[Federal Register Volume 70, Number 118 (Tuesday, June 21, 2005)]
[Proposed Rules]
[Pages 35782-35892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11804]



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Part II





Department of Education





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34 CFR Parts 300, 301, and 304



Assistance to States for the Education of Children With Disabilities; 
Preschool Grants for Children With Disabilities; and Service 
Obligations Under Special Education--Personnel Development To Improve 
Services and Results for Children With Disabilities; Proposed Rule

  Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / 
Proposed Rules  

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DEPARTMENT OF EDUCATION

34 CFR Parts 300, 301 and 304

RIN 1820-AB57


Assistance to States for the Education of Children With 
Disabilities; Preschool Grants for Children With Disabilities; and 
Service Obligations Under Special Education--Personnel Development To 
Improve Services and Results for Children With Disabilities

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Secretary proposes to amend the regulations governing the 
Assistance to States for Education of Children with Disabilities 
Program, the Preschool Grants for Children With Disabilities Program, 
and Service Obligations under Special Education Personnel Development 
to Improve Services and Results for Children with Disabilities. These 
amendments are needed to implement recently enacted changes made to the 
Individuals with Disabilities Education Act, as amended by the 
Individuals with Disabilities Education Improvement Act of 2004.

DATES: To be considered, comments must be received at one of the 
addresses provided in the ADDRESSES section no later than 5 p.m. 
Washington, DC Time on September 6, 2005. Comments received after this 
time will not be considered.
    We will hold public meetings about this NPRM. The dates and times 
of the meetings and the cities in which the meetings will take place 
are in Public Meetings under Invitation to Comment elsewhere in this 
preamble.

ADDRESSES: Address all comments about these proposed regulations to 
Troy R. Justesen, U.S. Department of Education, 400 Maryland Avenue, 
SW., Potomac Center Plaza, room 5126, Washington, DC 20202-2641. If you 
prefer to send your comments through the Internet, you may address them 
to us at the U.S. Government Web site: www.regulations.gov or you may 
send your Internet comments to us at the following address: 
[email protected].
    You must include the term IDEA-Part B in the subject line of your 
electronic message. Please submit your comments only one time, in order 
to ensure that we do not receive duplicate copies.
    If you want to comment on the information collection requirements, 
you must send your comments to the Office of Management and Budget at 
the address listed in the Paperwork Reduction Act section of this 
preamble. You may also send a copy of those comments to the U.S. 
Department of Education (Department) representative named in this 
section.
    All first-class and Priority mail sent to the Department is put 
through an irradiation process, which can result in lengthy delays in 
mail delivery. Please keep this in mind when sending your comments and 
please consider using commercial delivery services or e-mail in order 
to ensure timely delivery of your comments.

FOR FURTHER INFORMATION CONTACT: Troy R. Justesen. Telephone: (202) 
245-7468.
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Relay System (FRS) at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an 
alternative format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Invitation To Comment

    We invite you to submit comments regarding these proposed 
regulations. To ensure that your comments have maximum effect in 
developing the final regulations, we urge you to identify clearly the 
specific section or sections of the proposed regulations that each of 
your comments addresses and to arrange your comments in the same order 
as the proposed regulations.
    We invite you to assist us in complying with the specific 
requirements of Executive Order 12866 and its overall requirement of 
reducing regulatory burden that might result from these proposed 
regulations. Please let us know of any further opportunities we should 
provide to reduce the potential costs or increase potential benefits 
while preserving the effective and efficient administration of these 
programs.
    During and after the comment period, you may inspect all public 
comments about these proposed regulations in room 5126, Potomac Center 
Plaza, 550 12th Street, SW., Washington, DC, between the hours of 8:30 
a.m. and 4 p.m., Eastern time, Monday through Friday of each week 
except Federal holidays.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking 
Record

    On request, we will supply an appropriate aid, such as a reader, or 
print magnifier, to an individual with a disability who needs 
assistance to review the comments or other documents in the public 
rulemaking record for these proposed regulations. If you want to 
schedule an appointment for this type of aid, please contact the person 
listed under FOR FURTHER INFORMATION CONTACT.

Public Meetings

    The dates and cities where the meetings about this NPRM will take 
place are listed below. Each meeting will take place from 1 to 4 p.m. 
and from 5 to 7 p.m.
    Friday, June 17, 2005 in Nashville, TN;
    Wednesday, June 22, 2005 in Sacramento, CA;
    Friday, June 24, 2005 in Las Vegas, NV;
    Monday, June 27, 2005 in New York, NY;
    Wednesday, June 29, 2005 in Chicago, IL;
    Thursday, July 7, 2005 in San Antonio, TX; and
    Tuesday, July 12, 2005 in Washington, DC.
    We provided more specific information on meeting locations in a 
notice published in the Federal Register (70 FR 30917).

Assistance to Individuals With Disabilities at the Public Meetings

    The meeting sites are accessible to individuals with disabilities, 
and sign language interpreters will be available. If you need an 
auxiliary aid or service other than a sign language interpreter (e.g., 
interpreting service such as oral, cued speech, or tactile interpreter, 
assisted listening device, or materials in an alternative format), 
notify the contact person listed in this NPRM at least two weeks before 
the scheduled meeting date. Although we will attempt to meet a request 
we receive after this date, we may not be able to make available the 
requested auxiliary aid or service because of insufficient time to 
arrange it.

Background

    On December 3, 2004, the Individuals with Disabilities Education 
Improvement Act of 2004 was enacted into law as Pub L. 108-446. The 
statute, as passed by Congress and signed by the President, 
reauthorizes and makes significant changes to the Individuals with 
Disabilities Education Act.
    The Individuals with Disabilities Education Act, as amended by the 
Individuals with Disabilities Education Improvement Act of 2004 (Act or 
IDEA), is intended to help children with

[[Page 35783]]

disabilities achieve to high standards--by promoting accountability for 
results, enhancing parental involvement, and using proven practices and 
materials; and, also, by providing more flexibility and reducing 
paperwork burdens for teachers, States, and local school districts. 
Enactment of the new law provides an opportunity to consider 
improvements in the current regulations that would strengthen the 
Federal effort to ensure every child with a disability has available a 
free appropriate public education that--(1) is of high quality, and (2) 
is designed to achieve the high standards reflected in the Elementary 
and Secondary Education Act of 1965, as amended by the No Child Left 
Behind Act of 2001 (NCLB) and its implementing regulations.
    Changes to the current Part B regulations (34 CFR parts 300 and 
301) and Part D regulations (34 CFR part 304) are necessary in order 
for the Department to appropriately and effectively address the 
provisions of the new law and to assist State and local educational 
agencies in implementing their responsibilities under the new law. 
Changes to the current Part C regulations (part 303) also are necessary 
in order for the Department to appropriately and effectively address 
the provisions in Part C of the Act and to assist States in completing 
their responsibilities under the new law. The NPRM for the Part C 
regulations will be published soon.
    On December 29, 2004, the Secretary published a notice in the 
Federal Register requesting advice and recommendations from the public 
on regulatory issues under the Act, and announcing a series of seven 
public meetings during January and February of 2005 to seek further 
input and suggestions from the public for developing regulations based 
on the new statute.
    Over 6000 public comments were received in response to the Federal 
Register notice and at the seven public meetings, including letters 
from parents and public agency personnel, and parent-advocate and 
professional organizations. The comments addressed each major provision 
of the new law (such as discipline procedures, provisions on personnel 
qualifications and highly qualified teachers, provisions related to 
evaluation of children and individualized education programs, 
participation of private school children with disabilities, and 
provisions on early intervening services). These comments were reviewed 
and considered in developing this NPRM. The Secretary appreciates the 
interest and thoughtful attention of the commenters responding to the 
December 29, 2004 notice and participating in the seven public 
meetings.

