations where students will have to be present at and 
participate in due process hearings.
    Implicit in the requirement that hearing decisions be made 
available to the public, is the requirement that they be made available 
within a reasonable amount of time. Therefore, no specific time 
requirement is needed in the regulation.
    Changes: Paragraph (a)(3) of this section is changed to require 
disclosure at least 5 business days before the hearing.

Finality of Decision; Appeal; Impartial Review (Sec. 300.510)

    Comment: Several comments regarding the availability of SEA hearing 
decisions, asked that such decisions be distributed directly to various 
organizations and allow parents to receive the findings under 
Sec. 300.510(b)(2)(vi) in an electronic format. Other comments 
requested that hearing officers be allowed to amend decisions once they 
are final to correct for technical errors, similar to Rule 60 of the 
Federal Rules of Civil Procedure.
    One commenter asked that Notes 1 and 2 be incorporated into the 
regulation itself and several commenters pointed out that the reference 
in Sec. 300.510(b)(2)(iii) should be to Sec. 300.509 not Sec. 300.508.
    Discussion: There were two typographical errors in the proposed 
regulation with respect to references to other sections. In 
Sec. 300.510(b)(2)(iii) the reference to Sec. 300.508 should be to 
Sec. 300.509 consistent with the prior regulatory reference. In 
Sec. 300.510(d), the reference to Sec. 300.511 should be to 
Sec. 300.512, also consistent with the prior regulatory reference.
    The reference in Sec. 300.510(b)(vi) to written findings and 
decision should be changed to be consistent with Sec. 300.509(a)(5) and 
allow the choice of electronic or written findings of fact and 
decision.
    It is not necessary to regulate on whether hearing officers are 
allowed to amend their decisions for technical errors. This matter is 
left to the discretion of hearing officers and States; however, proper 
notice should be given to parents if State procedures allow for 
amendments and a reconsideration process may not delay or deny parents' 
right to a decision within the time periods specified for hearings and 
appeals.
    It has been the Department's position that the SEA may conduct its 
review either directly or through another State agency acting on its 
behalf. However, the SEA remains responsible for the final decision on 
review. In addition, all parties have the right to continue to be 
represented by counsel at the State administrative review level, 
whether or not the reviewing official determines that a further hearing 
is necessary. If the reviewing official decides to hold a hearing to 
receive additional evidence, the other rights in Sec. 300.509 relating 
to hearings also apply. However, in light of the general decision to 
remove all notes from these final regulations, Notes 1 and 2 would be 
removed.
    Changes: In Sec. 300.510(b)(2)(iii) the reference to Sec. 300.508 
has been changed to Sec. 300.509. In Sec. 300.510(d), the reference to 
Sec. 300.511 has been changed to Sec. 300.512. The reference in 
Sec. 300.510(b)(2)(vi) to written findings and decision has been 
changed to be consistent with Sec. 300.509(a)(5) and allow the choice 
of ``electronic or written findings of fact and decision.'' Notes 1 and 
2 have been removed.

Timelines and Convenience of Hearings and reviews (Sec. 300.511)

    Comment: A few comments were received regarding Sec. 300.511 which 
requested that (1) the 45 and 30 day timelines be specified as 45 and 
30 school days; (2) it be clear that hearing officers have discretion 
to deny requests for extensions of time since extensions may delay 
hearings for a long time; and (3) delete Sec. 300.511(a) or change it 
to make the SEA responsible for timelines.
    Discussion: There is not sufficient consensus or evidence of need 
to change the long-standing interpretation of the hearing and review 
timelines from calendar days to ``school days.'' In addition, the 
potential impact of no ``school days'' during the summer months would 
make the delay in parents' access to due process hearings and decisions 
unreasonable.
    The use of the word ``may'' instead of ``shall'' in 
Sec. 300.511(c), means that the granting of specific extensions of time 
are at the discretion of the hearing or review officer. It is not 
necessary to clarify that this discretion means that requests for 
extensions can be denied as well as granted since this is implicit in 
the regulation.
    There is no need to change the regulation to reflect the State's 
responsibility for compliance with timelines because in addition to the 
language in this regulation, Sec. 300.600 continues to hold the State 
ultimately responsible for noncompliance.
    Changes: None.

Civil Action (Sec. 300.512)

    Comment: A commenter pointed out that Sec. 300.512 had a few 
typographical errors since the reference to Sec. 300.510(b)(2) should 
be to Sec. 300.510(b)(1) and the reference to Sec. 300.510(e) should be 
to Sec. 300.510(b).
    Discussion: There were typographical errors in this section in the 
NPRM, however the reference to Sec. 300.510(b)(2) should be to 
Sec. 300.510(b) and the reference to Sec. 300.510(e) should be to 
Sec. 300.510(b).
    Changes: The reference to Sec. 300.510(b)(2) has been changed to 
Sec. 300.510(b) and the reference to Sec. 300.510(e) has been changed 
to Sec. 300.510(b).

Attorneys' Fees (Sec. 300.513)

    Comment: Many commenters requested that Sec. 300.513 include the 
provisions from sections 615(i)(3)(D) and (F) of the Act regarding 
instances where attorneys fees are prohibited or may be reduced. 
Several commenters also asked that a note be added to state that 
attorneys' fees may be awarded if

[[Page 12615]]

an IEP team meeting occurs after a hearing request but before the 
hearing.
    Several commenters requested that the note on hearing officers be 
deleted, stating that the awarding of attorneys' fees should be left to 
the courts. One commenter stated that if hearing officers are allowed 
to award attorneys' fees, they should be trained in, and use, the 
criteria used by Federal courts in determining attorneys' fees.
    One commenter also asked that Sec. 300.513(b) be deleted.
    Discussion: By inserting all the statutory provisions regarding 
attorneys' fees into the regulations, most of the suggestions will be 
adequately addressed and additional clarity will be added.
    Based upon the absence of consensus, the Department will continue 
to allow maximum flexibility to States for structuring the process by 
which parents who are prevailing parties under Part B of the Act may 
request attorneys' fees reimbursement.
    It is important to maintain paragraph (b)(1) of this section, 
because the limited Federal resources under the Act should be used to 
provide special education and related services and not be used to 
promote litigation of disputes. Further, that paragraph has been 
modified to make it clear that the prohibition against using Part B 
funds for attorney's fees also applies to the related costs of a party 
in an action or proceeding, such as depositions, expert witnesses, 
settlements, and other related costs. In addition, a new paragraph 
(b)(2) of this section has been added to clarify that the prohibition 
in paragraph (b)(1) does not preclude a public agency from using funds 
under Part B of the Act to conduct an action or preceding under section 
615 of the Act, such as the cost of paying a hearing officer and 
providing the place for conducting the action or proceeding.
    In light of the general decision to remove all notes from the final 
regulations under the Act, the note following this section in the NPRM 
would be removed. The proposed note was merely intended to suggest that 
States could choose as a matter of State law to permit hearing officers 
to award attorneys' fees to parents who are prevailing parties under 
Part B of the Act, and not to require that they do so, or imply that 
IDEA would be the source of the authority for granting hearing officers 
that role. If a State allows hearing officer's to award attorney's 
fees, requirements regarding training on attorneys fees would be a 
State matter.
    Changes: Paragraph (b) has been revised to prohibit use of funds 
provided under Part B for related costs. The regulation has been 
amended to include all of the provisions of section 615(i)(3)(C)-(G) of 
the Act. The note following this section has been removed.

Child's Status During Proceedings (Sec. 300.514)

    Comment: Although a few commenters agreed with the provision in 
Sec. 300.514(c), many commenters objected to it. Section 300.514(c) 
states that if the decision in a due process hearing or administrative 
appeal agrees with the parents that a change of placement is 
appropriate, the decision must be treated as an agreement between the 
State or local agency and the parents for purposes of maintaining the 
child's placement pursuant to Sec. 300.514(a). Commenters saw this 
provision as one-sided and suggested that it be limited to where there 
is agreement by all the parties. In the alternative, commenters 
suggested that the provision be deleted and that decisions as to 
whether a hearing officer's or review official's decision constitutes 
an agreement be left to the courts.
    Commenters requested a definition of the term ``current 
placement,'' with some suggesting that the definition include the 
current location where the child receives services.
    Some of the comments indicated confusion as to which proceedings 
are referenced in Sec. 300.514. Commenters were unsure whether the 
regulation references only the administrative and judicial due process 
proceedings established by section 615 of the Act, or also the State 
complaint procedures established by Secs. 300.660-300.662.
    Commenters requested that when referring to parents in this 
regulation, students who have reached the age of majority also be 
referenced. Further clarification also was requested regarding a 
parent's right to remove his or her child from the current placement 
and place them elsewhere during the pendency of the applicable 
proceedings if the parent believes FAPE is not being provided.
    Discussion: The provisions maintaining the child's current 
educational placement pending proceedings regarding a complaint is a 
right afforded to parents to protect children with disabilities from 
being subjected to a new program that parents believe to be 
inappropriate. The provisions are intended to apply only to the due 
process proceedings and the subsequent civil action, if any, brought 
under section 615 of the Act, and not to the State complaint procedures 
in Secs. 300.660-300.662, which are authorized by the General Education 
Provisions Act. This position is consistent with the Department's prior 
interpretation.
    It is important to note that these provisions would only apply 
where there is a dispute between the parent and the public agency that 
is the subject of administrative or judicial proceedings. If there is 
no such dispute that is the subject of a proceeding, then the placement 
may be changed and this section does not apply.
    This section does not permit a child's placement to be changed by 
the public agency during proceedings regarding a complaint, unless the 
parents and agency agree otherwise. While the placement may not be 
changed unilaterally by the public agency, this does not preclude the 
parent from changing the placement at their own expense and risk. It is 
also important to note that this provision does not preclude the agency 
from using its normal procedures for dealing with children who are 
endangering themselves or others, including, as appropriate to the 
circumstances, seeking injunctive relief from a court of competent 
jurisdiction. In addition, even where there is disagreement between the 
parents and the public agency, the provisions of Sec. 300.521 still 
allow a hearing officer to change the placement of a child with a 
disability who is substantially likely to injure self or others to an 
appropriate interim alternative educational setting for not more than 
45 days.
    Paragraph (c) is based on long-standing judicial interpretation of 
the Act's pendency provision that when a State hearing officer's or 
State review official's decision is in agreement with parents that a 
change in placement is appropriate, that decision constitutes an 
agreement by the State agency and the parents for purposes of 
determining the child's current placement during subsequent appeals. 
See, e.g., Burlington School Committee v. Dept. Of Educ., 471 U.S. 359, 
371 (1985); Susquentia School District v. Raelee S., 96 F.3d 78, 84 
(3rd Cir. 1996); Clovis Unified v. Office of Administrative Hearings, 
903 F.2d 635, 641 (9th Cir. 1990). Paragraph (c) of this section 
incorporates this interpretation. However, this provision does not 
limit either party's right to seek appropriate judicial review under 
Sec. 300.512, it only shifts responsibility for maintaining the 
parent's proposed placement to the public agency while an appeal is 
pending in those instances in which the State hearing officer or State 
review official determines that the parent's proposed change of 
placement is appropriate.

[[Page 12616]]

    The term ``current placement'' is not readily defined. While it 
includes the IEP and the setting in which the IEP is implemented, such 
as a regular classroom or a self-contained classroom, the term is 
generally not considered to be location-specific. In addition, it is 
not intended that a child with disabilities remain in a specific grade 
and class pending an appeal if he or she would be eligible to proceed 
to the next grade and the corresponding classroom within that grade.
    There is no need to add a reference to children with disabilities 
who reach the age of majority in this regulation. The transfer of 
parental rights at the age of majority is discussed in another section 
of the regulations, Sec. 300.517, and will not be referenced in every 
other section to which it applies.
    There is also no need to address the parents' ability to change the 
child's placement unilaterally at their own expense since this issue is 
addressed in Sec. 300.403.
    Consistent with the general decision to remove all notes from these 
regulations, the note would be removed.
    Changes: The note has been removed.

Surrogate Parents (Sec. 300.515)

    Comment: Several commenters suggested that the regulation include 
clear procedures for terminating surrogate parents who do not 
appropriately fulfill their responsibilities and include in those 
procedures the consideration of the student's opinion. Relatedly, some 
commenters recommended that the regulation state that LEAs cannot 
impose sanctions or threaten sanctions if surrogate parents make 
decisions the LEA opposes.
    There were also comments regarding the selection of surrogate 
parents. Some commenters asked that surrogates not be employees of 
private agencies who are involved in the education or care of the child 
since there is a potential conflict of interest where the public agency 
contracts with and pays the private agencies to provide services for 
the child. Another suggestion was that child welfare workers not be 
surrogate parents, but that foster parents be allowed, if qualified. 
One commenter agreed that representatives of the welfare system should 
not be surrogate parents but believed foster care representatives 
should also be barred. One commenter asked that the regulation require 
public agencies to assign surrogate parents designated by a parent, 
provided such persons meet the qualifications, thereby giving parents 
the right to voluntarily designate a surrogate parent and rescind such 
designation at any time.
    Some comments also stated that Sec. 300.19(b)(2) conflicts with 
Sec. 300.515 because in Sec. 300.515 the appointment of a surrogate 
parent is mandatory if the child is a ward of the State, regardless of 
whether the child has a foster parent who meets the ``parent'' criteria 
in Sec. 300.19(b)(2). The comments recommended including an exception 
from the mandate of surrogate parent appointments for any ward of the 
State whose foster parent is a parent in accordance with 
Sec. 300.19(b)(2).
    Discussion: There is insufficient evidence of a wide-spread problem 
of irresponsible surrogate parents which would require regulatory 
procedures for termination. Therefore, the issue of the need for 
procedures for termination of surrogates is left to the discretion of 
States. There is also insufficient evidence of public agency 
retaliation against surrogate parents. Since there are other civil 
rights statutes and regulations that prohibit discrimination, including 
retaliation, against individuals who exercise their rights under 
Federal law, including the right of individuals to assist individuals 
with disabilities without retaliation or coercion, there is no need to 
address this issue in this regulation.
    Proposed paragraph (c)(2)(i) of this section reflected the 
statutory requirement at section 615(b)(2) that a surrogate parent not 
be an employee of the SEA, LEA or any other agency that is involved in 
the education or care of the child. It is very important that the 
surrogate parent adequately represents the educational interest of the 
child, and not the interests of a particular agency. In the case of 
other governmental agencies, even agencies that are not involved in the 
education of the child, there is the possibility of a conflict between 
the interest of the child and those of the employee of the agency 
because some educational decisions will have an impact on whether an 
educational agency or some other governmental agency will be 
responsible for paying for services for the child. In situations where 
a child is in the care of a nonpublic agency that has no role in the 
education of the child, however, an employee of that agency may be the 
person best suited to serve as a surrogate for the child because of his 
or her knowledge of the child and concern for the child's well-being 
and would not, simply by virtue of his or her employment situation, 
have an interest that could conflict with the interest of the child. In 
such a case, that individual should not be prohibited from serving as a 
surrogate as long as he or she had no other interest that conflicts 
with the interest of the child and has knowledge and skills that will 
ensure adequate representation of the child.
    Paragraph (a) of this section requires that the public agency 
ensure that the rights of the child are protected if the child is a 
ward of the State. Paragraph (b) sets out that the duty includes a 
determination of whether the child needs a surrogate parent and if so, 
the assignment of one. The proposed regulation at Sec. 300.19(b)(2) has 
been renumbered at Sec. 300.20 and now clarifies that the definition of 
a parent may include a foster parent unless State law prohibits it, and 
if certain other conditions are met. In situations where a child who is 
a ward of the State has a foster parent who meets the definition of 
parent in Sec. 300.20 and the foster parent is acting as the parent, 
the public agency should determine if there is a need for a surrogate 
parent, and whether further steps are necessary to ensure that the 
rights of the child are protected. In most cases where the foster 
parent meets the definition of a parent and is acting as the parent, 
there would be no need to appoint a surrogate, unless the agency 
determined that in the particular circumstances of the case a surrogate 
was necessary to ensure that the rights of the child were protected.
    Changes: Paragraph (c) has been amended to permit a public agency 
to appoint as a surrogate an employee of a nonpublic agency that 
provides only non-educational care to the child. Paragraph (d)(1) has 
been deleted. Paragraph (d)(2) has been redesignated as paragraph (d) 
and the reference to paragraph (d)(1) is deleted.

Transfer of Parental Rights at Age of Majority (Sec. 300.517)

    Comment: There were several comments on the transfer of rights for 
incarcerated youths which requested clarification whether the transfer 
occurs regardless of age.
    Commenters also requested clarification of what the transfer of 
rights to the child means for the parent, i.e., does the parent retain 
the right to any of the due process protections.
    Commenters suggested that Sec. 300.517 should refer to 
Sec. 300.347(c) which deals with when and how students are to be 
notified of their impending transfer of rights. There was also a 
request for clarification regarding parental involvement in 
modifications to IEPs or placements when there is a bona fide security 
or compelling penological interest.
    Commenters also requested guidelines for determining if a student 
cannot provide informed consent with respect

[[Page 12617]]

to his or her educational program. Some interpreted the proposed 
regulation as requiring a competency determination prior to every 
transfer, deemed this unreasonable, and proposed that notice to parents 
is sufficient. Some recommended that the IEP team make the decision of 
whether a competency assessment is required and appoint a surrogate 
when the team decides the child is not able to provide informed consent 
for his or her educational program. Several commenters asked why the 
term ``another appropriate individual'' was used instead of ``guardian 
or surrogate parent'' as defined in Sec. 300.515.
    Some commenters asked that the Department allow a State which 
doesn't have a law regarding transfer of rights at age of majority to 
implement an interim policy pending legislative change.
    Commenters also recommended that an independent advocate, not a 
teacher or LEA administrator but who is paid by the LEA, be available 
for each student to whom rights have transferred, to be present at all 
IEP discussions when parents are not present so that coercion by the 
school is prevented.
    Discussion: It is not necessary to delineate the specific parental 
rights that transfer under this section because the statute and 
regulations fully set out the rights afforded to parents under Part B. 
The statute and paragraph (a)(1) of this section allow States, under 
State law, to transfer all parental rights to children with 
disabilities who reach the age of majority, with the exception of the 
right to notice which is both retained by the parents and transfers to 
the student. For children with disabilities who are incarcerated in 
adult or juvenile Federal, State or local correctional institutions, 
the State, under State law, may transfer all parental rights, including 
the notice rights, at the age of majority.
    The IEP provisions regarding notice prior to the age of majority, 
do not have to be explained or referenced in this section of the 
regulations. While the requirement in Sec. 300.347(c) that beginning at 
least one year before the student reaches the age of majority under 
State law the IEP must include a statement that the student has been 
informed of the rights that will transfer to him or her upon reaching 
the age of majority, does relate to this regulation, it is separate and 
distinct from the notice provisions in Sec. 300.517(a)(3) requiring 
notice to the parent and child at the time of transfer--when the child 
actually reaches the age of majority.
    This regulation does not need to address specifically the right to 
parental participation in IEP meetings for youth with disabilities 
convicted as adult and incarcerated in adults prisons whose parental 
rights have not transferred at the age of majority. These individuals 
would have the same rights as other youth with disabilities whose 
parental rights have not transferred as set out in section 
Sec. 300.345. There is also no further need to address IEP and 
placement requirements that do not apply to modifications of IEP or 
placement for youth with disabilities convicted as an adult and 
incarcerated in an adult prison because the provisions are already set 
out at Sec. 300.311(c)(2).
    The requirement in paragraph (a) of this section regarding State 
provision for transfers of parental rights at the age of majority under 
State law generally does not require a statutory change if the State 
already has a State law regarding age of majority that applies to all 
children (except in cases of incompetency). A State may not transfer 
rights at age of majority in the absence of a State law on age of 
majority that applies to all children, except those children determined 
incompetent under State law.
    With regard to the transfer of rights in situations where the 
competency of an individual with a disability is challenged, currently, 
most States have laws, rules, and procedures that allow a general 
determination of incompetency for an individual with a disability who 
has reached the age of majority. These laws and procedures usually 
require a formal proceeding and provide for the appointment of a 
general guardianship where the individual is found not to be competent 
under the applicable legal standard. The transfer of the Part B 
parental rights under State law must be consistent with State 
competency laws, that is, where parental rights transfer to the 
individual at the age of majority, and the individual is found to be 
incompetent, the appointed guardian would exercise Part B rights 
pursuant to their guardianship. In some States, there may be additional 
laws and procedures that allow for a lesser determination of competency 
for specific purposes, such as competency for providing informed 
consent with respect to the individual's educational program.
    The special rule at Sec. 300.517(b) only applies to States who, 
under State law, allow for this lesser determination of competency--a 
determination of the ability to provide informed consent with respect 
to the educational program of the student. Under the provision in the 
special rule that specifies appointing ``the parent, or, if the parent 
is not available, another appropriate individual,'' a guardian or 
surrogate parent could be an appropriate individual to represent the 
educational interests of the student.
    Changes: Paragraph (b) has been revised to make clear that it only 
applies if a State has a State mechanism lesser competency proceedings.

Discipline in general

(For a general overview of major changes in the discipline 
provisions from the NPRM to these final regulations, please refer to 
the preamble.)

    Comment: Several commenters asked that the regulations include only 
the statutory language with respect to all provisions concerning 
discipline. The vast majority of commenters, however, asked that the 
regulations provide more specificity than the statute regarding 
discipline. In many cases, these commenters provided proposals for how 
the regulations should interpret the statute. Others asked that the 
regulations give schools the ability to deal differently with children 
with articulation problems and those with behavior disorders.
    Discussion: Including only the statutory language on discipline in 
the final regulations, would not be helpful. The vast majority of the 
comments received concerning discipline demonstrate overwhelmingly the 
need to regulate in order to clarify the statutory language. To rely 
solely on the statutory language would encourage needless litigation. 
There is no statutory basis for treating children with disabilities 
differently under the discipline provisions because of the nature of 
their disability.
    Change: None.

Authority of school personnel (Sec. 300.520)

    Comment: A number of commenters were concerned about the provisions 
in the proposed regulations that required development of behavioral 
assessment plans and determinations regarding manifestation after the 
child had been removed for more than 10 school days in a school year 
because they believed that these responses should only be required if 
the removal constituted a ``change of placement.'' These commenters 
asked that the term ``change of placement'' be defined in the 
regulation as indicated in Note 1 to the proposed regulations, in order 
to incorporate what they saw as the law's intent to allow building-
level administrators some discretion to temporarily remove a child from 
their current educational placement if necessary to prevent disruption 
or ensure the safety of other children. Many of these commenters asked 
that

[[Page 12618]]

the regulations clarify the distinction between removal of a student 
for disciplinary reasons and removal of a student for behavior 
management purposes.
    Some commenters supported Note 1 as it clarified that schools 
continued to have the ability to remove children with disabilities from 
their current placement for limited periods of time when necessary, 
even though the child had previously been removed earlier that school 
year. Some commenters asked who is contemplated to be making the 
determination regarding a change in placement.
    Some commenters proposed modifications to the change of placement 
standard described in Note 1 to this section to recognize that there 
could be circumstances when continued short term suspensions may be 
used without reconvening the IEP team if the IEP team has addressed the 
behavior through changes to the IEP or placement and agrees that 
removal from the child's current educational placement is an 
appropriate intervention.
    Other commenters believed that the regulations should provide even 
more latitude to schools about when to convene an IEP meeting to review 
or develop a behavior assessment plan and conduct a manifestation 
determination, when for example, the behavior occurred repeatedly, or 
involved minor offenses. Some of these commenters thought that the IEP 
team should have the discretion to determine the need for a behavioral 
assessment or behavioral intervention plan on an individual basis.
    Some commenters believed that paragraph (c) of the proposed 
regulations (and similar provisions in Secs. 300.121 and 300.523(b)) 
exceed statutory authority by permitting school authorities to remove a 
child with disabilities from the child's current educational placement 
for up to 10 school days in a school year before the behavior 
assessment plan, services, or manifestation determination must be done. 
Many of these commenters indicated that any suspension is an indication 
that the child with a disability is having problems and the school 
should be required to initiate the behavioral assessment plan at the 
earliest indication of difficulty. For the same reasons, these 
commenters asked that the regulations not include references to 
suspensions without the provision of educational services.
    Some commenters basically agreed with the position taken in 
paragraph (c) and Secs. 300.121 and 300.523(b) but believed that the 
content of Note 2 should be strengthened by adding support for review 
of the IEP for any short suspension that in the judgment of the parent 
or other member of the IEP team, requires reconsideration of behavioral 
interventions or other IEP revisions. Some commenters noted that 
paragraph (c) needed further clarification, as school personnel cannot 
reasonably be expected to predict future conduct of a child.
    Discussion: The obligation to conduct a functional behavioral 
assessment or to review an existing behavioral intervention plan is not 
linked in the statute only to situations that constitute a ``change of 
placement.'' As a policy matter, it makes a great deal of sense to 
attend to behavior of children with disabilities that is interfering 
with their education or that of others, so that the behavior can be 
addressed, even when that behavior will not result in a change in 
placement. In fact, IDEA now emphasizes a proactive approach to 
behaviors that interfere with learning by requiring that, for children 
with disabilities whose behavior impedes their learning or that of 
others, the IEP team consider, as appropriate, and address in the 
child's IEP, ``strategies, including positive behavioral interventions, 
strategies, and supports to address the behavior.'' (section 
614(d)(3)(B)(i)).
    On the other hand, there is merit to the argument that schools 
should not have to repeatedly convene IEP team meetings to address the 
behavior of children who already have behavior intervention plans, 
unless there is a need. The position that services and the development 
of a behavioral assessment plan are not triggered if a child with 
disabilities is removed from his or her current placement for 10 school 
days or less in a given school year is based on the language of the 
statute at section 612(a)(1)(A) and section 615(k)(1)(B), as 
interpreted in light of the legislative history of the Act, which notes 
that the statute was designed to ``reinforce and clarify the 
understanding of Federal policy on this matter, which is currently 
found in the statute, case law, regulations, and informal policy 
guidance.'' (S. Rep. No. 105-17, p. 28; H.R. Rep. No. 105-95, p. 108 
(1997)).
    In light of the Department's longstanding position that children 
with disabilities could be removed from their current educational 
placement for not more than 10 consecutive school days without 
educational services, the 10 day in a school year window before the 
educational services and behavioral assessment plan are triggered is a 
reasonable interpretation of the statute. This interpretation gives 
school officials reasonable flexibility for dealing with minor 
infractions of school rules by children with disabilities, yet ensures 
that children with disabilities are not cut off from educational 
services and that their behavior is appropriately addressed.
    In order to clarify the ability of school personnel to temporarily 
remove a child from the current educational placement when necessary to 
ensure the safety of other children or to prevent disruption of the 
learning environment, the concept of ``change of placement'' that was 
referred to in Note 1 to this section in the NPRM should be 
incorporated into the regulations. The Department has long interpreted 
the IDEA to permit schools to remove a child with a disability from his 
or her current placement when necessary, even though the child had 
previously been removed earlier that school year, as long as the 
removal does not constitute a ``change of placement.''
    The ``change of placement'' description will also make clear that 
the new statutory language at section 612(k)(1)(A) of the Act regarding 
the authority of school personnel to remove children with disabilities 
for not more than 10 school days, to the same extent as nondisabled 
children, does not permit using repeated disciplinary removals of 10 
school days or less as a means of avoiding the normal change of 
placement protections under Part B. Whether a pattern of removals 
constitutes a ``change of placement'' would be determined on a case by 
case basis by the public agency and subject to review through due 
process and judicial proceedings. The regulation concerning change of 
placement would only apply to removals for disciplinary reasons.
    If a child who is being removed from his or her current educational 
placement has already been the subject of a special IEP team meeting to 
develop a behavioral intervention plan or review its implementation, 
the IEP team should not have to meet to review that plan as long as the 
team members individually review the plan, unless one or more of the 
team members believe that the plan needs to be modified. In this way, 
the IEP team will be monitoring the implementation of the behavioral 
intervention strategies in the IEP or behavioral intervention plan but 
would not have to repeatedly reconvene each time removals from the 
child's current placement are carried out.
    In light of the comments received and the reasons previously 
discussed, proposed Note 2 would be deleted.
    Comments concerning the timing of manifestation determinations, and 
changes made in response to those

[[Page 12619]]

comments are addressed in this attachment under Sec. 300.523.
    Change: A new section Sec. 300.519 has been added regarding change 
of placement in the context of removals under Secs. 300.520-300.529, 
reflecting concepts from proposed note 1. Section 300.520(a)(1) has 
been revised to clarify that more than one suspension each of which may 
be for up to 10 school days would be permitted in a school year, as 
long as repeated suspensions do not constitute a change of placement, 
and the removals are consistent with treatment of similarly situated 
children without disabilities. Paragraph (a)(1) of this section also 
has been revised to clarify the need to provide services when a child 
with a disability has been removed for more than 10 school days in a 
school year. Section 300.520(b) has been revised to require, when a 
child is first removed for more than 10 school days in a school year 
and for subsequent removals that constitute a change in placement, an 
IEP team meeting to develop a functional behavioral assessment plan and 
a subsequent behavioral intervention plan or to review an existing 
behavioral intervention plan and its implementation. Section 300.520(c) 
has been revised to specify that if the child is subsequently removed 
and that removal is not a change in placement, the IEP team does not 
have to meet to review the behavioral intervention plan unless one or 
more team members believes that modifications are needed to the plan or 
the plan's implementation. Proposed Notes 1 and 2 have been deleted.
    Comment: A number of commenters had suggestions for clarifications 
of the terms used in paragraph (a). Some wanted the regulations to 
specify whether days of suspension includes days of in-school 
suspension, bus suspensions, or portions of a school day. Others asked 
whether an in-school suspension would be considered a part of the days 
of suspension if the student continued to receive the academic 
instruction called for in the student's IEP during that period. Others 
suggested that the term ``suspension'' be revised to specify that 
school personnel can order a short term suspension of 10 or fewer 
consecutive school days or cumulative days which may exceed 10 school 
days in a school year but do not constitute a change in placement.
    Discussion: An in-school suspension would not be considered a part 
of the days of suspension addressed in paragraph (a) of this section as 
long as the child is afforded the opportunity to continue to 
appropriately progress in the general curriculum, continue to receive 
the services specified on his or her IEP and continue to participate 
with nondisabled children to the extent they would have in their 
current placement. Portions of a school day that a child had been 
suspended would be included in determining whether the child had been 
removed for more than 10 cumulative school days or subjected to a 
change of placement under Sec. 300.519.
    Whether a bus suspension would count as a day of suspension would 
depend on whether the bus transportation is a part of the child's IEP. 
If the bus transportation is a part of the child's IEP, a bus 
suspension would be treated as a suspension under Sec. 300.520 unless 
the public agency provides the bus service in some other way, because 
that transportation is necessary for the child to obtain access to the 
location where all other services will be delivered. If the bus 
transportation is not a part of the child's IEP, a bus suspension would 
not be a suspension under Sec. 300.520. In those cases, the child and 
his or her parents would have the same obligations to get to and from 
school as a nondisabled child who had been suspended from the bus. 
However, public agencies should attend to whether the behavior on the 
bus is similar to behavior in a classroom that is addressed in an IEP 
and whether bus behavior should be addressed in the IEP or behavioral 
intervention plan for the child.
    It is important that both school personnel and parents understand 
that school personnel may remove a child with a disability from his or 
her current placement for not more than 10 school days at a single 
time, but that there is no specific limit on the number of days in a 
school year that a child may be removed. (See, discussion of 
Sec. 300.121 regarding when services must be provided.) However, school 
authorities may not remove a child with disabilities from the child's 
current educational placement if that removal constitutes a change of 
placement under Sec. 300.519, unless they are specifically authorized 
to do so under Sec. 300.520(a)(2) (school personnel unilateral removal 
for weapons and drug offenses) or unless the parents of the child do 
not object to a longer removal or the behavior is determined to not be 
a manifestation of the child's disability. If a removal does constitute 
a change of placement under Sec. 300.519 that is not permitted under 
Sec. 300.520(a)(2), school personnel must follow appropriate change of 
placement procedures, including prior parent notice, and the right of 
the parent to invoke the ``stay-put'' rule of Sec. 300.513.
    Change: Paragraph (a)(1) of this section is revised to specify that 
school personnel may order removals of a child with a disability from 
the child's current placement for not more than 10 consecutive school 
days so long as the removal does not constitute a change in placement 
under Sec. 300.519.
    Comment: A number of commenters were concerned that the term 
``carries'' in paragraph (a)(2)(i) is too narrow and wanted the 
regulation to also cover the child who was in possession of a weapon at 
school, including instances when the child obtained the weapon at 
school. Others thought that paragraph (a)(2)(i) should apply to 
situations when a child knowingly carries a weapon to school, similar 
to the standard in paragraph (a)(2)(ii) regarding knowing possession or 
use of illegal drugs.
    Discussion: The statutory language ``carries a weapon to school or 
to a school function'' is ambiguous as to whether it includes instances 
in which a child acquires a weapon while at school. In light of the 
clear intent of Congress in the Act to expand the authority of school 
personnel to immediately address weapons offenses at school, the 
Department's opinion is that this language also covers instances in 
which the child is found to have a weapon at school that he or she 
obtained while at school.
    Change: None.
    Comment: A number of commenters asked for more clarification about 
the various provisions regarding removals from a child's current 
placement, suspensions of 10 days or less, 45-day placements, and, for 
children whose behavior is determined not a manifestation of their 
disability, other disciplinary measures, including the possibility of 
expulsion, related to one another. For example, some commenters asked 
for specificity about whether a child could be subject to a 
disciplinary suspension, including the 45-day interim alternative 
educational setting placements more than once in a school year.
    Some commenters asked whether the behavior assessment plan and 
manifestation determination need to be done within the first 10 days of 
a 45-day placement. Some asked whether schools can keep children with 
disabilities in the 45-day placement even if the behavior is determined 
to be a manifestation of the child's disability, or even if program 
adjustments in the child's ``current placement'' are agreed on before 
the expiration of the 45-day placement.
    Commenters also asked how the 45-day placement rules should be 
applied when the behavior leading to the removal occurs in the last few 
days of the school year. A few asked how 45-

[[Page 12620]]

day placements differ from any other removal for more than 10 days or 
whether 45-day placements should merely be considered exceptions to the 
``stay put'' provision. Others also inquired about the total number of 
days that a child with disabilities could be suspended in a year.
    Others asked for clarity about whether school districts could 
suspend beyond the 10 day and 45 day periods mentioned in this section 
and whether children with disabilities could ever be expelled. Some 
commenters asked that the regulations emphasize the optional nature of 
the ability to use the 45-day placement and encourage the return of 
children with disabilities to their regular educational placement at 
the earliest appropriate time.
    Discussion: If parents and school personnel agree about a proposed 
change of placement for disciplinary reasons, the rules concerning the 
amount of time that a child with a disability may be removed from his 
or her educational placement in Secs. 300.520 and 300.521 do not have 
to be used. However, services must be provided consistent with the 
requirements of Sec. 300.121(a).
    These regulations do not prohibit a child with a disability from 
being subjected to a disciplinary suspension, including more than one 
placement in a 45-day interim alternative educational setting in any 
given school year, if that is necessary in an individual case (e.g., a 
child might be placed in an alternative setting for up to 45 days for 
bringing a weapon to school in the fall and for up to 45 days for using 
illegal drugs at school in the spring).
    If a child engages in one of the behaviors identified in 
Sec. 300.520(a)(2) (carrying a weapon to school or a school function or 
knowing possession or use of illegal drugs or selling or soliciting the 
sale of a controlled substance at school or a school function), the 
school may first remove the child for up to 10 consecutive school days 
(providing services as necessary under Sec. 300.121(d)) while convening 
the IEP team to determine the interim alternative educational setting 
under Sec. 300.522. At the end of that 10 day period, or earlier, if 
feasible, the child would be placed into the interim alternative 
educational setting for up to 45 days.
    The placements contemplated under Secs. 300.520(a)(2) and 300.521 
(removal by hearing officer based on determination of substantial 
likelihood of injury in current placement) are specific exceptions to 
the obligation to maintain the child in the child's current placement 
if the parent disagrees with a proposed change of placement and 
therefore, may continue even if the child's behavior is determined to 
be a manifestation of the child's disability. The purpose of 
Secs. 300.520(a)(2) and 300.521 placements is to enable school 
personnel to ensure learning environments that are safe and conducive 
to learning for all and to give those officials and parents the 
opportunity to determine what is the appropriate placement for the 
child.
    Interim alternative educational settings under Sec. 300.520(a)(2) 
are limited to 45 calendar days, unless extended under Sec. 300.526(c) 
for a child who would be dangerous to return to the child's placement 
before the removal. The fact that school is in recess during a portion 
of the 45 days does not ``stop the clock'' on the 45 days during the 
school recess.
    There is no specific limit on the total number of days during a 
school year that a child with disabilities can be suspended. In 
addition, as explained in more detail in the discussion under 
Sec. 300.524, if a child's behavior is determined not to be a 
manifestation of the child's disability, the child may be disciplined 
in the same manner as nondisabled children, including suspension and 
expulsion, except that FAPE, consistent with Sec. 300.121(d), must be 
provided.
    The 45-day interim alternative educational settings are not 
mandatory. If the parents agree with school officials to a change in 
the child's placement there is no need to use a 45-day interim 
alternative educational setting. In some instances school officials or 
hearing officers may determine that a shorter period of removal is 
appropriate and that a child can be returned to his or her current 
educational placement at an earlier time.
    Change: None.
    Comment: A number of commenters asked for guidance regarding the 
terms in paragraph (b) regarding functional behavioral assessment, and 
behavioral intervention plan. Some asked that functional behavioral 
assessment should not be construed to be overly prescriptive. These 
commenters believed that behavioral assessments should be flexible so 
that the team can consider the various situational, environmental and 
behavioral circumstances involved.
    Some commenters proposed that a functional behavioral assessment be 
defined as a process which searches for an explanation of the purpose 
behind a problem behavior, and that behavior intervention plan be 
defined as IEP provisions which develop, change, or maintain selected 
behaviors through the systematic application of behavior change 
techniques. Some commenters suggested that positive behavioral 
interventions and strategies should include strategies and services 
designed to assist the child in reaching behavioral goals which will 
enhance the child's learning and, as appropriate, the learning of 
others. Some asked whether a functional behavior assessment is an 
evaluation requiring parent consent before it is done. Others asked 
whether a behavioral assessment could be a review of existing data that 
can be completed at that IEP meeting. Some asked whether a behavioral 
intervention plan needed to be a component of a child's IEP, and the 
relationship of this to the positive behavioral interventions mentioned 
in the IEP sections of the regulations.
    Discussion: In the interests of regulating only when necessary, no 
change is made regarding what constitutes a functional behavioral 
assessment, or a behavioral intervention plan. IEP teams need to be 
able to address the various situational, environmental and behavioral 
circumstances raised in individual cases. A functional behavioral 
assessment may be an evaluation requiring parent consent if it meets 
the standard identified in Sec. 300.505(a)(3). In other cases, it may 
be a review of existing data that can be completed at the IEP meeting 
called to develop the assessment plan under paragraph (b)(1) of this 
section. If under Sec. 300.346 (a) and (c), IEP teams are proactively 
addressing a child's behavior that impedes the child's learning or that 
of others in the development of IEPs, those strategies, including 
positive behavioral interventions, strategies and supports in the 
child's IEP will constitute the behavioral intervention plan that the 
IEP team reviews under paragraph (b)(2) of this section.
    Change: None.
    Comment: Some commenters stated that paragraph (b)(1) should not 
require the development of appropriate behavioral interventions within 
10 days of removing a child from the current placement as it is 
operationally unworkable. Some commenters asked that the regulations 
also require that the IEP team determine whether an existing behavior 
plan has been fully implemented, and if not, take steps to ensure its 
implementation without delay. Other commenters stated that the term 
suspension'' in paragraph (b)(1) should be replaced with ``removal.''
    Discussion: Paragraph (b)(1) in the NPRM was not intended to 
require the development of appropriate behavioral interventions within 
10 days of

[[Page 12621]]

removing a child from the current placement. Instead, it was intended 
to require that the LEA implement the assessment plan and ensure that 
the IEP team, after that assessment, develops appropriate behavioral 
interventions to address the child's behavior and implements those 
interventions as quickly as possible. Because it is unlikely that these 
steps could occur at the same time, a change should be made to the 
regulations to clarify that the LEA convene an IEP meeting, within 10 
business days of removing the child, to develop an assessment plan, 
and, as soon as practicable on completion of that plan, to develop 
appropriate behavioral interventions to address that behavior. This 
section also would be revised to clarify when the IEP team would have 
to meet in instances in which there is an existing behavioral 
intervention plan. The commenters are correct that the term ``removal'' 
should be used in paragraph (b)(1) rather than ``suspension'' because 
it applies to all disciplinary actions under Sec. 300.520(a).
    Change: Paragraph (b) has been amended by replacing ``suspension'' 
with ``removal'' and to specify that the LEA convene an IEP meeting to 
develop an assessment plan, and as soon as practicable on completion of 
that plan, to develop appropriate behavioral interventions to address 
that behavior.
    Comment: Some commenters asked that the regulations permit school 
personnel, under Sec. 300.520(a)(2), and hearing officers, under 
Sec. 300.521, to remove for up to 45 school days as opposed to calendar 
days. Other commenters asked that the regulations use the term 
``calendar days'' for all timelines in this section.
    Some commenters asked that the regulations permit school personnel 
to remove to a 45-day interim alternative educational setting for an 
assault. Other commenters asked that the 45-day limitation not apply to 
behavior that is determined to be not a manifestation of the child's 
disability.
    Discussion: As explained in detail in the discussion concerning the 
regulatory definition of ``day,'' the statute uses the term ``school 
day'' when that is intended. It also would be inappropriate to use 
``calendar days'' for all timelines in this section as the statute uses 
the term ``10 school days'' when that is intended.
    The statute does not authorize school personnel to remove children 
with disabilities to an interim alternative educational setting for 45 
days in cases of an assault. However, under Sec. 300.521, a public 
agency may ask a hearing officer to order a child removed to an interim 
alternative educational setting for not more than 45 days if 
maintaining the child in the current placement is substantially likely 
to result in injury to the child or to others.
    In addition, if necessary, school officials can seek appropriate 
injunctive relief to move a child. The placements under 
Secs. 300.520(a)(2) and 300.521 apply whether the behavior is or is not 
a manifestation of the child's disability under Sec. 300.523. If the 
behavior is determined not to be a manifestation of the child's 
disability, the child may be subjected to the same disciplinary action 
as a nondisabled child (which could be a removal for more than 45 days) 
except that services must be provided consistent with Sec. 300.121(d).
    Change: None.
    Comment: Some commenters asked that paragraph (d) of the 
regulations provide the complete definition of ``dangerous weapon'' and 
``controlled substance.''
    Discussion: It is not advisable to provide the complete statutory 
definitions of ``dangerous weapon'' and ``controlled substance'' in the 
text of the regulations as the statute ties these definitions to the 
content of other Federal law. If, for example, the Controlled 
Substances Act were to be amended to change the definition of 
``controlled substance'' in section 202(c) of that Act, the Part B 
regulatory definition also would need conforming amendments. In 
addition, the definition of ``controlled substance'' in section 202(c) 
of the Controlled Substances Act is extensive and extremely detailed. 
The Department will make this information widely available through a 
variety of other means.
    Change: None.