General Proposed Regulatory Plan and Structure

    In developing this NPRM, we have elected to construct one 
comprehensive, freestanding document that incorporates virtually all 
requirements from the new law along with the applicable regulations, 
rather than publishing a regulation that does not include statutory 
provisions. The rationale for doing this is to create a single 
reference document for parents, State personnel, school personnel, and 
others to use, rather than being forced to shift between one document 
for regulations and a separate document for the statute. This approach 
was used in developing the current regulations. Although this approach 
will result in a larger document, it is our impression that various 
groups strongly support continuing this practice.
    In addition, we have reorganized the regulations by following the 
general order and structure of provisions in the statute, rather than 
using the arrangement of the current regulations. We believe this 
change in organization will be helpful to parents, State and local 
educational agency personnel, and the public both in reading the 
regulations, and in finding the direct link between a given statutory 
requirement and the regulation related to that requirement. Thus, in 
general, the requirements related to a given statutory section (e.g., 
State eligibility in section 612 of the Act) will be included in one 
location (subpart B) and in the same general order as in the statute, 
rather than being spread throughout four or more subparts, as the 
statutory sections are in the current regulations.
    As restructured in this NPRM, the proposed regulations are divided 
into eight major subparts, each of which is directly linked to, and 
comports with, the general order of provisions in a specific section of 
the Act. For example, we have revised subpart G of the regulations to 
include all provisions regarding the allotment and use of funds from 
section 611 of the Act, rather than having those provisions dispersed 
among several different subparts, as they are in the current 
regulations.
    In addition, we have removed part 301 (Preschool Grants for 
Children with Disabilities) from title 34 and placed the Preschool 
Grants provisions from section 619 of the Act into a new subpart H 
under part 300. This restructuring and consolidation of the financial 
requirements from both the statute and regulations into a specific 
location in the regulations should be useful to State and local 
administrators and others in finding the relevant statutory and 
regulatory provisions regarding both the Assistance to States and 
Preschool Grants programs.
    In reviewing the current regulations, we considered their continued 
necessity and relevance in light of a number of factors: Whether 
statutory changes required changes to existing regulations; whether 
changes in other laws, or the passage of time and changed conditions 
rendered the regulations obsolete or unnecessary; whether less 
burdensome alternatives or greater flexibility was appropriate; and 
whether the regulation could be changed in light of section 607(b) of 
the Act (section 607(b) of the Act provides that the Secretary may not 
publish final regulations that would procedurally or substantively 
lessen the protections provided to children with disabilities in the 
regulations that were in effect on July 20, 1983, except to the extent 
that such regulation reflects the clear and unequivocal intent of the 
Congress in legislation). In the following discussion of proposed 
regulatory changes, we identify the changes that would be made to 
existing regulations after consideration of these factors.

Proposed Regulatory Changes

Subpart A--General

Purposes and Applicability
    Proposed Sec.  300.1 would be revised only to add, consistent with 
a change to section 601(d)(1)(A) of the Act, the words ``further 
education'' in paragraph (a).
    Except for the section heading, proposed Sec.  300.2 would be 
unchanged from the existing provision.
    Section 300.3 of the current regulations would be removed as 
unnecessary, because the regulations listed in this section already 
apply, by their own terms, to States and local agencies under Part B of 
the Act.

Definitions Used in This Part

    As in the current regulations, proposed Sec.  300.4 (Act) would 
refer to the Individuals with Disabilities Education Act, as amended.
    Proposed Sec.  300.5 (Assistive technology device) would retain the 
current definition, and include the new language from section 602(1) of 
the Act that the term does not include a medical device that is 
surgically implanted, or the replacement of that device.
    Proposed Sec.  300.6 (Assistive technology service) would be 
consistent with the current regulatory definition of that term.

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    Proposed Sec.  300.7 (Charter school) would define the term to have 
the meaning given that term in section 5210(1) of the Elementary and 
Secondary Education Act of 1965, as amended, 20 U.S.C 6301 et seq. 
(ESEA).
    Proposed Sec.  300.8 (Child with a disability) would make the 
following changes to the current regulatory definition in Sec.  300.7: 
In paragraphs (a)(1) and (a)(2) cross-references to evaluation 
procedures would be updated to reflect the placement of those 
procedures in these proposed regulations. The parenthetical following 
``serious emotional disturbance'' in paragraph (a)(1) would be revised 
to read ``referred to in this part as emotional disturbance.'' The 
cross-reference regarding related services in the definition of special 
education in paragraph (a)(2)(ii) would be updated. In paragraph (b), a 
parenthetical phrase would be added following the reference to children 
aged three through nine to clarify that ``developmental delay'' could 
be used for any subset of that age range, including children three 
through five. This reflects a change in section 602(3)(B) of the Act. 
Paragraph (c)(8) (Orthopedic impairment) would revise current Sec.  
300.7(c)(8) by removing the parenthetical listing of examples, because 
these examples are outdated.
    Finally, in paragraph (c)(10)(i) of proposed Sec.  300.8, which 
contains a definition of the term specific learning disability, the 
word ``the'' would be substituted for ``an'' before the phrase 
``imperfect ability to listen, think, * * *'' reflecting the addition 
of ``the'' in section 602(30)(A) of the Act.
    Proposed Sec.  300.9 would incorporate the regulatory definition of 
Consent that appears in Sec.  300.500(b)(1) of the current regulations. 
The current provision in Sec.  300.8 that cross-references the Sec.  
300.500 definition of consent, would be removed.
    Consistent with section 602(4) of the Act, proposed Sec.  300.10 
would add the new definition of Core academic subjects as that term is 
defined in section 9101 of the ESEA.
    Proposed Sec.  300.11 would revise the definitions of Day; business 
day; school day in current Sec.  300.9 only by updating the cross-
reference to the regulatory requirement in proposed Sec.  300.148(c) 
concerning a limitation on reimbursement for private school placements.
    The regulatory definition of Educational service agency currently 
in Sec.  300.10 would be moved to proposed Sec.  300.12 and revised by 
adding the word ``schools'' after ``public elementary'' in paragraph 
(a)(2) of this section to conform with the language in section 602(5) 
of the Act. In proposed paragraph (c), the provision concerning 
entities that meet the definition of intermediate educational unit in 
section 602(23) of the Act as in effect prior to June 4, 1997 would be 
retained. There are entities still providing special education and 
related services to preschool children with disabilities that meet the 
definition of intermediate educational unit, but may not meet the 
definition of educational service agency because they are not 
responsible for the provision of special education and related services 
provided within public elementary schools of the State.
    Proposed Sec.  300.13 would reflect the definition of Elementary 
school in section 602(6) of the Act, including the new language 
specifying that the term includes a public elementary charter school.
    Proposed Sec.  300.14 would reflect the current statutory 
definition of Equipment and would be substantially the same as Sec.  
300.11 of the current regulations.
    Proposed Sec.  300.15 would incorporate the regulatory definition 
of Evaluation that appears in the current regulations in Sec.  
300.500(b)(2), with the cross-reference to the evaluation procedures 
updated to reflect their placement in these proposed regulations and to 
include the additional procedures regarding specific learning 
disability. The current regulation, regarding evaluation in Sec.  
300.12, which cross-references the definition in current Sec.  300.500, 
would be removed as duplicative and unnecessary.
    Proposed Sec.  300.16 (Excess costs), defined in the current 
regulations in Sec.  300.184, would be revised consistent with changes 
in section 602(8) of the Act. This provision is substantially the same 
as the current definition in Sec.  300.184(b).
    Proposed Sec.  300.17 (free appropriate public education or FAPE) 
would incorporate the provisions of section 602(9) of the Act and be 
the same as the definition in Sec.  300.13 of the current regulations, 
except that Sec.  300.17(d) would be updated to add a cross-reference 
to the individualized education program (IEP) requirements.
    A new definition of highly qualified special education teacher 
would be added in proposed Sec.  300.18, reflecting the addition of a 
definition of this term to the statute in section 602(10) of the Act, 
with the following modifications: Paragraph (a)(1) of this section 
would specify that the term ``highly qualified'' applies only to public 
elementary school and secondary school special education teachers, 
consistent with the definition of that term in section 9101 of the 
ESEA, which is incorporated into the Act and applied to special 
education teachers in section 602(10) of the Act. We do not believe 
that the ``highly qualified'' requirements of the ESEA, or, by 
statutory cross-reference, the Act, were intended to apply to private 
school teachers, even in situations where a child with a disability is 
placed in, or referred to, a private school by a public agency in order 
to carry out the public agency's responsibilities under this part, 
consistent with section 612(a)(10)(B) of the Act and proposed Sec.  
300.146. This issue also is addressed in proposed Sec.  300.156.
    Proposed Sec.  300.18(b)(2) would specify that a teacher 
participating in an alternate route to certification program would be 
considered to be fully certified under certain circumstances. The 
standard to be applied to an alternate route to certification program 
would be the same as for those programs under the regulations 
implementing title I of the ESEA in 34 CFR Sec.  200.56(a)(2)(ii). This 
would provide for consistency in the interpretation and application of 
the alternate route to certification provisions across these programs.
    In proposed Sec.  300.18(b)(3), a provision would be added to 
clarify that a public elementary or secondary school teacher who is not 
teaching a core academic subject would be considered highly qualified 
if the teacher meets the requirements of proposed Sec.  300.18(b)(1) 
and (2). This provision would reflect note 21 in U.S. House of 
Representatives Conference Report No. 108-779, (Conf. Rpt.) that 
special education teachers who are only providing consultative services 
to other teachers who are highly qualified to teach particular academic 
subjects, could be highly qualified by meeting the special education 
qualifications alone. Proposed Sec.  300.18(c)(2) would clarify that 
all special education teachers who are exclusively teaching students 
who are assessed based on alternate academic achievement standards, as 
permitted under the regulations implementing title I of the ESEA, at a 
minimum, have subject matter knowledge at the elementary level or 
above, as determined by the State, needed to effectively teach to those 
standards. Note 21 in the Conf. Rpt. calls for teachers exclusively 
teaching students who are assessed based on alternate academic 
achievement standards above the elementary level to have a high level 
of competency in each of the core academic subjects taught.
    The proposed regulation would not specifically address the use of a 
separate ``high objective uniform State standard of evaluation'' 
(HOUSSE) for special