Authority of Hearing Officer (Sec. 300.521)

    Comment: Several commenters stated that the hearing officer under 
this section, in order to deal with dangerous situations, must be able 
to immediately remove a child without the requirement of convening a 
hearing. A number of these commenters believed that the hearing officer 
under this section should be able to make a determination based on a 
review of available information presented by the LEA, much like an LEA 
requesting a temporary restraining order from a court. Other commenters 
asked that the regulations specify that the hearing officer must be 
impartial and qualified to assess the child's disability and the 
circumstances surrounding the removal.
    Several commenters asked that the regulations explain that a school 
district has the right to seek injunctive relief, such as a temporary 
restraining order, when a student is a danger to self or others.
    Discussion: The statute provides that the hearing officer must be 
able to determine that a public agency has demonstrated by substantial 
evidence, which is defined as beyond a preponderance of the evidence, 
that maintaining the child in the current placement is substantially 
likely to result in injury to the child or others. This evidentiary 
standard requires that the hearing officer weigh the evidence received 
from both parties, rather than just information presented by the public 
agency. Public agencies continue to have the right to seek injunctive 
relief from a court when they believe they have the need to do so. 
Hearing officers in expedited due process hearings must meet the same 
standards of impartiality and knowledgeability as other hearing 
officers under the Act.
    Change: None.
    Comment: Several commenters asked that paragraph (a) of this 
section be revised to specify that the injury to the child or others 
must be more than a minor injury. Others asked that the regulations not 
require that the child would be an imminent threat to the safety or 
health of other members of the school community before the child could 
be removed.
    Several commenters requested that paragraph (c) be revised to 
require the hearing officer to determine, rather than consider, whether 
the public agency has made reasonable efforts to minimize the risk of 
harm in the child's current placement. Other commenters asked that the 
regulations specify that if the hearing officer finds that the current 
placement is inappropriate, the hearing officer shall order that the 
current placement be made appropriate rather than ordering an interim 
alternative educational setting. Further, if the hearing officer finds 
that the public agency has not made reasonable efforts to minimize the 
risk of harm in the child's current placement, they urged, the hearing 
officer must order the public agency to make the reasonable efforts to 
minimize the risk of harm rather than ordering placement in an interim 
alternative educational setting.
    Discussion: No changes will be made to the regulations regarding 
the amount of injury that would be substantially likely to result if 
the child is not removed. In addition, no changes will be made 
regarding a hearing officer's decision making. In fashioning 
appropriate relief, hearing officers will exercise their judgement in 
the context of all the factors involved in an individual case.
    Change: None.

[[Page 12622]]

    Comment: A number of commenters requested clarification of the term 
``beyond a preponderance of the evidence.'' Others asked that the term 
be revised as the ``the preponderance of the evidence'' as that is the 
highest evidence standard in civil litigation.
    Discussion: The phrase ``beyond a preponderance of the evidence'' 
is statutory.
    Change: None.

Determination of Setting (Sec. 300.522)

    Comment: A number of commenters asked that the regulations clarify 
the relationship between the authority of school personnel in 
Sec. 300.520(a)(1) to order the removal of a child with a disability 
for not more than 10 school days, and the requirement in Sec. 300.522 
that the alternative educational setting be determined by the IEP team. 
These commenters noted that the school personnel need the authority to 
remove under Sec. 300.520(a)(1) without input from the IEP team.
    A number of commenters requested clarification on when the IEP team 
must make the determination of setting and where the child would be 
while that determination was being made, particularly for children with 
disabilities who already had been removed from their regular placement 
for 10 days during that school year. Some of these commenters noted 
that when a child is removed under Secs. 300.520(a)(2) or 300.521 the 
alternative setting needs to be immediately available.
    Some commenters question where the child would be while the hearing 
under Sec. 300.521 is being held, noting that Sec. 300.521(d) requires 
the hearing officer's determination include deciding whether the 
interim alternative educational setting meets the standards of 
Sec. 300.522, and wondering when the IEP team would meet. Some 
commenters asked that the regulations make clear that a child with a 
disability can be removed from the child's current placement for up to 
10 days before the IEP team would have to make the determination in 
Sec. 300.522.
    Some commenters stated that requiring the IEP team to determine the 
setting when a hearing officer removes a child exceeds the statute.
    Other commenters thought that the provisions of Sec. 300.522 are in 
conflict with the authority of school personnel to order removal under 
Sec. 300.520.
    Discussion: Under Secs. 300.519 and 300.520(a)(1), school personnel 
have the authority to remove a child with disabilities for not more 
than 10 consecutive school days (to the same extent as for nondisabled 
children) except that the removal may not constitute a change of 
placement. School personnel need the ability to remove a child with a 
disability from the current educational placement under 
Sec. 300.520(a)(1) and to provide educational services in some other 
setting without waiting for an IEP team to make a determination about 
that alternative educational setting in order to maintain a learning 
environment conducive to learning for all children.
    At the same time there is a need to ensure that information about 
the child's special education needs and current IEP be brought to bear 
in decisionmaking about services to the child during short removals and 
for those short periods before the IEP team can meet to determine 
appropriate placement under Sec. 300.520(a)(2) or a hearing officer 
determines the interim alternative educational setting under 
Sec. 300.521. Therefore, a change should be made to Sec. 300.522(a) to 
specify that the IEP team determines the interim alternative 
educational setting under Sec. 300.520(a)(2).
    A change to Sec. 300.121(d) would specify that school personnel, in 
consultation with the child's special education teacher, determine the 
interim alternative educational setting for removals under 
Sec. 300.520(a)(1)(removals by school personnel for 10 school days or 
less). A child whose behavior subjects him or her to an interim 
alternative educational setting under Sec. 300.520(a)(2)(weapons or 
drugs) or Sec. 300.521(substantial likelihood of injury), may first be 
removed by school personnel for not more than 10 consecutive school 
days, or until the removal otherwise constitutes a change of placement 
under Sec. 300.519, and during that 10 day or less removal, services, 
as necessary under Sec. 300.121(d), would be provided as determined by 
school personnel, in consultation with the child's special education 
teacher. This will ensure that the need of school personnel to be able 
to make these decisions swiftly is honored, while emphasizing the 
learning needs of the child in that removal period. While the child is 
in that 10 school day or less setting, the IEP team meetings and 
expedited due process hearings under Secs. 300.522 and 300.521, 
respectively, can be conducted so that the IEP team or hearing officer, 
as the case may be, can determine the up to 45 day interim alternative 
educational setting.
    When a hearing officer has determined that a child is substantially 
likely to injure self or others in his or her current placement and is 
ordering a 45 day interim alternative educational setting under 
Sec. 300.521, the hearing officer is charged with determining whether 
the interim alternative educational setting meets the statutory 
requirements and not with selecting one that meets those requirements. 
Permitting the school personnel, in consultation with the child's 
special education teacher, to initially select and propose the interim 
alternative educational setting is less administratively cumbersome for 
school personnel than the scheme in the proposed regulation and helps 
ensure that there is no undue delay in placement. The review of the 
proposed placement by the hearing officer ensures that the setting will 
meet statutory standards, thus protecting the rights of the child. The 
hearing officer may revise or modify the proposed placement, or select 
some other placement as necessary to meet that statutory standard. Of 
course, in proposing an interim alternative educational setting, school 
personnel may rely on the judgments of the child's IEP team if they 
choose to do so. This position would be accomplished through the 
regulatory change to Sec. 300.121(d) mentioned previously. The statute 
at section 615(k)(3)(A) is clear that when school personnel are 
removing a child for a weapons or drug offense, the IEP team determines 
the interim alternative educational setting.
    Change: This section has been amended to specify that the 
alternative educational setting referred to in Sec. 300.520(a)(2) is 
determined by the IEP team. Section Sec. 300.521(d) has been revised to 
recognize that the hearing officer reviews the adequacy of the interim 
alternative educational setting proposed by school personnel who have 
consulted with the child's special education teacher.
    Comment: A number of commenters suggested revisions to paragraph 
(b) to provide certain limitations on the services that must be 
provided in the interim alternative educational setting such as 
specifying that the setting must be one that is immediately available 
to students removed, the services on the child's current IEP will 
continue to the extent feasible, or the child will continue to 
participate in the general curriculum to the extent determined 
appropriate by the IEP team. Others urged that the regulations make 
clear that the interim alternative educational setting should not have 
to be a setting that can provide all the same level of courses or 
courses that are not a part of the core curriculum of the district 
(i.e., would not have to provide honors level courses, electives, 
advanced subject courses that are not part of the core

[[Page 12623]]

curriculum of the district) or are extracurricular activities and 
sports. Others asked about classes such as chemistry, shop or physical 
education that have specialized equipment or facilities. Some 
commenters noted that it would not be reasonable and would be 
prohibitively expensive and procedurally burdensome to require that 
interim alternative education settings provide the same courses as 
offered in regular schools. They argued that requiring that interim 
alternative educational settings include the same courses as in regular 
schools would discourage schools from taking appropriate measures to 
deal with weapons, drugs and children who are dangerous to themselves 
or others. Some commenters stated that they did not believe that the 
services required for students whose behavior is not a manifestation of 
their disability should be as extensive as those required for students 
whose behavior is determined to be a manifestation of their disability.
    Some commenters asked that the regulations specify that services in 
the interim alternative educational setting must be provided by 
qualified personnel in a placement that is appropriate for the 
student's age and level of development. Others asked that the IEP 
written for the interim alternative educational setting should address 
the services and modifications that will enable the child to meet the 
child's current IEP goals in the alternative setting.
    Discussion: The statute describes the services that must be 
provided to a child who has been placed in an interim alternative 
educational setting, which must be applied to removals under 
Secs. 300.520(a)(2) and 300.521, and these standards, with a minor 
modification discussed later in this section, are reflected in 
Sec. 300.522(b). The proposed regulation, at Sec. 300.121(c), had 
indicated that the same standards should be applied to other types of 
removals as well, that is, removals that did not constitute a change in 
placement and long-term suspensions or expulsions under Sec. 300.524 
for behavior that is determined not to be a manifestation of a child's 
disability. However, as suggested by the comments received, there are 
reasons why what would be required for these other types of removals 
may be different than for 45 day interim alternative educational 
settings. Therefore, the regulation at Sec. 300.121(d) would provide 
that for removals under Secs. 300.520(a)(1) and 300.524, the public 
agency provides services to the extent necessary to enable the child to 
adequately progress in the general curriculum and advance toward 
achieving the goals set out in the child's IEP, as determined by school 
personnel, in consultation with the child's special education teacher, 
if the removal is under Sec. 300.520(a)(1) or by the child's IEP team, 
if the removal is under Sec. 300.524.
    Under these rules, the extent to which instructional services need 
to be provided and the type of instruction to be provided would depend 
on the length of the removal, the extent to which the child has been 
removed previously, and the child's needs and educational goals. For 
example, a child with a learning disability who is placed in a 45 day 
placement will likely need far more extensive services in order to 
progress in the general curriculum and advance appropriately toward 
meeting the goals of the child's IEP than would a child who is removed 
for only a few days, and is performing at grade level. Because the 
services that are necessary for children with disabilities who have 
been removed for disciplinary reasons will vary depending on the 
individual facts of a particular case, no further specificity regarding 
those services is appropriate.
    What constitutes the general curriculum is determined by the SEA, 
LEA or school that the student attends, as appropriate under State law. 
In some cases, honors level classes or electives are a part of the 
general curriculum, and in others they may not be. With regard to 
classes such as chemistry or auto mechanics that generally are taught 
using a hands-on component or specialized equipment or facilities, and 
that are considered to be a part of the general curriculum, there are a 
variety of available instructional techniques and program modules that 
could be used that would enable a child to continue to progress in the 
general curriculum, although the child is not receiving instruction in 
the child's normal school or facility. However, in order to assist in 
clarifying that a school or district does not have to replicate every 
aspect of the services that a child would receive if in his or her 
normal classroom, a change would be made to refer to enabling the child 
to continue to ``progress in'' the general curriculum, rather than 
``participate in'' the general curriculum.
    Changes: Paragraph (b) has been revised to apply to removals under 
Secs. 300.520(a)(2) and 300.521. Paragraph (b)(1) has been revised to 
refer to enabling the child to continue to ``progress in'' the general 
curriculum. Language has been added to Sec. 300.121(d) to provide that 
for a child who has been removed under Sec. 300.520(a)(1) or 
Sec. 300.524, the public agency provides services to the extent 
necessary to enable the child to adequately progress in the general 
curriculum and advance toward achieving the goals set out on the 
child's IEP, as determined by school personnel in consultation with the 
child's special education teacher if the removal is under 
Sec. 300.520(a)(1) or by the child's IEP team if the removal is under 
Sec. 300.524.
    Comment: Several commenters asked that the statutory language in 
paragraph (b)(2) requiring that the interim alternative educational 
setting address the child's behavior ``so that it does not recur'' be 
replaced with language requiring the LEA to develop a program that 
attempts to prevent the inappropriate behavior from recurring.
    Other commenters asked that a note be added to emphasize that the 
interim alternative educational setting be designed to ensure FAPE and 
to evaluate the behavior, the IEP services provided, and the previous 
placement and to develop an IEP that will reduce the recurrence of the 
behavior. Some commenters asked that the reference to other behavior in 
this paragraph be rephrased to limit it to other current relevant 
behavior. Others asked that the reference to days in a given school 
year be removed.
    Discussion: In order to provide additional clarity on this point, a 
change should be made to specify that those services and modifications 
are designed to prevent the inappropriate behavior from recurring. In 
light of the changes previously discussed that limit the application of 
this section to removals under Secs. 300.520(a)(2) and 300.521, the 
reference to other behavior would be removed, as these are now 
addressed in Sec. 300.121(d).
    Change: Paragraph (b)(2) has been revised to clarify that it 
applies to removals under Secs. 300.520(a)(2) and 300.521 and to 
specify that the services and modifications to address the behavior are 
designed to prevent the behavior from recurring.
    Comment: A number of commenters requested that the regulations 
specify that home instruction could not be used as an interim 
alternative educational setting. Others asked that the regulations 
clarify that an interim alternative educational placement may be any 
placement option, including, but not limited to home instruction. 
Others asked for clarification of when home instruction would be an 
appropriate placement for a child who is subject to disciplinary 
action. Some commenters asked that the regulations specify that home 
instruction and independent study would not generally be an interim

[[Page 12624]]

alternative educational setting. Others asked that home instruction be 
prohibited as an interim alternative educational setting unless the 
parents agree. Some commenters asked for guidance on what could be 
considered an appropriate interim alternative educational setting for 
rural or remote areas where there is only one school and no other 
appropriate public facility.
    Discussion: Whether home instruction would be an appropriate 
alternative educational setting under Sec. 300.522 would depend on the 
particular circumstances of an individual case such as the length of 
the removal, the extent to which the child previously has been removed 
from their regular placement, and include consideration of the child's 
needs and educational goals. (The proposed note following Sec. 300.551 
regarding home instruction would be deleted.) In general, though, 
because removals under Secs. 300.520(a)(2) and 300.521 will be for 
periods of time up to 45 days, care must be taken to ensure that if 
homebound instruction is provided for removals under Sec. 300.522, the 
services that are provided will satisfy the requirements for a removal 
under Sec. 300.522(b).
    Change: None.
    Comment: Some commenters asked that a provision be added to 
Sec. 300.522 to specify that a hearing officer considering an interim 
alternative educational setting may modify the setting determined by 
the IEP team to meet the requirements of paragraph (b) of this section.
    Discussion: Hearing officers have the ability to modify the interim 
alternative educational setting that has been proposed to them as 
necessary to meet the standards of enabling the child to continue to 
participate in the general curriculum, continue to receive those 
services and modifications that will enable the child to meet the goals 
on the child's current IEP and include services and modifications 
designed to address the behavior so that it does not recur. As 
previously explained, these final regulations do not require an IEP 
team to propose an interim alternative educational setting to a hearing 
officer under Sec. 300.521, although school districts are encouraged to 
use the child's IEP team to make decisions about the interim 
alternative educational setting that is proposed to the hearing 
officer.
    Change: None.

Manifestation Determination Review (Sec. 300.523)

    Comment: A number of commenters expressed concern about paragraph 
(b) of this section. On the one hand, a number of the commenters asked 
that the reference to ``in a given school year'' be struck so that the 
provision would permit no manifestation determination review whenever 
the removal did not amount to a change of placement. On the other hand, 
other commenters thought there was no basis in the statute for any 
exception, and that a manifestation review would need to be conducted 
whenever discipline was contemplated for a child with a disability. 
Some commenters asked that the exception be expanded to include 
situations when the child's IEP includes the use of short term 
suspensions as an appropriate intervention, or where the IEP team has 
otherwise addressed in the IEP the behavior that led to the removal. 
Some commenters stated that paragraph (a)(1) should refer to procedural 
safeguards under Sec. 300.504 rather than procedural safeguards under 
this section. Other commenters noted that advance notification of 
disciplinary action is unrealistic and that the regulations should note 
that fact. Others asked that the regulations specify that prior written 
notice was not required.
    Discussion: A manifestation determination is important when a child 
has been removed and that removal constitutes a change of placement 
under Sec. 300.519. If a removal is a change of placement under 
Sec. 300.519, a manifestation determination will provide the IEP team 
useful information in developing a behavioral assessment plan or in 
reviewing an existing behavioral intervention plan under 
Sec. 300.520(b). It will also inform determinations of whether or not a 
public agency may implement a disciplinary action that constitutes a 
change of placement for a child, other than those provided for in 
Secs. 300.520(a)(2) and 300.521. Requiring a manifestation 
determination for removals for less than 10 consecutive school days 
that are not a change of placement under Sec. 300.519, would be of 
limited utility and would impose unnecessary burdens on public agencies 
as the determination often would be made after the period of removal 
was over. Furthermore, limiting manifestation determination to removals 
that constitute a change of placement under Sec. 300.519 is consistent 
with the statutory language of section 615(k)(4)(A).
    However, if a child is being suspended for subsequent short periods 
of time, parents can request an IEP meeting to consider whether the 
child is receiving appropriate services, especially if they believe 
that there is a relationship between the child's disability and the 
behavior resulting in those suspensions. Public agencies are strongly 
encouraged to grant any reasonable requests for IEP meetings. 
Functional behavioral assessments and behavioral intervention plans are 
to be completed in a timely manner whether required under 
Sec. 300.520(b) or otherwise determined appropriate by the child's IEP 
team (see Sec. 300.346(a)(2)(i)). In addition, if a child is 
subsequently suspended for short periods of time, a parent or other 
individual could question whether a change of placement, which would 
require a manifestation determination, has occurred because of an 
alleged pattern of removals.
    For clarity, a change should be made to refer to the procedural 
safeguards notice under Sec. 300.504. Paragraph (a)(1) of this section 
does not require prior written notice. It does require notice to 
parents no later than the date on which the decision to take the action 
is made. To that extent, it constitutes a limited exception to the 
requirement to provide prior written notice in Sec. 300.503. Other 
removals that do not constitute a change of placement do not require 
prior written notice.
    Change: Paragraph (a) of this section has been revised to specify 
that the manifestation determination review is done regarding behavior 
described in Secs. 300.520(a)(2) and 300.521 or any removal that 
constitutes a change of placement under Sec. 300.519. Paragraph (a)(1) 
of this section has been amended to require that parents be provided 
notice of procedural safeguards consistent with Sec. 300.504. Paragraph 
(b) has been removed.
    Comment: A number of commenters requested clarification of the term 
``other qualified personnel'' as used in proposed paragraph (c) of this 
section. Some of these commenters asked that the regulations include 
language like that in the note following Sec. 300.344 that in the case 
of a child whose behavior impedes the learning of the child and others, 
the IEP team should include someone knowledgeable about positive 
behavioral strategies and supports. Others asked that the term not be 
interpreted as including only school personnel but should include 
persons familiar with the child and the child's disabilities, such as 
the child's treating physician. Others wanted the regulations to 
specify that the team include persons who are fully trained and 
qualified to understand the child's disability. Many asked that term 
also be added to references to the IEP team in proposed paragraphs (d), 
(e) and (f) of this section. Some commenters asked that proposed 
paragraph (c) clarify that the manifestation determination needs

[[Page 12625]]

to be made at an IEP meeting, as some districts are not holding IEP 
team meetings for this purpose.
    Discussion: The language regarding the IEP team and other qualified 
personnel is taken directly from the statute. The term ``other 
qualified personnel'' may include individuals who are knowledgeable 
about how a child's disability can impact on behavior or on 
understanding the impact and consequences of behavior, and persons 
knowledgeable about the child and his or her disabilities. For the sake 
of clarity, references to the IEP team in paragraphs (c) and (d) of 
this section should be expanded to include ``and other qualified 
personnel.'' In order to clarify that the manifestation determination 
review is done in a meeting, a change should be made to paragraph (b). 
This review involves complex decision making that will be significantly 
different from the very limited review that is done under 
Sec. 300.520(b)(2) if no modifications are needed to a child's 
behavioral intervention plan.
    Change: Redesignated paragraph (b) has been revised to specify that 
the manifestation determination review is conducted at a meeting. 
Redesignated paragraphs (c) and (d) have been amended by adding ``and 
other qualified personnel'' after ``IEP team'' each time it is used.
    Comment: Several commenters were concerned that proposed paragraph 
(d)(2)(ii) and (iii) put schools at a significant disadvantage by 
having to prove the negative--that disability did not impair the 
ability of the child to understand the impact and consequences of the 
behavior and that disability did not impair the child's ability to 
control behavior. Other commenters asked that the review process also 
include consideration of any unidentified disability of the child and 
the antecedent to the behavior that is subject to discipline and permit 
record expungement if it is later determined that the child did not 
commit the act that is the subject of the manifestation determination.
    Some commenters stated that proposed paragraph (e) created too 
rigid a standard and asked that it be modified to give districts more 
leeway if a mistake has been made.
    Discussion: The language in paragraphs (c)(2)(ii) and (iii) is 
taken directly from the statute. Given that the review process includes 
consideration of all relevant information, including evaluation and 
diagnostic results, information supplied by the parents, observations 
of the child and the child's current IEP and placement, the review 
could include consideration of a previously unidentified disability of 
the child and of the antecedent to the behavior that is subject to 
discipline. If it is later determined that the child did not commit the 
act that is subject to discipline, the question of record expungement 
would be handled the same way such matters are addressed for 
nondisabled children.
    The interpretation in paragraph (d) on how the manifestation 
determination is made, using the standards described in paragraph (c), 
is based on the explanation of the decision process in the 
congressional committee reports on Pub. L. 105-17. Those reports state 
that the determination described in Sec. 300.523(d):

. . . recognizes that where there is a relationship between a 
child's behavior and a failure to provide or implement an IEP or 
placement, the IEP team must conclude that the behavior was a 
manifestation of the child's disability. Similarly, where the IEP 
team determines that an appropriate placement and IEP were provided, 
the IEP team must then determine that the remaining two standards 
have been satisfied. This section is not intended to require an IEP 
team to find that a child's behavior was a manifestation of a 
child's disability based on a technical violation of the IEP or 
placement requirements that are unrelated to the educational/
behavior needs of the child. (S. Rep. No. 105-17, p. 31; H. Rep. No. 
109-95, pp. 110-111 (1997))

In light of the general decision to remove all notes from these final 
regulations, however, Note 1 should be removed.

    Change: Note 1 has been removed.
    Comment: Many commenters asked that the content of the first 
sentence of Note 2 be integrated into the regulations. The commenters 
were divided, however, over the second sentence of Note 2. Some 
supported the statement in the second sentence of the note, others 
wanted the sentence to be revised to specify that children with 
disabilities who have been placed in 45 day placements under 
Secs. 300.520 and 300.521 must be returned to their regular placement 
if their behavior is determined to be a manifestation of their 
disability because of the principle that children with disabilities may 
not be disciplined for behavior that is a manifestation of their 
disability.
    Still others wanted the sentence revised to indicate that changes 
to the child's IEP or placement or the implementation of either 
``could'' as opposed to ``often should'' enable the child to return to 
the regular placement. Other commenters asked that the second sentence 
to Note 2 be removed as they believed that it was inconsistent with the 
authority granted in Secs. 300.520 and 300.521 to change the placement 
of a child with a disability to an interim alternative educational 
setting for the same amount of time that a child without a disability 
would be subject to discipline, but for not more than 45 days. Other 
commenters asked that the regulations make clear that if behavior is a 
manifestation of the child's disability, disciplinary action cannot be 
taken against the child.
    Discussion: For clarity, the regulation should specify that if the 
behavior is determined to be a manifestation of the child's disability, 
the public agency must take immediate steps to remedy any deficiencies 
found in the child's IEP or placement or their implementation. It would 
be inconsistent with the public agency's obligation to ensure the 
provision of FAPE to children with disabilities to fail to take 
appropriate action to correct identified deficiencies in a child's IEP 
or placement or the implementation of either.
    The 45-day placements in Secs. 300.520(a)(2), 300.521 and 
300.526(c) are exceptions to the general rule that children with 
disabilities may not be disciplined through a change of placement for 
behavior that is a manifestation of their disability. If a child has 
been placed in a 45-day placement under one of these sections and his 
or her behavior is determined to be a manifestation of the disability 
under Sec. 300.523, it may be possible to return the child to the 
current educational placement before the expiration of the up to 45-day 
period by correcting identified deficiencies in the implementation of a 
child's IEP or placement. However, public agencies are not obliged to 
return the child to the current placement before the expiration of the 
45-day period (and any subsequent extensions under Sec. 300.526(c)) if 
they do not choose to do so.
    Consistent with the general decision to remove all notes from these 
final regulations, Note 2 would be removed.
    Change: A new paragraph has been added to clarify that if 
deficiencies are identified in the child's IEP or placement or in their 
implementation, the public agency must act to correct those 
deficiencies. Note 2 has been removed.
    Comment: Some commenters asked that the regulations provide 
distinctions between the types of services that must be provided in 
interim alternative educational settings when behavior is and is not a 
manifestation of the child's disability. For children whose behavior is 
not a manifestation of their disability, these commenters asked that 
FAPE be

[[Page 12626]]

defined as the LEA's ``core curriculum'' (the basic courses needed to 
fulfill high school graduation requirements) unless the IEP team 
determined that some more extensive services are required, so that it 
would be clear that the LEA would not have to duplicate every possible 
course offering at the alternative site. The commenters asked that this 
rule also apply to the services provided to children who have properly 
been long-term suspended or expelled for behavior that is determined 
not to be a manifestation of disability.
    For children whose behavior is determined to be a manifestation of 
disability, these commenters asked for clarification that an IEP team 
can still take disciplinary action, if the IEP team feels that 
providing consequences is appropriate. In addition, they asked that the 
regulations make clear that an IEP team can change a student's 
placement for behavior that is a manifestation of the disability, if 
taking such action would be appropriate and consistent with the 
student's needs.
    Discussion: A manifestation determination is necessary to determine 
whether the placement for a child with a disability can be changed over 
the objections of the child's parents through a long-term suspension 
(other than the 45-day placement addressed in Secs. 300.520, 300.521 
and 300.526(c)) or an expulsion. However, there is no basis in the 
statute for differentiating the services that must be provided to 
children with disabilities because their behavior is or is not a 
manifestation of their disability. (See discussion of comments for 
Secs. 300.121 and 300.522 for further discussion about services during 
periods of disciplinary removal).
    Under section 504 of the Rehabilitation Act of 1973, if the 
behavior is a manifestation of a child's disability, the child cannot 
be removed from his or her current educational placement if that 
removal constitutes a change of placement (other than a 45 day 
placement under Secs. 300.520(a)(2), 300.521, and 300.526(c)), unless 
the public agency and the parents otherwise agree to a change of 
placement. If the behavior is related to the child's disability, proper 
development of the child's IEP should include development of 
strategies, including positive behavioral interventions, strategies and 
supports to address that behavior, consistent with 
Secs. 300.346(a)(2)(i) and (c). If the behavior is determined to be a 
manifestation of a child's disability but has not previously been 
addressed in the child's IEP, then the IEP team must meet to review and 
revise the child's IEP so that the child will receive services 
appropriate to his or her needs. Implementation of the behavioral 
strategies identified in a child's IEP, including strategies designed 
to correct behavior by imposing consequences, is appropriate under the 
IDEA and section 504, even if the behavior is a manifestation of the 
child's disability. However, if a child's IEP includes behavioral 
strategies to address a particular behavior of the child, the 
appropriate response to that behavior almost always would be to use the 
behavioral strategies specified in the IEP rather than to implement a 
disciplinary suspension. A change in placement that is appropriate and 
consistent with the child's needs may be implemented subject to the 
parent's procedural safeguards regarding prior notice (Sec. 300.503), 
mediation (Sec. 300.506), due process (Secs. 300.507-300.513) and 
pendency (Sec. 300.514).
    Change: None.
    Comment: Several commenters noted that a manifestation review 
should not be required prior to determining punishment for incarcerated 
students because prison disciplinary infractions raise bona fide 
security and compelling penological interests that are outside the 
purview of the education staff. However, commenters noted that a 
manifestation review for these students may be useful in developing 
appropriate behavior interventions.
    Discussion: Section 614(d)(6)(B) of the Act provides that for 
children with disabilities who are convicted as adults under State law 
and incarcerated in an adult prison, the child's IEP team may modify 
the child's IEP or placement if the State has demonstrated a bona fide 
security or compelling penological interest that cannot otherwise be 
accommodated. (See also Sec. 300.311(c)(1)). A manifestation 
determination would still be required for these individuals, in the 
instances specified in paragraph (a) of this section.
    Change: None.
    Comment: Several additional notes were proposed. Several commenters 
asked that a note be added to clarify that when a student with 
disabilities has been properly expelled, the student does not have to 
petition for readmission when the period of expulsion ends as the 
school system must accept and serve the student in its schools. Others 
asked for a note specifying that under section 504 of the 
Rehabilitation Act children with disabilities may not be disciplined 
for behavior that is a manifestation of their disability, and that 
prior to taking any punitive action against a child with a disability, 
appropriate personnel must determine that the behavior in question is 
not a manifestation of the child's disability.
    Discussion: No new notes will be added. All notes are being removed 
from these final regulations. Whether a student who has been properly 
expelled must petition for readmission when the period of expulsion 
ends generally will depend on how the public agency deals with children 
without disabilities who return to school after a period of expulsion. 
However, public agencies are reminded that for children with 
disabilities, they have an ongoing obligation to make a FAPE available, 
whether the child is expelled or not. Under Section 504 of the 
Rehabilitation Act of 1973, children with disabilities may not be 
disciplined for behavior that is a manifestation of their disability if 
that disciplinary action constitutes a change of placement. That 
principle is consistent with the changes made in this section.
    Change: None.

Determination That Behavior Was Not Manifestation of Disability 
(Sec. 300.524)

    Comment: Some commenters asked that the regulations make clear that 
if the behavior was not related to the child's disability the 
discipline could include long-term suspensions and expulsions. Others 
asked that the regulations clarify whether discipline would be limited 
to the 45-day interim alternative educational placement or would be the 
same disciplinary measures as for nondisabled students as long as FAPE 
is provided and IEP services continued in another setting. Others 
thought that the regulation should specify that no suspension or 
expulsion could be for more than 45 days. Some commenters asked for 
clarification of what would constitute an acceptable alternative 
setting for children whose behavior is determined to not be a 
manifestation of their disability.
    Several commenters requested that the regulations delete the 
provisions of paragraph (c) of this section concerning placement 
pending a parent appeal of a manifestation determination and the note 
following, which addresses paragraph (c). Others stated that the 
regulations should specify that if parents challenge a manifestation 
determination, the child should remain in the alternative educational 
setting until the resolution of that challenge. Still others asked that 
the note mention that under Sec. 300.514, placement could change if the 
parent and agency agreed to that other placement.
    Discussion: Under this section, if a determination is made 
consistent with Sec. 300.523 that a child's behavior is not

[[Page 12627]]

a manifestation of his or her disability, the child may be subject to 
the same disciplinary measures applicable to nondisabled children, 
including long-term suspensions and expulsions, except that FAPE must 
be provided consistent with section 612(a)(1) of the Act. In these 
instances, the disciplinary removal from a regular placement could be 
as long as the disciplinary exclusion applied to a nondisabled child, 
and need not be limited to a 45-day interim alternative educational 
placement, except that appropriate services must be provided to the 
child. To make the point more clearly that if the behavior is 
determined not to be a manifestation of the child's disability, that 
child may be subjected to long-term suspension and expulsion with 
appropriate services. To clarify what would constitute an acceptable 
alternative setting for a child if the child's behavior is determined 
to not be a manifestation of his or her disability, the reference in 
paragraph (a) of this section has been changed to refer to 
Sec. 300.121(c), which implements that statutory provision.
    Section 615(j) of the Act provides that the only exceptions to the 
``pendency'' rule (Sec. 300.514) are those specified in section 
615(k)(7) of the Act, concerning placement during parent appeals of 45-
day interim alternative educational placements, which is implemented by 
Sec. 300.526. Paragraph (c) of this section merely reflects that 
statutory arrangement. Section 300.526 governs a child's placement if a 
parent challenges a manifestation determination while a child is in a 
45-day interim alternative educational placement under 
Secs. 300.520(a)(2) or 300.521. Section 300.514 makes clear that 
placement may change if the agency and parent agree on an alternative 
placement while a due process hearing is pending on other issues.
    Changes: The reference to section 612(a)(1) of the Act in paragraph 
(a) is replaced with a reference to Sec. 300.121(c), paragraph (c) is 
revised to refer to the placement rules of Sec. 300.526, and the note 
is removed.

Parent Appeal (Sec. 300.525)

    Comment: Some commenters asked that the regulations specify that 
parents must request a hearing in writing under this section. Other 
commenters asked that the regulations make clear that any hearing 
requested under this authority must be expedited, rather than 
suggesting that only those hearings when the parent requests an 
expedited hearing.
    Some commenters wanted the regulations to reflect that mediation 
was an alternative to the expedited hearing procedure and encourage 
parents to seek mediation before an expedited hearing. Some asked that 
the regulations make clear that a parent's request for an expedited 
hearing would not apply to removals for less than 10 days and would not 
negate the discretion of school districts to use alternative judicial 
remedies, such as temporary restraining orders. Some commenters noted 
that paragraph (a)(1) of this section should be revised to apply only 
to placements made pursuant to the discipline provisions of the Act, 
and not other placement issues under the Act.
    Several commenters asked that proposed paragraph (b)(2) of this 
section be revised to make clear that the standard of Sec. 300.521 that 
is to be applied to 45-day placements under Sec. 300.520(a)(2) is the 
``substantial evidence'' standard and does not include the 
``substantially likely to result in injury'' test or other program 
factors in Sec. 300.521, so as not to damage the new ability of school 
districts to move students for up to 45 days for certain offenses 
related to weapons and drugs.
    Discussion: The statute does not specify that parents request a 
hearing in writing under the appeal procedures in this section. The 
statute provides for expedited hearings in three circumstances, and 
those are reflected in Secs. 300.521, 300.525, and 300.526. Mediation 
is always encouraged as an alternative to a due process hearing, and 
Sec. 300.506(a) makes clear that mediation must be available whenever a 
hearing is requested under the provisions of Secs. 300.520-300.528. 
Under the statute, it seems clear that a parent's right to an expedited 
hearing is limited to placements pursuant to the discipline provisions 
of the Act and not to other placement issues, such as disputes about 
the adequacy of a child's current placement (unless raised in the 
context of a manifestation issue).
    In addition, since the statute refers to decisions regarding 
placement, rather than to disciplinary actions, a parent's right to an 
expedited hearing is limited to disciplinary situations involving a 
change of placement, which would occur if a child were removed from the 
child's current placement for more than 10 school days at a time or if 
there were a series of removals from the child's current educational 
placement in a school year as described in Sec. 300.519. A parent's 
request for an expedited due process hearing does not prevent a school 
district from seeking judicial relief, through measures such as a 
temporary restraining order, when necessary.
    The provisions of paragraph (b) of this section are statutory. 
Section 615(k)(6)(B)(ii) does not refer solely to the ``substantial 
evidence'' test in section 615(k)(2)(A), but to all the ``standards'' 
in section 615(k)(2)(Sec. 300.521 of these regulations).
    Changes: Paragraph (a)(1) has been changed to refer to any decision 
regarding placement under Secs. 300.520-300.528.

Placement During Appeals (Sec. 300.526)

    Comment: Several commenters requested that paragraph (a) of this 
section be amended by specifying that a parent's appeal of a hearing 
officer decision must be heard by another hearing officer. Some 
commenters thought that LEAs should not be required to seek expedited 
hearings for students that remain a danger after 45 days and sought a 
simplified procedure for extensions of the 45-day placement.
    Others thought that the possibility of an extension of an interim 
alternative educational placement because a child remains dangerous 
should be limited to a one-time extension that would require the 
hearing officer to determine that there were no programmatic changes, 
related services or supplemental aids or services that could be used to 
mitigate the dangerousness of the original placement. These commenters 
thought that any further efforts to keep the student in an alternative 
placement should be heard by a court. Some commenters asked that the 
note be deleted or modified by requiring, for example, that for an 
extension the hearing officer consider whether the school district has 
created delays or otherwise not acted in good faith. A few commenters 
asked that any time an agency sought to extend an interim alternative 
education placement because of continued dangerousness, the agency 
first conduct a formal evaluation of the child.
    Discussion: It is not necessary to change the regulation to specify 
that a parent's appeal of a hearing officer's decision must be heard by 
another hearing officer, as it would violate the basic impartiality 
requirement of Sec. 300.508(a)(2) to permit a hearing officer to hear 
the appeal of his or her prior decision. Under paragraph (b) of this 
section, unless shortened as the result of a hearing officer's decision 
consistent with paragraph (a) of this section, a child would remain in 
the interim alternative educational setting pursuant to 
Secs. 300.520(a)(2) or 300.521 for the period of the exclusion (which 
may be up to 45 days).
    If the public agency proposes to change the child's placement at 
the end

[[Page 12628]]

of that interim alternative educational placement and the child's 
parents request a due process hearing on that proposed change of 
placement, the child returns to the child's placement prior to the 
interim alternative educational setting at the end of that interim 
placement, except as provided in paragraph (c) of this section. The 
expedited hearing procedure set forth in paragraph (c) of this section 
is drawn from the statute, which contemplates the same standards for 
these expedited hearings as for those under Sec. 300.521.
    There is no statutory limit on the number of times this procedure 
may be invoked in any individual case, and none is added to the 
regulation. If, after a 45-day extension of an interim placement under 
paragraph (c) of this section, an LEA maintains that the child is still 
dangerous and the issue has not been resolved through due process, the 
LEA may seek subsequent expedited due process hearings under paragraph 
(c)(1) of this section. However, in light of the decision to remove all 
notes from the regulations, the note would be removed.
    Changes: A new paragraph (c)(4) has been added to make clear that 
the procedure in paragraph (c) may be repeated, if necessary. The note 
has been removed.

Protection for Children not yet Eligible for Special Education and 
Related Services (Sec. 300.527)

    Comment: A number of commenters expressed concern that the 
statutory language that was reflected in paragraph (b) of this section 
was too broad and thought that reasonable restrictions should be added 
so that the issue of whether a ``basis of knowledge'' existed would not 
have to be litigated for almost any child who was subjected to 
disciplinary action.
    With respect to paragraph (b)(1), some commenters requested that 
written parent concerns should be addressed to the director of special 
education, other special education personnel of the agency, or the 
child's teacher rather than to noninstructional personnel or personnel 
not normally charged with child find responsibilities. Other commenters 
asked that paragraph (b)(1) make clear that the parental expression of 
concern must be more than a casual observation or vague statement and 
must describe behavior indicative of a disability or reflect the need 
for a special education evaluation. Other commenters asked for 
specificity about how the determination about parents' English literacy 
would be determined and asked that parental illiteracy in English be 
rephrased as being unable to write.
    Some commenters asked that paragraph (b)(2) clarify the type, 
severity, or degree of behavior or performance that would demonstrate 
the need for services under the Act. For example, some asked that the 
behavior or performance of the child would have to include 
characteristics consistent with a category of disability under 
Sec. 300.7 of the regulations. Others asked that this provision be 
revised to require observation and documentation of the child's 
performance or behavior demonstrating the need for special education 
services by personnel who regularly work with the child.
    Some commenters requested that various sections of paragraph (b) be 
time-limited to actions within the past year. Others asked that all of 
paragraph (b) be limited to actions that have occurred within the 
preceding two school years.
    With respect to paragraph (b)(4) of this section, many commenters 
asked that the regulations make clear that casual communications 
between agency personnel would not meet this standard. Some thought 
that the agency personnel covered by this provision should be limited 
to those providing regular or special education to the child reporting 
concern to agency personnel who are normally responsible for initiating 
the special education evaluation process. Others asked that expressions 
of concern by appropriate agency personnel be a written expression of 
the child's need for a special education evaluation. Some noted that 
without the addition of reasonable limitations, this provision would 
undermine responsible efforts, such as pre-referral strategies, to 
limit identification of children for special education.
    Some commenters asked that paragraph (b) make clear that an agency 
would not be considered to have a ``basis of knowledge'' merely because 
a child is receiving services under some other program such as Title 1 
of the Elementary and Secondary Education Act, a State- or locally-
developed compensatory education program, or consistent with Section 
504 of the Rehabilitation Act of 1973. Others asked that the 
regulations specify that if an evaluation has been done and a child 
found ineligible for special education, that evaluation and 
determination would not constitute a ``basis of knowledge'' under 
paragraph (b). Others asked that agencies be able to demonstrate that 
they responsibly addressed an expression of concern and concluded that 
the available data were sufficient to determine that there was no 
reason to evaluate the child.
    Discussion: In light of these comments, some changes would be made 
to paragraph (b) of this section. With respect to paragraph (b)(1) of 
this section, it is important to keep in mind that child find is an 
important activity of school districts under the Act and all of the 
staff of a school district should be at least aware enough of this 
important school function that, whatever their role in the school, if 
they receive a written expression of concern from a parent that a child 
is in need of special education and related services, a referral to 
appropriate school child find personnel should be made. Parents should 
not be held accountable for knowing who in a school is the proper 
person to contact if they are concerned that their child might need 
special education. On the other hand, the statute makes clear that the 
parental expression of concern must include enough information to 
indicate that their child is in need of special education and related 
services. The statutory provision expects that parents provide their 
expressions of concern in writing if they are able to and does not 
mention a particular language. Rather than refer to illiteracy; which 
may have a variety of interpretations, the regulations should refer to 
the parent not knowing how to write.
    In paragraph (b)(2) of this section, the behavior or performance of 
the child sufficient to meet this standard should be tied to 
characteristics associated with one of the disability categories 
identified in the definition of child with a disability in order to 
remove unnecessary uncertainty about the type, severity, or degree of 
behavior or performance intended. Child find is an important function 
of schools and school districts.
    School personnel should be held responsible for referring children 
for evaluation when their behavior or performance indicates that they 
may have a disability covered under the Act. Limiting paragraph (b)(2) 
to instances in which personnel who regularly work with the child have 
recorded their observation of a child's behavior or performance that 
demonstrates a need for special education would inappropriately omit 
those situations in which public agency personnel should have acted, 
but failed to do so.
    Requested changes regarding time limitations on the standards in 
paragraph (b) are not adopted. However, if as a result of one of the 
forms of notice identified in this paragraph, a public agency has 
either determined that the child was not eligible after conducting an 
evaluation or determined that an

[[Page 12629]]

evaluation was not necessary, and has provided appropriate notice to 
parents of that determination consistent with Sec. 300.503, the public 
agency would not have a basis of knowledge under this paragraph because 
of that notice. For example, if as the result of a parent request for 
an evaluation, a public agency conducted an evaluation, determined that 
the child was not a child with a disability, and provided proper notice 
of that determination to the parents, the agency would not have a basis 
of knowledge because of that parent request for an evaluation.
    If the parents disagreed with the eligibility determination 
resulting from that evaluation, they would have the right to request a 
due process hearing under Sec. 300.507. If the parents requested a 
hearing, the protections of this part would apply. If they did not 
request a hearing and the child subsequently engaged in behavior that 
violated any rule or code of conduct of the public agency, including 
behavior described in Secs. 300.520 or 300.521, and there was no 
intervening event or action that would independently constitute a basis 
of knowledge under paragraph (b), the public agency would not be deemed 
to have knowledge (of a disability). In such a case, consistent with 
paragraph (c), the parents could request an expedited evaluation, but 
the public agency could subject the child to the same disciplinary 
measures applied to children without disabilities engaging in 
comparable behavior. An addition would be made to this section. In 
order to clarify that if an agency responsibly addresses the behavior 
or performance of a child or an expression of concern about that 
behavior or performance the agency's knowledge of that behavior, 
performance or expression of concern, does not preclude the agency from 
subjecting the child to the same disciplinary measures applied to 
children without disabilities who engage in comparable behaviors.
    In order to provide clarity to the content of paragraph (b)(4), a 
change has been made to that provision. Public agencies should not be 
held to have a basis for knowledge that a child was a child with a 
disability merely because the child's teacher had expressed concern 
about the child's behavior or performance that was unrelated to whether 
the child had a disability. This provision would therefore be modified 
to refer to expressions of concern to other agency personnel who have 
responsibilities for child find or special education referrals in the 
agency.
    The changes described in this discussion in regard to paragraph 
(b)(2) and (b)(4) would clarify that a public agency will not be 
considered to have a basis of knowledge under paragraph (b) of this 
section merely because a child receives services under some other 
program designed to provide compensatory or remedial services or 
because a child is limited-English proficient. If the child is eligible 
under section 504 and not the IDEA, discipline would have to be 
consistent with the requirements of section 504.
    Changes: A technical change has been made to paragraph (a) to refer 
to paragraph (b) of this section rather than ``this paragraph.'' The 
parenthetical language in paragraph (b)(1) has been replaced with the 
following statement: ``(or orally if the parent does not know how to 
write or has a disability that prevents a written statement).'' 
Language is added to paragraph (b)(2) to clarify that the behavior or 
performance is in relation to the categories of disability identified 
in Sec. 300.7; and paragraph (b)(4) has been revised to refer to other 
personnel who have responsibilities for child find or special education 
referrals in the agency. Paragraph (c) has been redesignated as 
paragraph (d) and a new paragraph (c) has been added to provide that if 
an agency acts on one of the bases identified in paragraph (b), 
determines that the child is not eligible, and provides proper notice 
to the parents, and there are no additional bases of knowledge under 
paragraph (b) that were not considered, the agency would not be held to 
have a basis of knowledge under Sec. 300.527(b).
    Comment: Some commenters thought that paragraph (c) of this section 
in the NPRM implied that a regular education child is entitled to some 
placement while eligibility is being determined, and thought that 
whether these students receive services while eligibility is being 
determined should be left to the States. Others asked that the 
regulations specify that the phrase ``educational placement'' in 
proposed paragraph (c)(2)(ii) includes a suspension or expulsion 
without services, while others thought that any disciplinary action 
should be put on hold until the evaluation was completed. Others asked 
that parents be involved in decisions about the child's educational 
placement under this provision.
    Some commenters thought that more guidance should be provided about 
an appropriate timeline for an expedited evaluation. Others asked that 
an expedited evaluation when an agency had conducted an evaluation 
within the past year could be reviewing those results and determining 
whether other assessments would need to be conducted. Other commenters 
wanted the regulations to make clear that a parent would have the right 
to an independent educational evaluation if the parent disagrees with 
the evaluation results and to the standard appeal rights and that a 
court could enjoin improper exclusion during the pendency of the 
evaluation and appeal process.
    Discussion: Redesignated paragraph (d) of this section does not 
require the provision of services to a child while an expedited 
evaluation is being conducted, if the public agency did not have a 
basis for knowledge that the child was a child with a disability. An 
educational placement under paragraph (d)(2)(ii) in those situations 
can include a suspension or expulsion without services, if those 
measures are comparable to measures applied to children without 
disabilities who engage in comparable behavior. Of course, States and 
school districts are free to choose to provide services to children 
under this paragraph.
    There is no requirement that a disciplinary action be put on hold 
pending the outcome of an expedited evaluation, or that the child's 
parents be involved in placement decisions under paragraph (d)(2)(ii).
    No specific timeline for an expedited evaluation is included in the 
regulations, as what may be required to conclude an evaluation will 
vary widely depending on the nature and extent of a child's suspected 
disability and the amount of additional information that would be 
necessary to make an eligibility determination. However, the statute 
and regulation specify that the evaluation in these instances be 
``expedited'', which means that an evaluation should be conducted in a 
shorter period of time than a normal evaluation. As Sec. 300.533 makes 
clear, in some cases, an evaluation may be conducted based on a review 
of existing data.
    With regard to an expedited evaluation, a parent's right to an 
independent educational evaluation if they disagree with the results of 
that evaluation and to normal appeal rights of that expedited 
evaluation are not affected by this section. Courts have the ability to 
enjoin improper exclusion of children from educational services in 
appropriate circumstances.
    Changes: Language has been added to paragraph (d)(2)(ii) to make 
clear that an educational placement under that provision may include 
suspension or expulsion without educational services.

Expedited due Process Hearings (Sec. 300.528)

    Comment: Some commenters supported the time frames proposed for

[[Page 12630]]

expedited due process hearings in light of the need to get prompt 
resolution of the various issues that are subject to these hearings. A 
number of commenters expressed concern about being able to meet the 
timelines proposed in paragraph (a) and suggested that the expedited 
hearing timeline be set at some longer time such as 10 school days, 15 
calendar days, 20 business days, or 20 school days, so that an orderly 
hearing could be conducted, the parties' rights protected, and a well-
reasoned and legally sufficient decision could be rendered.
    Some commenters thought that this section should refer to 
``expedited hearings'' rather than ``expedited due process hearings.'' 
Others noted the obligation of a hearing officer to schedule the 
hearing quickly so that a decision could be reached within the time 
frame. Some commenters asked that a provision be added to specify that 
if a decision was not rendered within the time frame, the child would 
remain in the alternative placement until the decision was issued, 
while others asked that the child be returned to the regular placement 
if the decision were not issued within that time frame.
    Some commenters were concerned that the provision proposed in 
paragraph (b) not be read to reduce rights available to children and 
parents under the law, and asked that a statement be added to the 
regulation to specify that in no instance should the protections 
afforded the student and parent under the Act be reduced.
    Some commenters asked that paragraph (c) provide an expedited 
appeal process as well in light of the statutory emphasis on quick 
resolution of disputes about disciplinary actions. Some commenters 
asked that the regulations make clear that appeals of disputes under 
Secs. 300.520-300.528 are to a State level review officer, if a State 
has a two-tier due process system, and not to another due process 
hearing officer.
    Discussion: Because of concerns that in some States it will not be 
possible to conduct an orderly hearing and develop a well-reasoned, 
legally sufficient decision within a 10 business day timeline, the 
specific time limit would be removed and replaced with a requirement 
that States establish a timeline for expedited due process hearings 
that meet certain standards--it must result in written decisions being 
mailed to the parties in less than 45 days, with no extensions of time 
that result in a decision more that 45 days from the date of the 
request for a hearing, and it must be the same period of time, whether 
the hearing is requested by a public agency or parent. This will allow 
States to develop a rule that is fairly applied to both parents and 
school districts and is best suited to their particular needs and 
circumstances.
    The regulations refer to expedited due process hearings rather than 
expedited hearings to make clear that the procedural protections in 
Secs. 300.508 and 300.509 are to be met. With regard to the hearings 
provided for in section 615(k)(2) of the Act (Sec. 300.521 of the 
regulations), the Committee reports accompanying Pub. L. 105-17 refer 
to the hearings as ``expedited due process hearings.'' (S. Rep. No. 
105-17, p. 31, H.R. Rep. No. 105-95 p. 111 (1997)) In addition, the 
evidentiary standard specified in the statute for hearings under 
Secs. 300.521 and 300.526(c) requires consideration of evidence 
presented by both sides to a dispute, which rules out hearings which do 
not permit each side an equal opportunity to present evidence. 
Permitting a different standard to apply to expedited hearings on 
parent appeals under Sec. 300.526(a) would be unfair to public 
agencies. If a decision is not reached within the time frame specified, 
the child's placement would be determined based on the other rules 
provided in these regulations. For example, if a school district had 
requested a hearing for the purpose of demonstrating that a child was 
substantially likely to injure themselves or others if the child 
remained in the current placement, the child could be removed from his 
or her current placement for not more than 10 school days pending the 
decision of the hearing officer, unless the child's parents and the 
public agency agreed otherwise. (Sec. 300.519).
    If the child were in a 45-day interim alternative educational 
setting and the parents appealed that determination, the child would 
remain in that setting until the expiration of the 45 days or the 
hearing officer's decision, whichever occurs first. (Sec. 300.526(a)). 
If the child's parents oppose a proposed change of placement at the end 
of a 45-day interim alternative educational setting, under 
Sec. 300.526(b), the child returns to the child's prior placement at 
the end of the interim placement, unless through another hearing and 
decision by the hearing officer under Sec. 300.526(c), the interim 
alternative educational setting is extended for an additional period of 
time, not to exceed 45 days for each expedited hearing requested under 
Sec. 300.526(c).
    Paragraph (b) of this section is designed to make clear that while 
a State must insure that expedited due process hearings must meet the 
requirements of paragraph (a) of this section, the State may alter 
other State-imposed procedural rules from those it uses for hearings 
under Sec. 300.507. This rule will ensure that the basic protections 
regarding hearings under the Act are met, while enabling States to 
adjust other procedural rules they may have superimposed on due process 
hearings in light of the expedited nature of these hearings.
    No specific expedited appeal process is specified in the Act, and 
none is added by these regulations. However, States should be able to 
choose to adopt an expedited appeal procedure if they wish, including, 
in States that have a two-tier normal due process procedure, 
establishing a one-tier expedited hearing procedure (i.e., expedited 
hearings conducted by the SEA) so that parties resort directly to a 
State or Federal court, rather than appeal through a State-level appeal 
procedure. Therefore, a change should be made to the regulation to 
clarify that an appeal of an expedited due process hearing must be 
consistent with Sec. 300.510.
    Changes: A technical change has been made to paragraph (a)(2) to 
refer to Sec. 300.509 rather than Sec. 300.508. Paragraph (a)(1) has 
been deleted and a new paragraph (b) has been added to provide that 
each State establish a timeline for expedited due process hearings that 
results in a written decision being mailed to the parties within 45 
days, with no extensions permitted that result in decisions being 
issued more than 45 days after the hearing request; and to require that 
decisions be issued in the same period of time, whether the hearing is 
requested by a parent or an agency. Paragraphs (a)(2) and (a)(3) have 
been redesignated as paragraphs (a)(1) and (a)(2) and paragraphs (b) 
and (c) have been redesignated as paragraphs (c) and (d). Redesignated 
paragraph (d) has been revised to specify that expedited due process 
hearings are appealable consistent with the Sec. 300.510. A 
modification has been made to Sec. 300.526(a) regarding these appeals.

Referral to and Action by Law Enforcement and Judicial Authorities 
(Sec. 300.529)

    Comment: Several commenters asked that paragraph (a) be modified to 
clarify that reporting crimes to law enforcement authorities not 
circumvent the school's responsibilities under IDEA to appropriately 
evaluate and address children's behavior problems that are related to 
their disabilities in a timely manner. Other commenters requested that 
procedural safeguards similar to those in Secs. 300.520-300.528 be

[[Page 12631]]

incorporated into this section that would apply whenever an agency 
makes a report of a crime by a child with a disability, including 
conducting a manifestation determination on the relationship of the 
behavior to the disability, applying the 10- and 45-day timelines to 
any criminal or juvenile filing, notice to parents, and the right of 
parents to appeal decisions and request due process. Some commenters 
stated that any referral to juvenile or law enforcement authorities 
should trigger notice to parents of the referral.
    Several commenters requested that the regulations specify that the 
Act also permits school officials to press charges against a child with 
a disability when they have reported a crime by that student.
    One commenter asked that paragraph (a) be modified to require that 
a police report include a statement indicating that the student is in a 
special education program and identify a contact person who can provide 
additional information to appropriate authorities on request.
    Discussion: Paragraph (a) of Sec. 300.529 does not authorize school 
districts to circumvent any of their responsibilities under the Act. It 
merely clarifies that school districts do have the authority to report 
crimes by children with disabilities to appropriate authorities and 
that those State law enforcement and judicial authorities have the 
ability to exercise their responsibilities regarding the application of 
Federal and State law to crimes committed by children with 
disabilities. The procedural protections that apply to reports of a 
crime are established by criminal law, not the IDEA. Of course, it 
would be a violation of Section 504 of the Rehabilitation Act of 1973 
if a school were discriminating against children with disabilities in 
how they were acting under this authority (e.g., if they were only 
reporting crimes committed by children with disabilities and not 
committed by nondisabled students).
    The Act does not address whether school officials may press charges 
against a child with a disability when they have reported a crime by 
that student. Again, school districts should take care not to exercise 
their responsibilities in a discriminatory manner.
    With regard to indicating that a student is a special education 
student and identifying a contact person who can provide appropriate 
information to authorities to whom a crime is reported, as explained 
more fully in the discussion on Sec. 300.529(b), under the 
confidentiality requirements of these regulations (see, e.g., 
Sec. 300.571) and those of the Family Educational Rights and Privacy 
Act (FERPA) (20 U.S.C. 1232g), personally identifiable information 
(such as a student's status as a special education student) can only be 
released with parental consent except in certain very limited 
circumstances.
    Changes: None.
    Comment: A number of commenters asked that paragraph (b) of this 
section include a reference to the requirements of FERPA and note that 
public agencies must insure the confidentiality of records such as the 
special education and disciplinary records referred to in this section. 
Some asked that a provision be added making clear that a release to law 
enforcement authorities could only be made pursuant to the requirements 
of FERPA. Others asked whether this provision constituted an exception 
to disclosure of education records under FERPA, and if so, that the 
regulations make this clear. Some commenters noted that disclosure of 
education records would be a significant burden on schools and that it 
contradicts existing confidentiality and disclosure requirements. Some 
commenters were concerned that other agencies would not maintain these 
records in a way that would protect the often very sensitive 
information that they contain.
    Discussion: Under sections 612(a)(8) and 617(c) of the Act, the 
Secretary is directed to take appropriate action, in accordance with 
FERPA to assure the confidentiality of personally identifiable 
information contained in records collected or maintained by the 
Secretary and by SEAs and LEAs (see Secs. 300.127, and 300.560-
300.577). The provisions of section 615(k)(9)(B) of the Act as 
reflected in paragraph (b) of this section must be interpreted in a 
manner that is consistent with the requirements of FERPA, and not as an 
exception to the requirements of that law. In other words, the 
transmission of special education and disciplinary records under 
paragraph (b) of this section is permissible only to the extent that 
such transmission is permitted under FERPA.
    If section 615(k)(9)(B) of the Act were construed to require, or 
even permit, disclosures prohibited by FERPA, it arguably would violate 
the equal protection rights of children with disabilities to be 
protected against certain involuntary disclosures to authorities of 
their confidential educational records to the same extent as their 
nondisabled peers. To avoid this unconstitutional result, this 
statutory provision must be read consistent with the disclosures 
permitted under FERPA for the education records of all children.
    FERPA would permit disclosure of the special education and 
disciplinary records mentioned in Sec. 300.529(b) only with the prior 
written consent of the parent or a student aged 18 or older, or where 
one of the exceptions to FERPA's consent requirements apply. (See also, 
Sec. 300.571). For example, disclosure of special education and 
disciplinary records would be permitted when the disclosure is made in 
compliance with a lawfully issued subpoena or court order if the school 
makes a reasonable attempt to notify the parent of the student of the 
order or subpoena in advance of compliance. (34 CFR 99.31(a)(9)). This 
prior notice requirement allows the parent to seek protective action 
from the court, such as limiting the scope of the subpoena or quashing 
it. Prior notice is not required when the disclosure is in compliance 
with certain Federal grand jury or other law enforcement subpoenas. In 
these cases, the waiver of the advance notification requirement applies 
only when the law enforcement subpoena or court order contains language 
that specifies that the existence or the contents of, or the 
information furnished in response to, such subpoena or court order 
should not be disclosed. (34 CFR 99.31(a)(9)(ii)). Additionally, under 
FERPA, if the disclosure is in connection with an emergency and 
knowledge of the information is necessary to protect the health or 
safety of the student or other individuals (34 CFR 99.31(a)(10) and 
99.36), disclosure may be made without parental consent. In addition, 
schools may disclose education records without consent if a disclosure 
is made pursuant to a State statute concerning the juvenile justice 
system and the system's ability to effectively serve, prior to 
adjudication, the student whose records are released. The State statute 
must create an information sharing system, consisting only of State and 
local officials, that protects against the redisclosure of a juvenile's 
education records. (34 CFR 99.31(a)(5) and 99.38). For additional 
information on the juvenile justice system provision and other 
provisions under FERPA, refer to the U.S. Department of Education/U.S. 
Department of Justice publication entitled Sharing Information: A Guide 
to the Family Educational Rights and Privacy Act and Participation in 
Juvenile Justice Programs. The publication can be downloaded from the 
Family Policy Compliance Office's web site: www.ed.gov.office/OM/fpco
    In some instances, however, the Part 300 regulations are more 
restrictive than FERPA. For example, the Part 300

[[Page 12632]]

regulations in the past prohibited disclosures without parent consent 
to outside entities that FERPA would permit. (See proposed 
Sec. 300.571(a) limiting disclosures without consent to officials of 
participating agencies collecting or using the information under IDEA 
and requiring consent before information is used for any purpose other 
than meeting IDEA requirements.) Section 615(k)(9)(B) of the Act now 
eliminates, with regard to children with disabilities who are accused 
by schools of crimes, IDEA restrictions on the sharing of information 
that is permissible under FERPA.
    Except in certain limited situations, information from special 
education and disciplinary records may be disclosed only on the 
condition that the party to whom the information is disclosed will not 
disclose the information to any other party without the prior consent 
of the parent. (34 CFR 99.33). This procedure should be sufficient to 
ensure that those other parties maintain the records in a manner that 
will protect the confidentiality of that information.
    Changes: Paragraph (b) of this section has been amended to make 
clear that copies of a child's special education and disciplinary 
records may be transmitted only to the extent that such transmission is 
permitted under FERPA. Section 300.571 has been amended to note the 
exception of this section.
    Comment: Some commenters asked that the regulations provide further 
clarification about the disclosure of information described in 
paragraph (b) by, for example, clarifying whether a request from a law 
enforcement official is needed before a transfer, whether the LEA would 
be permitted to determine the most appropriate official to receive the 
records, and if all or part of the record is transmitted. Others asked 
that the regulations specify that the records be transferred within a 
short period of time so that they would be available for consideration 
in decisions about the student's case or that some limitations be 
imposed on what is transferred, such as records covering the past year, 
or ``relevant'' records.
    Some commenters asked that the regulations impose some limitations 
on this responsibility by defining ``appropriate authorities,'' 
``special education record,'' and ``disciplinary record.'' Others asked 
that the regulations require SEAs to develop procedures regarding the 
disclosure of education records to the appropriate authorities when 
LEAs report a student's criminal activity because States' juvenile law 
and criminal law enforcement systems are different.
    A few commenters asked that the agency reporting a crime be 
responsible for ensuring that the child continues to receive FAPE in 
accordance with the child's IEP with consultation with law enforcement, 
judicial authorities, or any other agency responsible for the education 
of incarcerated youth.
    Discussion: As explained in the prior discussion, FERPA limits the 
extent to which disclosure of special education and disciplinary 
records would be permitted. The circumstances that determine whether 
records may be transmitted generally will determine whether a specific 
request from a law enforcement official would need to be made, to whom 
the records would be transmitted and the extent of the information 
provided. In light of the fact-specific nature of the analysis 
required, no specific definitions of terms used in paragraph (b) are 
provided. The requirements of FERPA and its implementing regulations at 
34 CFR Part 99 provide more specific guidance. The agency that is 
responsible to ensure that a child receives FAPE when the child has 
been accused of a crime and is in the custody of law enforcement and 
judicial authorities will be determined by State law.
    Changes: None.

Procedures for Evaluation and Determination of Eligibility

Initial Evaluation (Sec. 300.531)

    Comment: A few commenters requested that this section be revised to 
clarify that parents may request an initial evaluation, and some 
requested that public agencies be required to conduct an initial 
evaluation upon parent request. A few commenters requested that the 
regulation be revised to require that, upon parent request, an initial 
evaluation include new testing in all areas of suspected disability, 
even if a determination is made, under Sec. 300.533(a), that no 
additional data are needed. A few commenters requested that the 
regulation be revised to specify the types of indicators, such as a 
psychiatric hospitalization, that trigger the requirement that a child 
be evaluated for possible disability.
    Other commenters requested that the regulation be revised to 
clarify that initial evaluations are distinct from reevaluations, and 
to require that initial evaluations be ``comprehensive,'' and include a 
complete full and individual evaluation of the child in all areas of 
suspected disability. A few commenters requested that Sec. 300.531 be 
linked with Sec. 300.532(g), to make clear that a ``full and individual 
initial evaluation'' under Sec. 300.531 means a comprehensive 
evaluation in all areas of suspected disability.
    Discussion: The child find provisions of Sec. 300.125 require that 
a public agency ensure that any child that it suspects has a disability 
is evaluated. Under both prior law and these regulations, if a parent 
requests an initial evaluation, the public agency must either: (1) 
provide the parents with written notice of the agency's proposal to 
conduct an initial evaluation if the agency suspects that the child has 
a disability and needs special education and related services; or (2) 
provide the parents with written notice of the agency's refusal to 
conduct an initial evaluation if it does not suspect that the child has 
a disability. The parent may challenge such a proposal or refusal by 
requesting a due process hearing.
    If a group decision is made under Sec. 300.533(a) that no 
additional data are needed as part of an initial evaluation, the public 
agency is not required to conduct additional assessment as part of the 
initial evaluation; however, the parents may challenge that decision by 
initiating a due process hearing.
    The child find provisions in section 612(a)(3) and in these 
regulations at Sec. 300.125 require that all eligible children be 
identified, located and evaluated, and it is not necessary to establish 
additional requirements regarding specific circumstances that trigger 
an agency's responsibility to evaluate a child.
    Any initial evaluation or reevaluation of a child with a disability 
must meet the requirements of Sec. 300.532; therefore, a child with a 
disability must, as part of any initial evaluation or reevaluation, be 
assessed in all areas of suspected disability (Sec. 300.532(g)). 
However, as provided in Sec. 300.533(a) and explained above, the public 
agency may not need to conduct assessment procedures to obtain 
additional data in one or more areas of suspected disability depending 
on what data are already available regarding the child.
    Changes: None.
    Comment: A few commenters requested that the regulations be revised 
to provide guidelines for State timelines for completing initial 
evaluations.
    Discussion: This issue is addressed in the discussion regarding 
Sec. 300.342.
    Changes: None.

Evaluation Procedures (Sec. 300.532)

    Comment: Some commenters requested that the regulation be revised 
to require that all tests and other evaluation materials and procedures 
that are used to assess a child, including nonstandardized tests, be 
validated for the specific purpose for which they are

[[Page 12633]]

used and administered by trained and knowledgeable personnel in 
accordance with any instructions provided by the producer of the tests.
    Other commenters asked that the regulation be revised to require 
that tests and other evaluation procedures be selected and administered 
so as not to be discriminatory on a disability basis, and to prohibit 
use of tests if there is controversy in the literature about a test's 
validity for use with children with a particular disability unless a 
local validation study has been conducted for the particular disability 
that the child is suspected to have. A few commenters requested that 
the regulation specify that evaluations that are conducted verbally 
should use the language normally used by the child and not the language 
used by the parents, if there is a difference between the two.
    A few commenters requested that the regulation be revised to 
require that public agencies collect information regarding a child's 
learning style(s) and needed methodologies as part of an evaluation, 
because such information is critical in formulating appropriate 
instructional methods to promote the child's learning. A few commenters 
requested that the regulation be revised to require that three 
individuals from different disciplines evaluate each child. A few 
commenters requested that the regulation be revised to clarify that 
tests and other materials used in evaluating each child must include a 
full range of diagnostic techniques, including observations and 
interview. A few commenters requested that Sec. 300.532(g) be revised 
to require a comprehensive evaluation for all students, regardless of 
their area of suspected disability, and a functional behavioral 
assessment for each child who exhibits behavior that impedes learning.
    A few commenters requested that the regulation be revised to 
require that initial evaluations and reevaluations address all of the 
special factors that IEP teams must consider under Sec. 300.346(a)(2). 
A few commenters asked that the regulation be revised to require that 
evaluations provide information to enable public agencies to comply 
with the requirements of Sec. 300.534(b)(1), which requires that a 
child not be determined to be a child with a disability if the 
determinant factor is a lack of instruction in reading or math.
    A few commenters requested that paragraphs (d), (e), and (f), and 
Notes 1, 2, and 3, be deleted because they exceed the requirements in 
the statute.
    A few commenters were concerned that Note 2 does not address the 
broad array of unique circumstances in which it may be necessary, for 
communication or other disability-specific reasons, to seek out an 
appropriate evaluator who is not on the staff of the public agency.
    A few commenters raised concerns about valid assessment of Native 
American children who are either Navajo-dominant speakers or bilingual. 
They expressed particular concern regarding the limitations of 
standardized written instruments in assessing children who speak 
Navajo, which is a predominantly oral language, and asked for guidance 
as to how Bureau of Indian Affairs schools will meet the requirements 
in Sec. 300.532 regarding standardized assessment tools.
    A few commenters were concerned that the reference in Note 3 to 
administration of assessment components by persons whose qualifications 
do not meet standard conditions would appear to ``give permission'' for 
the use of unqualified assessment personnel, and requested that this 
reference be deleted from the note. Other commenters asked that Note 3 
be deleted because it inappropriately implies that IDEA permits public 
agencies to conduct assessments under ``substandard'' conditions.
    Several commenters requested that the substance of all of the notes 
in the NPRM be incorporated into the text of the regulations, or that 
the notes be deleted in their entirety.
    Discussion: The provisions of Sec. 300.532(c) regarding 
requirements for standardized tests are consistent with section 
614(b)(3)(B), which limits applicability of those requirements to 
standardized tests. The selection of appropriate assessment instruments 
and methodologies is appropriately left to State and local discretion.
    A public agency must ensure that: (1) the IEP team for each child 
with a disability has all of the evaluation information it needs to 
make required decisions regarding the educational program of the child, 
including the consideration of special factors required by 
Sec. 300.346(a)(2); and (2) the team determining a child's eligibility 
has all of the information it needs to ensure that the child is not 
determined to be a child with a disability if the determinant factor is 
a lack of instruction in reading or math, as required by 
Sec. 300.534(b)(1). It is not, therefore, necessary to establish an 
additional requirement that evaluations address the requirements of 
Sec. 300.346(a)(2) or Sec. 300.534(b)(1).
    Paragraphs (d), (e), and (f) were all among the provisions included 
in the regulations as in effect on July 20, 1983, and are unaffected by 
the IDEA Amendments of 1997.
    In evaluating each child with a disability, it is important for 
public agencies to ensure that the evaluation is sufficiently 
comprehensive to identify all of the child's special education and 
related services needs, including any needs the child has that are 
commonly linked to a disability category other than the disability in 
which the child has been classified. Further, public agencies must 
ensure that the services provided to each child under this part are 
designed to meet all of the child's identified special education and 
related services needs, and not those resulting only from the 
disability area in which the child has been initially classified.
    As proposed Note 1 indicated, under Title VI of the Civil Rights 
Act of 1964: (1) in order to properly evaluate a child who may be 
limited English proficient, a public agency should assess the child's 
proficiency in English as well as the child's native language to 
distinguish language proficiency from disability needs; and (2) an 
accurate assessment of the child's language proficiency should include 
objective assessment of reading, writing, speaking, and understanding.
    Both Title VI and Part B require that a public agency ensure that 
children with limited English proficiency are not evaluated on the 
basis of criteria that essentially measure English language skills. 
Sections 300.532 and 300.534(b) require that information about the 
child's language proficiency must be considered in determining how to 
conduct the evaluation of the child to prevent misclassification. In 
keeping with the decision to eliminate all notes from the final 
regulations, however, Note 1 has been removed. The text of Sec. 300.532 
has been revised to require that assessments of children with limited 
English proficiency must be selected and administered to ensure that 
they measure the extent to which a child has a disability and needs 
special education, and do not instead measure the child's English 
language skills.
    Proposed Note 2 explained that paragraphs (a)(1)(i) and (2)(ii) 
when read together require that even in situations where it is clearly 
not feasible to provide and administer tests in the child's native 
language or mode of communication for a child with limited English 
proficiency, the public agency must still obtain and consider accurate 
and reliable information that will enable the agency to make an 
informed decision as to whether the child has a disability and the 
effects of the disability on the child's educational needs. In some 
situations, there may be

[[Page 12634]]

no one on the staff of a public agency who is able to administer a test 
or other evaluation in a child's native language, as required under 
paragraph (a)(2) of this section, but an appropriate individual is 
available in the surrounding area. In that case a public agency could 
identify an individual in the surrounding area who is able to 
administer a test or other evaluation in the child's native language 
include contacting neighboring school districts, local universities, 
and professional organizations. This information will be useful to 
school districts in meeting the requirements of the regulations, but 
consistent with the general decision to remove all notes, Note 2 would 
be removed.
    An assessment conducted under non standard conditions is not in and 
of itself a ``substandard'' assessment. As proposed Note 3 clarified, 
if an assessment is not conducted under standard conditions, 
information about the extent to which the assessment varied from 
standard conditions, such as the qualifications of the person 
administering the test or the method of test administration, needs to 
be included in the evaluation report. A provision has been added to the 
regulation to make this point.
    This information is needed so that the team of qualified 
professionals can evaluate the effects of these variances on the 
validity and reliability of the information reported and to determine 
whether additional assessments are needed. Again, while the proposed 
note provided clarifying information on the regulatory requirements, in 
keeping with the general decision to eliminate notes, Note 3 would be 
removed.
    The provisions of the Act and Sec. 300.532, as revised to include a 
provision regarding the use of nonstandard assessments, are sufficient 
to ensure that the provisions of the regulation are appropriately 
implemented for Navajo children, and no further changes are needed.
    Changes: Section 300.532 has been revised to require that 
assessments of children with limited English proficiency must be 
selected and administered to ensure that they measure the extent to 
which a child has a disability and needs special education, and do not, 
instead, measure the child's English language skills.
    A provision has been added to Sec. 300.532 to require that if an 
assessment is not conducted under standard conditions, information 
about the extent to which the assessment varied from standard 
conditions, such as the qualifications of the person administering the 
test or the method of test administration, must be included in the 
evaluation report. Notes 1, 2, and 3 have been removed.
    A provision has been added to Sec. 300.532 to require that the 
assessment be sufficiently comprehensive to identify all of a child's 
special education and related services needs. A change also has been 
made to Sec. 300.300 clarifying that services provided to each child 
must be designed to meet all the child's identified special education 
and related services needs.
    Paragraph (b) has been revised consistent with section 614(b)(2) of 
the Act, to clarify that information about enabling the child to be 
involved in and progress in the general curriculum or for a preschool 
child to participate in appropriate activities may assist in 
determining both whether the child has a disability and the content of 
the child's IEP.

Determination of Needed Evaluation Data (Sec. 300.533)

    Comment: A few commenters requested that the regulation or a note 
clarify that it is expected that typically some new tests or 
assessments will be required as part of reevaluations. A number of 
commenters were concerned that, absent more specific requirements 
mandating the use of additional assessments, public agencies would rely 
on outdated assessment information regarding the needs of children with 
disabilities, especially since the needs of children with disabilities 
may change significantly over time, and some requested that the 
regulations be revised to define a maximum ``age'' for data that a 
public agency may rely upon as part of an evaluation. A few other 
commenters were concerned that the required IEP team participants often 
would not have the appropriate qualifications and expertise to judge 
the validity of existing data and to determine what if any additional 
data are needed.
    A few others requested that the regulation be revised to require 
that a public agency collect additional data to determine whether a 
child continues to be a child with a disability, unless the agency 
obtains signed, informed parent consent to not collect such additional 
data, and that States be required to report on the number of such 
parent ``waivers.'' Other commenters requested that the regulation or 
note clarify that the provisions of Sec. 300.533(c) apply only to the 
portion of a reevaluation that addresses whether a child continues to 
be a child with a disability, and not the portion that addresses the 
child's needs for special education and related services.
    A few commenters requested that parents be required to justify any 
request for additional assessment data. A few other commenters 
requested that public agencies be required to inform parents of their 
right to request additional assessments to determine whether their 
child has a disability.
    A few commenters thought that is was important to clarify that a 
public agency may use data from prior assessments conducted by 
individuals or agencies other than the public agency in determining 
what additional data were needed.
    Some commenters requested that the note be deleted.
    Discussion: Whether additional data are needed as part of an 
initial evaluation or reevaluation must be determined on a case-by-case 
basis, depending upon the needs of the child and the information 
available regarding the child, by a group that includes the individuals 
described in Sec. 300.344 and other qualified professionals, as 
appropriate.
    It is intended that the group review all relevant existing 
evaluation data on a child, including that provided by the parents and, 
where appropriate, data from evaluations conducted by other agencies. A 
public agency must ensure that the group fulfilling these functions 
include individuals beyond those described in Sec. 300.344 if necessary 
to ensure that appropriate, informed decisions are made (see 
Sec. 300.533).
    Requiring public agencies to obtain informed written consent 
permitting them not to collect, as part of a reevaluation, additional 
data to determine whether a child continues to be a child with a 
disability, would exceed the requirements of the statute, as would 
requiring States to report on the number of children for whom a 
reevaluation does not include collecting additional data to determine 
whether they continue to be children with disabilities.
    The provisions of Sec. 300.533(c) apply only to the collection of 
additional data needed to determine whether a child continues to be a 
child with a disability.
    It would not be consistent with the statute and these regulations 
to require that parents ``justify'' any request for additional 
assessment data. Parents must be included in the group that reviews 
existing data and determines what additional data are needed, and, as 
part of that group, they have the right to identify additional 
assessment data that they believe are needed and to participate in the 
decision regarding the need for those data. Both the statute and these 
regulations require that the determination regarding the need for

[[Page 12635]]

additional data be based, in part, on input from the parents. Under 
both the statute and these regulations, parents also have the right to 
request an assessment, as part of a reevaluation, to determine whether 
their child continues to have a disability under IDEA. However, this 
right is limited to determinations of eligibility for services under 
Part B. If the group reviewing the existing data does not believe 
additional data are needed to determine a child's continued eligibility 
under IDEA, but the parents want additional testing for reasons other 
than continued eligibility under IDEA, such as admission to college, 
the denial of the parent's request would be subject to due process.
    An additional requirement that parents be informed of their right 
to request additional assessment data is not needed, as it is already 
addressed by paragraph (c)(1)(iii).
    The proposed note clarified that the requirement in Sec. 300.533(a) 
and Sec. 300.534(a)(1) that review of evaluation data and eligibility 
decisions be made by groups that include ``qualified professionals,'' 
is intended to ensure that the group making these determinations 
include individuals with the knowledge and skills necessary to 
interpret the evaluation data and make an informed determination as to 
whether the child is a child with a disability under Sec. 300.7, and to 
determine whether the child needs special education and related 
services.
    The composition of the group will vary depending upon the nature of 
the child's suspected disability and other relevant factors. For 
example, if a student is suspected of having a learning disability, a 
professional whose sole expertise is visual impairments would be an 
inappropriate choice. If a student is limited English proficient, it 
will be important to include a person in the group of qualified 
professionals who is knowledgeable about the identification, 
assessment, and education of limited English proficient students. While 
the proposed note provided clarifying information on the regulatory 
requirements, in keeping with the general decision to eliminate notes, 
the note would be removed.
    Changes: The note has been removed. Paragraph (d) has been revised 
to clarify that the parent's right to request an evaluation regarding 
continued eligibility concerns services under Part B.
    Comment: Some commenters requested that the regulation be revised 
to provide further guidance as to whether public agencies are required 
to convene a meeting to review existing evaluation data on a child and 
to determine what, if any, additional data are needed as part of the 
evaluation. A few commenters stated their opinion that the Congress did 
not intend to establish a new requirement for an additional meeting 
that public agencies must convene. Others asked for clarity as to 
whether a public agency could meet the requirements of Sec. 300.533(a) 
by reviewing existing data and determining what additional data are 
needed as part of the child's IEP meeting during the second year of the 
three year evaluation cycle. A few commenters asked that the regulation 
be revised to require that parents are entitled to participate in any 
meeting held to review existing data.
    A few other commenters requested that the regulation be revised to 
provide that only those members of the IEP team needed to review 
current goals and objectives must participate in the review of existing 
data, and that not all members involved in the initial placement need 
be involved unless there is to be a change in the placement or 
identification of the child.
    Discussion: Section 300.533(a) requires that a group that includes 
the individuals described in Sec. 300.344 (regarding the IEP team) and 
other qualified professionals, as appropriate, review the existing 
evaluation data and determine what additional data are needed. Although 
a public agency must ensure that the review of existing data and the 
determination of any needed additional data must be made by a group, 
including the parents, neither the statute nor these regulations 
require that the public agency conduct a meeting for this purpose. A 
State may, however, require such meetings.
    Section 300.501(a)(2)(i) requires that parents have an opportunity 
to participate in meetings with respect to the evaluation of their 
child with a disability. Therefore, if a public agency conducts a 
meeting, as defined in Sec. 300.501(b)(2), to meet its responsibilities 
under Sec. 300.533, the parents must have an opportunity to participate 
in the meeting.
    Neither the statute nor these regulations requires that all 
individuals who were involved in the initial placement of a child with 
a disability be part of the group that, as part of a reevaluation of 
the child reviews existing data and determines what additional data are 
needed. Both the statute and the regulations require, however, that a 
group that includes all of the individuals described in Sec. 300.344 
for an IEP meeting, and other qualified professionals, as appropriate, 
fulfill those functions.
    Changes: Paragraph (a) has been revised to refer to the group that 
includes the individuals described in Sec. 300.344 and other qualified 
individuals. A new paragraph (b) has been added to make clear that a 
meeting is not required to review existing evaluation data.

Determination of Eligibility (Sec. 300.534)

    Comment: A few commenters requested that the regulation provide 
further guidance regarding the standards and process public agencies 
must use to ensure that lack of instruction in reading or math is not 
the determinant factor in determining that a child is a child with a 
disability. Other commenters requested that the regulation clarify that 
proposed Sec. 300.534(b) does not mean that a child who has a 
disability and requires special education and related services because 
of that disability can be found ineligible simply because the child 
also has been denied instruction in reading or math or because the 
child has limited English proficiency.
    Some commenters asked for clarification as to whether, if the group 
determines under Sec. 300.533 that no further data are needed, a public 
agency may, without further evaluation, meet its obligation under 
proposed Sec. 300.534(c) to evaluate a child with a disability before 
determining that the child is no longer a child with a disability.
    A few commenters requested that the regulation be revised to 
clarify the meaning of ``evaluation report.'' A few commenters 
requested that the regulation be revised to require that a public 
agency provide information to parents regarding the results of an 
evaluation prior to conducting an IEP meeting, and other commenters 
requested that the regulations specify a timeline for how quickly the 
public agency must provide parents with a copy of the evaluation 
report.
    A few commenters asked for clarification as to whether a public 
agency must conduct an evaluation of a child with a disability before 
the agency may graduate the child. (This issue is addressed in the 
discussion regarding Sec. 300.121.)
    Discussion: The specific standards and process that public agencies 
use to ensure that lack of instruction in reading or math is not the 
determinant factor in determining that a child is a child with a 
disability, and the content of an evaluation report, are appropriately 
left by the statute to State and local discretion. However, a public 
agency must ensure that a child who has a disability, as defined in 
Sec. 300.7 (i.e., a child who has been evaluated in accordance with 
Secs. 300.530-300.536 as

[[Page 12636]]

having one of the thirteen listed impairments, and who because of that 
impairment needs special education and related services) is not 
excluded from eligibility because that child also has limited English 
proficiency or has had a lack of instruction in reading or math. (See 
also Sec. 300.532, which has been revised to require that assessments 
of children with limited English proficiency must be selected and 
administered to ensure that they measure the extent to which a child 
has a disability and needs special education, and do not instead 
measure the child's English language skills.)
    The specific content of an evaluation report is appropriately left 
by the statute to State and local discretion. Both the statute and the 
regulations require that, upon completing the administration of tests 
and other evaluation materials, a public agency must provide a copy of 
the evaluation report and the documentation of determination of 
eligibility to the parent, but neither establishes a timeline for 
providing these documents to the parents; rather, this timeline is 
appropriately left to State and local discretion. It is, however, 
important to ensure that parents and other IEP team participants have 
all the information they need to participate meaningfully in IEP 
meetings. Indeed, Sec. 300.562(a) requires that a public agency comply 
with a parent request to inspect and review existing educational 
records, including an evaluation report, without unnecessary delay and 
before any meeting regarding an IEP.
    A public agency must evaluate a child with a disability before 
determining that the child is no longer a child with a disability, but 
such a reevaluation is, like other reevaluations, subject to the 
requirements of Sec. 300.533. Accordingly, if a group decision is made 
under Sec. 300.533(a) that no additional data are needed to determine 
whether the child continues to be a child with a disability, the public 
agency must provide parents with the notice required by 
Sec. 300.533(d)(1), and must provide such additional assessment(s) upon 
parent request consistent with Sec. 300.533(d)(2).
    Changes: Paragraph (b) is revised to clarify that children are not 
eligible if they need specialized instruction because of limited 
English proficiency or lack of instruction in reading or math, but do 
not need specialized instruction because of a disability, as defined in 
Sec. 300.7. See discussion of comments received under Sec. 300.122 
regarding a change to Sec. 300.534(c).

Procedures for Determining Eligibility and Placement (Sec. 300.535)

    Comment: Some commenters requested that parents be added to the 
variety of sources from which the public agency will draw, under 
Sec. 300.535(a)(1), in interpreting evaluation data for the purpose of 
determining if a child is a child with a disability.
    Discussion: The proposed change is consistent with section 
614(b)(4)(A), which requires that the parent be part of the team that 
determines eligibility, and other provisions of the Act that stress the 
importance of information provided by the parents.
    Changes: Section 300.535(a)(1) is revised to add ``parent input'' 
to the variety of sources from which the public agency will, under 
Sec. 300.535(a)(1), draw in interpreting evaluation data for the 
purpose of determining if a child is a child with a disability.
    Comment: A few commenters were concerned that the note 
inappropriately implied that it is not necessary to use a team of 
professionals and more than one assessment procedure to plan and 
implement the evaluation for a child and to determine eligibility. A 
few other commenters stated that the note inappropriately states that 
all sources must be used for all children whose suspected disability is 
mental retardation. Other commenters requested that the note be revised 
to state that for some children information from additional sources, 
such as an assessment of independent living skills, might be needed.
    Discussion: Section 300.532 requires that a variety of assessment 
tools be used, that no single procedure be used as the sole criterion 
for determining the eligibility or needs of a child with a disability, 
and that the child be assessed in all areas of suspected disability. 
Section 300.534 requires that a team of professionals and the parent 
determine a child's eligibility.
    The proposed note did not in any way diminish these requirements. 
It clarified that, consistent with the statute and these final 
regulations, the point of Sec. 300.535(a)(1) is to ensure that more 
than one source is used in interpreting evaluation data and in making 
these determinations, and that although that subsection includes a list 
of examples of sources that may be used by a public agency in 
determining whether a child is a child with a disability, as defined in 
Sec. 300.7, the agency would not have to use all the sources in every 
instance. While the proposed note provided clarifying information on 
the regulatory requirements, in keeping with the general decision to 
eliminate notes, the note would be removed.
    Changes: The note has been removed.