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education teachers. However, note 21 in the Conf. Rpt. recognized that 
some States have developed HOUSSE standards for special education 
teachers, and indicated that those separate HOUSSE standards should be 
permitted, including single HOUSSE evaluations that cover multiple 
subjects, as long as those adaptations of a State's HOUSSE for use with 
special education teachers would not establish a lesser standard for 
the content knowledge requirements for special education teachers. We 
request comment on whether additional regulatory action is needed on 
this point. Proposed Sec.  300.18(g) would clarify that the 
requirements in proposed Sec.  300.18 regarding highly qualified 
special education teachers do not apply with respect to teachers hired 
by private elementary and secondary schools.
    Proposed Sec.  300.19 would reflect the definition of Homeless 
children added to the statute in section 602(11) of the Act.
    The definition of include in proposed Sec.  300.20 is substantively 
unchanged from the current regulatory provision in Sec.  300.14.
    The proposed definitions of Indian and Indian tribe in Sec.  300.21 
would incorporate the definitions of those terms currently in Sec.  
300.264 and reflect the language in sections 602(12) and 602(13) of the 
Act. The Department of Education seeks comment on the definition of 
Indian tribe because the current definition includes state tribes. The 
Department of the Interior is only authorized to provide services to 
Federally Recognized tribes, therefore, States should provide comments 
on how they would provide these services to State recognized tribes. 
Nothing in this definition is intended to require the BIA to provide 
services or funding to a State Indian tribe for which BIA is not 
responsible.
    The definition of Individualized education program or IEP in 
proposed Sec.  300.22 would incorporate the regulatory definition of 
that term currently in Sec.  300.340(a), and would reflect the language 
in section 602(14) of the Act. The current Sec.  300.15 cross-
referencing the Sec.  300.340 definition would be removed as 
duplicative and unnecessary.
    Proposed Sec.  300.23 (Individualized education program team) would 
be the same as Sec.  300.16 of the current regulations. The definition 
in proposed Sec.  300.24 of Individualized family service plan would be 
the same as the current regulatory definition in Sec.  300.17, except 
that proposed Sec.  300.24 would appropriately refer to the current 
statutory definition of IFSP in section 636 of the Act and not to the 
regulatory definition in 34 CFR 303.340(b).
    Proposed Sec.  300.25 (Infant or toddler with a disability), Sec.  
300.26 (Institution of higher education), and Sec.  300.27 (Limited 
English proficient) would reflect statutory definitions of those terms 
in sections 602(16), 602(17), and 602(18) of the Act, respectively.
    Proposed Sec.  300.28 (Local educational agency or LEA) is 
substantively unchanged from the current regulatory definition in Sec.  
300.18, and would reflect the definition of that term in section 
602(19) of the Act.
    Proposed Sec.  300.29 (Native language) is substantively unchanged 
from the current regulatory definition of that term in Sec.  300.19.
    Proposed Sec.  300.30 (Parent) would revise the current regulatory 
definition of that term in Sec.  300.20 to better reflect the revised 
statutory definition of Parent in section 602(23) of the Act. Proposed 
Sec.  300.30(a)(2) would reflect the provision regarding a State law 
prohibition on when a foster parent can be considered a parent, but 
would add language to recognize that similar restrictions may exist in 
State regulations or in contractual agreements between a State or local 
entity and the foster parent, and should be accorded similar deference. 
Proposed Sec.  300.30(b)(1) would provide that the natural or adoptive 
parent would be presumed to be the parent for purposes of the 
regulations if that person were attempting to act as the parent under 
proposed Sec.  300.30 and more than one person is qualified to act as a 
parent, unless that person does not have legal authority to make 
educational decisions for the child, or there is a judicial order or 
decree specifying some other person to act as the parent under Part B 
of the Act. Proposed Sec.  300.30(b)(2) would provide that if a person 
or persons is specified in a judicial order or decree to act as the 
parent for purposes of Sec.  300.30, that person would be the parent 
under Part B of the Act. Proposed Sec.  300.30(b)(2) would, however, 
exclude an agency involved in the education or care of the child from 
serving as a parent, consistent with the statutory prohibition that 
applies to surrogate parents in sections 615(b)(2) and 639(a)(5) of the 
Act. The provisions in proposed Sec.  300.30(b) should assist schools 
and public agencies in identifying the appropriate person to serve as 
the parent under Part B of the Act, especially in those difficult 
situations in which more than one individual wants to make educational 
decisions.
    Proposed Sec.  300.31 would add a new definition of Parent training 
and information center reflecting section 602(25) of the Act. This term 
would be used in proposed Sec.  300.506.
    Proposed Sec. Sec.  300.32 (Personally identifiable) and 300.33 
(Public agency) are substantively unchanged from current regulatory 
definitions of these terms in Sec.  300.500(b)(3) and Sec.  300.22, 
respectively. We note that throughout these proposed regulations, 
public agency has been used to make clear where the requirements do not 
apply only to States and LEAs.
    The current regulatory definition of Qualified personnel in Sec.  
300.23 would be removed, because personnel qualifications would be 
adequately addressed in proposed Sec.  300.156.
    Proposed Sec.  300.34 (Related services), reflecting changes in 
section 602(26) of the Act, would amend the current regulatory 
definition in Sec.  300.24 in the following ways: In proposed Sec.  
300.34(a) ``interpreting services'' and ``school nurse services 
designed to enable a child with a disability to receive a free 
appropriate public education as described in the IEP of the child'' 
would be added. Proposed Sec.  300.34(b) would be added to address the 
statutory limitation on surgically implanted medical devices. Paragraph 
(b) also would specify that related services would not include the 
costs of maximizing the functioning of a surgically implanted device or 
the maintenance of a surgically implanted device. School districts 
should not be required to bear these costs, which are integral to the 
functioning of the implanted device. Proposed paragraph (c) would 
include new definitions of Interpreting services and School nurse 
services. The list is not intended to be exhaustive and other 
therapies, as well as other services not listed, may be included in a 
child's IEP if the IEP Team determines that a particular service is 
needed for a child to benefit from special education. In all cases 
concerning related services, the IEP Team's determination about 
appropriate services must be reflected in the child's IEP and those 
listed services must be provided in accordance with the IEP at public 
expense and at no cost to the parents. Nothing in the Act or in the 
definition of related services requires the provision of a related 
service to a child unless the child's IEP Team has determined that the 
service is required in order for the child to benefit from special 
education and has included the service on the child's IEP.
    Proposed Sec.  300.35 (Secondary school) would revise the current 
regulatory definition of this term in Sec.  300.25 to add the new 
statutory language specifying

[[Page 35786]]

that the term includes a public secondary charter school.
    Proposed Sec.  300.36 (Services plan) would add a new definition 
that would describe the content, development, and implementation of 
plans for parentally-placed private school children with disabilities 
who have been designated to receive services. The definition would 
cross-reference the specific requirements for the provision of services 
to parentally-placed private school children with disabilities in 
proposed Sec. Sec.  300.132 and 300.137 through 300.139.
    Proposed Sec.  300.37 (Secretary) would reflect the statutory 
definition of that term in section 602(28) of the Act.
    Proposed Sec. Sec.  300.38 (Special education), 300.39 (State), and 
300.41 (Supplementary aids and services) would be substantively 
unchanged from current regulatory provisions in Sec. Sec.  300.26, 
300.27 and 300.28, respectively, except that State would be revised to 
reference an exception when the term is used in subparts G and H of 
these regulations. Proposed Sec.  300.38(b)(5) would revise the 
definition of vocational education in current Sec.  300.26(b)(5) to 
include the definition of vocational and technical education and the 
definition of vocational and technical education in the Carl D. Perkins 
Vocational and Applied Technology Act of 1988, as amended, 20 U.S.C. 
2301, 2302(29) would be added in proposed Sec.  300.38(b)(6).
    Proposed Sec.  300.42 (Transition services) would revise the 
current regulatory definition of the term in Sec.  300.29, reflecting 
new statutory language in section 602(34) of the Act.
    New proposed definitions would be added in Sec. Sec.  300.43 and 
300.44 reflecting the statutory definitions of Universal design and 
Ward of the State, respectively. The definition of Ward of the State 
underscores that the determination of whether a child is a ward of the 
State is limited to applicable State law. Finally, the current list of 
definitions found in the Education Department General Administrative 
Regulations (EDGAR) in Sec.  300.30 would be removed as unnecessary, as 
these definitions already apply by their own terms, except that the 
definition of Secretary in proposed Sec.  300.37 and State educational 
agency in proposed Sec.  300.40, which are included in the current 
EDGAR list, would be included in the proposed regulation because they 
also are defined in section 602(28) and (32) of the Act.