Reevaluation (Sec. 300.536)

    Comment: Some commenters asked for clarification as to what 
constitutes a reevaluation. A few of these commenters asked whether a 
determination under Sec. 300.533(a) that no additional data are needed 
as part of a reevaluation constitutes a reevaluation and whether parent 
consent under Sec. 300.505(a)(iii) is required under such 
circumstances.
    A few commenters requested clarification as to whether a public 
agency must provide a reevaluation each time that a parent requests a 
reevaluation. A few commenters asked that a Note clarify that a public 
agency must conduct a reevaluation upon parent request, whether or not 
the public agency agrees that a reevaluation is needed, while others 
requested clarification that a public agency may refuse a parent 
request for reevaluation and afford parents the opportunity for a due 
process hearing to challenge the refusal. A few other commenters asked 
for clarification as to whether a public agency must conduct an 
evaluation whenever requested by the parent, regardless of the 
frequency of such requests.
    A few commenters asked that the regulation be revised to require 
that public agencies consider the need for a reevaluation of a child 
with a disability at least once every three years, rather than require, 
as in the NPRM, that a reevaluation be conducted at least once every 
three years.
    Discussion: Under both prior law and the current regulations, if a 
parent requests a reevaluation, the public agency must either: (1) 
provide the parents with written notice of the agency's proposal to 
conduct the reevaluation; or (2) provide the parents with written 
notice of the agency's refusal to conduct a reevaluation. The parent 
may challenge such a proposal or refusal by requesting a due process 
hearing. If the agency conducts a reevaluation and the evaluation group 
concludes that under Sec. 300.533(a) no additional data are needed to 
determine whether the child continues to be a child with a disability, 
the public agency must provide parents with the notice required by 
Sec. 300.533(c)(1), and must provide such assessment upon parent 
request.
    The statute specifically requires at section 614(a)(2) that ``a 
reevaluation of each child with a disability is conducted ... at least 
once every three years.'' However, in meeting this

[[Page 12637]]

requirement, a group will, pursuant to Sec. 300.533, review existing 
data and determine what, if any, additional assessment data are needed. 
Parent consent is not required for a review of existing data; however, 
parent consent would be required before additional assessments are 
conducted.
    Changes: None.
    Comment: A few commenters noted that Sec. 300.536(b) references 
Sec. 300.530(b), a nonexistent subsection.
    Discussion: The noted reference is a typographical error.
    Changes: Section 300.536(b) has been revised to refer to 
Sec. 300.530 rather than Sec. 300.530(b).

Additional Procedures for Evaluating Children With Specific Learning 
Disability (Secs. 300.540--300.543)

    Comment: Commenters raised a variety of issues regarding the 
regulatory provisions concerning the additional procedures for 
evaluating children suspected of having specific learning disabilities. 
However, none of those comments raised significant concerns about the 
minor changes from prior regulations proposed in the NPRM, which were 
designed merely to accommodate new statutory provisions regarding the 
participation of parents in evaluation determinations and evaluation 
reports and documentation of eligibility determinations applicable to 
all eligibility determinations, including those regarding specific 
learning disabilities.
    Discussion: As indicated in the preamble to the NPRM, the 
Department is planning to conduct a careful, comprehensive review of 
research, expert opinion and practical knowledge of evaluating and 
identifying children with a specific learning disability over the next 
several years to determine whether changes to the standards and process 
for identifying children with a specific learning disability should be 
proposed. Because that review has not been done, no further changes are 
made to the regulations.
    Changes: None.

General LRE Requirements (Sec. 300.550)

    Comment: A number of commenters asked that the regulation be 
revised to make clear that a child with a disability cannot be removed 
from the regular class environment based on the type or degree of 
modifications to the general curriculum that the child needs, or on the 
types of related services that the child needs. Some commenters asked 
that paragraph (b)(1) be revised to make clear that whatever the 
setting selected, the child is educated in the general curriculum. 
Others asked that paragraph (b)(2) be revised to require consideration 
of positive behavioral supports in educating children with disabilities 
in regular classes.
    A few commenters asked that a cross-reference to the exceptions in 
Sec. 300.311(b) and (c) be added for students with disabilities 
convicted as adults and incarcerated in adult prisons. Several 
commenters asked that a note be added to specify that ESY services must 
be provided in the LRE. Another asked that a note explain that the 
reference to ``special classes'' in paragraph (b)(2) refers to special 
classes based on special education needs rather than special classes 
that the LEA makes available to all children, whether nondisabled or 
disabled, such as remedial reading, art, or music classes.
    Discussion: Placement in the LRE requires an individual decision, 
based on each child's IEP, and based on the strong presumption of the 
IDEA that children with disabilities be educated in regular classes 
with appropriate aids and supports, as reflected in paragraph (b) of 
this section. The regulations always have required that placement 
decisions be based on the individual needs of each child with a 
disability and prohibited categorical decision-making.
    In addition, the new statutory provisions regarding IEPs, reflected 
in the regulations at Sec. 300.347(a)(1) and (2) specify that IEPs must 
include a statement of how the child's present levels of educational 
performance affect the child's involvement and progress in the general 
curriculum and a statement of measurable annual goals, including 
benchmarks or short-term objectives for meeting the child's disability-
related needs to enable the child to be involved in and progress in the 
general curriculum. These provisions apply regardless of the setting in 
which the services are provided.
    Similarly, the IEP team, in developing the IEP under 
Sec. 300.346(a)(2)(i), is required to consider positive behavioral 
intervention, strategies and supports to address the behavior of a 
child with a disability whose behavior impedes his or her learning or 
that of others. These provisions are designed to foster the increased 
participation of children with disabilities in regular education 
environments or other less restrictive environments, not to serve as a 
basis for placing children with disabilities in more restrictive 
settings.
    The determination of appropriate placement for a child whose 
behavior is interfering with the education of others requires careful 
consideration of whether the child can appropriately function in the 
regular classroom if provided appropriate behavioral supports, 
strategies and interventions. If the child can appropriately function 
in the regular classroom with appropriate behavioral supports, 
strategies or interventions, placement in a more restrictive 
environment would be inconsistent with the least restrictive 
environment provisions of the IDEA. If the child's behavior in the 
regular classroom, even with the provision of appropriate behavioral 
supports, strategies or interventions, would significantly impair the 
learning of others, that placement would not meet his or her needs and 
would not be appropriate for that child.
    The IDEA Amendments of 1997 place renewed emphasis on teaching 
children with disabilities to the general curriculum and ensuring that 
these children are included in State- and district-wide assessments of 
educational achievement. Because, as commenters noted, one consequence 
of heightened accountability expectations may be unwarranted decisions 
to remove children with disabilities from regular classrooms so as to 
avoid accountability for their educational performance, the regulations 
should make clear that the type or extent of the modifications that the 
child needs to the general curriculum not be used to inappropriately 
justify the child's removal from education in regular, age-appropriate 
classrooms. Therefore, a provision should be added to Sec. 300.552 to 
provide that a child not be denied education in age-appropriate regular 
classrooms solely because the child's education required modification 
to the general curriculum. Under this provision, for example, a child 
with significant cognitive disabilities could not be removed from 
education in age-appropriate regular classrooms merely because of the 
modifications he or she needs to the general curriculum. This provision 
should not be read to require the placement of a child with a 
disability in a particular regular classroom or course if more than one 
regular age-appropriate classroom or course is available in a 
particular grade or subject.
    A cross-reference to the exceptions in Sec. 300.311(b) and (c), 
like that in Sec. 300.347(d), will make the regulations clearer and 
more complete.
    As the discussion of Sec. 300.309 explains in more detail, while 
ESY services must be provided in the LRE, public agencies are not 
required to create new programs as a means of providing ESY services to 
students with disabilities in integrated settings if the public agency 
does not provide summer services for its nondisabled children.

[[Page 12638]]

    While the commenters are correct that the reference to ``special 
classes'' in paragraph (b)(2) refers to special classes necessary to 
meet special education needs, and not classes that an LEA makes 
available to all children, such as remedial reading, or advanced 
placement, art or music classes, paragraph (b)(1) provides that the LRE 
provisions of the regulations are focused on educating children with 
disabilities with nondisabled children to the maximum extent 
appropriate. In that context, the reference to ``special classes'' is 
to classes organized on the basis of disability and not classes that 
are based on some other interest, need or ability of the students.
    Changes: A cross-reference to the requirements of Sec. 300.311(b) 
and (c) has been added to paragraph (a).
    A new paragraph has been added to Sec. 300.552 prohibiting removal 
of a child with a disability from an age-appropriate regular classroom 
solely because of needed modifications in the general curriculum.

Continuum of Alternative Placements (Sec. 300.551)

    Comment: A number of commenters requested that the regulation 
include a statement that a child does not need to fail in each of the 
less restrictive options on the continuum before they are placed in a 
more restrictive continuum placement that is appropriate to their 
needs. These commenters felt that this was needed to insure that 
children get appropriate services in a timely manner. Some commenters 
requested that the regulations specify that the placement appropriate 
for children who are deaf must be in a setting where the child's unique 
communication, linguistic, social, academic, emotional, and cultural 
needs can be met, including opportunities for interaction with 
nondisabled peers.
    Discussion: The regulations do not require that a child has to fail 
in the less restrictive options on the continuum before that child can 
be placed in a setting that is appropriate to his or her needs. Section 
300.550(b)(2) of the regulations however, does require that the 
placement team consider whether the child can be educated in less 
restrictive settings with the use of appropriate supplementary aids and 
services and make a more restrictive placement only when they conclude 
that education in the less restrictive setting with appropriate 
supplementary aids and services cannot be achieved satisfactorily. New 
statutory changes to the IEP development process make clear that the 
IEP team considers the language and communication needs, opportunities 
for direct communication with peers and professional personnel in the 
child's language and communication mode, academic level and full range 
of needs, including opportunities for direct instruction in the child's 
language and communication mode in developing IEPs for children who are 
deaf or hard of hearing. These requirements, which are included in the 
regulations at Sec. 300.346(a)(2)(iv), should address the concerns 
raised by the commenters. In light of this change, further regulation 
is not necessary.
    Changes: None.
    Comment: A number of commenters expressed concern about the note 
following this section regarding home instruction. Some stated that the 
note should be struck because it implied that home instruction was an 
appropriate placement for all medically fragile children and that this 
was contrary to the requirement that placement be determined based on 
the individual needs of each child. Some asked that the regulation 
limit home instruction to those medically fragile children whose 
treating physicians have certified are not able to participate in a 
school setting with other children.
    Others disliked the note because they believed that home 
instruction should be available in other instances when the IEP team 
determines that such a placement is appropriate and should not be 
limited by type of disability. Some commenters wanted the note to be 
revised to make clear that home instruction could be available for 
children with behavior problems and those in interim alternative 
educational placements because they had been suspended or expelled from 
school for disciplinary reasons if the IEP team determined that it was 
the appropriate placement. Others asked that the note should be revised 
to caution about the inappropriate use of home instruction as a 
placement for children suspended and expelled, unless requested by the 
parent for medical, health protection, or diagnostic evaluation 
purposes. Some commenters asked that the note make clear that 
discipline issues should be handled through the provision of 
appropriate services in placements other than home.
    Some commenters asked that the note be modified to state that home 
instruction services may be appropriate for young children if the IEP/
IFSP team determines appropriate. Other commenters asked that the 
regulations make clear that home instruction services are an 
appropriate modification of the IEP or placement for incarcerated youth 
who are being kept in segregation, close custody or mental health 
units.
    Discussion: Home instruction is, for school-aged children, the most 
restrictive type of placement because it does not permit education to 
take place with other children. For that reason, home instruction 
should be relied on as the means of providing FAPE to a school-aged 
child with a disability only in those limited circumstances when they 
cannot be educated with other children even with the use of appropriate 
related services and supplementary aids and services, such as when a 
child is recovering from surgery. The implication in the note that 
placement decisions could be based on the type of disability of a child 
was unintended.
    Instruction at home may be the most natural environment for a young 
child with a disability if the child's IEP/IFSP team so determines. 
`Home instruction' may be an appropriate modification of an IEP or 
placement under Sec. 300.311 for incarcerated youth who are being kept 
in close custody, or segregation or in a mental health unit. The issue 
of home instruction for children with disabilities who have been 
suspended or expelled for behavior that is not a manifestation of their 
disability is addressed under Sec. 300.522.
    Changes: The note has been deleted.

Placements (Sec. 300.552)

    Comment: A number of commenters asked that paragraph (a)(1) be 
revised to require that parents be informed about the full range of 
placement options, especially for children who are deaf or hard of 
hearing. Often these commenters also asked that the regulations contain 
a statement that the appropriate placement of a child who is deaf or 
hard of hearing is the setting in which the child's unique 
communication, linguistic, academic, social, emotional and cultural 
needs can be met.
    One commenter asked that the regulations include standards for 
numerical improvements in the percentages of children with disabilities 
who are educated in regular classes and dates by which those standards 
are to be met.
    Discussion: The discussion concerning Sec. 300.551 notes that the 
IEP provisions of the regulations already incorporate statutory 
language concerning the need to consider the particular needs of 
children who are deaf or hard of hearing in developing appropriate 
IEPs.
    Since placements are determined based on the needs of individual 
children, and because the IDEA Amendments of 1997 provide that parents 
of children with disabilities are members of any group that makes

[[Page 12639]]

decisions on the education placement of their child (section 614(f) of 
the Act) it would seem to be unnecessary and unreasonably burdensome to 
require LEAs to inform parents about the full range of placement 
options.
    Under Sec. 300.501(c), parents must now be included in the group 
making decisions about the educational placement of their child. In 
view of the principle of regulating only if necessary, the regulations 
are not changed in the ways suggested by these commenters.
    With respect to paragraph (a)(1) of this section, nothing in the 
regulations would prohibit a public agency from allowing the group of 
persons that makes the placement decision to also serve as the child's 
IEP team, so long as all individuals described in Sec. 300.344 are 
included. However, in the interest of limiting the use of notes in 
these regulations, Note 1 would be removed.
    Changes: Note 1 has been removed. See discussion of comments 
received under Sec. 300.550 regarding the addition of a new 
Sec. 300.552(e) prohibiting removal of a child with a disability from 
an age-appropriate regular classroom solely because of needed 
modifications in the general curriculum.
    Comment: A number of commenters asked for revisions to the 
regulation designed to foster the inclusion of children with 
disabilities in the schools and classrooms they would attend if not 
disabled, such as explaining that children with disabilities could be 
placed at another school only with compelling educational justification 
and not for reasons of administrative convenience, or requiring that 
the child be educated at the school that they would attend if not 
disabled unless the child's educational needs require some other 
placement. Others wanted the regulation to recognize the administrative 
right to make geographic assignments so that not every facility in a 
school district would need to be made accessible, as provided under the 
Section 504 and Americans with Disabilities Act regulations.
    Discussion: LEAs are strongly encouraged to place children with 
disabilities in the schools and classrooms they would attend if not 
disabled. However, the regulatory provision has always provided that 
each child with disabilities be educated in the school he or she would 
attend if not disabled unless their IEP required some other 
arrangement. (See, Sec. 300.552(c)). Physical accessibility of school 
facilities is covered more fully by section 504 of the Rehabilitation 
Act of 1973 (Section 504) and the Americans with Disabilities Act 
(ADA).
    Changes: None.
    Comment: Some commenters felt that paragraph (d) of the regulation 
required burdensome, unnecessary paperwork. Others requested its 
deletion because they felt that too often a district is unwilling to 
prevent potential harmful effects and uses this provision to make 
segregated placements that are then presented as being ``in the child's 
best interest.'' One commenter asked that this paragraph be revised to 
emphasize how integration of children with disabilities and nondisabled 
children and successful learning are now necessary conditions of one 
another.
    Discussion: Paragraph (d) of this section does not impose paperwork 
burdens. Paragraph (d) of this section provides important protections 
for children with disabilities and helps ensure that they and their 
teachers have the supports to prevent any harmful effect of a placement 
on the child or on the quality of services that he or she needs. If the 
placement team determines that even with the provision of supplementary 
aids and services, the child's IEP could not be implemented 
satisfactorily in the regular educational environment, that placement 
would not be the LRE placement for that child at that time.
    Generally, as the commenter suggests, achievement test performance 
of students in inclusive classes is the equivalent or better than 
achievement test performance of others in segregated setting and self-
concept, social skills and problem solving skills improve for all 
students in inclusive settings. Placement decisions, however, need to 
consider the individual needs of each child.
    Changes: None.
    Comment: A number of commenters were concerned with placement 
considerations for preschool-aged children with disabilities. Some 
expressed support for the language in Note 2 regarding preschool 
children with disabilities. Others thought that the language of the 
note that indicated that school districts that did not operate regular 
preschool programs might have to place preschool children with 
disabilities in private preschool programs as a means of providing 
services in the LRE should be struck as it was not required by the 
statute, or would be costly to implement.
    Some thought the explanation about LRE for preschool children with 
disabilities should be in the regulation, as it is important that 
schools understand that they may meet the requirements of paragraph (c) 
for preschool children with disabilities by participating in other 
preschool programs such as Head Start, operated by other agencies, 
through private agencies serving preschool-aged children, and by 
locating preschool programs in elementary education schools that serve 
all children.
    One commenter asked that the reference to `private school programs 
for nondisabled children' be struck as suggestive that private schools 
are not bound to comply with the ADA. Some commenters thought that the 
note implied that a full continuum is not needed for preschool children 
with disabilities and should be revised. Another commenter stated that 
locating classes of preschool children with disabilities in regular 
elementary schools is not an appropriate solution to meeting the LRE 
for preschoolers and should be struck from the note.
    Discussion: Language has been added to the regulation to clarify 
that the requirements of Sec. 300.552, as well as the other 
requirements of Secs. 300.550-300.556, apply to all preschool children 
with disabilities who are entitled to receive FAPE. Note 2 to this 
section in the NPRM was intended to provide suggestions on how a public 
agency may meet the LRE requirements if it does not generally provide 
education to nondisabled preschool children. However, in light of the 
general decision to remove all notes from these final regulations, the 
note would be removed.
    Public agencies that do not operate programs for nondisabled 
preschool children are not required to initiate those programs solely 
to satisfy the requirements regarding placement in the LRE. For those 
public agencies, the note provided some alternative methods for meeting 
the LRE requirements. The examples in the note of placing preschool 
children with disabilities in private preschool programs and locating 
classes for preschool children with disabilities in regular elementary 
schools as a means of meeting the LRE requirements were not intended to 
limit the placements options on the continuum which may be used to meet 
the LRE needs of preschool children. The full continuum of alternative 
placements at 34 CFR 300.551, including integrated placement options, 
such as community-based settings with typically developing age peers, 
must be available to preschool children with disabilities.
    The overriding rule in this section is that placement decisions for 
all children with disabilities, including preschool children, must be 
made on an individual basis. The reference in the note to ``private 
school programs for nondisabled children'' was not intended to suggest 
that private schools are not required to comply with the ADA.

[[Page 12640]]

    The second part of Note 2 to proposed Sec. 300.552 cited language 
from the 1976 published analysis of comments on the regulations 
implementing Section 504 of the Rehabilitation Act of 1973. The issues 
raised by that analysis (appropriate placement for a child with 
disabilities whose behavior in a regular classroom significantly 
impairs the education of other students, and placement of a child with 
disabilities as close to home as possible) are addressed elsewhere in 
this attachment.
    Changes: A reference to preschool children with disabilities has 
been added to the introductory paragraph of Sec. 300.552. Note 2 has 
been removed.
    Comment: Several commenters requested adding language that would 
prohibit States from using a funding mechanism to provide financial 
incentives to place children with disabilities in a particular type of 
placement and to specify that State funding mechanisms must be 
``placement neutral'.
    A number of commenters asked that the regulations explicitly 
include a presumption that placement of children with disabilities is 
in the regular class, and that the placement team must consider the use 
of positive behavioral interventions, and supplementary aids and 
services before concluding that placement in a regular class is not 
appropriate for a child with a disability. Others asked that the 
substance of Note 3 (explaining that if behavioral interventions are 
incorporated into the IEP many otherwise disruptive children will be 
able to participate in regular classrooms) be incorporated into the 
regulations. Others felt that Note 3 added steps and services that 
exceeded the statute.
    Discussion: Section 300.130(b) incorporates into the regulations 
the new statutory provision that specifies that if a State has a 
funding mechanism that distributes State funds on the basis of the type 
of setting in which a child is served, that mechanism may not result in 
placements that violate the LRE requirements, and if the State does not 
have policies and procedures to ensure compliance with that obligation, 
it provides the Secretary with an assurance that it will revise the 
funding mechanism as soon as feasible. Given that requirement, no 
further change is necessary here.
    A presumption of placement in a regular class is already embodied 
in Sec. 300.550. Note 3 to this section in the proposed regulations 
merely stated the reasonable conclusion that if behavioral 
interventions are incorporated into the IEPs of children with 
disabilities, many of these children, who without those services might 
be disruptive, can be successfully educated in regular classrooms. Note 
3 added no requirements or services that exceed the statute, as the 
requirement to consider positive behavioral interventions, strategies, 
and supports to address the behavior of children with disabilities 
whose behavior impedes his or her learning or that of others, which is 
contained in Sec. 300.346(a)(2)(i), is taken directly from section 
614(d)(3)(B)(i) of the Act. Nevertheless, in the interest of 
eliminating the use of notes in these regulations, Note 3 should be 
removed, as it was merely an observation, based on the requirements of 
the regulations.

Changes: Note 3 has been removed.

Nonacademic Settings (Sec. 300.553)

    Comment: None.
    Discussion: The note following this section in the NPRM pointed out 
that this provision is related to the requirement in the regulations 
for section 504 of the Rehabilitation Act of 1973, and emphasized the 
importance of providing nonacademic services in as integrated a setting 
as possible, especially for children whose educational needs 
necessitate their being solely with other disabled children during most 
of the day. Even children with disabilities in residential programs are 
to be provided opportunities for participation with other children to 
the maximum extent appropriate to their needs. However, in light of the 
decision to remove all notes from these final regulations, the note 
following this section would be removed.
    Changes: The note following this section has been removed.

Children in Public or Private Institutions (Sec. 300.554)

    Comment: One commenter thought that the language of this section 
was ambiguous and left confusion as to whether special arrangements 
with public and private institutions were required whether they were 
needed or not. Another commenter proposed changes that would require 
arrangements such as a memorandum of understanding with all public and 
private institutions. One commenter thought that the note following 
this section conflicted with other regulations concerning incarcerated 
students and that those students should be excluded from the subject of 
the note. Another commenter asked that the substance of the note be 
incorporated into the regulation and that timelines for compliance be 
included.
    Discussion: This section was not intended to require memoranda of 
agreement or other special procedures that are not necessary to 
effectively implement Sec. 300.550. Requiring agreements to be 
developed that are not necessary for meeting the other LRE requirements 
would be overly prescriptive.
    The requirement that disabled students be educated with nondisabled 
students does apply to students with disabilities who are in 
correctional facilities, to the extent that the requirement can be met 
consistent with the terms of their incarceration, except to the extent 
modified under the authority in Sec. 300.311. One way the LRE 
requirements could be met for students with disabilities in prisons 
would be to include them in the educational activities of nondisabled 
prisoners and provide appropriate services in that environment. If a 
State has transferred authority for the education of students with 
disabilities who are convicted as adults under State law and 
incarcerated in adult prisons to another agency, the other agency, not 
the SEA, would have to ensure that LRE requirements are met as to that 
class of students.
    The note following this section in the NPRM reflected the important 
fact that, except as provided in Sec. 300.600(d) (regarding students 
with disabilities in adult correctional facilities), children with 
disabilities in public and private institutions are covered by the 
requirements of these regulations, and that the SEA has an obligation 
to ensure that each applicable agency and institution in the State 
meets these requirements. Whatever the reasons for the child's 
institutional placement, if he or she is capable of education in a 
regular class, the child may not be denied access to education in a 
regular class, consistent with Sec. 300.550(b). Timelines for 
development of memoranda of agreement or other special implementation 
procedures would be overly prescriptive. In light of the decision to 
remove notes from these final regulations, the note would be removed.
    Changes: Section 300.554 has been reworded to clarify that special 
arrangements with public and private institutions are only required if 
needed to ensure that Sec. 300.550 is effectively implemented. A 
technical change has been made to the regulation to make clear that the 
SEA's responsibility does not include students with disabilities who 
are convicted as adults under State law and incarcerated in adult 
prisons. The note following this section has been removed and a new 
paragraph has been added to Sec. 300.300(a) to more generally

[[Page 12641]]

make the point that services and placement decisions must be based on a 
child's individual needs and not category of disability.

Technical Assistance and Training Activities (Sec. 300.555)

    Comment: Some commenters asked that parents and advocates be 
included in the training mentioned in paragraph (b) of this section. 
Another commenter asked that the regulation make clear that education 
support personnel as well as teachers and administrators are fully 
informed and provided technical assistance and training necessary to 
help them meet their LRE responsibilities. Another commenter wanted 
SEAs to provide specific training and information on LRE for children 
who are deaf and hard of hearing.
    Discussion: As a matter of good practice, SEAs and LEAs are 
encouraged to develop opportunities for school personnel (including 
related service providers, bus drivers, cafeteria workers, etc.) and 
parents to learn together about all of the requirements under the Act 
because these experiences will improve cooperation among school 
personnel and between schools and parents and lead to improved services 
for children with disabilities. However, regulation on this point is 
not appropriate, as SEAs need the flexibility to respond to particular 
circumstances in their jurisdictions. For the same reason, additional 
specificity about the school personnel who need information and 
training or the subject matter of that training is not appropriate.
    Changes: None.

Monitoring Activities (Sec. 300.556)

    Comment: One commenter asked that States be required to establish 
criteria that would trigger monitoring reviews of LEA placement 
procedures to ensure compliance with LRE requirements because of the 
long history of violations of these provisions. Another asked that the 
regulations specify that SEAs must initiate enforcement actions, if 
appropriate.
    Discussion: SEAs, under their general supervisory responsibility, 
are charged with ensuring that the requirements of the Act are met. 
That responsibility includes monitoring LEA performance, providing 
technical assistance and information on best practices, and requiring 
corrective action and instituting enforcement actions when necessary. 
The provisions of this section reinforce the active role SEAs need to 
play in implementing the entire Act and emphasize the importance of the 
LRE requirements in meeting the goals of the Act. The role of SEAs in 
implementing the requirements of the Act will be carefully reviewed by 
OSEP in its monitoring of States.
    Changes: None.

Access Rights (Sec. 300.562)

    Comment: A number of commenters were concerned about the types of 
records to which parents have access under this section. For example, 
some believed that the regulations should make clear that parents would 
not have access to copyrighted materials such as test protocols, or 
private notes of an evaluator or teacher. Others took the opposite 
view, urging that whenever raw data or notes are used to make a 
determination about a student, that information should be subject to 
parent access. Commenters also requested clarity on the question of the 
schools' liability for allowing parents access to records under these 
regulations when other laws or contractual agreements prohibit such 
disclosure.
    One commenter asked that the right be phrased as the right ``to 
inspect and review all records relating to their children'' rather than 
to ``all education records relating to their children.''
    Discussion: Part B incorporates and cross-references the Family 
Educational Rights and Privacy Act (FERPA). Under Part B, the term 
``education records'' means the type of records covered by FERPA as 
implemented by regulations in 34 CFR part 99. Under Sec. 99.3 (of the 
FERPA regulations), the term ``education records'' is broadly defined 
to mean those records that are related to a student and are maintained 
by an educational agency or institution. (FERPA applies to all 
educational agencies and institutions to which funds have been made 
available under any program administered by the Secretary of 
Education.)
    Records that are not directly related to a student and maintained 
by an agency or institution are not ``education records'' under FERPA 
and parents do not have a right to inspect and review such records. For 
example, a test protocol or question booklet which is separate from the 
sheet on which a student records answers and which is not personally 
identifiable to the student would not be a part of his or her 
``education records.'' However, Part B and FERPA provide that an 
educational agency or institution shall respond to reasonable requests 
for explanations and interpretations of education records. (34 CFR 
300.562(b)(1); 34 CFR 99.10(c)).
    Accordingly, if a school were to maintain a copy of a student's 
test answer sheet (an ``education record''), the parent would have a 
right under Part B and FERPA to request an explanation and 
interpretation of the record. The explanation and interpretation by the 
school could entail showing the parent the test question booklet, 
reading the questions to the parent, or providing an interpretation for 
the responses in some other adequate manner that would inform the 
parent.
    With regard to parents having access to ``raw data or notes,'' 
FERPA exempts from the definition of education records under 34 CFR 
99.3 those records considered to be ``sole possession records.'' 
FERPA's sole possession exception is strictly construed to mean 
``memory-jogger'' type information. For example, a memory-jogger is 
information that a school official may use as a reference tool and, 
thus, is generally maintained by the school official unbeknownst to 
other individuals.
    With respect to the issue of liability for disclosing information 
to parents when other laws or contractual obligations would prohibit 
it, public agencies are required to comply with the provisions of IDEA 
and FERPA, and must ensure that State law and other contractual 
obligations do not interfere with compliance with IDEA and FERPA. 
Federal copyright law protects against the distribution of copies of a 
copyrighted document, such as a test protocol. Since IDEA and FERPA 
generally do not require the distribution of copies of an education 
record, but rather parental access to inspect and review, Federal 
copyright law generally should not be implicated under these 
regulations.
    There is nothing in the legislative history of section 615(b)(1) of 
the Act to suggest that it expanded the scope of information available 
to parent examination beyond those records that they would have access 
to under FERPA.

Changes: None.

    Comment: There were a variety of comments regarding the timeline in 
paragraph (a) for agency compliance with a parent request to inspect 
and review records. Some commenters thought it should be ``45 school 
days'' rather than 45 calendar days. Others felt that 45 days was too 
long, and that access should be provided usually within 10 days and no 
longer than 30 days after the request. Others wanted a one business day 
timeline if the agency has initiated an expedited due process hearing. 
Another commenter asked that agencies have to respond to a request to 
inspect and review before any meeting that parents now have the right 
to attend, not just before IEP meetings and

[[Page 12642]]

due process hearings. Other commenters wanted access to be required at 
least five days before an IEP meeting and wanted it made clear that if 
State or local law provided for shorter timelines, that those timelines 
must be met.
    Discussion: The 45 day timeline is taken from FERPA, to which these 
regulations are tied by statute. FERPA requires that each educational 
agency or institution establish appropriate procedures for the granting 
of a request by parents for access to the educational records of their 
children within a reasonable period of time but in no case more than 45 
days after the request has been made. In order not to confuse and 
increase administrative burden, these regulations are intended to be 
consistent with FERPA where possible. In practice, schools often 
provide access within a period of time that is considerably shorter 
than the 45-day time limit, which is the maximum time allowed for 
compliance.
    The commenters are correct that the new expedited due process 
hearing procedures will require prompt access by parents when 
requested, but the regulations already adequately addresses the 
obligation of the participating agencies to provide access before a 
hearing and so no more specific timeline is added to the regulations. 
However, the regulations should be changed to acknowledge the new 
expedited due process hearing procedures in Secs. 300.521-300.528 
concerning discipline. Changes are not made with respect to other 
meetings, in light of the confusion and increased administrative burden 
inherent in such a change. Public agencies, however, are encouraged to 
provide parents access, when requested, in advance of these meetings to 
the greatest extent possible.
    Changes: Paragraph (a) of this section has been amended to 
acknowledge that access rights also apply to the new expedited due 
process hearing procedures under Secs. 300.521-300.528.
    Comment: Other commenters asked that parents receive at no cost 
copies of their child's records prior to meetings or hearings, rather 
than just have the right to inspect and review those records. Another 
commenter asked that the regulations specify that parents or their 
legal representatives have the right to copy any record they feel they 
need for an agency-specified reasonable charge per page. Another 
commenter stated that parents or their legal representatives should 
also have access to any manuals used in preparing or evaluating any 
student records.
    Discussion: As explained previously, these regulations should be 
consistent with those implementing FERPA to the greatest extent 
possible to prevent confusion and limit administrative burden on 
participating agencies. Therefore, it would not be appropriate to give 
parents additional rights to copies of their child's records. FERPA 
generally provides for a right to inspect and review records (34 CFR 
Sec. 99.10) and permits agencies to charge fees for copies of education 
records provided to parents. (34 CFR 99.11).
    These rules would apply to education records of a student that 
concern services required under the IDEA as well as all other education 
records. Paragraph (b)(2) of Sec. 300.562 provides that a participating 
agency is required to provide copies of education records to a parent 
if failure to do so would effectively prevent the parent from 
inspecting and reviewing the records. (See, also 34 CFR 99.10(d)(1)). 
One such instance would be if the parent lives outside commuting 
distance of the participating agency. The Secretary has decided that it 
would impose unnecessary burden to require participating agencies to 
provide copies except as described previously. However, participating 
agencies are free to adopt policies of providing copies in other cases, 
if they choose to do so.
    Access should not be required to documents that are not covered by 
the definition of education records, such as teacher or evaluator 
manuals. The requirements of paragraph (b)(1) of this section and 34 
CFR 99.10(c) which provide that parents may request an explanation and 
interpretation of their children's education records will permit 
parents sufficient information about the contents of their children's 
education records.
    Changes: None.

Fees (Sec. 300.566)

    Comment: Several commenters requested that this section make clear 
that fees that can be charged may not include the cost of the labor 
involved in copying the records. Others asked that participating 
agencies not be permitted to charge parents more than the actual costs 
they incur in copying the records, or charge more than the prevailing 
rate in the community. Commenters also asked that agencies not be 
permitted to require parents to provide private financial information 
before providing copies of records at no cost. Some commenters asked 
whether LEAs could use Part B funds to cover the costs of providing 
parents copies so that fees would not have to be charged.
    Discussion: Under these regulations and those implementing FERPA, 
participating agencies are entitled to charge reasonable fees for the 
actual cost of reproduction and postage. Under FERPA, a school may 
charge a fee for a copy of an education record which is made for the 
parent, unless the imposition of a fee effectively prevents the parent 
from exercising the right to inspect and review the student's education 
records. A school may not charge a fee to search for or to retrieve the 
education records. (34 CFR 99.11). Agencies may of course adopt 
policies of making copies available free of charge and are encouraged 
to do so. Agencies may use Part B funds to cover the costs that 
otherwise would be charged to parents.
    Changes: None.

Consent (Sec. 300.571)

    Comment: One commenter noted an apparent contradiction between this 
section, which requires parental consent before records are disclosed, 
and proposed Sec. 300.529(b), which requires that LEAs transmit copies 
of special education and disciplinary records of a child to appropriate 
authorities when reporting a crime to those authorities.
    Discussion: As explained in the discussion of Secs. 300.529 and 
300.529(b) permit the transmission of copies of education records only 
to the extent that disclosure without parental consent is permitted by 
FERPA. Because the prior Sec. 300.571 would have prohibited disclosures 
without parent consent to agencies, such as law enforcement or juvenile 
justice agencies, that are not ``participating agencies'' under 
Secs. 300.560-300.577 even though disclosure without parent consent to 
these entities in certain circumstances would have been permitted under 
FERPA, a change should be made to this section so that these 
regulations permit disclosures to the extent they are permitted under 
FERPA.
    Changes: Paragraph (a) has been amended to permit disclosures 
without parental consent to the agencies identified in Sec. 300.529, to 
the extent permitted under FERPA.

Destruction of Information (Sec. 300.573)

    Comment: One commenter suggested that destruction of student 
records could act to deny students future benefits such as private 
insurance coverage and assistance in college.
    Discussion: The regulations provides that parents must be informed 
when personally-identifiable information is no longer needed to provide 
educational services to the child. This notice would normally be given 
after a child graduates or otherwise leaves the agency. As the note 
following this section in the NPRM pointed out, personally-identifiable 
information on a

[[Page 12643]]

child may be retained permanently unless a parent requests that it be 
destroyed.
    The purpose of the destruction option is to allow parents to decide 
that records about a child's performance, abilities, and behavior, 
which may possibly be stigmatizing and are highly personal, are not 
maintained after they are no longer needed for educational purposes. On 
the one hand, parents may want to request destruction of records as it 
is the best protection against improper and unauthorized disclosure of 
what may be sensitive personal information. However, individuals with 
disabilities may find that they need information in their education 
records for other purposes, such as public and private insurance 
coverage.
    In informing parents about their rights under this section, it 
would be helpful if the agency reminds them that the records may be 
needed by the child or the parents for social security benefits or 
other purposes. Even if the parents request that the information be 
destroyed, the agency may retain the information described in paragraph 
(b) of this section.
    In instances in which an agency intends to destroy personally-
identifiable information that is no longer needed to provide 
educational services to the child (such as after the child has 
graduated from, or otherwise leaves the agency's program), and informs 
parents of that determination, the parents may want to exercise their 
right to access to those records and request copies of the records they 
will need to acquire post-school benefits in the future. In the 
interest of limiting the use of notes in these regulations, the note 
following this section would be removed.
    Changes: The note following this section has been removed.

Children's Rights (Sec. 300.574)

    Comment: Several commenters asked that the substance of the notes 
following this section in the NPRM be incorporated in the regulations.
    Discussion: Because of the importance of clarifying the 
relationship of parent and child rights under IDEA and FERPA, including 
the new provisions of the IDEA concerning transfer of rights at the age 
of majority, and the general decision to eliminate all notes in these 
regulations, the substance of the notes following this section in the 
NPRM would be incorporated into the regulations.
    Changes: The substance of Notes 1 and 2 have been incorporated into 
the regulations.

Disciplinary Information (Sec. 300.576)

    Comment: One commenter requested that the term ``disciplinary 
action'' be defined. A commenter asked that the regulations make clear 
that action taken in response to conduct that was a manifestation of 
the child's disability is not ``disciplinary action'' under this 
section. Another asked that the results of a manifestation review be 
included in the student records to protect the child as well as the 
educational agencies.
    One commenter asked that this section be revised to clarify that 
before applying a policy and practice of transmitting disciplinary 
information in the student records of disabled children, an LEA must 
first have such a policy and practice for the student records of 
nondisabled students, and that transmissions of student records that 
include disciplinary information to a student's new school under 
paragraph (c) can only occur to the extent such information is 
transferred for nondisabled students.
    Discussion: It is important that the regulations allow school 
districts to understand what information may be transmitted under this 
section. Under Section 504, schools may not take a disciplinary action 
that constitutes a change of placement for behavior that was a 
manifestation of a child's disability. Making this point in the context 
of these regulations will assist schools in understanding what 
information may not be considered a statement about a disciplinary 
action and protect the interests of children with disabilities in not 
being identified as disciplinary problems because of behavior that is a 
manifestation of their disability. Further regulations are not 
necessary about what information may be transmitted to another school 
to which the child transfers.
    Further regulation is not needed to make clear that the LEA's 
policy on transmitting disciplinary information must apply to both 
nondisabled and disabled students, as that provision is already 
contained in paragraph (a) of this section as to an LEA's policy. An 
LEA that had a policy that applied equally to nondisabled and disabled 
students but applied that policy only to transfers of records of 
disabled students would be in violation of Section 504, as well as Part 
B.
    Changes: None.

Department Procedures (Secs. 300.580-300.589)

    Comment: One commenter objected that the procedures in proposed 
Secs. 300.580-300.589 are overly detailed and bureaucratic. This 
commenter also stated that these procedures incorporate language from 
the old regulations concerning disapproval of State plans, which is no 
longer relevant in light of changes in the statute. Another commenter 
noted that proposed Sec. 300.583 mentioned disapproval of State plans 
and requested that it be revised to refer to denial of eligibility.
    Discussion: The Department does not agree that the procedures in 
Secs. 300.580-300.589 are overly detailed. When the Secretary proposes 
to deny a State's eligibility, withhold funds or take other enforcement 
action and when a State has requested a waiver of supplement not 
supplant or maintenance of effort requirements, it is important to all 
parties that the process through which those issues will be decided is 
clearly described, so that time, money and effort are not spent 
resolving procedural questions instead of the underlying issues. The 
commenter is correct that proposed Secs. 300.580-300.586 are 
substantially the same as old regulations that addressed disapproval of 
a State plan, and that State plans are no longer required by the 
statute. When necessary, however, these same procedures were designated 
in the past by the Secretary as the procedures to follow on a proposed 
denial of State eligibility, a concept that remains in the law.
    Changes: A technical change has been made to Sec. 300.583(a)(1) to 
refer to denial of State eligibility rather than State plan 
disapproval.

Enforcement (Sec. 300.587)

    Comment: Some commenters stated that the regulations should contain 
a trigger when the Department must initiate enforcement action for 
systematic noncompliance with the Act. These commenters wanted a 
similar trigger provision added to Sec. 300.197 regarding SEA 
enforcement against noncompliant LEAs. One commenter asked that 
paragraph (c) be revised to specify that fund withholding first be 
limited to funding for administrative personnel of the noncompliant SEA 
or LEA, so as to prevent denial or interruption in services to children 
with disabilities. Another commenter requested that the enforcement 
mechanisms mentioned in the note be incorporated into the regulation.
    Several commenters objected to language in paragraph (e) which 
indicated that the Secretary would have a variety of enforcement 
actions available if a State were not providing FAPE to children with 
disabilities who are convicted as adults under State law and 
incarcerated in adult prisons. The commenters expressed the belief that 
the statute and its legislative history

[[Page 12644]]

make clear that the only enforcement action for failure to provide 
services to individuals convicted as adults under State law and 
incarcerated in adult prisons when the State has assigned 
responsibility for ensuring compliance with the IDEA to an agency other 
than the SEA under section 612(a)(11)(C) of the Act would be to 
withhold that agency's pro-rata share of the Part B grant.
    Discussion: It would not be advisable to limit, through regulation, 
the discretion afforded the Secretary by the statute regarding 
appropriate enforcement mechanisms and when they should be employed. 
Given the very wide variety in potential situations in which compliance 
issues arise, and the significant differences in the scope and nature 
of the issues presented in compliance situations, the Secretary needs 
the discretion to exercise reasoned judgment about how best to achieve 
compliance and the tools to be used to do so.
    Under the statute, the Secretary, upon a finding of a State's 
noncompliance with the provisions of Part B or of an LEA's or State 
agency's noncompliance with any condition of their eligibility, shall 
withhold further payments, in whole or in part, or refer the matter for 
appropriate enforcement action, which may include referral to the 
Department of Justice. This statutory language provides clear authority 
for including in the regulations the three enforcement options of 
withholding, referral to the Department of Justice, and other 
enforcement actions authorized by law. The other enforcement actions 
authorized by law include those set out in the General Education 
Provisions Act (GEPA), which are generally applicable to recipients of 
funds from the Department and are consistent with the goal of ensuring 
compliance with the requirements of this program.
    The enforcement mechanisms mentioned in the note to this section 
are authorized by GEPA. The purpose of the note is merely to inform the 
readers that these are some of the additional enforcement procedures 
that the Secretary could choose to apply to a given instance of 
noncompliance. In the interest of limiting the use of notes in the 
regulations, the note would be deleted.
    In cases where the State has transferred to a public agency other 
than the SEA the responsibility for ensuring compliance with the Act as 
to children with disabilities who are convicted as adults under State 
law and are incarcerated in adult prisons, and the Secretary finds 
substantial noncompliance by that other public agency, the statutory 
language limits withholding a proportionate share of the State's total 
grant under section 611 of the Act. However, the statute does not 
impose restrictions on the Department's use of other enforcement 
mechanisms. The legislative history on this issue shows two primary 
concerns, one is the reasonable limitation of services to this 
population in order to allow States to balance bona fide security and 
compelling penological concerns against the special education needs of 
the individual, and the other is that a State not be threatened with a 
withholding of their entire grant amount for a failure to serve this 
population.
    The regulations address these concerns by interpreting the 
statutory provisions in a way that limits withholding of funds as 
Congress intended, but allows the Secretary, should he or she believe 
that limited withholding of funds is not the appropriate means to 
ensure compliance, the additional enforcement options authorized by 
law.
    Changes: The note following this section has been deleted.

Waiver of Requirement Regarding supplementing and not Supplanting With 
Part B Funds (Sec. 300.589)

    Comment: One commenter said that because State requests for waivers 
of provisions of the Act are major policy proposals, the public 
participation requirements of Secs. 300.280-300.284 should apply to the 
State's waiver request proposal. The commenter also asked that 
Sec. 300.589 be revised to permit public comment to be considered on 
any impact the waiver request will have on the State's ability to 
successfully implement the Act, not just the FAPE provisions of the 
Act.
    Discussion: The procedures proposed by the Secretary provide for 
public comment on the question of whether a waiver should be granted by 
the Secretary after the State has first made a prima facie showing that 
FAPE is and will continue to be available if the waiver is granted. 
(See Sec. 300.589(d)). This process is adequate to ensure that the 
views of the public are considered in deciding waiver requests and 
Secs. 300.280-300.284 should not be applied to the State's waiver 
request proposal.
    Sections 612(a)(18)(C) and 612(a)(19)(C)(ii) of the Act give the 
Secretary the authority to grant a waiver in whole or in part if the 
State provides ``clear and convincing evidence that all children with 
disabilities have available to them a free appropriate public 
education.'' Under Sec. 300.589(d), when the Secretary conducts a 
public hearing on a State's waiver request, interested parties are 
afforded the opportunity to present evidence on whether FAPE is 
currently available to all children with disabilities and whether the 
State will be able to ensure that FAPE remains available to all 
eligible children with disabilities if the Secretary provides a waiver. 
This would include a wide variety of topics, such as the State's 
ability to ensure an adequate supply of qualified personnel to provide 
FAPE, or to maintain an effective and efficient due process hearing 
system. Even if a waiver is granted, the State will still be required 
to comply with all the other requirements of Part B.
    Changes: A technical change has been made to conform to the 
statutory provision that the Secretary provides a waiver in whole or in 
part.

Subpart F

Responsibility for all Educational Programs (Sec. 300.600)

    Comment: Several commenters requested that this section be revised 
to emphasize the SEA's obligation to monitor implementation of the Act. 
One commenter requested that States be required to verify that all 
corrective actions have been taken within a certain period of time. 
Another commenter asked that paragraph (d) be revised to specify that 
the SEA retains supervisory authority over any public agency to which 
the Governor or his or her designee has assigned responsibility for 
children with disabilities who are convicted as adults under State law 
and incarcerated in adult prisons.
    Discussion: A strong SEA monitoring process to ensure effective 
implementation of the Act is crucial to improving educational results 
for children with disabilities. A basic component of eligibility has 
long been that the SEA exercises general supervisory responsibility 
over all educational programs for children with disabilities in the 
State, including ensuring that those programs meet the requirements of 
Part B. This responsibility includes not just monitoring, and 
enforcement when noncompliance is not corrected, but also effective 
technical assistance that focuses on best practice designed to improve 
the substantive content and results of special education. We know, from 
long experience in administering this Act, that if SEA monitoring is 
lax, noncompliant practices emerge at the local level and indicators of 
performance for children with disabilities decline.
    A priority of the Department's monitoring will be the State's

[[Page 12645]]

compliance regarding the State's supervisory role in the implementation 
of Part B. However, further regulation is not necessary. There is a 
great variety of circumstances that may give rise to compliance 
problems, and States should have some flexibility in fashioning 
remedies and timelines for correction. Verifying that corrective action 
has been completed has always been an integral part of the State's 
supervisory role.
    The statute permits the Governor or appropriate State designee to 
assign to another agency supervisory responsibility for children with 
disabilities who are convicted as adults under State law and 
incarcerated in adult prisons. The statute does not contemplate that 
the SEA would retain supervisory authority over the education of 
children with disabilities who are convicted as adults under State law 
and incarcerated in adult prisons if the Governor or designee has 
assigned that responsibility to another agency.
    Changes: Consistent with the decision to not include notes in these 
regulations, the note following this section has been removed.

Amount Required for Subgrants to LEAs (Sec. 300.623)

    Comment: None.
    Discussion: The amount that will be required to be distributed as 
subgrants to LEAs for capacity-building and improvement activities as 
specified in Sec. 300.622 will vary from year to year and is determined 
by the size of the increase in the State's allocation. Funds used for 
the required subgrants to LEAs in one year become part of the required 
amount that must be flow-through to LEAs consistent with the formula in 
Sec. 300.712 in the next year.
    In those years in which the State's allocation does not increase 
over the prior year by at least the rate of inflation, the required 
set-aside for capacity-building and improvement grants will be zero. 
However, States may always use, at their discretion, funds reserved for 
State-level activities under Sec. 300.602 for these subgrants.
    Changes: Consistent with the decision to not include notes in these 
regulations, the note following this section has been removed.

State Discretion in Awarding Subgrants (Sec. 300.624)

    Comment: None.
    Discussion: This section specifies that States may establish 
priorities for subgrants under Sec. 300.622 to LEAs and may award those 
subgrants competitively or on a targeted basis. This is because the 
purpose of subgrants under Sec. 300.622, as distinguished from the 
formula subgrants to LEAs under Sec. 300.712, is to provide funding 
that the SEA can direct to address particular needs not readily 
addressed through formula assistance to school districts such as 
funding for services to children who have been suspended or expelled. 
The SEA can also direct these funds to promote innovation, capacity 
building, and systemic changes that are needed to improve educational 
results.
    Changes: Consistent with the decision to not include notes in these 
regulations, the note following this section has been removed.

Establishment of Advisory Panels (Sec. 300.650)

    Comment: One commenter wanted the regulation revised to specify 
that the panel must be independent and operate under the direction of 
officers elected by members of the panel.
    Discussion: Additional specificity is not needed. Within the limits 
of the minimum requirements of the regulations, the operation of these 
panels should be left to the States.
    The concept from the note, that the State advisory panel would 
advise on the education of children with disabilities who have been 
convicted as adults and incarcerated in adult prisons, even if a State 
has assigned general supervision responsibility for those students to 
an agency other than the SEA should be incorporated into Sec. 300.652, 
which addresses the functions of the State advisory panel. This is 
consistent with the purpose of the advisory panel under section 
612(a)(21)(A) of the Act--to provide policy guidance with respect to 
special education and related services for children with disabilities 
in the State.
    Changes: The second sentence of the note has been integrated into 
Sec. 300.652. The note has been removed.

Membership (Sec. 300.651)

    Comment: The Department received a variety of comments concerning 
the membership of the State advisory panels. Many commenters wanted 
representatives of specific additional groups, such as a representative 
of a Parent Training and Information Center in the State, added to the 
list of mandatory membership. Several commenters wanted paragraph (b) 
to be modified to permit parents of adults who had been children with 
disabilities, or persons who had relatively recent experience (e.g., 
within the last three years) as a parent of a child receiving services 
under the Act, to be counted as a part of the mandatory majority.
    Some commenters wanted a provision added to paragraph (b) to 
prohibit individuals with a past or present affiliation, such as 
employment, with an agency receiving funding under the Act from being 
considered a part of the individuals with disabilities, or parents of 
children with disabilities, majority. Others asked that the regulations 
encourage States to seek the participation of nonacademic professionals 
on the panels or to recruit parent representatives through nominations 
from parent and advocacy groups.
    Discussion: An advisory panel will be most effective if it fairly 
represents the various interests of the groups concerned with the 
education of children with disabilities and is perceived as such by the 
community at large. In selecting members for the State advisory panel, 
States are encouraged to solicit individuals to serve as members who do 
not have, and will not be perceived as having, a conflict of interest 
in representing the views of the group they were selected to represent. 
That said, additional regulation is not necessary or appropriate. The 
requirements of Sec. 300.651 are statutory. States should have the 
discretion to appoint members to these panels, within these statutory 
requirements, in a manner that best meets their needs. There is nothing 
in the Act that prohibits an individual with a disability, or the 
parent of a child with a disability, from employment with the SEA or an 
LEA, and there will be many instances when the perspective that an 
individual with a disability or the parent of a child with a disability 
may bring to decisions as an employee of a public education agency will 
greatly improve education for children with disabilities in that 
jurisdiction. The term ``children with disabilities'' is a defined term 
under the Act and in the context of Part B, refers to those children 
with disabilities from birth through age 21 who are eligible for 
services under Part B.
    Changes: None.

Advisory Panel Functions (Sec. 300.652)

    Comment: Several commenters sought expansion of the duties of the 
advisory panel to encompass various operational tasks, such as 
overseeing the development and implementation of a reliable and timely 
data system on due process hearings.
    Discussion: Section 612(a)(21)(A) of the Act specifies that the 
purpose of the State advisory panels is to provide policy guidance with 
respect to special education and related services for children with 
disabilities in the State. The functions of the advisory panel 
specified in Sec. 300.652 are drawn from

[[Page 12646]]

the statutory charge of the advisory panels. The regulations do not 
mandate operational duties for an advisory panel. However, if the SEA 
wants to assign other responsibilities to the advisory panel, it may do 
so, as long as those other duties do not prevent it from carrying out 
its responsibilities under IDEA.
    Changes: No change has been made in response to these comments. See 
discussion of comments received under Sec. 300.650, regarding a change 
to Sec. 300.652.

Advisory Panel Procedures (Sec. 300.653)

    Comment: Some commenters asked that paragraph (d) be revised to 
require that public notice of advisory panel meetings and agendas be 
made far enough in advance so that interested parties, such as parents 
and others, may plan to attend. At least one commenter requested that 
the term ``reasonable and necessary expenses'' in paragraph (f) be 
revised to indicate that child care expenses are reimbursable.
    Discussion: Since the purpose of announcing meetings and agendas 
for those meetings is to allow the interested public to attend, the 
meetings and agendas of the meetings of the advisory panels should be 
announced early enough so that interested parties can plan to attend 
those meetings, but an absolute time line is not necessary. A similar 
standard is used in these regulations at Sec. 300.281(c)(2) regarding 
notice of public hearings about State policies and procedures related 
to the Part B program. Furthermore, States should have the discretion 
to decide what are reasonable and necessary expenses related to 
participation in meetings and performing other duties of the advisory 
panel. These may include child care expenses or personal assistant 
services.
    Changes: Paragraph (d) is revised to require that advisory panel 
meetings and agenda items are announced enough in advance to afford 
interested parties a reasonable opportunity to attend and that the 
meetings be open to the public.

Adoption of State Complaint Procedures (Sec. 300.660)

    Comment: Several commenters requested that the note following this 
section be deleted, while others thought it was important to make the 
point that compensatory services can be awarded by an SEA.
    Discussion: The note merely reflected what has always been the 
case--that SEAs have the authority to order compensatory services in 
appropriate circumstances as a remedy for violations of Part B in 
resolving complaints under the procedures in Secs. 300.660-300.662. 
However, in light of the decision to remove all notes from these 
regulations, and to emphasize the importance of SEA action to resolve 
complaints in a way that provides individual relief when appropriate 
and addresses systemically the provision of appropriate services, a 
provision would be added to this section to clarify that if it has 
found a failure to provide appropriate services to a child with a 
disability through a complaint, the resolution addresses both how to 
remediate the denial of services, which can include an award of 
compensatory services, monetary reimbursement, or other corrective 
action appropriate to the needs of the child, and how to provide 
appropriate services for children with disabilities.
    Changes: A new paragraph (b) has been added on how an SEA remedies 
a denial of appropriate services. The prior paragraph (b) has been 
integrated into paragraph (a) and the reference to parent training and 
information centers is corrected. The note has been deleted.

Minimum State Complaint Procedures (Sec. 300.661)

    Comment: A number of commenters requested that the possibility of 
Secretarial review be reinstated in the final regulations while others 
supported the change. Some State commenters objected to having to 
resolve complaints on matters on which parents could have elected to 
file a due process hearing request.
    Discussion: The possibility of Secretarial review has not been an 
efficient use of the Department's resources, which can be better 
directed to improving State system-wide implementation of the Act for 
the benefit of students with disabilities. Because of the unsuitability 
of the Department evaluating factual disputes in individual cases, most 
requests for Secretarial review are denied. The existence of the 
Secretarial review process may falsely encourage parents to delay 
taking an issue to mediation or due process so that their case is not 
timely filed. The Department has other more efficient mechanisms such 
as on-site monitoring reviews, policy reviews and complaint referrals, 
to ensure correction of violations that are brought to its attention. 
In addition, the Department intends to carefully assess States' efforts 
to improve their complaint resolution processes where the need is 
identified.
    State responsibility for ensuring compliance with the Act includes 
resolving complaints even if they raise issues that could have been the 
subject of a due process hearing request. A State's general supervisory 
responsibility is not satisfied by relying on private enforcement 
efforts through due process actions for all issues that could be the 
subject of a due process hearing. In addition, the State complaint 
process and mediation provide parents and school districts with 
mechanisms that allow them to resolve differences without resort to 
more costly and litigious resolution through due process.
    In the interests of building cooperative, collaborative 
relationships with all parties involved in the education of children 
with disabilities, States are encouraged to offer mediation, as 
appropriate, when a State complaint has been filed, as well as when a 
due process hearing has been requested. The existence of ongoing 
mediation in and of itself should not be viewed as an exceptional 
circumstance under Sec. 300.661(b); however, if the parties agree that 
the complaint resolution timeline should be extended because of the 
mediation the SEA may extent the timeline for resolution of the 
complaint.
    In light of the general decision to remove all notes from these 
regulations, the notes following this section would be removed. Because 
these notes provided an important explanation of how the State 
complaint process interacts with the due process hearing process, they 
would be incorporated into the regulation. This will reduce unnecessary 
disputes between SEAs and complainants in cases in which a complaint 
raises an issue that also is raised in a due process hearing.
    Changes: Paragraphs (b) and (c) have been combined into a new 
paragraph (b). A new paragraph (c) has been added to clarify that if an 
issue in a complaint is the subject of a due process hearing, that 
issue (but not those outside of the due process proceeding) would be 
set aside until the conclusion of the due process hearing; that the 
decision of an issue in a due process hearing would be binding in a 
State complaint resolution; and that a public agency's failure to 
implement a due process decision would have to be resolved by an SEA. 
The notes following this section have been deleted.

Filing a Complaint (Sec. 300.662)

    Comment: Commenters generally supported the concept, reflected in 
paragraph (c) of this section, that there should be a reasonable time 
limit on issues subject to the complaint process. One commenter wanted 
a delayed effective date for this limitation until the individual 
notice of these complaint

[[Page 12647]]

procedures had been in effect for a year. Another wanted States to be 
able to waive that limitation for compelling reasons. Another commenter 
wanted States to have more flexibility to disregard complaints that are 
weak or insubstantial, are a continuation of a pattern of complaints 
that have repeatedly been found factually or legally unfounded, or that 
are about the same issue as addressed in a recently closed complaint or 
compliance review. Another commenter objected to the note, stating that 
a State should not have to deal with complaints filed by persons 
outside the State.
    Discussion: The time limits in Sec. 300.662(c) were added in 
recognition that at some point the issues in a complaint become so 
stale that they are not reasonably susceptible to subsequent 
resolution. However, such a time limit should include an exception for 
continuing violations. States are free to accept and resolve complaints 
regarding alleged violations that occurred outside those timelines, 
just as they are free to add additional protections in other areas that 
are not inconsistent with the requirements of the Act and its 
implementing regulations.
    States must evaluate and resolve each complaint on its own merits. 
It is reasonable for a State to resolve a complaint on an issue that is 
the same as an issue in an earlier resolved complaint by reference to 
that earlier complaint resolution if it has first concluded, through 
review and evaluation, that the facts and circumstances pertinent to 
the complaints are unchanged. If a State were to refuse to accept a 
complaint because it appeared to be similar to an issue in an earlier-
resolved complaint without reviewing whether the facts and 
circumstances pertinent to the complaints remain the same, the State 
could be ignoring potential violations of the Act.
    With regard to the statement in the note that States must resolve 
complaints which allege violations of the Act within their respective 
State even if received from an individual or organization outside of 
the State, States are responsible for ensuring compliance with Part B.
    A complaint about implementation of the Act filed by someone 
outside of the State may be as effective in bringing compliance issues 
to the State's attention as complaints from State residents. In light 
of the general decision to remove all notes from these regulations, and 
to make clear the point that complaints from organizations or 
individuals from out of State must also be resolved, that concept would 
be integrated into Sec. 300.660(a).
    Changes: Section Sec. 300.660(a) has been revised to clarify that 
any complaint includes complaints filed by organizations or individuals 
from another State. The note following this section has been deleted.

Subpart G--Allocation of Funds; Reports

Allocations to States (Sec. 300.703)

    Comment: None.
    Discussion: A reference to allocating funds to the freely 
associated States was omitted from paragraph (a).
    Paragraph (a) incorrectly refers to the method of distribution in 
Secs. 300.704-300.705. These sections are reserved.
    Changes: A reference to freely associated States has been added and 
the references to Secs. 300.704-300.705 have been deleted.

Permanent Formula (Sec. 300.706)

    Comment: None.
    Discussion: Paragraph (b)(2) refers to the amount received by a 
State under ``this section'' in the base year. Funds would not be 
provided under this section of the regulations in the base year. They 
would be provided under section 611 of the Act, as indicated in 
Sec. 300.703(b).
    Changes: The reference has been corrected to cite section 611 of 
the Act.

Increases in Funds (Sec. 300.707)

    Comment: None.
    Discussion: Section 300.707 indicates how allocations are to be 
made if the amount available for allocations to States under 
Sec. 300.706 is equal to or greater than the amount allocated to the 
States under ``this section'' for the preceding fiscal year. The 
reference to ``this section'' should be to section 611 of the Act.
    Changes: The reference has been revised by replacing the words 
``this section'' the first time they appear with ``under section 611 of 
the Act''.

Limitation (Sec. 300.708)

    Comment: None.
    Discussion: The language in Sec. 300.708 describing conditions that 
are ``Notwithstanding Sec. 300.707'' are actually consistent with 
Sec. 300.707 since Sec. 300.708 is mentioned in Sec. 300.707 as 
establishing conditions.
    Changes: The reference has been clarified by rewording the first 
sentence of Sec. 300.707.

Allocations to LEAs (Sec. 300.712)

    Comment: Commenters were concerned about the distribution of funds 
when the permanent formula takes effect. In particular, with regard to 
the base payments provision in Sec. 300.712(b), commenters expressed 
concern that it could result in a reduction of funds for LEAs in the 
case of an SEA that distributes more than 75 percent of its allocation 
to LEAs, and the LEA has a high child count. Because of the apparent 
absence of a ``hold harmless'' provision, commenters recommended 
clarification that this provision does not require an SEA to reduce its 
allocation to an LEA. Other commenters asked whether proposed 
Sec. 300.712(b)(2)(i) means that States should be allocating extra 
funds to LEAs based on the total number of students, both regular and 
special education students, or whether States should allocate based on 
numbers of special education students only. These commenters requested 
that the phrase ``relative numbers'' be clarified.
    With respect to the note following this section of the NPRM, a 
concern of one commenter was that proposed Sec. 300.712(b)(2) could be 
construed as limiting States' ability to direct how their LEAs expend 
Part B funds that have been reallocated to LEAs that had not adequately 
provided FAPE to children with disabilities, and recommended 
clarification that a State may direct how any allocation to an LEA is 
to be spent.
    A commenter recommended that, in calculating the distribution of 
the 15 percent allocation under the permanent formula, consideration be 
given for LEAs with a high incidence of children who live in 
institutional and other congregate care facilities, who have special 
needs and attend public schools.
    Discussion: Section 611(g)(2)(B)(i) of the Act requires that when 
the permanent formula becomes effective, LEAs be allocated base 
payments based on 75 percent of the amounts that each State received in 
the year prior to that in which the permanent formula became effective. 
Funds that States are required to allocate to LEAs above this level 
must be allocated based on children enrolled in elementary and 
secondary schools and children in poverty. This will result in some 
redistribution of funds among LEAs that have received funds above the 
75 percent level on a basis of counts of children with disabilities. 
However, because these provisions are based on the Act, they cannot be 
changed through regulations. States may address this redistribution of 
resources through funds that they set aside for State level activities.
    The IDEA Amendments of 1997 maintain, in section 611(f) of the Act, 
as reflected in Sec. 300.370(a), the flexibility of States to provide 
additional support

[[Page 12648]]

to LEAs using these funds. However, it is appropriate to amend 
Sec. 300.370 to clarify that SEAs may use these funds directly, or 
distribute them on a competitive, targeted, or formula basis to LEAs.
    Section 300.712(b)(2)(i) is based on section 611(g)(2)(B)(ii)(I) of 
the Act, which requires that required flow through funds to LEAs be 
distributed based on the relative numbers of ``children enrolled'' in 
public and private elementary and secondary schools. Children enrolled 
include both regular and special education students.
    The term ``relative numbers'', which is used in section 
611(g)(2)(B)(ii) of the Act and in proposed Sec. 300.712(b)(2), 
adequately conveys the meaning that the allocations of the 85 percent 
and the 15 percent will be the same proportion of the total available 
as the respective numbers of children in the LEA to the State totals.
    Section 300.712(b)(3) deals with the allocation of funds, not the 
use of funds.
    Section 611(g)(2)(B)(ii) of the Act, as reflected in proposed 
Sec. 300.712(b)(2), requires that 15 percent of the funds remaining 
after base payments be distributed based on the relative numbers of 
children living in poverty as determined by the SEA in each LEA. The 
incidence of children living in institutional or other congregate care 
facilities is not a factor in this distribution, and cannot be added. 
However, SEAs may use funds available for State level activities to 
provide additional support for children in institutional or other 
congregate care facilities.
    Changes: Section 300.370 has been amended to add a new paragraph 
(c) to clarify that an SEA may directly use funds that it retains but 
does not use for administration, or may distribute them to LEAs on a 
competitive, targeted, or formula basis.
    Comment: None.
    Discussion: Although no comments were received for this Part 
regarding base payments for new LEAs, a number of commenters on the 
Preschool Grants for Children with Disabilities program regulations (34 
CFR Part 301) raised the issue of whether charter schools or LEAs not 
in existence during fiscal year 1997 would be eligible for a base 
payment under Sec. 301.31(a) of the regulations for the Preschool 
Grants for Children with Disabilities program, and, if so, how such 
payments should be calculated.
    A similar issue exists with regard to base payments under the 
Assistance to States for the Education of Children with Disabilities 
program after the appropriation under section 611(j) of the Act exceeds 
$4,924,672,200. The regulations should be revised to ensure that 
charter schools established under State law as LEAs and LEAs not in 
existence in the year prior to the year in which the appropriation for 
the Assistance to States for the Education of Children with 
Disabilities program exceeds $4,924,672,200 are eligible to receive 
base payments.
    In addition, if the boundaries of LEAs that were in existence or 
administrative responsibility for providing services to children with 
disabilities ages 3 through 21 are changed, adjustments to the base 
payments of the affected LEAs also should be made. For example, a 
change in administrative responsibility might encompass a change in the 
age range for which an LEA is responsible for providing services such 
as where responsibility for serving high school students is transferred 
from one LEA to another.
    These adjustments will ensure that affected LEAs equitably share in 
their base payments. The base amounts for new and previously existing 
LEAs, once recalculated, should become the new base payments for the 
LEAs. These base payments would not change unless the payments 
subsequently need to be recalculated pursuant to Sec. 300.712.
    Adjustments to base payments would be based on the current numbers 
of children with disabilities served as determined by the SEA. In 
making a determination, the SEA may exercise substantial flexibility. 
For example the SEA may choose to revise base payments based on the 
current location of children with disabilities included in a previous 
child count or a new count of children served by affected LEAs.
    Changes: Section 300.712 has been revised to clarify that, if LEAs 
are created, combined, or otherwise reconfigured subsequent to the base 
year (i.e. the year prior to the year in which the appropriation under 
section 611(j) of the Act exceeds $4,924,672,200), the State is 
required to provide the LEAs involved with revised base allocations 
calculated on the basis of the relative numbers of children with 
disabilities ages 3 through 21, or 6 through 21 depending on whether 
the State serves all children with disabilities ages 3 through 5, 
currently provided special education by each of the affected LEAs.
    Comment: A number of commenters requested that notes be deleted 
from the regulations implementing Part B of IDEA.
    Discussion: The note following this section in the NPRM indicates 
that States should use the best data available to them in making 
allocations based on school enrollment and children living in poverty. 
The note also encourages LEAs to include data on children who are 
enrolled in private schools and suggests alternative sources such as 
aggregate data on children participating in the free or reduced-price 
meals program under the National School Lunch Act and allocations under 
title I of the Elementary and Secondary Education Act as bases for 
determining poverty. These suggestions still reflect options for 
allocating funds, but need not be specified in the regulations. The 
requirement for States to use the best data available to them should be 
included in the regulations.
    Changes: The note has been removed and Sec. 300.712 has been 
expanded to state that for the purpose of making grants under this 
section, States must apply, on a uniform basis across all LEAs, the 
best data that are available to them on the numbers of children 
enrolled in public and private elementary and secondary schools and the 
numbers of children living in poverty.

Former Chapter 1 State Agencies (Sec. 300.713)

    Comment: Commenters indicated that Sec. 300.713, which mirrors the 
statutory language regarding payments to former Chapter 1 State 
agencies, should be clarified to indicate that these agencies must 
receive the current amount of their Part B allocation, rather than an 
amount that would not exceed the fiscal year 1994 per child amount. 
Otherwise, the result would be a reduction of allocations to these 
agencies. The commenters recommended adding a new paragraph (c) to 
Sec. 300.713 to provide that, in years where the per child amount under 
Part B exceeds the per child amount for fiscal year 1994, each State 
agency shall receive the per child amount under Part B for each child 
to whom the agency is providing special education and related services 
in accordance with an IEP.
    Other commenters indicated the need to clarify that payments to 
former Chapter 1 State agencies are targeted for direct service costs 
as in the past. Several commenters believe that payments to former 
Chapter 1 State agencies must follow the child, and recommended 
inserting the phrase ``including State-operated and State-supported 
school programs'' after 1994 at the conclusion of Sec. 300.713(a) to 
ensure that the children who are counted actually receive the funds for 
which they are eligible.
    Some commenters stated that the merger of the former Chapter 1 
Handicapped program with Part B had a negative effect at the State 
level on

[[Page 12649]]

private special education schools, because funds intended for children 
are now being used by many States for both State and municipal 
administrative costs. Other commenters recommended, consistent with the 
intent of the merger of the former Chapter 1 Handicapped program with 
Part B, that these schools should be treated as LEAs for funding 
purposes, regardless of whether they meet the Part B definition of LEA.
    One commenter took issue with the fact that the Act specifies a 
reporting date of December 1 of the fiscal year, while the proposed 
regulation allows a State, at its discretion, to report on December 1 
or on the last Friday of October. Since the Act sets a specific date, 
this commenter requests that only the statutory date be used in the 
regulation.
    Discussion: Funds provided to former Chapter 1 State agencies that 
exceed fiscal year 1994 levels are provided either because the amounts 
to which former Chapter 1 State agencies are entitled as LEAs, without 
regard to their status as former Chapter 1 agencies, exceed the minimum 
allocations for former Chapter 1 agencies, or at the discretion of the 
States from funds available to be set aside for State level activities.
    The IDEA Amendments of 1997 maintain, in section 611(f), as 
reflected in Sec. 300.370(a), the flexibility of States to provide 
additional support to State agencies beyond the formula entitlement of 
LEAs under Sec. 300.712. It would be inappropriate, as well as 
inconsistent with the Act, to compel States that have voluntarily 
passed through higher levels of funding to State agencies in the past 
to maintain those levels of funding as a requirement.
    There has been confusion in some States regarding the entitlement 
of former Chapter 1 Handicapped State agencies to funds distributed by 
formula to LEAs that would be above the amounts these State agencies 
received per child for 1994 under the Chapter 1 Handicapped program. 
Under the IDEA, both before and after enactment of the IDEA Amendments 
of 1997, the amounts to which these State agencies are entitled are 
minimum amounts. Former Chapter 1 Handicapped State agencies are 
entitled to formula allocations in the same amounts as other LEAs. They 
may also be eligible for additional payments to bring their funding 
levels per child up to the levels they received under the Chapter 1 
Handicapped program for fiscal year 1994.
    Under the initial allocation of fiscal year 1998 funds, which 
became available on July 1, 1998, the minimum per child allocations 
that former Chapter 1 Handicapped State agencies are entitled to as 
LEAs exceeds the amount per child that these agencies received for 
fiscal year 1994 under the Chapter 1 Handicapped program in 40 States. 
SEAs in these States must provide former Chapter 1 Handicapped State 
agencies at least the minimum amount per child that they are entitled 
to as LEAs, not the lesser amounts that they received per child under 
the Chapter 1 Handicapped program for 1994.
    For 10 States and the District of Columbia, the minimum per child 
amounts to which former Chapter 1 Handicapped State agencies are 
entitled as LEAs are still slightly smaller than the amounts that these 
agencies received per child for 1994 under the Chapter 1 Handicapped 
program. In these States, SEAs must provide the former Chapter 1 
Handicapped State agencies with the amounts per child that these 
agencies are entitled to as LEAs. SEAs must then provide additional 
funds to the former Chapter 1 Handicapped State agencies from the 
amounts that the SEAs set aside for State level activities. The amount 
of these additional funds is equal to the difference between the amount 
per child that the former Chapter 1 State agencies received under the 
Chapter 1 Handicapped program for 1994 and the amount per child they 
receive as LEAs, multiplied by the lesser of the number of children 
ages 6 through 21 currently served by the former Chapter 1 Handicapped 
State agencies or the number of children ages 3 through 21 served by 
these agencies for 1994 under the Chapter 1 Handicapped program.
    It is expected that for the Federal fiscal year 1999 appropriation, 
which will become available on July 1, 1999, the minimum per child 
amounts that will be provided to all LEAs, including former Chapter 1 
Handicapped State agencies, will exceed the per child allocations under 
the Chapter 1 Handicapped program in all States.
    Former Chapter 1 agencies are subject to the same requirements as 
other LEAs, and are not limited to using Part B funds only for direct 
service costs.
    Adding the phrase ``including State-operated and State-supported 
school programs'' after ``1994'' at the conclusion of Sec. 300.713(a) 
would not ensure that the children who are counted actually receive 
funds. Moreover, the last paragraph in Sec. 300.713(a) deals with the 
optional use of funds available for State level activities to increase 
funding for LEAs that formerly served children who had at one time been 
in State-operated or State-supported programs, not to increase funding 
for State-operated and State-supported programs themselves. However, 
States, at their discretion, may use funds available for State level 
activities to provide support for State-operated or State-supported 
programs under Sec. 300.370.
    It should also be noted that, under the Act, States are required to 
ensure that all children with disabilities have access to a free 
appropriate public education regardless of the sources of funds that 
are used to provide that education. Ensuring that specific amounts of 
Federal funds are used for each of the 6 million children with 
disabilities who receive special education services would be 
administratively unwieldy and would not necessarily help to ensure that 
States meet this requirement.
    The Chapter 1 Handicapped program was merged with the IDEA Part B 
Assistance to States for the Education of Children with Disabilities 
program in 1995. The merger was not affected by the IDEA Amendments of 
1997, and its impact cannot be addressed by these regulations.
    Section 602(15) of the Act defines LEA as including educational 
service agencies. Educational service agencies are defined in section 
602(4) of the Act and Sec. 300.10 as including public institutions or 
agencies having administrative control and direction over a public 
elementary or secondary school. State agencies formerly provided 
funding under the Chapter 1 Handicapped program and which continue to 
provide special education and related services to children with 
disabilities fall within this definition. Individual schools that 
received funding through State agencies under the Chapter 1 Handicapped 
program are not LEAs under the Part B Assistance to States for the 
Education of Children with Disabilities program.
    Section 611(d)(2) of the Act specifies that, for the purpose of 
allocating funds among States, States may report children either as of 
December 1 or the last Friday in October of the fiscal year for which 
funds are appropriated. Using the same dates for establishing minimum 
funding levels for former Chapter 1 Handicapped State agencies will 
reduce burden on States that count children in October by eliminating 
the need for a separate count of children served by State agencies in 
December.
    Changes: Language has been revised in paragraph (a)(1) to clarify 
that the amount that each former Chapter 1 State agency must receive is 
a minimum amount.

[[Page 12650]]

Reallocation of LEA Funds (Sec. 300.714)

    Comment: One commenter recommended that this section be eliminated 
because it causes a disincentive for LEAs to provide ``adequate'' or 
even more than ``adequate'' FAPE.
    Another commenter stated that the regulation must provide the State 
agency with a basis for determining that an LEA is adequately providing 
FAPE to all children with disabilities residing in the area served by 
that agency with State and local funds, and indicated that there is a 
need for guidance on criteria for determining when any portion of the 
funds allocated under this part may be removed. Criteria suggested by 
the commenter for this purpose include: (1) IEP related measures such 
as appropriateness of measurable IEP goals and a high percentage of 
annual goals successfully completed; (2) educational inputs such as 
student staff ratios including related services staff; and (3) a 
relatively large amount of unexpended IDEA funds.
    Discussion: The authority of SEAs to reallocate funds among LEAs if 
they determine that an LEA is adequately providing FAPE to all children 
with disabilities residing in the area served by the LEA and that the 
LEA does not need those funds to provide FAPE, is included in section 
611(g)(4) of the Act. This authority cannot be removed through 
regulations. However, it is expected that SEAs would use this authority 
only in unusual circumstances (e.g., when there is a radical reduction 
in the number of children served by a LEA).
    Moreover, the instances in which an SEA would reallocate the funds 
of an LEA because the LEA is providing adequate services and does not 
need the funds should be relatively rare, and the circumstances causing 
such a determination also should be unusual.
    It would be very difficult to establish criteria that could be 
appropriately and fairly applied in all cases. For this reason, the 
criteria for determining these instances should be left at the 
discretion of the States.
    Changes: None.

Payments to the Secretary of the Interior for the Education of Indian 
Children (Sec. 300.715)

    Comment: None.
    Discussion: The reference to ``this section'' in paragraph (a) 
should also include a reference to Sec. 300.716 because the earmarked 
funds include Indian children covered under both sections.
    Changes: The term ``this section'' in Sec. 300.715(a) has been 
revised to read ``this section and Sec. 300.716.''

Limitation for Freely Associated States (Sec. 300.719)

    Comment: None.
    Discussion: The references to ``this part'' in paragraph (c) of 
this section should be changed to ``Part B of the Act.''
    Changes: Section 300.719 (c)has been amended, consistent with the 
above discussion.

Annual Report of Children Served--Report Requirement (Sec. 300.750)

    Comment: Several commenters objected to the note following 
Sec. 300.750 of the NPRM, stating that it reflects only the 
requirements of prior law, and not all requirements in the current 
section 611 of the Act. The commenters recommended that, if the note is 
retained, it needs to be revised to conform more closely to the current 
language used in the Act. For example, the references in the note to 
section 611(a)(5) of the Act should be deleted, since that section no 
longer exists. Also, the population that a State may count for 
allocation purposes no longer differs from the population of children 
to whom the State must make FAPE available, and this needs to be 
explained in the note.
    Another commenter recommended that the regulations on annual SEA 
reports to the Department be amended to include the requirements of 
section 618(a)(1)(A) of the Act.
    Discussion: The note following this section in the NPRM indicates 
that the number of children who are counted for the purpose of 
distributing funds may be different from the children for whom the 
States must make FAPE available. In order to receive full funding under 
Part B of the IDEA, States must provide services to all children with 
disabilities ages 3 through 17, and to children 18 through 21 when not 
inconsistent with State law or practice, or the order of any court. 
These statements in the note reflect the requirements of IDEA. However, 
consistent with the decision to not include notes in the final 
regulations, the note should be deleted.
    It should be noted that until the appropriation for the Assistance 
to States for the Education of Children with Disabilities program 
exceeds $4,924,672,200, the interim formula requires that funds be 
distributed based on the number of children served, and the limitations 
in section 611(a)(5) of IDEA prior to the IDEA Amendments of 1997, 
which prohibit the Secretary from counting more than 12 percent of 
children with disabilities in certain cases, will be in effect until 
that time.
    The content of the report is addressed in Sec. 300.751. The 
reporting requirements in section 618 of the Act are complex. The 
Secretary believes that it would be better to address the data 
reporting requirements of the new section 618 as part of the clearance 
process for data collection rather than through these regulations.
    Changes: The note has been removed.

Annual Report (Sec. 300.751)

    Comment: Commenters stated that while Sec. 300.751(a) specifies the 
information that must be included in the report for any year before the 
total appropriation for section 611 of the Act first exceeds 
$4,924,672,200, it is unclear what information should be included in 
the report after that date. The commenters indicated a need for this 
clarification in the regulation.
    Other commenters recommended that the regulation clarify that if a 
child is deaf-blind, that child must be reported under that category, 
and if the child has more than one disability (other than deaf-
blindness), that child must be reported under multiple disabilities. 
These commenters also requested that the regulations explain that the 
responsibility for the annual census count of deaf-blind children 
should be with the single and multi-State deaf-blind projects.
    Discussion: Before the total appropriation for section 611 of the 
Act first exceeds $4,924,672,200, a count of children ages 3 through 21 
will be used for distributing funds. After this level is reached, data 
on the number of children served will continue to be necessary due to 
the requirement in section 611(a)(2) of the Act that no State be 
allocated an amount per disabled child served greater than 40 percent 
of the average per-pupil expenditure in public elementary and secondary 
schools in the United States. The language in Sec. 300.751 should 
reflect this requirement. In addition, data included in the report does 
not necessarily reflect the flexibility potentially available to the 
States to use sampling to collect data or new data reporting 
requirements for children ages 3 through 9.
    The NPRM provided that a child with deaf-blindness must be reported 
under the category ``deaf-blindness'' and that a child who has more 
than one disability, other than deaf-blindness, must be reported under 
the category ``multiple disabilities''.
    The single and multi-State deaf-blind projects, which are funded 
under discretionary awards under Part D of the Act, are not responsible 
for conducting a census count of deaf-blind children. Those projects 
were required to report on the number of children with deaf-blindness 
that they serve. These Part

[[Page 12651]]

300 regulations set out the requirements for participation of States 
under Part B of the Act.
    Changes: This section has been reworded to reflect in paragraph (a) 
data required for the distribution of funds, including data on the 
numbers of children with disabilities that are provided special 
education and related services in the age groupings 3 through 5, 6 
through 17, and 18 through 21. The remainder of the section has been 
revised to reflect the Secretary's ability to permit sampling to 
collect data, new data collection requirements in the Act, and to 
clarify that children who are not classified as developmentally delayed 
and who have two disabilities consisting of deafness and blindness 
should be reported under the category of ``deaf-blind''.

Annual Report of Children Served--Certification (Sec. 300.752)

    Comment: None.
    Discussion: The certification of an accurate and unduplicated count 
of children with disabilities receiving special education and related 
services on the dates in question is critical only with regard to 
obtaining information needed for the allocation of funds.
    Changes: The certification of an accurate and unduplicated count 
has been limited to the data required under Sec. 300.751(a), which, as 
revised, is limited to information required to make funding allocations 
to States.

Annual Report of Children Served--Criteria for Counting Children 
(Sec. 300.753)

    Comment: None.
    Discussion: Children with disabilities who are enrolled by their 
parents in private schools should be able to be counted by LEAs if 
those children receive special education or related services, or both, 
that are provided in accordance with a services plan and meet the 
requirements of Secs. 300.452-300.462. The language in the NPRM could 
have been read to require that children with disabilities enrolled by 
their parents in private schools be provided all of the related 
services they need to assist them in benefitting from special education 
in order for the LEAs to count these children.
    Changes: Section 300.753 has been revised to permit LEAs to count 
private school children with disabilities who are receiving special 
education or related services, or both, that meet standards and are 
provided in accordance with Secs. 300.452-300.462.
    Comment: A number of commenters requested that notes be deleted 
from the regulations implementing Part B of IDEA.
    Discussion: Note 1 following this section in the NPRM indicated 
that States may count children with disabilities in a Head Start or 
other preschool program operated or supported by a public agency if 
those children are provided special education that meets State 
standards. All children who are counted must be enrolled in a school or 
program providing special education or related services that is 
operated or supported by a public agency. However, a child with a 
disability may also be enrolled in a private school. All children who 
are counted must be provided with services that meet State standards 
regardless of whether they are also enrolled in a private school.
    Note 2 to this section in the NPRM indicated that where a child 
receives special education from a public source at no cost, but whose 
parents pay for the basic or regular education, the child may be 
counted. The revised Sec. 300.753 more clearly reflects the fact that 
children with disabilities enrolled by their parents in private schools 
are eligible to be counted. This is true whether the curriculum of the 
school consists of basic or regular education, or special education.
    Note 2 also indicated that the Department expects that there would 
only be limited situations in which special education would be clearly 
separated from regular education--generally, if speech services are the 
only special education required by the child. This expectation is not 
consistent with the flexibility that LEAs have in providing services to 
children in private schools.
    As Note 2 indicated, a State may not count Indian children on or 
near reservations and children on military facilities if it provides 
them no special education. If an SEA or LEA is responsible for serving 
these children, and does provide them special education and related 
services, they may be counted.
    If a public agency places or refers a child with disabilities to a 
public or private school for educational purposes, parents may not be 
charged for any part of the child's education.
    Changes: The notes have been removed, and language has been added 
to Sec. 300.753 to clarify that, in order for a State to count 
children, the children must be enrolled in a school or program that is 
operated or supported by a public agency, and that they may not count 
children who are served solely through Federal programs, including 
programs of the Departments of Interior, Defense, and Education except 
as covered under Sec. 300.184(c)(2).

Annual Report of Children Served--Other Responsibilities of the State 
Education Agency (Sec. 300.754)

    Comment: One commenter recommended that the SEA should be required 
to sanction LEAs for providing intentionally misleading or false 
information about the number of children with disabilities receiving 
special education and related services within the LEA's jurisdiction.
    Discussion: The IDEA Part B Assistance to States for the Education 
of Children with Disabilities program is administered primarily through 
SEAs. It is in the individual State's interest as well as the national 
interest to ensure that counts of children are accurate; requiring 
sanctions for LEAs that provide intentionally misleading or false 
information would be unnecessary and overly prescriptive. The IDEA 
allows States to impose sanctions subject to the requirements of the 
Act.
    Changes: None.
    Comment: None.
    Discussion: Section 300.754(d) refers to ``reports'' under 
Secs. 300.750-300.753. These sections refer to only one report.
    Changes: The word ``reports'' has been changed to ``report''.
    Comment: A number of commenters requested that notes be deleted 
from the regulations implementing Part B of IDEA.
    Discussion: The note following this section in the NPRM indicates 
that data required in the annual report of children served are not to 
be transmitted to the Secretary in personally identifiable form, and 
that States are encouraged to collect these data in non-personally 
identifiable form. The formats used by the Secretary for collecting 
data do not provide for individual identification of children. The 
formats for data collection by States are a matter of State discretion.
    Changes: The note has been removed.

Disproportionality (Sec. 300.755)

    Comment: Commenters recommended that the regulation define what 
constitutes a significant disproportionality based on race in the 
identification, labeling, and placement of children with disabilities, 
thus triggering the obligation to review and revise, as appropriate, 
identification and placement policies, practices and procedures. 
Another commenter recommended additional language requiring 
consultation with parent training and information centers, parent and 
civil rights advocacy groups, and others, during this process. Other 
commenters suggested that data be

[[Page 12652]]

collected annually when the child count is submitted, and that a 
requirement should be added that data be analyzed. If 
disproportionality is found, a corrective action plan must be developed 
by the SEA, and such a plan should be reported to the Secretary and to 
the public annually.
    Another commenter was supportive of the requirement in Sec. 300.755 
but noted that, because many BIA schools are serving American Indian 
children from wide catchment areas, an increasing number of children 
with disabilities are enrolling in these schools for what may be valid 
reasons. The commenter recommended a requirement for review and 
revision of policies by representatives of the Department of the 
Interior who have experience in the unique political, cultural, and 
geographical issues affecting the identification of these children as 
disabled and in need of special education and related services.
    Discussion: The Act provides that the States and the Secretary of 
the Interior must collect data, determine if disproportionality exists, 
and take corrective action. In order for States and the Department of 
the Interior to determine if disproportionality exist they must 
establish criteria for determining what constitutes significant 
disproportionality. It is expected that the determination of 
disproportionality will involve consideration of a wide range of 
variables peculiar to each State including income, education, health, 
cultural, and other demographic characteristics in addition to race. 
Prescribing how the States should determine disproportionality and take 
corrective action would not reflect the varied circumstances existing 
in each State and is not consistent with discretion afforded to States 
under the statute.
    It should also be noted that the Department's Office for Civil 
Rights also looks at disproportionality in its review of State and 
local activities, and that the Office of Special Education Programs 
will monitor to ensure compliance with this requirement.
    The determination of disproportionality is separate from a 
determination as to whether any corrective action is appropriate. The 
Secretary of the Interior is expected to utilize knowledgeable 
individuals to determine if corrective action is called for in a 
particular instance.
    Changes: None.