Subpart B--State Eligibility

General
    Revised subpart B would incorporate current provisions from other 
subparts that, under the current regulations, are cross-referenced in 
subpart B. These changes would be consistent with the statutory 
structure. Some of the provisions that are consolidated in proposed 
subpart B would include: certain provisions related to FAPE, currently 
in subpart C; provisions regarding private school children with 
disabilities, currently in subpart D; the least restrictive environment 
(LRE) provisions, currently in subpart E; and the State complaint 
procedures, currently in subpart F.
    Proposed Sec.  300.100 would revise current Sec.  300.110 to 
provide for the submission of a plan that includes assurances related 
to the conditions of eligibility for assistance. The requirement that 
States submit copies of all State statutes, regulations, and other 
documents would be removed from current Sec.  300.110, consistent with 
the changes in Section 612(a) of the Act. Consistent with this 
approach, these proposed regulations would eliminate from the current 
regulations throughout subpart B all provisions requiring that policies 
and procedures be on file with the Secretary.

FAPE Requirements

    Proposed Sec.  300.101 would incorporate the current general FAPE 
provision in Sec.  300.121(a), and would include a reference to the 
SEA's obligation to make FAPE available to children who have been 
suspended or expelled from school, consistent with proposed Sec.  
300.530(d). Consistent with changes to the statute, the current 
provisions in Sec.  300.121(b) regarding submission of State 
documentation, such as statutes and court orders, would be removed. The 
current provisions in Sec.  300.121(c), regarding FAPE beginning at age 
three, generally would be retained. The current provisions in Sec.  
300.121(e), regarding children advancing from grade to grade, also 
would be retained. These provisions provide useful information on 
appropriate implementation of public agency responsibilities under Part 
B. Section 300.121(d) of the current regulations would not be retained 
in these proposed regulations. Instead, the obligation to ensure the 
right to FAPE for children who have been suspended or expelled from 
school would be addressed in proposed Sec.  300.530(d) in subpart E.
    Proposed Sec.  300.102 would retain the current exceptions to FAPE 
in Sec.  300.122. For consistency with the statute, references to 
``students'' would be changed to ``children.'' The proposed regulation 
would contain a new provision regarding children who are eligible for 
services under section 619 of the Act, but who are receiving early 
intervention services under Part C, consistent with the statutory 
language in section 612(a)(1)(c) of the Act. Proposed Sec.  300.102(b) 
also would include a new provision that would require that information 
regarding exceptions to FAPE be current and accurate. This information 
is necessary for the Department to allocate funds accurately among the 
States.

Other FAPE Requirements

    Proposed Sec. Sec.  300.103, 300.104, and 300.105(b), regarding 
methods and payments; residential placement; and proper functioning of 
hearing aids would retain the provisions from Sec. Sec.  300.301 
through 300.303 of the current regulations, respectively. Proposed 
Sec.  300.105(a), regarding assistive technology, would retain the 
provisions in current Sec.  300.308.
    Proposed Sec. Sec.  300.106 through 300.108, regarding extended 
school year services, nonacademic services, and physical education, 
would retain the current provisions in Sec.  300.309, Sec.  300.306, 
and Sec.  300.307, respectively. Proposed Sec.  300.109, regarding a 
full educational opportunity goal, generally would retain the current 
provisions in Sec. Sec.  300.123 and 300.124, but would combine them, 
consistent with section 612(a)(2) of the Act.
    Proposed Sec.  300.110, regarding program options, would retain the 
current provisions in Sec.  300.305.
    Proposed Sec.  300.111, regarding child find, generally would 
retain the current provisions in Sec.  300.125 and, consistent with 
changes in section 612(a)(3) of the Act, would specifically reference 
children who are homeless or are wards of the State. In addition, 
proposed Sec.  300.111(b) would incorporate the provisions related to 
developmental delay currently in Sec.  300.313(a). The proposed 
regulation would remove the current provisions in Sec.  300.313(b) 
regarding use of individual disability categories and Sec.  300.313(c) 
regarding a common definition of developmental delay as they are 
unnecessary. States have the option of using developmental delay and 
other eligibility categories for children with disabilities aged three 
through nine and subsets of that age range and of using a common 
developmental delay definition for Parts B and C of the Act. The 
proposed regulations generally would retain the current provisions in 
Sec.  300.125(a)(2) and (d), regarding other children included in

[[Page 35787]]

child find and the construction of Part B of the Act as not requiring 
that children be classified by their disability, as long as each child 
who needs special education and related services is regarded as having 
a disability under the Act. Consistent with other changes in these 
regulations to remove eligibility documentation requirements, the 
proposed regulation would remove the provision in Sec.  300.125(b) of 
the current regulations that the State must have policies and 
procedures on file with the Secretary. The proposed regulation also 
would remove the provision in Sec.  300.125(c) of the current 
regulations, regarding child find for children from birth through age 
two when the SEA is the lead agency for the Part C program, because 
this is a clarification that does not need to be in the regulations. 
The child find requirement under these regulations has traditionally 
been interpreted to mean identifying and evaluating children from 
birth. While child find under Part C of the Act overlaps, in part, with 
Part B of the Act, the coordination of child find activities under Part 
B and Part C is an implementation matter that would be best left to 
each State. Nothing in the Act prohibits the Part C lead agency's 
participation, with the agreement of the SEA, in the actual 
implementation of child find activities for infants and toddlers with 
disabilities.
    Proposed Sec.  300.112, regarding individualized education programs 
(IEPs), would revise the current provisions in Sec.  300.128 by adding 
an exception that references the requirement in proposed Sec.  
300.300(b)(3)(ii). That exception would provide that if the parent of a 
child with a disability refuses to consent to the initial provision of 
special education and related services, or the parent fails to respond 
to a request to provide consent for the initial provision of special 
education and related services, the public agency is not required to 
convene an IEP meeting to develop an IEP for the child for which the 
public agency requests such consent. Consistent with other changes in 
these proposed regulations, the proposed regulation would remove Sec.  
300.128(b), which requires the State to have policies and procedures on 
file with the Secretary.