Part C

    The following is an analysis of the significant issues raised by 
the public comments received on the NPRM published on October 22, 1997 
(62 FR 55026) for the Early Intervention Program for Infants and 
Toddlers with Disabilities. The Department solicited comments on 
proposed changes to six regulatory provisions in the Early Intervention 
Program for Infants and Toddlers with Disabilities, formerly known as 
Part H of the Individuals with Disabilities Education Act (IDEA). 
Effective July 1, 1998, Part H of IDEA (Part H) was relocated to Part C 
of IDEA (Part C). The proposed changes were made to conform Part C to 
proposed changes in Part B of IDEA. On April 14, 1998, the Department 
published technical changes to the Part C regulations to incorporate 
statutory changes to Part C made by the IDEA Amendments of 1997 (63 FR 
18290). A notice requesting advice and recommendations on Part C 
regulatory issues was also published on April 14, 1998 (63 FR 18297). 
Although the deadline for comments on Part C regulatory issues was July 
31, 1998, the Department reopened the comment period by publishing 
another notice on August 14, 1998 (63 FR 43865-43866).
    In response to the Department's invitation in the NPRM published on 
October 22, 1997, several parties submitted comments on the proposed 
regulations. An analysis of the comments and of the resulting changes 
in the regulations follow. Substantive issues are discussed under the 
section of the regulations to which they pertain. Technical and other 
minor changes--'' and suggested changes the Department is not legally 
authorized to make under the applicable statutory authority ``--are not 
addressed. All Part C provisions amended by these regulations that were 
not the subject of the NPRM are amended only to conform provisions to 
statutory changes to Part C made by the IDEA Amendments of 1997, or to 
conform technical provisions to changes made to the Part B regulations.

Goals 2000: Educate America Act

    Comment: One commenter asked how the Goals 2000: Educate America 
Act (Goals 2000) would be implemented for infants and toddlers with 
disabilities, in particular how the first goal of all children in 
America starting school ready to learn would be realized for infants 
and toddlers with disabilities. The commenter asked if there would be 
definitions or criteria promulgated pursuant to Goals 2000 regarding an 
infant's or toddler's readiness to learn.
    Discussion: The National Education Goals are goals, not 
requirements; no definitions or criteria are necessary to specify how 
States should make progress towards goal one, ``All children in America 
will start school ready to learn.'' Children with developmental delays 
are likely to experience poor educational results because of a 
disability without appropriate early intervention. By addressing the 
effects of a disability or complications that could arise if services 
are not provided, these children will have a greater likelihood of 
better results, and require less intensive or possibly no special 
services, when they are ready to enter school. The Part C Early 
Intervention Program helps States to address the needs of infants and 
toddlers with disabilities and their families by promoting child find 
activities, implementing family-focused service systems, coordinating 
early intervention services on a statewide basis, and providing 
critical services that otherwise would not be available. As such, the 
program plays a major role in improving the school readiness of these 
young children and meeting the National Education Goal of ensuring that 
every child enters school ready to learn.
    Changes: None.

General Comments

    Comment: Several of the commenters requested that the Department 
issue a full notice of proposed rulemaking (NPRM) for the Part C 
program. Commenters questioned why the particular regulatory provisions 
in the October 22, 1997 NPRM were singled out for revision. Many 
requested generally that the Department clarify the statutory 
amendments to Part C, such as the provisions regarding natural 
environments.
    Discussion: The six provisions related to Part C in these 
regulations have been revised in order to achieve consistency with 
parallel Part B regulations. Regarding the remainder of the Part C 
regulations, the Department solicited comments regarding all of the 
Part C regulations on April 14, 1998, and extended the comment period 
on August 14, 1988. Comments received in response to the October 22, 
1997 NPRM regarding Part C regulations that were not the subject of 
that NPRM will be retained and considered with the comments received 
pursuant to the April 14 and August 14, 1998, solicitations. However, 
additional submissions from those same commenters are welcome.
    These final regulations contain several technical changes that were 
not included in the April 14, 1998 regulatory changes. All of these 
changes will be included in the next version of Part C regulations 
published in the Code

[[Page 12653]]

of Federal Regulations (CFR), which is revised each year.
    As with the final Part B regulations published in this issue of the 
Federal Register, these final Part C regulations will not contain 
notes. The critical substantive portions of the notes will be 
incorporated into the corresponding regulatory provision or the 
applicable discussion section in this preamble. Other information from 
the notes will be deleted.
    Changes: None.

Definition of Parent (Sec. 303.18)

    Comment: There were a few comments regarding the revisions to the 
definition of parent at Sec. 303.18. Some commenters liked the changes 
and some objected to the changes. Commenters who objected did so 
primarily because the proposed changes were perceived to conflict with 
prior OSEP opinions and ultimately result in fewer children having 
``parent'' representation at meetings. Commenters also asked what 
constitutes a ``long-term parent relationship'' for an infant or 
toddler.
    Discussion: The changes to the definition of parent under Part C 
are to clarify that the definition is an inclusive one and to conform 
Part C to Part B for consistency and continuity purposes. The changes 
should result in more, rather than fewer, children having parental 
representation, as the regulation clarifies that foster parents may, in 
appropriate circumstances, unless prohibited by State law, serve as 
parents. Under these regulations, the term ``parent'' is defined to 
include persons acting in the place of a parent, such as a grandparent 
or stepparent with whom the child lives, as well as persons who are 
legally responsible for a child's welfare, and, at the discretion of 
the State, a foster parent who meets the requirements in paragraph (b) 
of this section.
    With respect to the meaning of ``long-term parental relationship,'' 
this term was included to ensure that when a child is in foster care, 
decisions regarding services are made by the foster parents only if 
they have had, or will have, a parental relationship that is on-going 
rather than temporary. The goal is that decisions regarding services 
will be made only by those who have or will have a substantive 
understanding of the child's needs. Thus, for example, a parental 
relationship would be considered ``long-term'' if (1) at the time the 
relationship is created, it is intended to be a long-term arrangement, 
or (2) the relationship has existed for a relatively long period of 
time. For older children, States could require a more lengthy time 
period than would be appropriate for infants and toddlers.
    Several changes to this provision are in response to comments 
regarding the corresponding provision in the Part B regulations 
(Sec. 300.20). The general definition of ``parent'' is amended to make 
clear that adoptive parents have the same status as natural parents. In 
addition, to avoid conflict with State statutes, a provision is added 
permitting the use of foster parents under these regulations unless 
State law prohibits foster parents from acting as parents for these 
purposes. For further explanation of the changes, see the discussion 
regarding 34 CFR 300.20 in the preamble to the final Part B 
regulations.
    Changes: Section 303.18 has been amended to specifically include 
adoptive parents, and to permit States in certain circumstances to use 
foster parents as parents under the Act without amending relevant State 
statutes on the definition of ``parent''. The substance of the note has 
been incorporated into the regulations, and the note has been deleted.

Prior Notice (Sec. 303.403)

    Discussion: No comments were received regarding proposed 
Sec. 303.403(b)(4), and it is included in these final regulations. 
However, given the comments regarding the parallel section under Part 
B, and the fact that Part C does not have a separate procedural 
safeguards notice, Sec. 303.403(b)(3) is changed to make clear that the 
notice given under this section must contain all procedural safeguards 
under Part C, including the new mediation procedures in Sec. 303.419.
    Changes: Section 303.403(b)(3) is amended to clarify that the 
notice must inform parents about all procedural safeguards available 
under Secs. 303.401-303.460.

Adopting Complaint Procedures (Sec. 303.510)

    Comment: One commenter requested that the Department clarify how 
frequently States are required to disseminate their State complaint 
procedures in proposed Sec. 303.510(b); the commenter also asked that 
the requirement include provisions for limited-English speakers and 
non-readers.
    Discussion: It is unnecessary to specify a frequency for 
dissemination of State complaint procedures; States have the 
responsibility to ensure that their publicly-disseminated State 
complaint materials are distributed to parents, as well as to the other 
required entities, and to ensure that the materials are kept up to 
date. In addition, the lead agency is now required to provide an 
explanation of the State complaint procedures to parents at the various 
times specified in Sec. 303.403(b)(4), as part of the ``prior notice'' 
requirement. The requirements of Sec. 303.403 regarding prior notice 
include communicating the notice in the parents' native language or 
other mode of communication; therefore, it is unnecessary to add those 
provisions to Sec. 303.510.
    Because a new paragraph (b) is added to this section (see 
discussion below), the language in proposed (b) from the NPRM is moved 
to paragraph (a)(2) of this section.
    Changes: A portion of the existing note is incorporated into 
Sec. 303.510(a) and the note is removed. Proposed Note 2 is 
incorporated into the regulation as new Sec. 303.510(b); the language 
in proposed Sec. 303.510(b) is moved to new Sec. 303.510(a)(2). In 
addition, the language in the proposed note following Sec. 303.511 
regarding complaints from out of State is incorporated into 
Sec. 303.510(a)(1).
    Comment: Several commenters requested clarification of the 
provision regarding compensatory services in Note 2 to proposed 
Sec. 303.510. Compensatory services are also referenced in proposed 
Sec. 303.511(c). One commenter stated that compensatory services are 
not appropriate for infants and toddlers receiving services under Part 
C; services are already year-round, and because the frequency and 
intensity of services are individually tailored to the child's needs in 
the IFSP, supplementing those services would not be appropriate. This 
commenter noted, however, that families who procure services at their 
own expense because an IFSP was not implemented in a timely manner 
should be able to receive reimbursement. Another commenter stated that 
additional public discussion is needed before finalizing this provision 
regarding compensatory services. The commenter raised questions 
concerning how compensatory services would be funded and provided by a 
lead agency before a child turns three years old, how such services 
would be funded and provided after the child turns three, and how such 
post-Part C services would be integrated with the child's special 
education services. Another commenter requested the Department's 
``vision'' for the proposed application of this regulation.
    Discussion: The note reflected what has always been the case ``--
that lead agencies have the authority to order remedies in appropriate 
circumstances for a violation of Part C in resolving complaints under 
the procedures in Secs. 303.510-303.512. However,

[[Page 12654]]

consistent with the decision to remove notes from the Part B 
regulations, and to emphasize the importance of lead agency action to 
resolve complaints in a way that provides individual relief when 
appropriate and addresses systemically the provision of appropriate 
services, a provision is added to this section. The provision clarifies 
that if the lead agency has found a failure to provide appropriate 
services to an infant or toddler with a disability through a complaint, 
the resolution must address both how to remediate the denial of 
services, and how to provide appropriate services for all infants and 
toddlers with disabilities in the State and in the future. While 
recognizing that compensatory services, in the sense used under Part B, 
may be inappropriate for an infant or toddler in many instances, it 
should not be precluded where it is an appropriate corrective action as 
determined by the lead agency based on the individual circumstances. 
Lead agencies retain the authority, responsibility, and flexibility to 
construct appropriate remedies in individual cases in order to obtain 
the results needed for the child and family. Possible remedies may 
include reimbursement of sums spent by a parent, services--compensatory 
or otherwise, or other appropriate corrective action.
    Regarding the issue of a complaint filed after a child turns three 
and is no longer eligible for Part C services, if parents have a 
complaint about the services received or not received by their child 
while an infant or toddler, those parents would properly file the 
complaint with the lead agency that had responsibility for the child 
during that time period, even if the child has ``aged out'' of the Part 
C program at age three. That lead agency has the responsibility to 
resolve and, as appropriate, investigate the complaint, and award 
appropriate corrective action, which may need to be designed by working 
with the SEA if the child is Part B-eligible, or by working with other 
appropriate service providers if the child is not Part B-eligible. 
These regulations do not prevent parents from filing a complaint with 
the lead agency after the child leaves the Part C program. In addition, 
if the alleged violation is systemic, corrective action would be 
required in order to ensure that a violation does not continue for 
other infants and toddlers. However, to prevent undue burden on lead 
agencies from very old cases, Sec. 303.511(b) contains time limitations 
on complaints.
    Changes: A new paragraph (b) has been added to Sec. 303.510 to 
address how a lead agency remedies a denial of appropriate services, in 
place of proposed Note 2. Proposed paragraph (b) has been moved to new 
Sec. 303.510(a)(2).

Filing a Complaint (Sec. 303.511)

    Comment: Two commenters objected to the one-year time limit for 
filing a complaint in proposed Sec. 303.511(c). They stated that 
parents are often not knowledgeable about their rights at their first 
entrance into a complex system, and that violations may not be apparent 
until after the child exits the system. The commenters stated that the 
one-year limit may also conflict with existing State laws governing 
administrative proceedings. These commenters also questioned when it 
would be appropriate for an organization to file a complaint, and asked 
why the proposed note states that lead agencies must resolve complaints 
filed by entities from another State.
    Discussion: The time limits in proposed Sec. 303.511(c) were added 
in recognition that at some point the issues in a complaint are no 
longer reasonably susceptible to resolution. However, such a time limit 
should include an exception for continuing violations; this would 
include a violation for a specific child, e.g., one that began when an 
infant was 4 months old and still continues at age two, as well as 
violations that continue on a systemic basis and affect other children. 
The regulation also includes a three-year time limit for cases in which 
a parent requests reimbursement or corrective action. As evidenced by 
the comments on the issue of compensatory services under Part C (see 
discussion regarding Sec. 303.510 above), compensatory services may not 
be an appropriate remedy in some cases. Therefore, the language 
regarding the three-year limit in these regulations should be changed 
to describe more accurately the remedies that may be requested, such as 
a parent's request for reimbursement for amounts spent to provide 
services in the IFSP that were not provided by the lead agency.
    As noted above in the response to comments on Sec. 303.510, these 
regulations do not prohibit individuals from filing a complaint with 
the lead agency after the child has left the Part C system, and 
require, within the timeframes noted, that the State resolve the 
complaint. In addition, States are free to accept and resolve 
complaints regarding alleged violations that occurred outside these 
timelines, just as they are free to add additional protections in other 
areas that are not inconsistent with the requirements of the Act and 
its implementing regulations. If a State law provided a more generous 
timeline for filing complaints, the State could certainly use that 
timeline; it could, in the alternative, amend its State law to be as 
restrictive, but not more restrictive, than these Federal regulations.
    Regarding the issue of when it is appropriate for an organization, 
rather than an individual, to file a complaint, the State complaint 
procedures broadly permit any organization to file a complaint alleging 
that the State is violating IDEA, in order to permit entities, as well 
as individuals, that become aware of violations to raise them. With 
regard to the statement in the note that the lead agency must resolve 
complaints even if received from an individual or organization outside 
of the State, the lead agency is responsible for ensuring compliance 
with Part C. A complaint about implementation of the Act filed by an 
organization or individual outside of the State is an additional means 
of bringing compliance issues to the State's attention. To be 
consistent with the decision to remove all notes from the Part B 
regulations, and to make clear that complaints from out-of-State 
organizations or individuals must also be resolved, that concept is 
integrated into Sec. 303.510(a)(1).
    Changes: The language in proposed Sec. 303.511(c) has been moved to 
paragraph (b) and changed to describe more accurately the remedies that 
could be requested under the three-year limitation for State 
complaints. The note following Sec. 303.511 regarding complaints filed 
by organizations or individuals from another State has been deleted, 
and the substance of the note has been moved to Sec. 303.510(a)(1).

Minimum State Complaint Procedures; Timelines (Sec. 303.512)

    Comment: One commenter asked whether eliminating the right to 
request Secretarial review would eliminate all potential appeals of a 
State's decision. The commenter requested that a note be added to 
reference other procedures still available if the complainant is not 
satisfied with a State's decision.
    Discussion: If a complainant who wishes to contest a lead agency's 
decision on a State complaint is a parent, he or she may request a due 
process hearing under Sec. 303.420 concerning a child's identification, 
evaluation, or placement, or the provision of appropriate early 
intervention services to the child and the child's family. In addition, 
States must make mediation under Sec. 303.419 available, at a minimum, 
when a parent requests a due process hearing. States

[[Page 12655]]

may provide for mediation at an earlier stage, thereby allowing for 
informal dispute resolution before or after the State complaint 
process, preventing the need for a due process hearing. However, 
mediation may not be used to deny or delay the parents' right to due 
process. The previous existence of the option to request Secretarial 
review was not a substitute for these other procedural rights for 
parents. It is not necessary to add a note describing these other 
procedural safeguards in Sec. 303.512, as they are adequately described 
elsewhere in these regulations.
    The substance of the notes following this section is incorporated 
into Sec. 303.512. The language of proposed Note 1 references a 
complaint that is also the subject of a due process hearing, but does 
not discuss the situation of a complaint that also becomes the subject 
of a mediation proceeding. Although the IDEA Amendments of 1997 
encourage the use of mediation as a dispute resolution tool, a party's 
mediation request should not serve as an excuse for a State to delay 
the State complaint resolution timelines. Therefore, a mediation 
proceeding should not in and of itself be considered an ``exceptional 
circumstance'' under Sec. 303.512(b) so as to extend the 60-day time 
limit for resolution of complaints, unless the parties agree to such an 
extension.
    Changes: Paragraphs (b) and (c) have been combined into a new 
paragraph (b). A new paragraph (c) has been added to clarify that if an 
issue in a complaint is the subject of a due process hearing, that 
issue (but not those outside of the due process proceeding) would be 
set aside until the conclusion of the due process hearing, and that the 
hearing decision regarding an issue in a due process hearing would be 
binding in a State complaint resolution; however, a public agency's 
failure to implement a due process decision would have to be resolved 
by the lead agency. The notes following this section have been removed, 
and their substance incorporated into Sec. 303.512.

Policies Related to Payment for Services (Sec. 303.520)

    Comment: There were many comments regarding the use of private and 
public insurance under Part C. A few commenters supported proposed 
Sec. 303.520(d) and (e), as well as corresponding notes. Supporting the 
provision in proposed Sec. 303.520(d) on requiring families to use 
private insurance only if there are no costs, parents of children with 
disabilities described the financial costs and resulting hardship to 
them when required to use private insurance to pay for services.
    Many commenters opposed the proposed changes. Regarding the use of 
private insurance, many stated that the policies in proposed 
Sec. 303.520(d) and Notes 1 and 2 contradict the ``payor of last 
resort'' concept underlying Part C. Many commenters referred to the 
policy in Sec. 303.527 that Part C Federal funds are to supplement 
existing sources of funds, not provide full support, for early 
intervention. Commenters stated that prior to Part C, private insurance 
would have been the payor of first resort for many early intervention 
services, and Medicaid the secondary source of payment.
    Commenters also stressed that, because FAPE does not apply to Part 
C, basing Sec. 303.520(d) on the Notice of Interpretation published in 
1980 regarding Part B, six years prior to the passage of Part C, is 
invalid. Further, in emphasizing the differences in Part B and Part C 
policy, commenters noted that under Part B, services are to be provided 
at no cost to the parents, whereas under Part C parents may be required 
to pay fees for services. Commenters stated that it is contradictory to 
allow systems of payment, but prohibit the use of private insurance if 
there is a financial cost to families. A few commenters also stated 
they believed the Department did not adequately determine whether or 
not there is a cost to parents in requiring the use of private 
insurance, and that a cost-benefit analysis was not done.
    Commenters were also very concerned about the impact to Part C 
programs nationwide if private insurance is more difficult to access; 
some stated that proposed Sec. 303.520(d) could cause States to 
eliminate their infant and toddler programs entirely. Commenters stated 
that because Federal programs like Medicaid and Title V require that 
private insurance must be billed first for services covered in whole or 
in part by such insurance, if private insurance is not accessible, 
Medicaid or Title V will not be accessible. Some commenters suggested 
that the use of private insurance under Part C be treated in the same 
manner as it is under Title V and Medicaid and in this way remain in 
compliance with the mandate of Sec. 303.527.
    In addition, some commenters stated that a policy that allows 
parents to deny access to private insurance, thereby requiring the 
expenditure of State and Federal funds, has caused private insurance 
companies to deny payment for services if Part C potentially covers the 
service. Insurance policies also often state that they will not cover 
services if deductibles and co-payments are paid for the family instead 
of by the family. Commenters also stated that some State statutes 
require that private insurance is utilized prior to State funds and the 
proposed Sec. 303.520 undermines these statutes.
    Regarding public insurance, commenters stated that parental consent 
should not be required for access to public insurance, e.g., Medicaid, 
if the child is eligible for the public insurance. The commenters also 
argued that States should be given the flexibility to require 
application for public health insurance as a condition for receiving 
early intervention services, not only to enable Part C access to other 
sources of funding, but also to ensure that children have access to 
health and medical care.
    Those commenting against proposed Sec. 303.520(e) and Note 3, 
regarding proceeds from insurance, stated that such a rule potentially 
precludes putting dollars back into an already under funded program. 
Commenters stated that under 34 CFR 80.25, States should be required to 
return income received from public and private insurance payments to 
the Part C program. Further, if the Department does not require such 
reinvestment, commenters requested that it at least remain silent on 
the issue rather than risk giving States encouragement for using 
insurance reimbursements without any restrictions.
    Discussion: As the foregoing comments note, there are many 
ramifications to a proposed regulation regarding the use of private and 
public insurance under Part C. Therefore, the policy in proposed 
Sec. 303.520(d) will not be finalized until more thorough examination 
of the issues can be done through the process initiated by the April 14 
and August 14, 1998 solicitations for comments, and in light of the 
specific Part C statutory language and framework.
    However, with respect to the issue of reimbursements in proposed 
Sec. 303.520(e) and Note 3, the reasons underlying the changes made to 
the corresponding Sec. 300.142(f) in Part B provide support for the 
same changes in Part C. This section clarifies that if a public agency 
receives funds from public or private insurance for services under 
these regulations, the public agency is not required to return those 
funds to the Department or to dedicate those funds for use in the Part 
C program, which is how program income must be used, although a public 
agency retains the option of using those funds in this program if it 
chooses to do so. Reimbursements are similar to refunds,

[[Page 12656]]

credits, and discounts that are specifically excluded from program 
income in 34 CFR 80.25(a). The expenditure that is reimbursed is 
considered to be an expenditure of funds from the source that provides 
the reimbursement. Nothing in IDEA, however, prohibits States from 
reinvesting insurance reimbursements back into the Part C program, and 
this regulatory provision should not be viewed as discouraging such 
practice. Reinvestment of insurance reimbursements in the Part C 
program is undeniably a valuable method of helping fund the program; 
however, to avoid confusion, it is necessary to clarify by regulation 
that no current Federal law requires such reinvestment.
    In addition, proposed paragraph (e) has been revised to clarify 
that funds expended by a public agency from reimbursements of Federal 
funds will not be considered State or local funds for purposes of 
Sec. 303.124. If Federal reimbursements were considered State and local 
funds for purposes of the supplanting prohibition in Sec. 303.124 of 
these regulations, States would experience an artificial increase in 
their base year amounts and would then be required to maintain a 
higher, overstated level of fiscal effort in the succeeding fiscal 
year.
    Changes: Proposed Sec. 303.520(d), and Notes 1 and 2, are removed; 
proposed Sec. 303.520(e) is redesignated as Sec. 303.520(d) with 
changes to conform to Sec. 300.142(f); and Note 3 is incorporated into 
the text of Sec. 303.520(d).

(Note: This attachment will not be codified in the Code of Federal 
Regulations)

Attachment 2--Executive Order 12866

    These regulations have been reviewed in accordance with 
Executive Order 12866. Under the terms of the order the Secretary 
has assessed the potential costs and benefits of this regulatory 
action.

Summary of Public Comments

    Many commenters expressed concern about the costs and burden of 
complying with requirements incorporated into the Assistance to 
States for the Education of Children with Disabilities, Notice of 
Proposed Rulemaking (NPRM). Commenters complained about the cost of 
implementing various statutory requirements incorporated into the 
NPRM and identified a variety of requirements in the NPRM not 
required by the statute that would increase administrative costs for 
school districts. Some commenters talked about the need to employ 
additional staff to comply with new requirements and others talked 
about the additional paperwork required. Some commenters expressed 
concern about the effect of the requirements on the ability of 
schools to provide instruction to nondisabled children and the 
difficulty teachers and administrators would have in implementing 
the proposed regulations. Very few commenters specifically addressed 
the Department's analysis of the benefits and costs of the statutory 
and non-statutory changes incorporated into the proposed 
regulations.
    One commenter stated that the analysis of the impact was 
inadequate and that the cost to school systems did not appear to be 
taken seriously. However, this commenter did not provide comments on 
the cost assumptions or analysis of specific items in the NPRM.
    One commenter questioned the discussion in the NPRM that 
indicated a possible reduction of personnel needed to conduct 
evaluations by 25 to 75 percent, and suggested that additional 
meetings would probably be required for 18 to 24 months until the 
appropriate assessments can be conducted at annual reviews and that 
additional personnel would be needed. Another commenter agreed that 
the changes related to the conduct of the triennial reevaluation may 
reduce some paperwork, but noted that savings would not be realized 
immediately for individual children because of the need for baseline 
data. One commenter stated that it has taken the evaluation team one 
hour just to decide whether there is a need to gather additional 
information.
    A few commenters provided specific information about the cost 
and time involved to comply with some of the requirements that were 
analyzed in the NPRM. For example, one commenter pointed out that it 
would cost his district $18,000 to provide for substitute teachers 
so regular education teachers could attend 900 IEP meetings lasting 
one to two hours--or $20 per meeting. Another commenter stated that 
the cost of providing substitute teachers would be an enormous 
burden for school districts, noting that the average IEP meeting 
takes 1.5 to 2 hours.
    The Department also received a few comments on the cost of 
providing education to children who have been suspended or expelled. 
One commenter said that the projections do not take into account the 
expense of providing homebound services, alternative placements or 
access to the general curriculum. Another commenter agreed that the 
estimates of $29-$70 were too low and pointed out that an out-of-
district day placement in Vermont runs about $20,000-$25,000 per 
school year.
    All of these comments were considered in conducting the analysis 
of the benefits and costs of the final regulations. All of the 
Department's estimates and the assumptions on which they are based 
are described below.

Summary of Potential Benefits and Costs

Benefits and Costs of Statutory Changes

    For the information of readers, the following is an analysis of 
the costs and benefits of the most significant statutory changes 
made by IDEA Amendments of 1997 that are incorporated into the 
Assistance to States for the Education of Children with Disabilities 
regulations. In conducting this analysis, the Department examined 
the extent to which changes made by the IDEA Amendments of 1997 
added to or reduced the costs for school districts and others in 
relation to the costs of implementing the IDEA prior to the 
enactment of the IDEA Amendments of 1997. Based on this analysis, 
the Secretary has concluded that the statutory changes included in 
this regulation will not, on net, impose significant costs in any 
one year, and may result in savings to State and local educational 
agencies. An analysis of specific provisions follows:

Participation in Assessments

    Section 300.138 incorporates statutory requirements relating to 
the inclusion of children with disabilities in general State and 
district-wide assessments and the conduct of alternate assessments 
for children who cannot be appropriately included in general 
assessments.
    Although children with disabilities have not been routinely 
included in State and district-wide assessments, the requirement to 
include children with disabilities in assessment programs in which 
they can be appropriately included, with or without accommodations, 
does not constitute a change in Federal law. Because this statutory 
change is a clarification of, not a change in, the law, no cost 
impact is assigned to this requirement, which is incorporated in 
Sec. 300.138(a) requiring the participation of children with 
disabilities in general assessments.
    However, States were not previously required to conduct 
alternate assessments for children who could not participate in the 
general assessments. The statutory requirement to develop and 
conduct alternate assessments beginning July 1, 2000, therefore, 
imposes a new cost for States and districts.
    The impact of this change will depend on the extent to which 
States and districts administer general assessments, the number of 
children who cannot appropriately participate in those assessments, 
the cost of developing and administering alternate assessments, and 
the extent to which children with disabilities are already 
participating in alternate assessments.
    The analysis of the impact of this requirement assumes that 
alternate tests would be administered to children with disabilities 
on roughly the same schedule as general assessments. This schedule 
will vary considerably from State to State and within States, 
depending on their assessment policy. In most States, this kind of 
testing does not begin before the third grade. In many States and 
districts, general assessments are not administered to children in 
all grades, but rather at key transition points (for example, in 
grades 4, 8, and 11).
    The extent to which States and districts will need to provide 
for alternate assessments will also vary depending on how the 
general assessments are structured. Based on the experience of 
States that have implemented alternate assessments for children with 
disabilities, it is estimated that about one to two percent of the 
children in any age cohort will be taking alternate assessments.
    Based on this information, it is estimated that about 18 to 36 
million of the children who are expected to be enrolled in public 
schools in school year 2000-2001 will be candidates for general 
assessments. Of these, about 200,000 to 700,000 will be children

[[Page 12657]]

with disabilities who may require alternate assessments.
    The costs of developing and administering these assessments are 
also difficult to gauge. In its report Educating One and All, the 
National Research Council states that the estimated costs of 
performance-based assessments programs range from less than $2 per 
child to over $100 per student tested. The State of Maryland has 
reported start-up costs of $191 per child for testing a child with a 
disability and $31 per child for the ongoing costs of administering 
an alternate assessment.
    The cost impact of requiring alternate assessments will be 
reduced to the extent that children with disabilities are already 
participating in alternate assessments. Many children with 
disabilities are already being assessed outside the regular 
assessment program in order to determine their progress in meeting 
the objectives in their IEPs. In many cases, these assessments might 
be adequate to meet the new statutory requirement.
    Based on all of this information, the cost impact of this 
statutory change is not likely to be significant, and will be 
justified by the benefits of including all children in 
accountability systems.

Incidental Benefits

    The change made by section 613(a)(4) of the Individuals with 
Disabilities Education Act (IDEA), incorporated in Sec. 300.235, 
generates savings by reducing the time that would have been spent by 
special education personnel on maintaining records on how their time 
is allocated in regular classrooms among children with and without 
disabilities.
    To calculate the impact of this change, one needs to estimate 
the number of special education personnel who will be providing 
services to children with and without disabilities in regular 
classrooms and the amount and value of time that would have been 
required to document their allocation of time between disabled and 
nondisabled children.
    Based on State-reported data on placement, it appears that about 
4.4 million children will spend part of their day in a regular 
classroom this school year. States reported employing about 404,000 
teachers and related services personnel in total for school year 
1995-96. The statutory change will eliminate unnecessary paperwork 
for those special education personnel who have been working in the 
regular classroom and documenting their allocation of time, and will 
encourage the provision of special education services in the regular 
classroom--a change that will benefit children with disabilities.

Individualized Education Programs

    The final regulations incorporate a number of statutory changes 
in section 614(d) that relate to the IEP process and the content of 
the IEP. With the exception of one requirement (the requirement to 
include a regular education teacher on the IEP team), it has been 
determined that, on balance, these changes will not increase the 
cost of developing IEPs. Moreover, all the changes will produce 
significant benefits for children and families. Key changes include:
    Clarifying that the team must consider a number of special 
factors to the extent they are applicable to the individual child. 
The statutory changes that are incorporated in Sec. 300.346 do not 
impose a new burden on school districts because the factors that are 
listed should have been considered, as appropriate, under the IDEA 
before the enactment of IDEA Amendments of 1997. These include: 
behavioral interventions for a child whose behavior impedes 
learning, language needs for a child with limited English 
proficiency, Braille for a blind or visually impaired child, the 
communication needs of the child, and the child's need for assistive 
technology.
    Strengthening the focus of the IEP on access to the general 
curriculum in statements about the child's levels of performance and 
services to be provided. The statutory changes that are incorporated 
in Sec. 300.347 relating to the general curriculum should not be 
burdensome because the changes merely refocus the content of 
statements that were already required to be included in the IEP on 
enabling the child to be involved in and progress in the general 
curriculum.
    Requiring an explanation of the extent to which a child will not 
be participating with nondisabled children. This statutory 
requirement, which is incorporated in Sec. 300.347(a)(4), does not 
impose a burden because it replaces the requirement for a statement 
of the extent to which the child will be able to participate in 
regular educational programs.
    Requiring the IEP to include a statement of any needed 
modifications to enable a child to participate in an assessment, 
and, in cases in which a child will not be participating in a State 
or district-wide assessment, to include a statement regarding why 
the assessment is not appropriate and how the child will be 
assessed. This statutory requirement, which is incorporated in 
Sec. 300.347(a)(5), will require some additional information to be 
included in the IEPs for some children, but will not impose a 
significant burden on schools. Each year an estimated 1.6 to 3.2 
million children with disabilities are in grades in which schools 
are administering State or district-wide assessments. Prior to the 
enactment of the IDEA Amendments of 1997, Federal law required the 
participation of children with disabilities in general assessments 
with accommodations, as needed. Data indicate that about 50 percent 
of children with disabilities have been participating in State and 
local assessments. Many of these children are receiving needed 
modifications and their IEPs currently include information about 
those modifications. The requirement for statements in the IEP about 
how children will be assessed will affect IEPs for children who 
cannot participate in the general assessments and who are entitled 
to participate in alternate assessments (estimated to be 200,000 to 
700,000 children, beginning in school year 2000-2001).
    Allowing the IEP team to establish benchmarks rather than short-
term objectives in each child's IEP. There is considerable variation 
across States, districts, schools, and children in the amount of 
time spent on developing and describing short-term objectives in 
each child's IEP. While it would be difficult to estimate the impact 
of this statutory change, contained in Sec. 300.347(a)(2), it 
clearly affords schools greater flexibility and an opportunity to 
reduce paperwork in those cases in which the team has previously 
included unnecessarily detailed curriculum objectives in the IEP 
document. This change potentially reduces the burden in preparing 
IEPs for 6 million children each year.
    Prior to the enactment of the IDEA Amendments of 1997, IDEA 
required the participation of the ``child's teacher,'' typically 
read as the child's special education teacher, but it did not 
explicitly require a regular education teacher. The IDEA Amendments 
of 1997, incorporated in Sec. 300.344 (a)(2) and (a)(3) and 
Sec. 300.346(d) of the final regulations, require the participation 
of the child's special education teacher and a regular education 
teacher if the child is or may be participating in the regular 
education classroom, while acknowledging that a regular education 
teacher participates in developing, reviewing, and revising the 
child's IEP ``to the extent appropriate.''
    The impact of this change will be determined by the number of 
children with disabilities who are or who may be participating in 
the regular classroom in a given year, the number and length of IEP 
meetings, the extent of the regular education teacher's 
participation in them, the opportunity cost of the regular education 
teacher's participation, and the extent to which regular education 
teachers are already attending IEP meetings.
    State-reported data for school year 1994-1995 indicates that 
about 3.9 million children with disabilities aged 3 through 21 spend 
at least 40 percent of their day in a regular classroom (children 
reported as placed in regular classes and resource rooms). The 
participation of the regular education teacher would be required for 
all of these children since these children are spending at least 
part of their day in the regular classroom.
    State data also show that an additional 1.2 million children 
were served in separate classrooms. A regular education teacher's 
participation will clearly be required for those children in 
separate classes who are spending part of their school day in 
regular classes (less than 40 percent of their day). Other children 
may be participating with nondisabled children in some activities in 
the same building. While a child's individual needs and prospects 
will determine whether a regular education teacher would need to 
attend a child's IEP meeting in those cases, some proportion of 
these children are children for whom participation in regular 
classrooms is a possibility, therefore requiring the participation 
of a regular education teacher.
    Although the prior statute did not require the participation of 
a regular education teacher, it is not uncommon for States or school 
districts to require a child's regular education teacher to attend 
IEP meetings.
    Based on all of this information, it is estimated that the 
participation of a regular education teacher may be required in an

[[Page 12658]]

additional 3.9 to 5.3 million IEP meetings in the next school year.
    While the opportunity costs of including a regular education 
teacher in these meetings will be significant because of the number 
of meetings involved, these costs will be more than justified by the 
benefits to be realized by teachers, schools, children, and 
families. Involving the regular education teacher in the development 
of the IEP will not only provide the regular education teacher with 
needed information about the child's disability, performance, and 
educational needs, but will help ensure that a child receives the 
supports the child needs in the regular classroom, including 
services and modifications that will enable the child to progress in 
the general curriculum.

Parentally-Placed Students in Private Schools

    This statutory change, which is incorporated in Sec. 300.453, 
would require school districts to spend a proportionate amount of 
the funds received under Part B of IDEA on services to children with 
disabilities who are enrolled by their parents in private elementary 
and secondary schools.
    The change does not have an impact on most States because the 
statute does not represent a change in the Department's 
interpretation of the law as it was in effect prior to the enactment 
of the IDEA Amendments of 1997. However, in four Federal circuits, 
the courts have concluded that, without the statutory change, school 
districts generally were responsible for paying for the total costs 
of special education and related services needed by students with 
disabilities who have been parentally-placed in private schools. 
Therefore, this change does produce potential savings for school 
districts in those 19 States affected by these court decisions. The 
States are: Arkansas, Colorado, Connecticut, Iowa, Kansas, 
Louisiana, Minnesota, Mississippi, Missouri, New Mexico, Nebraska, 
New York, North Dakota, Oklahoma, South Dakota, Texas, Utah, 
Vermont, and Wyoming.
    To determine the impact of the change, one needs to estimate the 
number of parentally-placed children with disabilities that LEAs in 
these States would have been required to serve, but for this change. 
Using private school enrollment data for school year 1995-1996 and 
projected growth rates, it is estimated that approximately 1.5 
million students will be enrolled in private schools in these 19 
States in this school year.
    There is no reliable data on the number of children with 
disabilities who are parentally-placed in private schools. However, 
if one assumes that children with disabilities are found in private 
schools in the same proportion as they are found in public schools 
in these States, or at least in the same proportion that children 
with speech impairments and learning disabilities are found in 
public schools, one would estimate that there are between 80,000 and 
120,000 children with disabilities who are parentally-placed in 
private schools.
    If one assumes that, on average, the cost of providing a free 
appropriate education to these students would be approximately equal 
to the average excess costs for educating students with 
disabilities--$7,184 per child for school year 1998-1999--the costs 
of providing FAPE to these children would be significant.
    Under the statutory change, LEAs schools would still be required 
to use a portion of the Federal funds provided under Part B of IDEA 
to provide services to parentally-placed children--an amount 
proportionate to the percentage of the total population of children 
with disabilities who are parentally-placed--and to carry out 
required child find and evaluation activities. Therefore, in 
estimating the impact of this statutory change, one needs to 
subtract the cost of these public school obligations from the total 
projected savings. One would also need to take into account the fact 
that some of the costs that would have been covered by the school 
districts will simply shift to other sources such as the private 
schools or the families of the children. However, even if one 
discounts the amount of projected savings to the public sector by 50 
percent to take into possible cost-shifting, the total net savings 
attributable to the change in the law for these 19 States is 
expected to be very significant.

Mediation

    Section 300.506 reflects the new statutory provisions in section 
615(e) of IDEA, which require States to establish and implement 
mediation procedures that would make mediation available to the 
parties whenever a due process hearing is requested. IDEA specifies 
how mediation is to be conducted.
    The impact of this change will depend on the following factors: 
the number of due process hearings that will be requested, the 
extent to which the parties to those hearings will agree to 
participate in mediation, the cost of mediation, the extent to which 
mediation would have been used in the absence of this requirement to 
resolve complaints, and the extent to which mediation obviates the 
need for a due process hearing.
    Data for previous years suggests one can expect about one 
complaint for every 1000 children served or about 6,000 requests for 
due process hearings during this school year. This projection 
probably overstates the number of complaints because it does not 
take into account the effect of the IDEA Amendments of 1997, which, 
on balance, can be expected to result in better implementation of 
the law and higher parental satisfaction with the quality of 
services and compliance with IDEA.
    Many of these complaints would have been resolved through 
mediation even without the statutory change. Over 39 States had 
mediation systems in place prior to the enactment of the IDEA 
Amendments of 1997. Data for 1992 indicate that, on average, States 
with mediation systems held mediations in about 60 percent of the 
cases in which hearings were requested. Nevertheless, the number of 
mediations is expected to increase even in States that already have 
mediation systems. Although most States report using mediation as a 
method of resolving disputes, there have been considerable 
differences in its implementation and use. In general, the extent to 
which mediation has been used in States probably depends on the 
extent to which parents and others were informed of its availability 
and possible benefits in resolving their complaints and the extent 
to which the mediator was perceived as a neutral third-party. The 
changes made by the IDEA Amendments of 1997 are expected to 
eliminate some of the differences in State mediation systems that 
have accounted for its variable use and effectiveness.
    The benefits of making mediation more widely available are 
expected to be substantial, especially in relation to the costs. 
States with well-established mediation systems conduct considerably 
fewer due process hearings. For example, in California, hearings 
were held in only 5 and 7 percent of the cases in which they were 
requested in 1994 and 1995, respectively. The average mediation 
appears to cost between $350 and $1000, while a due process hearing 
can cost tens of thousands of dollars. Based on the experience that 
many different States have had with mediation, it is estimated that 
hundreds of additional complaints will be resolved through 
mediation. The benefits to school districts and benefits to families 
are expected to be substantial.

Discipline

    The final regulations (Secs. 300.121, 300.122, 300.520, and 
300.521) incorporate a number of significant changes to IDEA that 
relate to the procedures for disciplining children with 
disabilities.
    Some of the key changes contained in section 615(k) afford 
school districts additional tools for responding to serious 
behavioral problems, and in that regard, do not impose any burdens 
on schools or districts.
    The statutory change reflected in Sec. 300.520(a)(2) would give 
school officials the authority to remove children who engaged in 
misconduct involving weapons or illegal drugs. Under prior law, 
school officials had the authority to remove children who brought 
guns, but could not remove children who engaged in misconduct 
involving other weapons or illegal drugs over the objection of their 
parents unless they prevailed in a due process proceeding or 
obtained a temporary restraining order from a court. The statutory 
change reflected in Sec. 300.521 would give school officials the 
option of seeking relief from a hearing officer rather than a court 
in the case of a child the school is seeking to remove because the 
child poses a risk of injury to the child or others. In both cases, 
the child would continue to receive services in an alternative 
educational setting that is required to meet certain standards. It 
is difficult to assess the impact of either of these statutory 
changes on schools because there is virtually no information 
available on the extent to which parents disagree with districts 
that propose to remove these children. This new authority would only 
be used in those cases. Nevertheless, the benefits of this authority 
appear to be substantial insofar as the changes help schools provide 
for a safe environment for all children, while ensuring that any 
children with disabilities who are moved to an alternative setting 
continue to receive the services they need.
    The statutory change reflected in Sec. 300.520(b) will require 
school officials to

[[Page 12659]]

convene the IEP team in certain cases in which removal is 
contemplated to develop an assessment plan and behavioral 
interventions (or that the IEP team members review the child's 
behavioral intervention plan if there is one). The impact of this 
requirement is discussed below as part of the discussion of non-
statutory changes.
    The requirement in section 612(a)(1)(A), incorporated in 
Sec. 300.121, that all children aged 3 through 21 must have made 
available to them a free appropriate public education, including 
children who have been suspended or expelled from school, does not 
represent a change in the law as the law was interpreted by the 
Department prior to the enactment of the IDEA Amendments of 1997. It 
clarifies the Department's long-standing position that the IDEA 
requires the continuation of special education and related services 
even to children who have been expelled from school for conduct that 
has been determined not to be a manifestation of their disability.
    However, this statutory change does represent a change in the 
law in two circuits in which Federal Circuit courts disagreed with 
the Department's interpretation of the law--the 4th and 7th 
Circuits. The affected States are: Virginia, Maryland, North 
Carolina, South Carolina, West Virginia, Illinois, Indiana, and 
Wisconsin.
    To assess the impact of this change, one needs to estimate the 
extent to which students would have been excluded from education, 
but for this change in the statute, and the cost of providing the 
required services to these students during the period they are 
expected to be excluded from their regular school due to a long-term 
suspension or expulsion.
    There is a paucity of data available on disciplinary actions, 
and very little for the States in the 4th and 7th Circuits. Using 
data collected by the Office for Civil Rights for school year 1994, 
it is estimated that approximately 60,000 students with disabilities 
aged 6 through 21 will be suspended during this school year in the 
affected States. But to determine the impact of the prohibition on 
ceasing services in these States, one needs to know the number of 
suspensions each student received and their duration--information 
that is not provided by OCR data. However, more detailed data 
compiled by a few States would suggest that a relatively small 
percentage of students with disabilities who are suspended (no more 
than about 15 percent) receive suspensions of greater than 10 days 
at a time and a much smaller number of students are expelled.
    Little information is available on the cost of providing 
services in an alternative setting for a student who has been 
suspended temporarily or expelled from school. However, it is 
reasonable to assume that the average cost per day of providing 
services in an alternative setting probably would be no less than 
the average daily total costs of serving children with disabilities, 
which is about $75 per day. Although costs will vary considerably 
depending on the needs of the individual student and the type of 
alternative setting, costs are likely to be higher on average 
because districts are unlikely to be able to achieve the same 
economies of scale in providing services to small numbers of 
children in alternative settings as they do in serving children 
generally.
    While this statutory change will have a cost impact on the 
States in the 4th and 7th Circuits, the costs for these States will 
be justified by the benefits of continuing educational services for 
children who are the least likely to succeed without the help they 
need.
    The statutory change reflected in Sec. 300.122 could generate 
potential savings for all States by removing the obligation to 
provide educational services to individuals 18 years old or older 
who were incarcerated in adult prisons and who were not previously 
identified as disabled. No information is available on the number of 
prisoners with disabilities who were not previously identified.

Triennial Evaluation

    The previously existing regulations required a school district 
to conduct an evaluation of each child served under IDEA every three 
years to determine, among other things, whether the child is still 
eligible for special education. The IDEA Amendments of 1997 change 
this requirement to reduce unnecessary testing and therefore reduce 
costs. Specifically, section 614(c) of IDEA, incorporated in 
Sec. 300.533, allows the evaluation team to dispense with additional 
tests to determine the child's continued eligibility if the team 
concludes this information is not needed. However, these tests must 
be conducted if the parents so request.
    The savings resulting from this change will depend on the 
following factors: the number of children for whom an evaluation is 
conducted each year to comply with the requirement for a triennial 
evaluation, the cost of the evaluation, and an estimate of the 
extent to which testing will be reduced because it is determined by 
the IEP team to be unnecessary and is not requested by the parents.
    Based on an analysis of State-reported data, it is estimated 
that approximately 1.5 million children will be eligible for 
triennial evaluations in school year 1998-1999 or roughly 25 percent 
of the children to be served.
    The IDEA Amendments of 1997 make it clear that districts no 
longer need to conduct testing to determine whether a child still 
has a disability, if the evaluation team determines this information 
is not needed and the parent agrees. However, while the regulation 
permits the team to dispense with unneeded testing to determine 
whether the child still has a disability, the team still has an 
obligation to meet to review any existing evaluation data and to 
identify what additional data are needed to determine whether the 
child is still eligible for special education and related services, 
the present levels of performance of the child, and whether any 
modifications in the services are needed. In view of these 
requirements, it is assumed that there will be some cost associated 
with conducting the triennial evaluation even in those cases in 
which both the team and the parents agree to dispense with testing. 
It is estimated that the elimination of unnecessary testing could 
reduce the opportunity costs for the personnel involved in 
conducting the triennial evaluation by as much as 25 to 75 percent. 
While there is no national data on the average cost of conducting a 
triennial evaluation under the current regulations, it is assumed 
that a triennial evaluation would require the participation of 
several professionals for several hours and cost as much as $1000.
    These savings would be somewhat mitigated by the increased costs 
associated with the new statutory requirement to obtain parental 
consent before conducting a reevaluation. Under the final 
regulations, parental consent would be required if a test is 
conducted as part of a reevaluation, for example, or when any 
assessment instrument is administered as part of a reevaluation.
    If one assumes, for purposes of this analysis, that savings are 
achievable in roughly half of the triennial evaluations that will be 
conducted and that elimination of unnecessary testing could reduce 
personnel costs by at least 25 percent, one would project 
substantial savings for LEAs that are attributable to this change.

Benefits and Costs of Proposed Non-statutory Regulatory Provisions

    The following is an analysis of the benefits and costs of the 
nonstatutory final regulatory provisions that includes consideration 
of the special effects these changes may have for small entities.
    The final regulations primarily affect State and local 
educational agencies, which are responsible for carrying out the 
requirements of Part B of IDEA as a condition of receiving Federal 
financial assistance under IDEA. Some of the proposed changes also 
affect children attending private schools and consequently 
indirectly affect private schools.
    For purposes of this analysis as it relates to small entities, 
the Secretary has focused on local educational agencies because 
these regulations most directly affect local school districts. The 
analysis uses a definition of small school district developed by the 
National Center for Education Statistics for purposes of its recent 
publication, ``Characteristics of Small and Rural School 
Districts.'' In that publication, NCES defines a small district as 
``one having fewer students in membership than the sum of (a) 25 
students per grade in the elementary grades it offers (usually K-8) 
and (b) 100 students per grade in the secondary grades it offers 
(usually 9-12)''. Using this definition, approximately 34 percent of 
the Nation's school districts would be considered small and serve 
about 2.5 percent of the Nation's students. NCES reports that 
approximately 12 percent of these students have IEPs.
    Both small and large districts will experience economic impacts 
from this rule. Little data are available that would permit a 
separate analysis of how the changes affect small districts in 
particular.
    This analysis assumes that the effect of the final regulations 
on small entities would be roughly proportional to the number of 
children with disabilities served by those districts.

[[Page 12660]]

    For school year 1998-1999, we estimate that approximately 47 
million children will be enrolled in public elementary and secondary 
schools. Using the NCES definition and assuming all districts grew 
at the same rate between school year 1993-1994 and 1998-1999, the 
Secretary estimates that approximately 1.18 million children are 
enrolled in small districts. Applying the NCES estimate of 12 
percent, we estimate that these districts serve approximately 
140,000 children with disabilities of the 6 million children with 
disabilities served nationwide.
    There are many provisions in the final regulations that are 
expected to result in economic impacts--both positive and negative. 
This analysis estimates the impact of those non-statutory provisions 
that were not required by changes that were made in the statute by 
the IDEA Amendments of 1997. In conducting this analysis, the 
Department estimated the additional costs or savings for school 
district attributable to these provisions in relation to the costs 
of implementing the statute, as amended by the IDEA Amendments of 
1997.
    The following is a summary of the estimated economic and non-
economic impact of the key changes in this final regulation:
    Section 300.2--Applicability to public agencies--The regulations 
add charter schools to the list of entities to which the regulations 
apply. Language is also added in paragraph (b)(2) regarding the 
applicability of the regulations to each public agency that has 
direct or delegated authority to provide special education and 
related services in a State receiving Part B funds, regardless of 
that agency's receipt of Part B funds. Neither change imposes any 
additional burden; both were included for clarity.
    Section 300.7--Child with a disability--The final regulations 
add a new paragraph (a)(2) to clarify that if a child has one of the 
disabilities listed in paragraph (a), but only needs a related 
service and not special education, the child is not a ``child with a 
disability'' under Part B, unless the service is considered special 
education under State standards. This change is not likely to affect 
the number of children eligible for services under this part 
substantially because this clarification reflects a longstanding 
interpretation of the Department.
    Section 300.7(c)(1)--Autism--The final regulations amend the 
definition of ``autism'' to clarify that if a child manifests 
characteristics of this disability category after age 3, the child 
could be diagnosed as having ``autism'' if the other criteria are 
satisfied. This clarification does not impose any additional burden 
on LEAs.
    Section 300.7(c)(9)--Attention deficit disorder--The final 
regulations amend the definition of ``other health impairment'' to 
add ADD/ADHD to the list of conditions that could render a child 
eligible for services under this part. The language relating to 
other health impairments is also modified to clarify that limited 
strength, vitality or alertness includes a child's heightened 
alertness to environmental stimuli that results in limited alertness 
with respect to the educational environment. This change will not 
increase costs for LEAs because it reflects the Department's 
longstanding policy interpretation regarding the eligibility of 
children with ADD/ADHD.
    Section 300.8--Definition of day--The final regulations add 
definitions of ``day,'' ``business day,'' and ``school day,'' terms 
that are used in the statute. Including these definitions will 
reduce confusion about the meaning of these terms and will not 
impose costs. The definition of ``day'' represents the Department's 
longstanding interpretation of that term. In defining ``business 
day,'' the Department used a commonly understood measure of time so 
that both parents and school officials could easily understand 
timelines established in the regulations.
    Section 300.10--Definition of educational service agency--The 
final regulations clarify that the term ``educational service 
agency'' includes agencies that meet the definition of 
``intermediate educational units'' under prior law. This change does 
not impose any costs on States.
    Section 300.18--Charter schools as LEAs--The final regulations 
amend the definition of an ``LEA'' to include public charter schools 
established as LEAs under State law. This change, which adds 
clarity, does not impose any costs.
    Section 300.19--Native language--The final regulations expand 
the definition of ``native language'' to clarify that in all direct 
contact with the child, communication must be in the language 
normally used by the child and not the parents if there is a 
difference between the two, and that for individuals with deafness 
or blindness, or for individuals with no written language, the mode 
of communication would be that normally used by the individual. This 
clarification does not impose any additional costs for LEAs beyond 
what Federal law would already require.
    Section 300.20--Foster parents--The final regulations clarify 
that foster parents may act as parents unless State law prohibits 
such practice. This provision does not impose any costs. The 
definition is intended to promote the appropriate involvement of 
foster parents consistent with the best interests of the child by 
ensuring that those who best know the child are involved in 
decisions about the child's education. To the extent there is any 
economic impact, it should reduce costs on States and local agencies 
that they would otherwise incur for training and appointing 
surrogate parents for children whose educational interests could 
appropriately be represented by their foster parents.
    Section 300.22--Definition of public agency--The final 
regulations add public charter schools to the list of public 
agencies. This change does not impose any additional costs on States 
as Federal law already requires States to be ultimately responsible 
for ensuring FAPE for all children with disabilities in public 
schools in the State.
    Section 300.24--Related services--The final regulations modify 
the definition of occupational therapy to make clear that it 
encompasses services provided by a qualified occupational 
therapist--a clarification that does not impose any additional 
costs. The final regulations revise the definition of parent 
counseling and training to include helping parents to acquire the 
necessary skills that will allow them to support the implementation 
of their child's IEP or IFSP.
    Section 300.26(b)(3)--Definition of ``specially-designed 
instruction''--Paragraph (b)(3) defines ``specially-designed 
instruction'' in order to give more definition to the term ``special 
education,'' which is defined in this section as ``specially-
designed instruction.'' The definition is intended to clarify that 
the purpose of adapting the content, methodology, or delivery of 
instruction is to address the child's unique needs and to ensure 
access to the general curriculum. This provision increases the 
potential of children with disabilities to participate more 
effectively in the general curriculum.
    Section 300.26--Travel training--The final regulations amend the 
definition of ``special education'' to include a reference to travel 
training in paragraph (a)(2) and a definition of travel training in 
paragraph (b)(4)--clarifications that do not impose any additional 
costs.
    Section 300.121--Free appropriate public education--The final 
regulations add language to clarify that the responsibility to 
provide FAPE beginning no later than a child's third birthday means 
that an IEP or IFSP must be in effect by that date, and that a child 
turning three during the summer must receive services if the IEP 
team determines that the child needs extended school year services. 
This language, which represents the Department's longstanding 
interpretation of the statute, does not impose any additional burden 
on LEAs. The final regulations also include language in paragraph 
(e) to clarify that the group determining a child's eligibility must 
make an individualized determination as to whether a child who is 
progressing from grade to grade needs special education and related 
services--another clarification that does not impose any additional 
costs for LEAs.
    Section 300.121--FAPE for Children suspended or expelled from 
school--Section 300.121 incorporates the statutory provision that 
the right to a free appropriate public education extends to children 
with disabilities who have been suspended or expelled from school. 
Paragraph (d)(1) clarifies that a public agency need not provide 
services to a child who has been suspended for fewer than 10 days in 
a school year if services are not provided to nondisabled children. 
Paragraph (d)(2) describes when and to what extent services must be 
provided to children who have been removed from their current 
educational placement for more than 10 school days in a given school 
year. Paragraph (d)(2) provides that the public agency must provide 
services to the extent necessary to enable the child to 
appropriately progress in the general curriculum and advance toward 
achieving the goals in the child's IEP if the suspension is for 10 
school days or less or is for behavior that is not a manifestation 
of the child's disability. In the case of suspensions of 10 days or 
fewer, school personnel, in consultation with the special education 
teacher, determine if, and to what extent services must be provided 
to a child who has been suspended for more than 10 days in a

[[Page 12661]]

given school year. In the case of suspensions of more than 10 days, 
this determination would be made by the IEP team. Paragraph (d)(2) 
also refers to the statutory standard for services for children 
removed for misconduct involving weapons, drugs, and substantial 
likelihood of injury.
    In determining whether and how to regulate on this issue, the 
Department considered the impact of various alternatives on small 
and large school districts and children with disabilities and their 
families, especially the adverse educational impact on a child who 
has been suspended for more than a few days and on more than one 
occasion. The final regulations strike an appropriate balance 
between the educational needs of students and the burden on schools. 
Schools will be relieved of the potential obligation to provide 
services for a significant population of children who are briefly 
suspended a few times during the course of the school year, but 
required to consider the educational impact of suspensions on 
children with chronic or more serious behavioral problems who are 
repeatedly excluded from school.
    The cost of this regulation depends on how the statutory 
requirement to provide services to children who have been suspended 
or expelled is interpreted. If the statute is read to require 
schools to provide services to all children who are suspended for 
one or more school days, this regulation would result in substantial 
savings for school districts. If the statute is read to give schools 
the flexibility not to provide services to children suspended for 
fewer than 10 school days at a time, regardless of the cumulative 
effect, as long as there is no pattern of exclusion that warrants 
treating an accumulation that exceeds 10 school days as a change in 
placement, this regulation would impose some additional costs.
    Based on data collected by the Office for Civil Rights for school 
year 1992 and data on the number of children who are currently being 
served under IDEA, it is estimated that approximately 300,000 children 
with disabilities will be suspended for at least one school day during 
this school year. Many of these children will be suspended on more than 
one occasion for one or more days. Because of the differences among the 
children who are expected to be suspended and the range of their 
service needs, the costs of and the burden associated with providing 
individualized services in an alternative setting to every child who is 
suspended for one or more school days would be substantial. Limiting 
the requirement to children who have been suspended for more than 10 
days in the school year would reduce costs substantially. Based on data 
from a few selected States, it appears that no more than about 45,000 
of these 300,000 children with disabilities will be suspended for more 
than 10 days in a school year. Of these, an estimated 15,000 are 
expected to be suspended at least once for more than 10 consecutive 
days.
    Section 300.122(a)(3)--Exception to right to FAPE (Graduation)--
Paragraph (a)(3) provides that a student's right to FAPE ends when 
the student has graduated with a regular high school diploma, but 
not if the student graduates with some other certificate, such as a 
certificate of attendance, or a certificate of completion. The final 
regulations further clarify that graduation constitutes a change in 
placement, requiring written prior notice. Given the importance of a 
regular high school diploma for a student's post-school experiences, 
including work and further education, making it clear that the 
expectation for children with disabilities is the same as for 
nondisabled children provides a significant benefit to children with 
disabilities. The impact of this change, however, is difficult to 
assess. Many States, including most of those that report a high 
number of children with disabilities leaving school with a 
certificate of completion or some other certificate that is not a 
regular high school diploma, indicate that students with 
disabilities have the right to continue to work to earn a regular 
high school diploma after receiving that certificate. Little 
information is available to evaluate how many students who now can 
return to school after receiving some other certificate of 
completion do so, or how many would return to school if States are 
required to adopt a policy that clearly indicates that students who 
exited with a certificate have the right to continued services. 
Several State directors of special education indicated that 
relatively few students who now can return, do so. The cost of 
serving even 10,000 of the 25,000 students who exit each year with 
certificates would be substantial.
    Section 300.125--Child find--The final regulations clarify the 
link between child find under Parts B and C. The final regulations 
also add language clarifying that the State's child find 
responsibilities extend to highly mobile children such as the 
homeless and migrant children and children progressing from grade to 
grade if they are suspected of having disabilities and in need of 
special education. None of these changes impose any requirements 
beyond what the statute has been interpreted to require.
    Section 300.132(c)--LEA participation in transition planning 
conference--The regulations require an LEA representative to 
participate in planning conferences arranged by the lead agency for 
children who are receiving services under Part C and may be eligible 
for preschool services under Part B. This requirement does not 
result in significant costs for school districts. Only about 100,000 
children age out of early intervention services each year and in 
many cases, LEA representatives have been participating in the 
transition planning conferences for these children, although they 
have not been required to do so.
    Section 300.136--Personnel standards--The final regulations add 
new paragraphs (b)(3) and (b)(4) to clarify that a State is not 
required to establish any particular academic degree requirement for 
entry-level employment of personnel in a particular profession or 
discipline and that a State may modify its standard if it has only 
one entry-level academic degree requirement. This language clarifies 
the extent of flexibility afforded to States in meeting IDEA's 
personnel standards requirement and therefore may reduce costs for 
States and LEAs. The final regulations also add language in a new 
paragraph (g)(2) that explains that the State option relating to 
allowing LEAs to use the most qualified personnel available can be 
invoked even if a State has reached its established date for a 
specific profession--another clarification regarding the flexibility 
that is available to States. Language is added in a new paragraph 
(g)(3) that clarifies that a State that continues to experience 
shortages must address them in its CSPD.
    Section 300.139--Reporting on assessments--The final regulations 
require SEA reports on wide-scale assessments to include children 
with disabilities in aggregated results for all children to better 
ensure accountability for results for all children. This regulation 
is expected to have a minimal impact on the cost of reporting 
assessment results. It could increase the number of data elements 
reported depending on whether States continue to report trend data 
for a student population that does not include children with 
disabilities to the extent required by Sec. 300.138. There will be 
no impact on school districts since this requirement applies to 
reports that are prepared by the State educational agency.
    Section 300.142--Medicaid reimbursement--The final regulations 
add language to paragraph (b)(1) specifying that a noneducational 
public agency may not disqualify an eligible service for Medicaid 
reimbursement because that service is provided in a school context. 
A new paragraph (b)(3) has been added regarding the responsibility 
of State agencies and LEAs to provide all services described in a 
child's IEP in a timely manner regardless of which agency pays for 
the services. These clarifications of statutory requirements 
relating to interagency coordination between educational and 
noneducational agencies do not impose any additional costs.
    Section 300.142(e)--Use of public insurance--Paragraph (e) 
describes the circumstances under which a public agency may access a 
parent's Medicaid or other public insurance to pay for required 
services. Paragraph (e)(2) provides that a public agency may not 
require parents to sign up for public insurance in order for their 
child to receive FAPE. Paragraph (e)(2) further clarifies that a 
public agency may not require parents to assume an out-of-pocket 
expense and may not use a child's benefits if that use would 
decrease available coverage, require the parents to pay for services 
that would otherwise be covered by public insurance, increase 
premiums or lead to discontinuation of insurance, or risk loss of 
eligibility for home and community-based waivers. Under the statute, 
public agencies are required to provide children with disabilities 
with a free, appropriate public education. It has been the 
Department's longstanding interpretation under IDEA and section 504 
of the Rehabilitation Act that this means a public agency may not 
require parents of children with disabilities to use private 
insurance

[[Page 12662]]

proceeds to pay for services their children are entitled to receive 
if the parents would incur a financial cost as a result. A financial 
cost would include an out-of-pocket expense, a decrease in coverage, 
or an increase in premiums. This interpretation is equally 
applicable to the use of public insurance. Although these changes 
appear to limit an LEA's access to public insurance to cover the 
costs of FAPE, all of these changes are based on the statutory 
requirement to provide FAPE and, therefore, do not impose additional 
costs on LEAs beyond what the law would require. Moreover, these 
clarifications would not affect the use of public insurance programs 
such as Early Periodic Screening, Diagnosis and Testing that do not 
impose any limits on coverage or require any co-payments.
    Section 300.142(f) and (g)--Use of private insurance-- Paragraph 
(f)(1) clarifies that public agencies may only access parents' 
private insurance to pay for required services if the parents 
consent to its use. As noted above, it has been the Department's 
longstanding interpretation that a public agency may not require 
parents to use private insurance proceeds to pay for services the 
child is entitled to receive if the parents would incur a financial 
cost as a result. Because it is reasonable to assume that use of 
private insurance will result in a financial cost in almost all 
cases, this provision, which would allow for the use of private 
insurance with parental consent, would increase options available to 
LEAs for accessing insurance--that is, in cases in which the parents 
consent, whether or not a financial cost is incurred.
    However, to ensure that use of parents' insurance proceeds is 
voluntary and that parents do not experience unanticipated financial 
consequences, the final regulations require that parents provide 
informed consent. This consent must be obtained each time a public 
agency attempts to access private insurance. This clarification 
could have the effect of limiting access to the use of private 
insurance but is consistent with the Department's longstanding 
interpretation that such use must be voluntary.
    A new paragraph (g) is added that clarifies that Part B funds 
may be used for services covered by a parent's public or private 
insurance and to cover the costs of accessing a parent's insurance 
such as paying deductible or co-pay amounts. This clarification does 
not impose any additional costs on LEAs.
    Section 300.142(h)--Program income--This paragraph clarifies 
that a public agency that receives proceeds from insurance for 
services is not required to return those funds to the Department or 
dedicate those funds to this program and that funds expended by a 
public agency from reimbursement of Federal funds will not be 
considered reimbursement for purposes of Secs. 300.154 and 300.231 
of these regulations. This change increases flexibility for State 
and local agencies in using the proceeds from insurance.
    Section 300.142(i)--Construction--This paragraph makes it clear 
that the IDEA regulations should not be read to alter the 
requirements imposed by other laws on a State Medicaid agency or any 
other agency administering a public insurance program. This 
clarification does not impose any additional costs.
    Section 300.148--Public participation--The final regulations add 
language to clarify that if a policy or procedure has been through a 
State-required public participation process that is comparable to 
and consistent with the Federal requirements, the State would not 
have to subject the policy or procedure to public comment again. 
This should result in savings to States and would not increase 
burden.
    Section 300.152--Commingling--Language has been added to clarify 
that the required assurance regarding commingling may be satisfied 
by the use of a separate accounting system that includes an audit 
trail of the expenditure of Part B funds and that separate bank 
accounts are not required. This guidance merely incorporates the 
Department's prior interpretation and does not add any burden for 
States.
    Section 300.156(b)--Annual description of Part B set-aside 
funds--Paragraph (b) provides that if a State's plans for the use of 
its State level or State agency funds do not differ from those for 
the prior year the State may submit a letter to that effect instead 
of submitting a description of how the funds would be used. The 
effect of this regulation is inconsequential because it implements 
the Department's long-standing interpretation that a letter is 
sufficient in this case.
    Section 300.197--Compliance--Paragraph (c) requires SEAs to 
consider adverse complaint decisions under the State complaint 
procedures in meeting their responsibilities under Sec. 300.197 to 
determine whether any LEA or State agency is failing to comply. 
Consideration of these decisions is expected to impose minimal 
burden on States that are appropriately meeting their 
responsibilities under this section.
    Section 300.231--Maintenance of effort (MOE)--The final 
regulations make it clear that an LEA meets the maintenance of 
effort requirement by spending at least the same total or average 
per capita amount of State and local school funds for the education 
of children with disabilities as in the prior year. This change 
reduces the burden on LEAs of maintaining spending on special 
education in those cases in which the State is willing to assume 
increased responsibility for funding.
    Section 300.232--Exception to maintenance of effort-- Paragraph 
(a) makes it clear that an LEA may only reduce expenditures 
associated with departing personnel if those personnel are replaced 
by qualified, lower-salaried personnel. Allowing LEAs to reduce 
their expenditures by not replacing departing personnel would 
violate congressional intent, as expressed in the House and Senate 
Committee reports, and diminish special education services in those 
districts. The final regulations also clarify that in those cases in 
which an LEA is invoking the exception to the MOE requirement and 
replacing personnel who have departed with lower salaried personnel, 
that this must be done consistent with school board policies, 
applicable collective bargaining agreements, and State law. This 
clarification of the relationship does not impose any additional 
burden beyond what local policies and law would otherwise impose.
    Section 300.234--Schoolwide programs--The final regulations add 
language clarifying that children with disabilities in schoolwide 
projects must receive services in accordance with an IEP and must be 
afforded all of the rights and services guaranteed to such children 
under the IDEA. This clarification does not impose any additional 
burden on LEAs.
    Section 300.280--Notice for public participation--The final 
regulations clarify what constitutes ``adequate'' notice in 
paragraphs (b) and (c) and do not impose any additional burden.
    Section 300.281--Public participation--Paragraph (a) further 
clarifies the ``reasonableness'' standard implied in the statutory 
requirement, while paragraph (b) reflects a statutory requirement in 
the General Education Provisions Act. These changes do not impose 
any additional costs.
    Section 300.300--Child find--The final regulations clarify that 
the State must ensure child find is fully implemented throughout the 
State. This clarification does not impose any additional costs. The 
final regulations also add language to clarify that the services and 
placement needed by each child with a disability must be based on 
the child's unique needs and not on the child's disability. This 
clarification does not impose any costs on school districts.
    Section 300.301(c)--Implementation of IEP--The final regulations 
add language in a new paragraph (d) making it clear that there can 
be no delay in implementing a child's IEP in any case in which the 
payment source is being reconciled. This clarification does not 
impose any additional costs.
    Section 300.308--Assistive technology--The final regulations add 
a provision that clarifies that a public agency must permit a child 
to have access to a school-purchased assistive technology device at 
home or in another setting if necessary to ensure FAPE. This change 
does not impose any additional costs on school districts because it 
implements a longstanding policy of the Department.
    Section 300.309--Extended school year services--The final 
regulations specify that States may not limit eligibility for 
extended school year services based on disability and may not limit 
types and amounts of services; and clarify that States may establish 
standards such as likelihood of regression for determining 
eligibility for ESY and that every child is not entitled to receive 
ESY. These changes in the regulations impose no burden beyond what 
is required by the statute because they reflect the Department's 
longstanding policy interpretation of what is required to provide 
FAPE.
    Section 300.312--Charter schools--The final regulations add a 
new provision that makes clear that children with disabilities who 
attend charter schools and their parents retain all rights under 
these regulations. The regulations further explain which entity in 
the State is responsible for ensuring that the requirements of the 
regulations are met. These clarifications do not impose any 
additional burdens on States, schools

[[Page 12663]]

districts, or charter schools beyond what the statute would 
otherwise require.
    Section 300.313--Developmental delay (DD)--The final regulations 
add a new provision describing the use of the developmental delay 
designation. This section sets out the requirements for use of the 
DD designation. It clarifies that States and LEAs may use the DD 
designation for any child who has an identifiable disability, 
provided all the child's identified needs are addressed, and 
clarifies that States may adopt, if they wish, a common definition 
of DD for Parts B and C. These changes clarify the flexibility the 
statute affords States in using the DD designation and, therefore, 
impose no costs.
    Section 300.341--State standards--The final regulations clarify 
that a child placed by a public agency must receive an education 
that meets SEA and LEA standards. The cost impact of this change 
depends largely on the extent to which non-special education 
personnel in schools in which a public agency is placing children do 
not meet SEA and LEA standards. Approximately four percent of the 
six million children expected to be served under IDEA in school year 
1998-1999 are expected to be placed in private schools. Because 
these schools are typically schools for exceptional children, 
virtually all of the professionals employed by these schools are 
special education teachers and related services personnel, who must 
meet SEA and LEA under the prior law, as implemented by the 
regulations. Paragraph (b) clarifies that each public educational 
agency is responsible for developing and implementing an IEP for 
each child it serves or places or refers. This clarification imposes 
no additional cost on public agencies since it represents a 
longstanding interpretation of the statute.
    Section 300.342(b)--Implementation of IEPs--The final 
regulations add language requiring that each child's IEP be 
accessible to the child's teachers and service providers and that 
each teacher and provider be informed of specific responsibilities 
related to implementing the IEP and of needed accommodations, 
modifications, and supports for the child. This regulation is not 
expected to impose any undue burden on schools. The regulations 
clarify what is minimally required to promote effective 
implementation of the IEP requirements and allow schools flexibility 
in determining how to comply.
    Section 300.342(c)--Use of IFSP--Paragraph (c) requires school 
districts to obtain written informed consent from parents before 
using an IFSP instead of an IEP, which is based on an explanation of 
the differences between the two documents. The regulation would 
impose a cost burden on districts in those States that elect to 
allow parents to opt for the use of an IFSP instead of an IEP. 
However, once a form is developed that explains the differences 
between an IFSP and an IEP, the costs of providing this form to 
parents and obtaining written consent are most likely minimal, and 
are justified by the benefits of ensuring that parents understand 
the role of the IEP in providing access to the general education 
curriculum.
    Section 300.342(d)--Effective date for IEPs--Paragraph (d) 
provides that all IEPs developed, reviewed, or revised on or after 
July 1, 1998 must meet the requirements of IDEA, as implemented. 
This language clarifies the statute and eliminates the burden that 
would be associated with redoing all IEPs to conform with the new 
requirements before July 1. The one-time cost of reconvening 
millions of IEP teams before July 1 would have been substantial.
    Section 300.344(c) and (d)--Participants in IEP meetings--The 
final regulations add a new paragraph (c) clarifying that 
determinations about the knowledge and expertise of other 
individuals invited to be on the IEP team are made by the parent or 
the public agency that invited them. This clarification reduces 
potential burden by minimizing opportunities for disputes with 
respect to whether the parent or public agency may invite another 
individual to participate on the team. A new paragraph (d) has been 
added to clarify that a public agency may designate another IEP team 
member as the public agency representative of the IEP team. 
Permitting an individual to perform dual functions will reduce the 
cost of conducting IEP meetings for school districts.
    Section 300.344(b)--Including the child in the IEP meeting--
Paragraph (b) requires the school to invite students to participate 
in IEP meetings if the meeting will include consideration of 
transition services needs or transition services. The effect of this 
provision is to give 14- and 15-year-olds, and in some cases, 
younger students the opportunity to participate. The existing 
regulations have required schools to invite students to meetings in 
which transition services were to be discussed. These would include 
all students aged 16 years and older, and in some cases, younger 
students. The law has also given other children, if appropriate, the 
opportunity to participate in the IEP meeting. Therefore, in some 
cases, 14- and 15-year-olds may be already participating. The costs 
of notifying students about a meeting or trying to ensure that the 
students' interests and preferences are accommodated are more than 
justified by the benefits of including students in a discussion of 
their own transition needs, including their planned course of study 
in secondary school.
    Section 300.345(b)--Participants in IEP meeting--The final 
regulations clarify that the public agency must inform parents of 
their right and that of the public agency to invite someone to the 
IEP meeting who has knowledge or special expertise. This additional 
requirement will impose minimal burden on schools because this 
information could be included in other notices the schools are 
already required to provide to parents.
    Section 300.345(f)--Copy of the IEP--The final regulations 
require the public agency to provide parents a copy of the IEP. The 
cost of this change will depend on the extent to which parents are 
currently receiving copies. Under current regulations, schools are 
required to provide a copy to parents who request one. It is 
reasonable to assume that schools routinely provide a copy to 
parents who attend the IEP meeting. The cost of providing copies to 
those parents who would not otherwise receive copies is not likely 
to be substantial.
    Section 300.346(a)(1)--Performance on assessments--The final 
regulations require the IEP team to consider the child's performance 
on general State and district-wide assessments, in considering the 
child's initial or most recent evaluation. This clarification is not 
likely to impose an additional costs because one can reasonably 
assume that most IEP teams would consider this information as a 
matter of course in determining the child's present levels of 
performance.
    Section 300.347--Transition services--The final regulations 
delete the requirement from the existing regulations that requires a 
justification for not providing particular transition services. This 
change eliminates unnecessary paperwork.
    Section 300.349--Private school placements--The final 
regulations incorporate the previous regulatory requirement 
regarding inviting a representative of the private school to a 
child's IEP meeting. This requirement does not impose a significant 
burden, while helping to ensure appropriate implementation of IEPs 
for children placed in private schools.
    Section 300.350--Accountability--The final regulations include a 
statement regarding the responsibilities of public agencies and 
teachers to make good faith efforts to ensure that a child achieves 
the growth projected in the IEP, even though the IEP should not be 
regarded as a performance contract. This clarification does not 
impose any additional costs on agencies and is intended to promote 
proper implementation of the IEP requirements.
    Section 300.401--Children placed in private schools--The final 
regulations specify that a child placed in a private school by a 
public agency as a means of providing FAPE must receive an education 
that meets the standards that apply to the SEA and LEA. For example, 
all personnel who provide educational services must meet the 
personnel standards that apply to SEA and LEA personnel providing 
similar services. This change could increase the costs of these 
placements to the extent this change required private schools to 
increase their salaries in order to recruit regular education 
personnel who meet SEA and LEA standards. However, the costs imposed 
by this change are expected to be minimal. Less than two percent of 
the six million children served under Part B are placed by public 
agencies in private schools. These schools are typically special 
schools in which most of the education personnel are providing 
special education and related services. These personnel have been 
required to meet SEA and LEA standards under prior law.
    Section 300.403--Reimbursement for private placements--The final 
regulations include language in paragraph (c) that makes it clear 
that a private placement must be appropriate to be eligible for 
reimbursement, but does not need to meet State standards. This 
clarification, which is based on Supreme Court decisions regarding 
the basic standard for reimbursement, does not impose any additional 
costs on State or local agencies.
    Section 300.451--Consultation on child find--The final 
regulations add a new

[[Page 12664]]

paragraph (b) to require public agencies to consult with 
representatives of parentally-placed private school students on how 
to conduct child find. Paragraph (a) clarifies that the child find 
activities for parentally-placed children must be comparable to 
child find activities for children with disabilities in public 
schools. The consultation requirement may impose an additional 
burden but is expected to better enable school districts to carry 
out this mandatory function. The requirement for comparability does 
not impose any additional burden, but clarifies the intent of the 
statute, which does not distinguish between child find activities 
for children enrolled in public schools and those conducted for 
children in private schools.
    Section 300.452--Services plan--A paragraph has been added that 
clarifies that a services plan must be implemented for each 
parentally-placed private child who is receiving services under Part 
B. This clarification does not impose any additional burden.
    Section 300.453--Expenditures on child find in private schools--
A new paragraph (b) requires States to conduct a child count of 
private school children with disabilities and consult with 
representatives of private school children in deciding how to 
conduct that count. This count is necessary to enable States to 
determine how much they are required to spend on providing special 
education and related services to this population. A new paragraph 
(c) clarifies that the costs of child find for private school 
children may not be considered in determining whether the LEA met 
the requirement for proportionate expenditures on parentally-placed 
children. This provision does not impose any additional cost on 
school districts because it has been the Department's longstanding 
interpretation that child find includes the identification of 
children in private schools and that the cost of child find for 
private school children may not be considered in determining whether 
the LEA has met the requirements to serve children in private 
schools. Paragraph (d), which clarifies that States and LEAs are not 
prohibited from spending additional funds on providing special 
education and related services to parentally-placed children beyond 
what would be required, does not impose any additional costs. 
Paragraph (b) requires the LEA to conduct a child count of children 
with disabilities in private schools on the same day in which the 
overall count is conducted, to consult with private school 
representatives on conducting that annual count, and to use that 
count to determine required expenditures. Although the requirement 
to conduct the child count on a date certain limits LEA flexibility 
and the required consultation imposes a burden, both requirements 
help ensure that the child count accurately reflects the size of the 
private school population.
    Section 300.454--Services to children in private schools--The 
final regulations clarify that no private school child has an 
individual right to receive any of the services the child would 
receive if enrolled in a public school. This section further 
provides that each LEA shall consult with representatives of private 
school children in determining which children will receive services, 
what services will be provided, how and where services would be 
provided, and how they would be evaluated. The regulations make it 
clear that the representatives must have a genuine opportunity to 
express their views and that the consultation must be before the LEA 
makes its final decisions. The regulations also require the LEA to 
conduct meetings to develop a services plan for each private school 
child and to ensure the participation of a representative of the 
child's private school at the meeting. These regulations help ensure 
effective implementation of the provisions relating to serving 
parentally-placed children and impose minimal burden on school 
districts.
    Section 300.455--Services to children in private schools--The 
final regulations clarify that services provided private school 
children must be provided by personnel meeting SEA standards; that 
children in private schools may receive different amounts of 
services than children in public schools; and that there is no 
individual entitlement to services; each child to be provided 
services must have a services plan. These changes do not impose any 
additional costs on school districts; indeed they reflect the 
Department's longstanding interpretation of the provisions relating 
to serving parentally-placed children.
    Section 300.456--Treatment of transportation--Consistent with 
the Department's longstanding interpretation, the final regulations 
state that transportation must be provided to private school 
children if necessary to enable them to benefit from the services 
that are offered. The regulations also clarify that the cost of 
providing the transportation may be included in calculating whether 
the LEA has met its financial obligations. The final regulations 
further clarify that the LEA is not required to provide 
transportation between the child's home and the private school. 
These clarifications could reduce the potential cost for school 
districts of complying with the requirement for proportionate 
expenditures.
    Section 300.457--Complaints of parentally-placed children--The 
final regulations make it clear that due process procedures do not 
apply to parentally-placed children. This clarification will reduce 
costs to the extent that LEAs have allowed parents to use the due 
process procedures to bring complaints relating to parentally-placed 
children. This section also clarifies that due process procedures do 
apply to child find. This change will increase costs to the extent 
that parents were unaware of their ability to bring complaints about 
child find and now do so.
    Section 300.500(b)(1)(iii)--Parental consent--The final 
regulations add language to clarify that a revocation of consent 
does not have retroactive effect if the action consented to has 
already occurred. This change protects LEAs from complaints 
regarding services provided in reliance on parental consent that was 
subsequently revoked. It does not impose any costs on LEAs.
    Section 300.501(b)--Parental access to meetings--Paragraph (b) 
of Sec. 300.501 defines when and how to provide notice to parents of 
meetings in which they are entitled to participate. It further 
limits what is meant by the term ``meeting.'' These regulations 
impose the minimal requirements necessary to implement the statute. 
The language in paragraph (b)(1) helps to clarify what is required 
to provide parents with a meaningful opportunity to attend meetings 
while the language in paragraph (b)(2) is designed to reduce 
unnecessary burden by clarifying what constitutes a ``meeting.''
    Section 300.501(c)--Placement meetings--Paragraph (c) of 
Sec. 300.501 specifies that the procedures to be used to meet the 
new statutory requirement of parental involvement in placement 
decisions. It provides that the procedures used for parental 
involvement in IEP meetings also be used for placement meetings. 
These include specific requirements relating to notice, methods for 
involving parents in the meeting, and recordkeeping of attempts to 
ensure their participation. Because in many cases placement 
decisions will be made as part of IEP meetings, as is already the 
case in most jurisdictions, the impact of this regulation will be 
minimal. In those cases in which placement meetings are conducted 
separately from the IEP meetings, the benefits of making substantial 
efforts to secure the involvement of parents and provide for their 
meaningful participation in any meeting to discuss their child's 
placement more than justify the costs.
    Section 300.502--Independent educational evaluation--Paragraph 
(a) provides that on request for an independent education evaluation 
(IEE) parents are provided with information about where an IEE may 
be obtained and the agency criteria applicable to IEEs, criteria 
that must be consistent with the definition of an IEE. Paragraph (b) 
makes it clear that if a parent requests an IEE, the agency must 
either initiate a due process hearing to show that its evaluation is 
appropriate or provide for an IEE at public expense. The final 
regulations also provide that a public agency may request an 
explanation from the parents regarding their concerns when a parent 
requests an IEE at public expense, but such an explanation may not 
be required and the public agency may not delay providing the IEE, 
or initiating a due process hearing. These provisions requiring the 
agency to provide information to the parents and take action do not 
result in significant additional costs because if the agency did not 
take action, parents would be free to request due process to compel 
action. It is important for parents to be informed about the 
relevant agency criteria for an IEE since the parent has a right to 
an IEE at public expense and the IEE must meet agency criteria to be 
considered by the public agency in determining eligibility.
    Paragraph (e) provides that a public agency may not impose 
conditions or timelines related to obtaining an independent 
evaluation. This requirement, which arguably limits the flexibility 
of school districts, is critical to ensuring that school districts 
do not find ways to circumvent the right provided by the IDEA to 
parents to obtain an independent evaluation.
    Sections 300.504(b)(14)--Notice to parents regarding complaint 
procedures--The final regulations require that the required