Least Restrictive Environment

    Proposed Sec.  300.114, regarding LRE, generally would retain the 
current provisions in Sec.  300.550(b). The proposed regulation would 
remove the documentation requirements of Sec.  300.130(a) and Sec.  
300.550(a) and (b), consistent with other changes in these proposed 
regulations. The current provision related to an assurance regarding a 
State's funding mechanism in Sec.  300.130(b)(2) would be retained in 
proposed Sec.  300.114(b)(1). This section would provide that a State 
funding mechanism must not result in placements that violate the LRE 
provisions and that the State must not use a funding mechanism that 
distributes funds on the basis of the type of setting in which a child 
is served that will result in the failure to provide a child with a 
disability FAPE according to the unique needs of the child, as 
described in the child's IEP. This change is consistent with language 
in section 612(a)(5)(B)(i) of the Act.
    With regard to section 612(a)(5)(B)(i) of the Act, note 89 in the 
Conf. Rpt. states that some States continue to use funding mechanisms 
that provide financial incentives for, and disincentives against, 
certain placements and these new provisions in the statute were added 
to prohibit States from maintaining funding mechanisms that violate 
appropriate placement decisions, not to require States to change 
funding mechanisms that support appropriate placement decisions. Note 
89 of the Conf. Rpt. indicates that it is the intent of the changes to 
section 612(a)(5)(B) of the Act to prevent State funding mechanisms 
from affecting appropriate placement decisions for children with 
disabilities. As also set out in note 89, the law requires that each 
public agency ensure that a continuum of alternative placements 
(instruction in regular classes, special classes, special schools, home 
instruction, and instruction in hospitals and institutions) is 
available to meet the needs of children with disabilities for special 
education and related services. The note further explains that State 
funding mechanisms must be in place to ensure funding is available to 
support the requirements of this provision, not to provide an incentive 
or disincentive for placement and that the LRE principle is intended to 
ensure that a child with a disability is served in a setting where the 
child can be educated successfully in the least restrictive setting. 
Proposed paragraph (b)(2) would replace Sec.  300.130(b)(2) and require 
a State that does not have policies and procedures to this effect to 
provide an assurance as soon as feasible to ensure that the mechanism 
does not result in placements that violate the LRE principle. The other 
provisions regarding LRE would be retained with appropriate updating of 
cross-references, as described in the following paragraphs.
    Proposed Sec.  300.115, regarding continuum of placements, would 
retain the language currently in Sec.  300.551. Proposed Sec.  300.116, 
regarding placements, would retain the language currently in Sec.  
300.552, except that paragraph (b)(3) would be revised to clarify that 
a child's placement must be as close as possible to the child's home 
unless the parent agrees otherwise. Finally, Sec.  300.116(c) would be 
revised to require that each public agency ensure that, unless the IEP 
of a child with a disability requires some other arrangement, the child 
is educated in the school he or she would attend if not disabled, 
unless the parent agrees otherwise. This additional language, ``unless 
the parent agrees otherwise,'' in paragraphs (b)(3) and (c) would 
clarify that parents can choose to send their child to a charter 
school, magnet school, or other specialized school without causing a 
violation of the LRE mandate.
    Proposed Sec.  300.117, regarding nonacademic settings, would 
retain the current provisions in Sec.  300.553. Proposed Sec.  300.118, 
regarding children in public or private institutions, would retain the 
current provisions in Sec.  300.554.
    Proposed Sec.  300.119, regarding technical assistance and 
training, would retain the current provisions in Sec.  300.555.
    Proposed Sec.  300.120, regarding LRE monitoring activities, would 
retain the current provisions in Sec.  300.556.

Additional Eligibility Requirements

    Proposed Sec.  300.121, regarding procedural safeguards, would 
retain the current provision in Sec.  300.129(a), but would remove the 
provision in Sec.  300.129(b) regarding having the safeguards on file 
with the Secretary, consistent with statutory changes eliminating 
requirements that States file documentation with the Secretary.
    Proposed Sec.  300.122 would remove the current requirement in 
Sec.  300.126 that evaluation policies and procedures be on file with 
the Secretary, consistent with statutory changes discussed previously. 
Consistent with the provision in section 612(a)(7) of the Act, proposed 
Sec.  300.122 would require that children with disabilities be 
evaluated consistent with the requirements in subpart D of these 
proposed regulations. The relevant requirements are addressed elsewhere 
in this preamble in the discussion of subpart D.
    Proposed Sec.  300.123 would remove the current requirement in 
Sec.  300.127 that policies and procedures related to confidentiality 
be on file with the Secretary and the criteria the Secretary uses to 
evaluate those policies and

[[Page 35788]]

procedures, consistent with statutory changes discussed previously. 
Instead, the proposed regulation would require that public agencies 
comply with subpart F of these regulations relating to the 
confidentiality of records and information. The relevant requirements 
are addressed elsewhere in this preamble in the discussion of subpart 
F.
    Proposed Sec.  300.124, regarding the transition of children from 
the Part C program to preschool programs under Part B, would remove the 
current requirement in Sec.  300.132 that policies and procedures 
related to confidentiality be on file with the Secretary, as discussed 
previously. The proposed regulation generally would retain the other 
provisions of Sec.  300.132. Proposed Sec.  300.124(c) would clarify 
that only affected LEAs must participate in transition planning 
conferences arranged by the designated lead agency under Part C of the 
Act.

Children in Private Schools

    Proposed Sec.  300.129, concerning State responsibilities regarding 
children in private schools, would revise the current requirements in 
Sec.  300.133, by removing the requirement that a State must have on 
file with the Secretary policies and procedures that ensure that the 
requirements of current Sec. Sec.  300.400 through 300.403 and current 
Sec. Sec.  300.460 through 300.462 are met. Proposed Sec.  300.129 
would make clear that the State must have in effect policies and 
procedures that ensure that LEAs and, if appropriate, the SEA, meet the 
private school requirements in proposed Sec. Sec.  300.130 through 
300.148.