[[Page 12665]]

procedural safeguards notice to parents include information about 
how to file a complaint under State complaint procedures. Because 
districts are already required to provide this notice to parents, 
the additional cost of adding this information will be one-time and 
minimal. The burden on small districts could be minimized if each 
SEA were to provide its LEAs with appropriate language describing 
the State procedures for inclusion in the parental notices. Making 
parents aware of a low cost and less adversarial mechanism that they 
can use to resolve disputes with school districts should result in 
cost savings and more cooperative relationships between parents and 
districts.
    Section 300.505(a)(3)--Parental consent for reevaluation--
Paragraph (a)(3) clarifies that the new statutory right of parents 
to consent to a reevaluation of their child does not require 
parental consent prior to the review of existing data or 
administering a test or other evaluation procedure that is given to 
all children (unless all parents must consent). As a matter of good 
practice, school personnel should be engaged in reviewing 
information about the child's performance on an on-going basis. 
Requiring parental consent for this activity would have imposed a 
significant burden on school districts with little discernable 
benefit to the children served under these regulations.
    Paragraph (c)(2) uses the procedures that were in the prior 
regulations dealing with inviting parents to IEP meetings as a basis 
for defining what it means to undertake ``reasonable measures'' in 
obtaining parental consent. The intent of the change is to 
meaningfully operationalize the statutory right of parents to 
consent to a reevaluation of their child. Given the importance of 
parental involvement in all parts of the process, any burden imposed 
by the proposed recordkeeping requirements is justified by the 
benefits of securing parental consent to the reevaluation.
    Section 300.506--Impartial mediation--Paragraph (b)(2) specifies 
that if the mediator is not selected from the list of mediators on a 
random basis, such as rotation, both parties must be involved in 
selecting the mediator and agree with the selection of the mediator. 
Paragraph (c) interprets the statutory requirement that mediation be 
conducted by an impartial mediator to mean that a mediator may not 
be an employee of any LEA or a State agency that is providing direct 
services to the child and must not have a personal or professional 
conflict of interest. However, a person will not be considered an 
employee merely for being paid to serve as a mediator. Since 
participation in mediation is voluntary, it must be viewed as an 
attractive alternative to both public agencies and parents. Both 
parties must trust the process and the first test of that is the 
selection of the mediator. It is unlikely that parents would regard 
an employee of the other party to the dispute to be impartial or a 
person who has a personal or professional conflict of interest. 
Providing for impartiality should help promote the use of mediation 
and improve its overall effectiveness in resolving disagreements. 
The impact of disallowing these individuals from serving as 
mediators is not likely to have a significant impact on States, 
given current practices. Many States contract with private 
organizations to conduct their mediations. Others use employees of 
the State educational agency, which, in most cases, is not the 
agency providing direct services. Given the significant benefits to 
children, families, and school districts of expeditiously resolving 
disagreements without resort to litigation, the benefits of this 
change easily justify any cost or inconvenience to States.
    Section 300.506(d)(2)--Failure to participate in meeting--
Paragraph (d)(2) would specify that a parent's failure to 
participate in a meeting at which a disinterested person explains 
the benefits of and encourages the use of mediation could not be 
used as a reason to deny or delay the parent's right to a due 
process hearing. This change is not likely to limit the benefits to 
school districts of mediation as it is unlikely that parents who are 
unwilling to participate in such a meeting with a disinterested 
person would be willing to engage in the voluntary mediation 
provided for in the statute.
    Section 300.507(c)(4)--Failure to provide notice--Paragraph 
(c)(4) makes it clear that failure by parents to provide the notice 
required by the statute cannot be used by a school district to delay 
or deny the parents' right to due process. This regulation would 
eliminate the possibility that public agencies will delay a due 
process hearing pending receipt of a notice that they deem to be 
acceptable. This regulation does not impose any cost on school 
districts and would help ensure that parents are afforded 
appropriate and timely access to due process.
    Section 300.510(b)(2)(vi)--Access to findings and decisions--The 
final regulations give parents the option of selecting an electronic 
or written copy of the findings and decisions in the administrative 
appeal of a due process decision. This is consistent with the 
statutory right of the parents to a written or electronic copy of 
the decision and findings in the due process hearing. It is 
important to ensure that parents are provided the decisions and 
findings in a way that is most useful to them. The cost of 
implementing this requirement is expected to be negligible.
    Section 300.513(b)--Attorneys' fees--Paragraph (b) provides that 
funds provided under Part B of IDEA could not be used to pay 
attorneys' fees or costs of a party related to an action or 
proceeding under section 615 of IDEA. This regulation does not 
increase the burden on school districts or otherwise substantially 
affect the ability of school districts to pay attorneys' fees that 
are awarded under IDEA or to pay for their own attorneys. It merely 
establishes that attorneys' fees must be paid by a source of funding 
other than Part B based on the Department's position that limited 
Federal resources not be used for these costs. This regulation is 
not expected to have a cost impact on small (or large) districts 
because all districts have non-Federal sources of funding that are 
significantly greater than the funding provided under IDEA. 
Currently, funds provided to States under the IDEA represent about 
ten percent of special education expenditures.
    Section 300.514(c)--Hearing officer decisions--The final 
regulations clarify that if a State hearing officer in a due process 
hearing or a review official in a State level review agrees with the 
parents that a change in placement is appropriate, the child's 
placement must be treated in accordance with that agreement. This 
regulation is not expected to have a significant cost impact because 
it is based on the Supreme Court's language in Burlington School 
Committee v. Department of Education, and the decisions of appellate 
courts in such circuits as the 3rd and 9th. If paragraph (c) were 
not included in the regulation, in many cases, parents would be 
expected to be able to successfully argue, as they have in the past, 
that the hearing officer's decision to change the placement of a 
child be implemented. The cost impact of this regulation in other 
circuits and cases in which the placement change would not have 
occurred is indeterminate because in some cases implementation of 
the hearing officer's decision will result in moving children to 
more costly placements and, in other cases, to less costly 
placements. In either case, the benefits to the child of securing an 
appropriate placement justify any potential increase in costs or 
other burdens to the school district.
    Section 300.519--Change in placement--The final regulations 
define a change in placement in the context of disciplinary removals 
as a removal for more than 10 consecutive school days or a series of 
removals that constitute a pattern because they cumulate to more 
than 10 school days in a school year and, because of such factors as 
the length of each removal, the total amount of time the child is 
removed, and the proximity of the removals to one another. This 
change does not impose any additional costs. It is consistent with 
longstanding interpretations of the law.
    Section 300.520(a)--Authority of School Personnel--Paragraph (a) 
clarifies that school personnel may remove a child with a disability 
for school code violations for up to 10 days at a time more than 
once during a school year, as long as such removals do not 
constitute a change in placement. This clarification does not result 
in any additional costs or savings for school districts because it 
is consistent with the Department's longstanding interpretation of 
the law and the statute, as amended.
    Section 300.520(b) and (c)--Behavioral interventions--Paragraph 
(b) of this section makes it clear that if a child is removed from 
his or her current placement for 10 schools days or fewer in a given 
year, the school is not required to convene the IEP team to develop 
an assessment plan for the child. Paragraph (b) further provides 
that a school would be required to do so if the child were suspended 
for more than 10 days in a given school year. Paragraph (b) 
specifies that the IEP team meeting to consider behavioral 
interventions occur within 10 business days of the behavior that 
leads to discipline rather than 10 calendar days, and clarifies 
that, if the child does not have a behavior intervention plan, the 
purpose of the meeting is to develop an assessment plan. After 
completing the assessments specified in the plan, the team must meet 
to develop appropriate behavioral interventions to address that 
behavior. Because the statute

[[Page 12666]]

could be read to require that the IEP team be convened for this 
purpose the first time a child is suspended in a given year, the 
requirement in the final regulations would significantly reduce the 
burden on school districts.
    The business day alternative would further minimize the burden 
on school districts and would not have a significant impact on 
children with disabilities, in light of other protections for 
children.
    In determining whether to regulate on this issue, the Secretary 
considered the potential benefits of providing behavioral 
interventions to children who need them and the impact on school 
districts of convening the IEP team to develop behavioral 
interventions if children are suspended.
    Based on consideration of the costs and benefits to children and 
schools, the IEP team should not be required to meet and develop or 
review behavioral interventions for a child unless the child was 
engaged in repeated or significant misconduct. The costs and burden 
of convening the team the first time a child is suspended outweigh 
any potential benefits to the child if the child is receiving a 
short-term suspension for an infraction. At the same time, the 
benefits of requiring a plan for a child who has already been 
suspended for more than 10 days justify the costs given the benefits 
of early intervention to both students and schools.
    The final regulations further provide that in the case of a 
subsequent suspension of less than 10 days that does not constitute 
a change in placement for a child who has a behavioral intervention 
plan, a meeting would not be required to review the behavioral 
intervention plan unless one or more team members believe that the 
child's IEP or its implementation need modification. Since the 
statute could be read to require that the IEP team meet to review 
the child's plan each time the child is suspended, this language 
further reduces the cost to school districts.
    Section 300.521--Due process hearing for removal--The final 
regulations specify that a hearing officer is to make the 
determination authorized by section 615(k)(2) of IDEA (regarding 
whether a child's current educational placement is substantially 
likely to result in injury to self or others) in a due process 
hearing.
    A hearing that meets the requirement for a due process hearing 
is the most appropriate forum for expeditiously and fairly 
determining whether the district has demonstrated by substantial 
evidence (defined by statute as ``beyond a preponderance of the 
evidence'') that maintaining the current placement is substantially 
likely to result in injury and to consider the appropriateness of 
the child's current placement and the efforts of the district to 
minimize the risk of harm.
    The cost impact of this regulation on school districts will be 
limited because in cases in which school districts and parents agree 
about the proposed removal of a dangerous child, no hearing is 
necessary. In those few cases in which there is disagreement, the 
benefits of conducting a due process hearing justify the costs.
    Section 300.523--Manifestation determination--Paragraph (a) 
makes it clear that a school is required to conduct a manifestation 
review only when the removal constitutes a change in placement.
    As was the case in considering section 300.520(c), the 
Department considered the potential benefits to the child and impact 
on districts of convening the IEP team.
    The conclusion was that the IEP team should not be required to 
meet and determine whether the child's behavior was a manifestation 
of the disability unless the district is proposing a suspension of 
more than 10 days at a time or a suspension that constitutes a 
pattern of exclusion. The cost of convening the team to conduct a 
manifestation review outweigh the potential benefits to a child 
being suspended for a few days, particularly because the statute 
clearly allows the school a period of ten days after the misconduct 
occurs to convene the team for purposes of conducting the 
manifestation determination. In the case of short term suspensions, 
the team would often be meeting after the child had already returned 
to school.
    The primary purpose of this review is to ensure that a child 
will not be punished for behavior that is related to his or her 
disability. The team is required to consider, for example, whether 
the child's disability has impaired his or her ability to understand 
the impact and consequences of his or her behavior and whether the 
child's disability has impaired the child's ability to control the 
behavior subject to discipline. Conducting this review is of little 
use after the child has returned to school. A review would have 
limited applicability to future actions. Even in those cases in 
which the child engaged in identical misconduct, one's assessment of 
the relationship between the child's behavior and disability could 
change. Moreover, the statute clearly contemplates an individualized 
assessment of the conduct at issue. Once a child has been suspended 
for more than 10 days in a given year, the team will already be 
considering the need for changes in the child's behavior 
intervention plan, if the child has one, or will be meeting to 
develop one, if the child does not. Requiring an additional meeting 
to examine the relationship between the child's behavior and 
disability is unlikely to produce additional information that would 
inform the development of appropriate behavioral strategies. 
Requiring the behavioral assessment to be conducted once a child has 
been suspended for 10 days in a school day will help ensure that the 
district responds appropriately to the child's behavior.
    This regulation would significantly reduce costs for school 
districts if the statute is read to require a manifestation review 
every time a child is suspended.
    Section 300.523(f)--Manifestation determination--The final 
regulations clarify that if the team identifies deficiencies in the 
child's IEP, its implementation, or placement, the agency must take 
immediate steps to remedy the deficiencies. This clarification does 
not impose any costs beyond what the statute would require.
    Section 300.526--Placement in alternative setting--Language is 
added to paragraph (c) to make clear that a school district may 
request a hearing officer to extend a 45-day placement on the 
grounds that returning a child to his or her regular placement would 
be dangerous. This change, which increases the options available to 
school districts for dealing with a child engaged in dangerous 
behavior, does not impose any costs on school districts.
    Section 300.527--Basis of knowledge--The final regulations make 
a number of clarifying changes: Language is added to paragraph 
(b)(2) to clarify that the behavior or performance must be in 
relation to one of the disability categories. Paragraph (b)(4) has 
been revised to require that expressions of concern about the child 
be made to personnel who have responsibility for child find or 
special education referrals. A new paragraph has been added to 
clarify that if an agency acts and determines that the child is not 
eligible, and provides proper notice to the parents, and there are 
no additional bases of knowledge that were not considered, the 
agency would not be held to have a basis of knowledge. These changes 
reduce costs for LEAs by further specifying what is required for 
determining that an LEA has a basis for knowledge that a child is a 
child with a disability. By specifying, for example, that 
expressions of concern be made to personnel responsible for child 
find or special education referral eliminates the possible 
interpretation that a school must provide services and other 
protections to children who were the subject of conversation between 
any two people in the school. Without these clarifications, 
commenters have suggested that potentially all children could avail 
themselves of IDEA protections.
    Roughly three million nondisabled children are expected to be 
the subject of disciplinary actions during this school year. Parents 
are likely to raise this issue in the case of long-term suspensions 
and expulsions in which identification as a child with a disability 
ensures the non-cessation of educational services, among other 
protections. An estimated 300,000 nondisabled children receive long-
term suspensions or expulsions in a given school year. Based on the 
public comments on this section of the regulations, it would appear 
that a basis for knowledge claim could be sustained in a significant 
percentage of these cases. Assuming for purposes of this analysis 
that it could be sustained in about 10 percent of cases, the costs 
of providing services, for example, to those children during the 
period in which they are excluded from school would be considerable 
because only a minority of States currently provide services to 
children without disabilities who have been disciplined. Therefore, 
the savings resulting from these clarifications are considerable.
    Section 300.528--Expedited due process hearings--The final 
regulations specify that States establish a timeline for expedited 
due process hearings that meets certain standards. These include: 
ensuring written decisions are mailed to the parties in less than 45 
days, with no extensions that result in a decision more than 45 days 
from the request for the hearing, and providing for the same 
timeline whether the hearing is requested by a public agency or 
parent. Paragraph (b) further clarifies that the State

[[Page 12667]]

may alter other State-imposed procedural rules from those it uses 
for other hearings. These clarifications provide States with maximum 
flexibility in conducting these hearings while ensuring equitable 
treatment for parents and public agencies. Requiring such hearings 
within 45 days imposes minimal burden on States since 45 days 
provides ample time--more time than proposed by many of the 
commenters--and the requests for such hearings are not expected to 
be great. Requests for expedited hearings will only be made in those 
cases involving serious misconduct in which there is a disagreement 
between the parents and public agency regarding action proposed by 
the public agency.
    Section 300.529--Transmittal of education records--The final 
regulations clarify that a child's special education and 
disciplinary records may only be transmitted to the extent that such 
transmission is permitted under the Family Educational Rights and 
Privacy Act (FERPA). This clarification, which restricts the extent 
to which such records may be transmitted to certain agencies, 
consistent with the requirements of FERPA, does not impose any 
burden on school districts.
    Section 300.532--Evaluation procedures--The final regulations 
require that assessments of children with limited English 
proficiency must be selected and administered to ensure that they 
measure the extent to which a child has a disability and needs 
special education, and do not instead measure the child's English 
language skills. This change, which clarifies requirements under 
both IDEA and Title VI, does not impose any additional burden. The 
final regulations also add language requiring that if an assessment 
is not conducted under standard conditions, information about the 
extent to which the assessment varied from standard conditions, such 
as the qualifications of the person administering the test or the 
method of test administration, must be included in the evaluation 
report. This change will impose a burden on school districts only to 
the extent that the evaluation team does not currently include 
information in its report on the extent to which an assessment 
varied from standard conditions. Information about the 
qualifications of the person administering the test and the method 
of test administration is needed so that the team of qualified 
professionals can evaluate the effects of variances in such areas on 
the validity and reliability of the reported information. The final 
regulations clarify that in evaluating a child all needs of the 
child must be identified, including any commonly linked to a 
disability other than the child's. This change does not impose any 
additional burden on districts, but clarifies what is intended by 
the term ``comprehensive'.
    Section 300.533(b)--Review of existing data--The final 
regulations make it clear that the group that is responsible for 
reviewing existing data on the child as part of an initial 
evaluation or a reevaluation need not meet to conduct this review. 
This clarification reduces costs for school districts by eliminating 
unnecessary meetings of this group.
    Section 300.534(b)--Eligibility determination--Paragraph (b) 
clarifies that children are not eligible if they need specialized 
instruction because of limited English proficiency or lack of 
instruction in reading or math, but do not need specialized 
instruction because of a disability. This clarification does not 
impose any costs on school districts, but reflects the statutory 
intent.
    Section 300.534(c)--Termination of eligibility--Paragraph (c) 
clarifies that an evaluation is not required before the termination 
of a student's eligibility under Part B due to graduation with a 
regular high school diploma or aging out under State law. This 
clarification reduces the costs for school districts by eliminating 
the need to conduct evaluations for the 146,000 students who are 
expected to exit high school in school year 1998-1999 by graduating 
or aging out.
    Section 300.535(a)(1)--Eligibility determination procedures--The 
final regulations add parents to the variety of sources from which 
the public agency will draw in interpreting evaluation data for the 
purpose of determining if the child is a child with a disability. 
This change imposes minimal burden while providing for meaningful 
parental involvement, consistent with the requirements for including 
parents in the team that determines eligibility.
    Section 300.552(e)--Placement in regular classroom--The final 
regulations provide that a child may not be denied placement in an 
age-appropriate regular classroom solely because the child's 
education requires modification to the general curriculum. This 
change clarifies the requirement in the law that a child may only be 
removed from the regular educational environment if education in the 
regular class cannot be achieved satisfactorily with the use of 
supplementary aids and services. Although this clarification may 
result in an increase in the number of children served in regular 
classes, it does not impose costs on school districts beyond what 
the statute itself would require because of the longstanding 
requirement to serve children in the least restrictive environment.
    Section 300.562--Access to records--The final regulations make 
clear that agencies must comply with requests for access to records 
by parents prior to any meetings, but no more than 45 days after 
request, consistent with FERPA. This provision minimizes burden on 
LEAs by not imposing a shorter deadline than provided by FERPA, 
except as necessary to provide access before an IEP meeting or 
hearing. This provision helps ensure that parents have the ability 
to adequately prepare for and participate in IEP meetings and due 
process hearings, which are crucial to ensuring each child's right 
to a free appropriate public education.
    Section 300.571--Consent for disclosure of information--The 
final regulations provide for an exception to the requirement for 
parental consent for disclosure of education records, consistent 
with the language in Sec. 300.529. This does not impose any costs on 
school districts and resolves an apparent contradiction in the 
regulations with respect to disclosure of education records to law 
enforcement and juvenile justice agencies.
    Section 300.574--Children's rights relating to records--The 
final regulations clarify that the parents' rights under FERPA 
transfer to the student at age 18. The regulations further provide 
that if the rights of parents under Part B of IDEA are transferred 
to the student at the age of majority, then the rights of parents 
regarding education records also transfer. This clarification does 
not impose any additional costs on school districts.
    Section 300.581-300.587--Procedures for enforcement--The final 
regulations clarify the types of notice and hearing that the 
Department would provide before taking an enforcement action under 
Part B of IDEA. Providing clarity about the applicable procedures 
for the various types of enforcement actions will benefit potential 
subjects of enforcement actions and the Department by ensuring that 
time and resources are not spent on unnecessary disputes about 
procedures or needless process.
    Section 300.589--Waiver procedures--The final regulations 
describe the procedures to be used by the Secretary in considering a 
request from an SEA of a waiver of the supplement, not supplant and 
maintenance of effort requirements in the IDEA Amendments of 1997. 
This regulation does not impose any cost on local school districts. 
The procedures will only affect a State requesting a waiver under 
Part B.
    Section 300.624--Capacity-building subgrants--The final 
regulations make it clear that States can establish priorities in 
awarding these subgrants. The language provides permissive authority 
to be used at the discretion of each State, clarifying the intent of 
the statutory change and imposing no burden on State agencies. 
Allowing States to use these funds to foster State-specific 
improvements should lead to improving educational results for 
children with disabilities.
    Section 300.652--Advisory panel functions--The final regulations 
add language stating that the panel's responsibilities include 
advising on the education of students with disabilities who have 
been incarcerated in adult prisons. This additional burden will not 
impose significant costs.
    Section 300.653--Advisory panel procedures--The final 
regulations include language in paragraph (d) to require panel 
meetings to be announced long enough in advance to afford people a 
reasonable opportunity to attend and require that agenda items be 
announced in advance and that meetings be open. These changes impose 
minimal burden while facilitating meaningful participation in the 
meetings.
    Sections 300.660(a) and 303.510(a)--Information about State 
complaint procedures--The final regulations require States to widely 
disseminate their complaint procedures. While this proposed 
requirement would increase costs for those State educational 
agencies that have not established procedures for widely 
disseminating this information, the Secretary could have prescribed 
specific mechanisms for this dissemination but chooses not to, in 
order to give SEAs flexibility in determining how to accomplish 
this. The requirement would not have any direct impact on small 
districts and would benefit parents who believe that a public agency 
is violating a

[[Page 12668]]

requirement of these regulations, by providing them the information 
they would need to get an official resolution of their issue without 
having to resort to a more formal, and generally more costly, 
dispute resolution mechanism.
    Section 300.660(b) and 303.510(b)--Remedies--The final 
regulations require States in resolving complaints to address how to 
remedy the failure to provide appropriate services, including 
awarding of compensatory relief and corrective action. This 
clarification does not impose any additional costs beyond those that 
would be otherwise required by the statute.
    Section 300.661(c) and 303.512(c)--Requirements for complaint 
procedures--The final regulations add language that clarifies how 
the State complaint process interacts with the due process hearing 
process. The language clarifies that a State may set aside any part 
of a complaint being addressed in a due process hearing; that the 
due process hearing decision is binding; and that failure to 
implement a due process decision must be addressed by the SEA. This 
clarification is expected to reduce costs by reducing unnecessary 
disputes about the relationship between the two processes.
    Sections 300.661 and 303.512--Secretarial review--The final 
regulations delete the provision providing for Secretarial review of 
complaints filed under State complaint procedures. The effect of 
this change on small (and large) districts would be inconsequential 
because of the small number of requests for these reviews. This was 
done in recognition of the report of the Department's Inspector 
General of August 1997, that noted that this procedure provides very 
limited benefits to children with disabilities or to IDEA programs 
and involves a considerable expenditure of the resources of the 
Office of Special Education Programs and other offices of the 
Department. The Inspector General's report concluded that greater 
benefit to the programs and individuals covered by IDEA would be 
achieved if the Department eliminated the Secretarial review process 
and focused on improving State procedures for resolving complaints 
and implementing IDEA programs. This change, and the changes in 
Secs. 300.660(b), 300.503(b)(8), 303.510(b), and 303.403(b)(4) that 
require greater public notice about the State complaint procedures, 
would implement those recommendations.
    Sections 300.662 and 303.511--State reviews--This change 
relieves States of the requirement to review complaints about 
violations that occurred more than three years before the complaint. 
This limitation on the age of the complaints is expected to reduce 
the cost to SEAs of investigating and reviewing complaints. There is 
no reason to believe this change would adversely affect small 
districts. There is also no reason to expect that this proposal 
would have a significant negative impact on individuals or entities 
submitting complaints under these procedures as it is unlikely that 
complaints alleging a violation that occurred more than three years 
in the past and that do not allege a continuing violation or request 
compensatory services would result in an outcome that puts the 
protected individuals under these regulations in a better position 
than they would have been in if no complaint had been filed. On the 
other hand, allowing States to focus their complaint resolution 
procedures on issues that are relevant to the current operation of 
the State's special education program may serve to improve services 
for these children.
    Section 300.712--Allocations to LEAs--The final regulations 
clarify how to calculate the base payments to LEAs under the 
permanent formula in a case in which LEAs have been created, 
combined, or otherwise reconfigured. Although recalculation itself 
imposes some burden on the SEA, the regulations provide the SEA with 
considerable flexibility in doing that recalculation. For example, 
the SEA determines which LEAs have been affected by the creation, 
combination, or reconfiguration and what child count data to use in 
allocating the funds among the affected LEAs.
    Language has also been added to the regulations that in 
implementing the permanent formula States must apply, on a uniform 
basis, the best data available to them. This clarification does not 
impose any additional burden on States in allocating funds.
    Section 300.753--Annual child count--The final regulations 
clarify that the SEA may count parentally-placed private school 
children if a public agency is providing special education or 
related services that meet State standards to these children. This 
clarification does not impose any burden on SEAs or LEAs while 
helping to ensure a more equitable distribution of IDEA funds.

   Attachment 3.--Disposition of NPRM Notes in Final Part 300 and 303
                             Regulations \1\
     [Note: Attachment 3 will not be codified in the Code of Federal
                              Regulations]
------------------------------------------------------------------------
                                                II. Disposition of notes
     I. List of notes by section in NPRM          in final regulations
------------------------------------------------------------------------
                                Subpart A
------------------------------------------------------------------------
300.1--Purposes:
     Independent living..............   In discussion
                                                under Sec.  300.1; and
                                                in Appendix A (Re-
                                                transition services).
300.2--Applicability to State, local, and
 private agencies:
     Requirements are binding on each   Added to Reg as
     public agency regardless of whether it     Sec.  300.2(a)(2).
     receives B funds.
 
        Definitions Used in This Part
 
    1. List of terms defined in specific       1. Moved to Index under
     sections.                                  ``Definitions.''
    2. Abbreviations used....................  2. Terms identified in
                                                Reg text.
300.6--Assistive technology service:
     Definitions of assistive           Deleted.
     technology device and service are
     identical to Technology Act of 1988.
300.7--Child with a disability:
    1. Autism characteristics after age 3 is   1. Added to Reg as Sec.
     still Autism.                              300.7(c)(1)(ii).
    2. Developmental Delay--Explanation......  2. Added to Reg at Sec.
                                                300.7(b)(2).
    3. Dev. Delay--H.Rpt statement on          3. In discussion under
     importance of.                             Sec.  300.7(b).
    4. Emotional disturbance (ED)--H.Rpt       4. In discussion under
     statement.                                 Sec.  300.7(c).
    5. ADD/ADHD--Eligible under OHI or other   5. ``ADD/ADHD'' and
     disability category if meet criteria       ``limited alertness''
     under Sec.  300.7(a).                      added to Sec.
                                                300.7(c)(9).
300.12--General curriculum:
     Term relates to content and not    Added to Reg
     setting.                                   (IEP--Sec.  300.347(a)(1
                                                )(i), (2)(i)). In
                                                discussion of ``Gen.
                                                Cur.''
300.15--IEP Team:
     IEP team may also serve as         In discussion
     placement team.                            under Sec.  300.16.
300.17--LEA:
     Charter school that meets def of   Added to Reg as
     ``LEA'' is eligible for B-$; & must        part of Sec.  300.312.
     comply w/B if it receives B-$.
300.18--Native language:
     (1) Sections where term is used.   (1) Listed in
                                                Index.

[[Page 12669]]

 
      (2) Exceptions to definition...........    (2) Added to Reg at
                                                Sec.  300.19.
                                                 In discussion under
                                                Sec.  300.19.
300.19--Parent:
     ``Parent'' includes a              Added to Reg at
     grandparent or stepparent, etc.            Sec.  300.20(a)(3).
300.22--Related services:
    1. All related services may not be         1. In discussion under
     required.                                  Sec.  300.24.
    2. H. Rpt. on O/M services and travel      2. In discussion under
     training.                                  Sec.  300.24.
                                               --Travel training added
                                                as Sec.
                                                300.26(a)(2)(ii) and
                                                (b)(4).
    3. Use of paraprofessionals if consistent  3. In discussion under
     w/.136.                                    Secs.  300.24; 300.136.
    4. Transportation--same as nondisabled;    4. Added to Q-33 in
     accommodations.                            Appendix A.
300.24--Special education:
     A child must need special          Added to Reg as
     education to be eligible under Part B of   Sec.  300.(7)(a)(2); In
     the Act.                                   discussion under Sec.
                                                300.26.
300.27--Transition services:
     May be special education or
     related services..
    List under Sec.  300.27(c) is not           Added to Reg as
     exhaustive.                                Sec.  300.29(b).
                                               In discussion under Sec.
                                                300.29.
------------------------------------------------------------------------
                                Subpart B
------------------------------------------------------------------------
300.121--Free appropriate public education:
    1. FAPE obligation begins on 3rd birthday  1. Added to Reg as Sec.
                                                300.121(c).
    2. Re-child progressing from grade to      2. Added to Reg as Secs.
     grade.                                     300.121(e),
                                                300.125(a)(2)(ii), and
                                                Sec.  300.300(d).
300.122--Exception to FAPE for certain ages:
    1. FAPE and graduation...................  1. ``Prior notice'' added
                                                to Reg as Sec.
                                                300.122(a)(3)(iii).
                                               --A new Sec.
                                                300.534(c)(2) states
                                                that evaluation is not
                                                required for graduation
                                                with a regular diploma.
    2. H.Rpt. Re-students with disabilities    2. Added as Sec.
     in adult prisons.                          300.122(a)(2)(ii).
300.125--Child find:
    1. Collection of data subject to           1. Added to Reg as Sec.
     confidentiality.                           300.125(e).
    2. Services must be based on unique needs  2. Added to Reg as Sec.
                                                300.300(a)(3).
    3. Child find under Parts B and C........  3. Added to Reg as Sec.
                                                300.125(c).
    4. Extend child find to highly mobile      4. Added to Reg as Sec.
     children.                                  300.125(a)(2)(i).
300.127--Confidentiality of * * *
 information:
     Reference to FERPA..............   Deleted.
                                                (Already covered under
                                                300.560-300.576.)
300.130--Least restrictive environment:
     H. Rpt. statement Re-continuum..   Added to Reg at
                                                Sec.  300.130(a).
300.135--Comprehensive system of personnel
 development:
     H.Rpt--Disseminate information     In discussion
     on Ed research * * * States able to use    under Sec.  300.135.
     info--(a)(2) Re--SIP.
300.136--Personnel standards:
    1. Regs require States to use own highest  1. Added to Reg as Sec.
     requirements. Defs not limited to          300.136(b)(2).
     traditional categories.
    2. State may require * * * good faith      Added to Reg as Sec.
     effort * * * shortages.                    300.136(g)(2).
    3. If State only 1 entry-level degree,     3. Added to Reg as Sec.
     modification of standard to ensure FAPE    300.136(b)(4).
     won't violate (b)/(c).
300.138--Participation in assessments:
     Only small no. children need       In discussion
     alternate assmts.                          under Sec.  300.138.
300.139--Reports relating to assessments:
     Re aggregate data ((b)), PA may    In discussion
     also Rpt data other ways (e.g.,..          under Sec.  300.139.
     trendline * * *).
300.142--Methods of ensuring services:
    1. H.Rpt--Import. of ensuring services Re  1. Added to Reg at Sec.
     E/non-ed agencies* * *Medicaid.            300.142(b)(1)(ii).
    2. Intent of (e) = services @ no cost-     2. In discussion under
     parents.                                   Sec.  300.142.
    3. Pub Agency can pay certain pvt insur    3. Added to Reg at Sec.
     costs for parents.                         300.142(g).
    4. If PA receives $ from insurers to       4. Added to Reg at Sec.
     return the $.                              300.142(h)(2).
300.152--Prohibition against commingling:
     Assurance is satisfied by sep      Added to Reg as
     accounting system..                        Sec.  300.152(b).
300.185--Meeting the excess cost requirement:
     LEA must spend certain minimum     In discussion
     amount * * * Excess costs = costs of       under Sec.  300.185.
     special ed that exceed minimum.
300.232--Exception to maintenance of effort:
     H.Rpt--Voluntary departure Re--    Added to Reg as
     personnel paid at/ near top--scale;        Sec.  300.232(a)(2).
     guidelines to invoke exception.
300.234--Schoolwide programs:
     Although funds may be combined,    Added to Reg at
     disabled children must still receive       Sec.  300.234(c).
     services re-IEP.
200.241--Treatment of charter schools:

[[Page 12670]]

 
     B-Regs that apply to pub schools   In discussion
     also apply to charter schools; H.Rpt--     under Sec.  300.241.
     Expect full compliance.
------------------------------------------------------------------------
                                Subpart C
------------------------------------------------------------------------
300.300--Provision of FAPE:
    1. FAPE Requirement applies to disabled    1. In discussion under
     children in school and those with less     Sec.  300.300.
     severe disabilities.
    2. State must ensure child find fully      2. Added to Reg at Sec.
     implemented.                               300.300(a)(2).
    3. Why age range--child find is greater    3. In discussion under
     than FAPE.                                 Sec.  300.300.
300.302--Residential placement:
     Requirement applies to             In discussion
     placements in St. schools.                 under Sec.  300.302.
300.303--Proper functioning of hearing aids:
     Statement from H. Rpt. on 1978     In discussion
     appropriation bill related to status of    under Sec.  300.303.
     hearing aids.
300.304--Full educational opportunity goal:
     S.Rpt (1975) on arts--Brooklyn     In discussion
     Museum:.                                   under Sec.  300.304.
300.305--Program options:
     List not exhaustive.............   In discussion
                                                under Sec.  300.305.
300.307--Physical education:
     H.Rpt (142)--Must assure PE        In discussion
     available to all HC.                       under Sec.  300.307.
300.309--Extended school year services:
    1. LEA may not limit to particular         1. Added to Reg at Sec.
     categories or duration. All disabled       300.309(a)(3).
     children not entitled.
    2. States may establish standards * * *    2. In discussion under
     Factors may consider = likelihood of       Sec.  300.309.
     regression.
300.341--SEA Responsibility (Re--IEPs):
     Section applies-all public         Added to Reg as
     agencies, including other State agencies.  Sec.  300.341(b).
300.342--When IEPs must be in effect:
    1. It is expected that IEPs will be        1. In discussion under
     implemented immediately after the          Sec.  300.342.
     meeting (with exceptions).
    2. Requirements--incarcerated youth apply  2. Deleted.
     6-4-97.
    3. IEP vs IFSP--written informed consent.  3. In discussion under
                                                Sec.  300.342(c).
300.343--IEP meetings:
     Offer of services within 60        In discussion
     days--consent.                             under Sec.  300.343.
300.344--IEP Team:
     Reg Ed teacher at IEP meeting =    In discussion
     one who works with the child; if more      under Sec.  300.344
     than one--designate.
300.345--Parent participation:
     Parent notice Re--bring            Added to Reg as
     others..procedure used = agency            Sec.  300.345(b).
     discretion * * * But keep record of
     efforts.
300.346--Development; review, & revision of
 IEP:
    1. Importance Re--Consideration of         1. In discussion under
     special factors.                           Sec.  300.346.
    2. Re--``Deaf Students Educational         2. In discussion under
     Services'' (1992).                         Sec.  300.346.
    3. IEP team and LEP students.............  3. In discussion under
                                                Sec.  300.346.
300.347--Content of IEP:
    1. Import of transition services for       1. In discussion under
     students below 16.                         Sec.  300.347.
    2. H.Rpt Re--import of general curriculum  2. In discussion under
                                                Sec.  300.347.
    3. H.Rpt--Gen Curriculum--length of IEP    3. In discussion under
     vs adjustments.                            Sec.  300.347.
    4. H.Rpt--Teaching methods not in IEP....  4. In discussion under
                                                Sec.  300.347.
    5. Reports to parents on Annual Goals vs   5. In discussion under
     Reg. Reports.                              Sec.  300.347.
    6. H.Rpt--transition service needs vs      6. In discussion under
     services.                                  Sec.  300.347.
    7. OK for transition-needs/services below  7. In discussion under
     14 and 16.                                 Sec.  300.347.
300.350--IEP--accountability:
     Public agency must make good       Added to Reg as
     faith effort; parents have right to        Sec.  300.350(b).
     complain.
300.360--Use of LEA allocation for direct
 services:
     If LEA doesn't apply for Pt. B     Added to Reg at
     funds, SEA must use in LEA.                Sec.  300.360(b).
------------------------------------------------------------------------
                                Subpart D
------------------------------------------------------------------------
300.453--Expenditures:
     LEAs may provide services beyond   Added to Reg at
     those required.                            Sec.  300.453(d).
300.456--Location of services:
    1. Zobrest--Re on-site services..........  1. In discussion under
                                                Sec.  300.456.
    2. Transportation to from site * * * not   2. Added to Reg at Sec.
     from home.                                 300.456(b)(1).
------------------------------------------------------------------------
                                Subpart E
------------------------------------------------------------------------
300.500--Gen. Resp. of public agencies;
 definitions:
     Parent consent, if revoked is      Added to Reg at
     not retroactive.                           Sec.  300.500(b)(1)(iii)
                                                .
300.502--Independent educational evaluation:
    1. Parent not required to specify areas    1. Added to Reg at Sec.
     of disagreement.                           300.501(b).
    2. Pub agencies--should make info on IEEs  2. Added to Reg at Sec.
     widely available; may not require parent-  300.502(a)(2).
     evals meet all criteria.

[[Page 12671]]

 
300.505--Parental consent:
    1. Pub. agency may use due process to      1. In discussion under
     override refusal, unless doing so--        Sec.  300.503.
     inconsistent w/St law.
    2. PA must provide servs in any area not   2. In discussion under
     in dispute; if nec--FAPE--use override;    Sec.  300.503.
     may recons proposal.
    3. If parents refuse-reeval needed for     3. In discussion under
     servs, & St law prevnts override-reeval,   Sec.  300.503.
     PA may cease servs.
300.506 Mediation:
    1. H. Rep--If mediator not selected        1. Added to Reg at Sec.
     randomly Pub. agency and parents both      300.506(b)(2)(ii).
     must select.
    2. H. Rep--Preserve parental access Rts--  2. In discussion under
     FERPA; confidentiality pledge.             Sec.  300.506.
300.507--Impartial due process hearing;
 parent notice; disclosure:
    1. Determination of whether hearing        1. In discussion under
     request is based on new info must be       Sec.  300.507.
     made by HO.
    2. H. Rep. Re--Attorneys' fees; and the    2. In discussion under
     value of the parent notice requirement.    Sec.  300.507.
300.510--Finality of decision; appeal;
 impartial review:
    1. SEA may conduct review directly or      1. In discussion under
     thru another agency; but remains           Sec.  300.510.
     response for final decision.
    2. All parties have right to counsel; if   2. In discussion under
     Rev Officer holds a hearing, other         Sec.  300.510.
     rights in 300.509 apply.
300.513--Attorneys' fees:
     A State may enact a law            In discussion
     permitting HOs to award fees.              under Sec.  300.513.
300.514--Child's status during proceedings:
     Public agency may use normal       In discussion
     procedures for dealing with children who   under Sec.  300.514.
     are endangering themselves or others.
300.520--Authority of School personnel:
    1. Removal for 10 days or less--not a chg  1. In discussion under
     in placmt; a series of removals that       Sec.  300.520.
     total +10 days may be.
    2. PA need not conduct review in (b), but  2. In discussion under
     encouraged Ck if--serves in accord w/      Sec.  300.520.
     IEP..or addressed.
300.523--Manifestation determination review:
    1. H.Rpt--Ex of manifestation vs not * *   1. In discussion under
     * But not intended-- base finding on       Sec.  300.523.
     tech violation-IEP.
    2. If manifestation--LEA must correct any  2. Added to Reg at Sec.
     deficiencies found.                        300.523(f).
300.524--Determination that behavior not a
 manifestation of disability:
     During pendency--child remains     In discussion
     in current placmt or placmt under          under Sec.  300.524.
     300.526, whichever applies.
300.526--Placement during appeals:
     An LEA may seek subsequent         Added to Reg as
     expedited hearings if child still          Sec.  300.526(c)(4).
     dangerous & issue not resolved.
300.532--Evaluation procedures:
    1. Re LEP--accurate assmt of child's lang  1. In discussion under
     proficency.                                Sec.  300.532.
    2. If no one at sch Re-LEP, contact LEAs,  2. In discussion under
     IHEs.                                      Sec.  300.532.
    3. If assmt not done under standard        3. Added to Reg as Sec.
     conditions, include in eval Rpt. Info      300.532(a)(2).
     needed by team.
300.533--Determination of needed evaluation
 data:
     Purpose of review by a group;      In discussion
     composition of team will vary depending    under Sec.  300.533.
     on nature or disability.
300.535--Procedures for determining
 eligibility and placement:
     All eval sources not required      In discussion
     for each child.                            under Sec.  300.535.
300.551--Continuum of alternative placements:
     Home instruction usually only      In discussion
     for limited No. children (medically        under Sec.  300.551.
     fragile).
300.552--Placements:
    1. Group in (a)(1) could also be IEP       1. In discussion under
     team--if .344.                             Sec.  300.552.
    2. Main rule in LRE = indiv decisions +    2. Added to Reg at Sec.
     alternate placmts; applicability to        300.552.
     preschool children.
    3. If IEP team considers-provides for      3. In discussion under
     behavioral interventions * * * many        Sec.  300.552.
     disruptive children-Reg cl.
300.553--Nonacademic settings:
     Section taken from 504 Regs.....   In discussion
                                                under Sec.  300.553.
300.554--Children in public or private
 institutions:
     LRE provisions apply to Children   In discussion
     in public and private institutions.        under Sec.  300.554.
300.573--Destruction of information:
     Info may be kept forever unless    In discussion
     parents reject; (Why records are           under Sec.  300.573.
     important * * *).
300.574--Children's rights:
    1. Under FERPA Regs, Rts transfer at age   1. Added to Reg at Sec.
     18.                                        300.574(b).
    2. If Rts transfer re-.517, Rts re Ed-     2. Added to Reg at Sec.
     records also transfer; but public agency   300.574(c).
     must give 615 notice to parents and
     student.
300.587--Enforcement:
     Other enforcement actions          In discussion
     include cease and desist order * * * and   under Sec.  300.587.
     a compliance agreement.
------------------------------------------------------------------------

[[Page 12672]]

 
                                Subpart F
------------------------------------------------------------------------
300.600--Responsibility for all educational
 programs:
     Provision = Congressional          In discussion
     desire--central point of contact. S.Rpt    under Sec.  300.600.
     (1975) * * * Options.
300.623--Amount required for subgrants to
 LEAs':
     Amt. required for subgrants will   In discussion
     vary--yr-to-yr. $ for subgrants 1 yr       under Sec.  300.623.
     become flow-thru in next.
300.624--State discretion in awarding
 subgrants:
     Purpose of subgrants to LEAs--to   In discussion
     provide $ SEA can direct Re needs--can't   under Sec.  300.624.
     address Re-formula-$.
300.650--Establishment of Advisory panels:
     Panel must advise on students in   Added to Reg at
     Adult prisons.                             Sec.  300.652(b).
300.660--Adoption of State complaint
 procedures:
     SEA may award compensory damages   Added to Reg at
     Re-denial of FAPE.                         Sec.  300.660(b).
300.661--Minimum State complaint procedures:
    1. If complaint also subject of a          1. Added to Reg at Sec.
     hearing, must set aside any part           300.661(c)(1).
     addressed-hearing; but resolve the rest.
    2. If issue in complaint already decided   2. Added to Reg at Sec.
     in a hearing (same parties), H-decision    300.661(c)(2).
     = binding.
300.662--Filing a complaint:
     SEA must resolve complaint, even   Added to Reg at
     if it is filed by indiv-organization in    Sec.  300.662(a).
     another State.
------------------------------------------------------------------------
                                Subpart G
------------------------------------------------------------------------
300.712--Allocations to LEAs:
     Re-85%--use best data available;   Added to Reg at
     new data not needed-pvt schs. Re-15%--     Sec.  300.712.
     use best (Examples).
300.750--Annual report of children served-
 report requirement:
     Report--solely for allocation      In discussion
     purposes; count may differ from children   under Sec.  300.750.
     who receive FAPE.
300.753--Annual report of children served-
 criteria for counting children:
    1. State may count children in Head Start  1. Covered by reg. note
     if Sp Ed.                                  deleted.
    2. Criteria related to counting children   2. Covered by reg. note
     in private schools and certain Indian      deleted.
     children.
300.754--Annual report of children served-
 other responsibilities of SEA:
     Data are not to go to Secretary    In discussion
     in personally identifiable form.           under Sec.  300.754.
------------------------------------------------------------------------
                                Part 303
------------------------------------------------------------------------
303.19--Parent:
     Definition: examples of            Added to Reg in
     grandparent, stepparent.                   Sec.  303.19(a)(3).
303.510--Adopting Complaint Procedures:
    1. Complaints can be against any public    1. Public/private added
     agency or private provider; these          to Reg in Sec.
     procedures are in addition to other        303.510(a)(1); ``other
     rights.                                    rights'' in discussion
                                                under Sec.  303.512.
    2. Compensatory services possible........  2. Added to Reg in Sec.
                                                303.510(b).
303.511--An organization or individual may
 file a complaint:
     Complaints from out-of-state OK.   Added to Reg in
                                                Sec.  303.510(a)(1).
303.512--Minimum State complaint procedures:
    1. Same issues in complaint and due        1. Added to Reg in Sec.
     process hearing.                           303.512(c)(1).
    2. Issues previously decided in due        2. Added to Reg in Sec.
     process hearing.                           303.512(c)(2).
303.520--Policies related to payment for
 services:
    1. Use of private insurance must be        1. Deleted.
     voluntary.
    2. State can use Part C funds to pay       2. Deleted.
     insurance costs.
    3. Insurance reimbursements not treated    3. ``Program income''
     as program income; spending Federal        added to discussion
     reimbursements doesn't violate             under Sec.  303.512;
     nonsupplanting rule.                       ``nonsupplanting'' added
                                                to Reg in Sec.
                                                303.512(d)(2).
------------------------------------------------------------------------
\1\ All notes have been removed as notes from the regulations. The
  substance of certain notes has been added to the text of the
  regulation, or included in the Notice of Interpretation on IEPs in
  ``Appendix A.'' A description of each of these notes (and most of the
  other notes in the NPRM) is included in the ``discussion'' under the
  Analysis of Comments (Attachment 1 to the final regulations). Column
  II, above, describes the primary action taken with each note (e.g.,
  (1) ``Added to Reg * * *'' (or to Appendix A); (2) ``In discussion
  under * * *;'' or ``Deleted.'')

[FR Doc. 99-5754 Filed 3-11-99; 8:45 am]
BILLING CODE 4000-01-P