Children With Disabilities Enrolled by Their Parents in Private Schools

    Proposed Sec.  300.130, regarding the definition of parentally-
placed private school children with disabilities, would incorporate the 
current provisions in Sec.  300.450.
    Proposed Sec.  300.131, regarding child find for parentally-placed 
private school children with disabilities, generally would retain the 
current requirements in Sec.  300.451, but would clarify, consistent 
with the changes in proposed Sec. Sec.  300.132 and 300.133, that the 
provisions governing parentally-placed private school children with 
disabilities apply to children who are enrolled in private schools 
located in the school district served by the LEA. The new statutory 
requirements in section 612(a)(10)(A)(ii) of the Act should ensure that 
parentally-placed private school children will not be denied the 
opportunity to receive services that would otherwise be available to 
them because of practical obstacles posed when they attend a private 
school located outside their district of residence.
    Proposed regulations in Sec.  300.131(b) through (e) also would 
include new provisions that incorporate the new requirements in section 
612(a)(10)(A)(ii) of the Act, designed to ensure that child find for 
parentally-placed private school children suspected of having 
disabilities is comparable to child find for public school children 
suspected of having disabilities. Proposed Sec.  300.131 would require 
that the participation in child find for parentally-placed private 
school children with disabilities be equitable, the counts be accurate, 
the activities undertaken be similar to child find activities for 
public school children with disabilities, and the period for completion 
of the child find process be comparable to the period for completion 
for public school children with disabilities when a parent consents to 
the evaluation. Similar to the current provision in Sec.  300.453(c), 
and consistent with section 612(a)(10)(A)(ii)(IV) of the Act, proposed 
Sec.  300.131(d) would provide that the costs of carrying out the child 
find requirements for parentally-placed private school children with 
disabilities, including individual evaluations, may not be considered 
in determining whether an LEA has met its obligations under proposed 
Sec.  300.133.
    The proposed regulation would remove current Sec.  300.453(d), 
regarding the permissibility of additional services, as it merely 
provides clarification for which a regulation is not necessary. Nothing 
in the Act prohibits SEAs and LEAs from providing other services to 
parentally-placed private school children with disabilities in addition 
to the services that are required under Part B of the Act.
    Proposed Sec.  300.132(a), regarding the provision of services for 
parentally-placed private school children with disabilities, would 
revise current Sec.  300.452(a) in light of changes in section 
612(a)(10)(A) of the Act, which refers to children ``enrolled in 
private elementary schools and secondary schools in the school district 
served by a local educational agency.'' Therefore, proposed Sec.  
300.132(a) would clarify that the provision of services under the 
proposed regulations refers only to children with disabilities enrolled 
by their parents in private schools located in the school district 
served by the LEA. The proposed regulation also would add a reference 
to the by-pass provisions in proposed Sec. Sec.  300.190 through 
300.198. Proposed Sec.  300.132(b) generally would retain current Sec.  
300.452(b), regarding a services plan for each private school child 
with a disability designated to receive special education and related 
services under Part B. Proposed Sec.  300.132(c) would require each LEA 
to maintain and provide to the SEA records on the number of private 
school children with disabilities evaluated, the number determined to 
be children with disabilities, and the number of private school 
children with disabilities served, consistent with section 
612(a)(10)(A)(i)(V) of the Act.
    Proposed Sec.  300.133, regarding expenditures for providing 
special education and related services to parentally-placed private 
school children with disabilities, would revise current Sec.  
300.453(a), regarding the formula used in determining the proportionate 
amount of expenditures, in light of changes in section 
612(a)(10)(A)(i)(II) of the Act. Proposed Sec.  300.133(a) would 
provide that the calculation of the proportionate amount of funds 
allocated for services for parentally-placed private school children be 
based on the count of parentally-placed private school children 
attending private schools located in the LEA. The proposed regulation 
would establish the formula as the number of children with 
disabilities, ages 3 through 21, who are enrolled by their parents in 
private schools located in the school district served by the LEA, 
divided by the total number of children with disabilities, ages 3 
through 21, in the LEA's jurisdiction. Proposed Sec.  300.133(b) would 
incorporate the provision in section 612(a)(10)(A)(i)(II) of the Act 
regarding a thorough and complete child find process. Proposed Sec.  
300.133(c), regarding child count, generally would retain the current 
provision in Sec.  300.453(b), but for clarity, would use the term 
parentally-placed private school children with disabilities. The 
existing provision in Sec.  300.453(c) would be removed, as similar 
content would be more fully addressed in proposed Sec.  300.131(d). 
Proposed Sec.  300.133(d) would incorporate the statutory provision 
regarding supplementing not supplanting in section 612(a)(10)(A)(i)(IV) 
of the Act.
    Proposed Sec. Sec.  300.134 and 300.135 would incorporate new 
provisions in section 612(a)(10)(A)(iii) and (iv) of the Act, regarding 
timely and meaningful consultation with private school representatives 
and representatives of parents of parentally-placed private school 
children with disabilities, including a discussion of: How parentally-
placed children identified through the child find process can 
meaningfully participate; how, where, and by whom special education and 
related services will be provided; and

[[Page 35789]]

how, if the LEA disagrees with the views of the private school 
officials and the services to be provided, the LEA will provide a 
written explanation of why the LEA chose not to provide services 
directly or through a contract. Proposed Sec.  300.135 would require, 
in accordance with section 612(a)(10)(A)(iv) of the Act, a written 
affirmation signed by the representatives of the participating private 
schools that timely and meaningful consultation has occurred. The 
current provisions in Sec.  300.454(b)(1) through (3), regarding the 
consultation process, would be removed because they were superceded by 
new statutory requirements related to consultation in section 
612(a)(10)(A)(v) of the Act.
    Proposed Sec.  300.136, regarding the right of a private school 
official to submit to the SEA a complaint related to the LEA's 
compliance with the timely and meaningful consultation requirements, 
would incorporate the new provisions in section 612(a)(10)(A)(v) of the 
Act.
    Proposed Sec.  300.137(b) and (c), regarding determination of 
services to parentally-placed private school children with 
disabilities, generally would retain the current provisions in Sec.  
300.454(a), (b)(4), and (c). Proposed Sec.  300.137(a) also would 
include language from current Sec.  300.455(a)(3), providing that a 
parentally-placed private school child with a disability has no 
individual entitlement to receive some or all of the special education 
and related services that the child would receive if enrolled in a 
public school. This is an important clarification of the different 
responsibilities that public schools have for providing special 
education and related services to parentally-placed private school 
children with disabilities. Under the Act, LEAs have an obligation to 
provide the group of parentally-placed private school children with 
disabilities with equitable participation in the services funded with 
Federal IDEA funds. Because Federal funding constitutes only a portion 
of the excess costs of providing special education and related services 
to a child with disabilities, LEAs, in consultation with 
representatives of the private schools, will have to make decisions 
about how best to use the available Federal funds to address the needs 
of the parentally-placed private school children with disabilities as a 
group. In some LEAs, geography, school location, and the needs of the 
parentally-placed private school children with disabilities may make it 
possible for most, or even all of those children to receive some 
services under section 612(a)(10)(A) of the Act. In other cases, the 
Federal funds available may not be sufficient to provide all of these 
children with special education and related services. Decisions about 
how best to use the available Federal funds to ensure equitable 
participation of the group of parentally-placed private school children 
with disabilities are left to LEA personnel, in consultation with the 
private school representatives, who understand what is feasible and 
appropriate in particular situations.
    Proposed Sec.  300.138, regarding equitable services provided to 
parentally-placed private school children with disabilities, would 
retain the current provisions in Sec.  300.455(a)(1) and (2), and (b), 
regarding standards for personnel who provide services to parentally-
placed private school children, different amounts of services that may 
be provided to parentally-placed private school children as compared 
with those provided to children in public schools, and the provision of 
services for each parentally-placed private school child who has been 
designated to receive services in accordance with a services plan. The 
proposed regulation also would include language from section 
612(a)(10)(A)(vi) of the Act, which provides that the special education 
and related services be provided directly by employees of the public 
agency or through contract and that special education and related 
services, including materials and equipment, be secular, neutral and 
nonideological.
    Proposed Sec.  300.139, regarding the location of services and 
transportation, generally would retain the current provisions in Sec.  
300.456 that clarify that LEAs may provide special education and 
related services funded under Part B of the Act on site at the private, 
including religious, schools to the extent consistent with law. It 
should be noted that LEAs should provide such services for parentally-
placed private school children with disabilities on site at their 
school, unless there is a compelling rationale for these services to be 
provided off site.
    Proposed Sec.  300.140, regarding the unavailability of due process 
complaints, except for child find and the availability of State 
complaints, would retain the current provisions in Sec.  300.457. 
Proposed Sec.  300.140(b) would clarify that the State complaint 
procedures would be used to address complaints about the implementation 
of the consultation process in proposed Sec.  300.134. Proposed Sec.  
300.141, regarding the requirement that funds not benefit a private 
school, would retain the current provisions in Sec.  300.459. Proposed 
Sec.  300.142 would combine the requirements of current Sec. Sec.  
300.460 and 300.461 regarding the use of public school personnel and 
private school personnel. Proposed Sec.  300.143, regarding the 
prohibition of separate classes, would retain the requirements in 
current Sec.  300.458.
    Proposed Sec.  300.144 would incorporate provisions in section 
612(a)(10)(A)(vii) of the Act regarding property, equipment, and 
supplies for the benefit of private school children with disabilities 
and would replace the current provisions in Sec.  300.462(a). The 
proposed regulation would retain the current provisions in Sec.  
300.462(b) through (e).

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

    Proposed Sec. Sec.  300.145, 300.146, and 300.147, regarding 
children with disabilities placed in or referred to private schools by 
public agencies, generally would retain the current provisions in 
Sec. Sec.  300.400, 300.401, and 300.402, which provide that children 
so placed or referred receive special education and related services in 
conformity with an IEP at no cost to the parents. This would be 
consistent with the requirement in section 612(a)(10)(B)(ii) of the 
Act, which provides that the SEA determine whether such private schools 
meet the standards that apply to the SEA and LEAs and that children 
served have all the rights the children would have if served by these 
agencies. Proposed Sec.  300.146(b) would continue to provide that 
publicly-placed children with disabilities be provided an education 
that meets the standards that apply to education provided by the SEA 
and LEAs, including the requirements of part 300, except for the 
requirements of Sec. Sec.  300.18 and 300.156(c). This provision is 
intended to ensure that children with disabilities who are publicly-
placed in or referred to a private school or facility as a means of 
providing these children with special education and related services 
would continue to retain the same right to FAPE that they would have if 
served directly by a public agency. However, because of statutory 
language in the ESEA that the requirements regarding highly qualified 
teachers apply only to public school teachers, as well as related 
language in section 602(10) of the Act and proposed Sec.  300.18, we do 
not read proposed Sec.  300.146(b) as requiring teachers of children 
with disabilities who are placed in or referred to private schools by a 
public agency to meet either the

[[Page 35790]]

``highly qualified teacher'' standard in the ESEA or the ``highly 
qualified special education teacher'' standard in the Act. Proposed 
Sec.  300.147, regarding implementation by the SEA, would incorporate, 
without change, the provisions in current Sec.  300.402.

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

    Proposed Sec.  300.148, relating to placement of children with 
disabilities in private schools when the provision of FAPE is at issue, 
generally would retain the current provisions in Sec.  300.403(a), (c), 
and (d). Proposed Sec.  300.148 would remove, as unnecessary, language 
currently in Sec.  300.403(b), which provides that disagreements 
regarding the availability of an appropriate program for the child and 
the question of financial responsibility are subject to due process 
procedures. Disputes about these matters would be subject to the due 
process procedures even without this provision, because the central 
issue in such disputes is whether the public agency has made FAPE 
available to the child. Consistent with statutory language, proposed 
Sec.  300.148(b) would include the term ``school'' after 
``elementary.'' Proposed Sec.  300.148(d) would modify current Sec.  
300.403(e), based on the specific provisions in section 
612(a)(10)(C)(IV) of the Act.
    The current provision on documentation of SEA responsibility for 
general supervision in Sec.  300.141(a) and (b) would be removed 
consistent with statutory changes regarding documentation. Proposed 
Sec.  300.149, regarding SEA responsibility for general supervision, 
would replace current Sec.  300.600(a) and incorporate language in 
section 612(a)(11) of the Act to include a new provision referencing 
the requirements of subtitle B of title VII of the McKinney-Vento 
Homeless Assistance Act, 42 U.S.C. 11431. We also are adding a phrase 
to Sec.  300.149(a)(2) to clarify that the SEA is not responsible for 
exercising general supervision for education programs for children with 
disabilities in elementary schools and secondary schools for Indian 
children operated or funded by the Secretary of the Interior. Current 
Sec.  300.600(b) also would be removed as a result of statutory changes 
regarding submission of State information.
    New language referencing the State monitoring and enforcement 
responsibilities in proposed Sec. Sec.  300.602 and 300.606 through 
300.608 would be added in Sec.  300.149(b) because State monitoring and 
enforcement are central to the SEA's exercise of general supervision. 
Proposed Sec.  300.149(c) and (d) respectively, would incorporate 
current Sec.  300.600(c), clarifying that Part B does not limit the 
responsibility of agencies other than educational agencies to provide 
or pay for some or all of the cost of FAPE and Sec.  300.600(d), 
regarding the ability of a Governor or other individual to assign to a 
public agency, other than the SEA, responsibility for ensuring that the 
requirements of Part B are met for students with disabilities convicted 
as adults and incarcerated in adult prisons. As a general matter, for 
educational purposes, students who had been enrolled in a BIA funded 
school and are subsequently convicted as an adult and incarcerated in 
an adult prison are the responsibility of the State where the adult 
prison is located. The Secretary is seeking comment on whether further 
clarification on this issue is warranted.
    Proposed Sec.  300.150 would incorporate language from current 
Sec.  300.143 regarding SEA implementation of procedural safeguards, 
with a revision. Consistent with other changes to remove State 
documentation requirements, proposed Sec.  300.150 would require States 
to have policies in effect, rather than on file with the Department. 
The cross-reference also would be updated. Current Sec.  300.145, 
regarding recovery of funds for misclassified children, would be 
removed. Under section 611 of the Act, funds are no longer distributed 
based on a count of the children with disabilities served in a given 
fiscal year.

State Complaint Procedures

    In 1992, the Department moved these procedures into part 300 from 
34 CFR 76.780 through 76.782 based on a decision to place the complaint 
procedures into the specific program regulations to which they relate. 
Proposed Sec.  300.151, regarding the adoption of State complaint 
procedures, would incorporate the current provisions in Sec.  300.660, 
with one substantive change. Proposed Sec.  300.151(b)(1) would remove 
the reference to monetary reimbursement, so as not to imply that 
reimbursement would be appropriate in the majority of State complaints. 
Proposed Sec.  300.152, regarding minimum State complaint procedures, 
would retain the current provisions in Sec.  300.661, with several 
changes. Proposed Sec.  300.152(a)(3) would be added in order to 
incorporate into the State complaint procedures an opportunity for a 
public agency to respond to a complaint, including a chance to make a 
proposal to resolve the complaint, and, with the consent of the parent, 
to engage the parent in mediation or other alternative means of dispute 
resolution. This change would encourage meaningful informal resolution 
of disputes between the parties to the dispute. Proposed Sec.  
300.152(b)(1) would add a provision that would allow extensions of the 
60-day time limit if the parties agree to extend the timelines so that 
they can engage in mediation or other alternative means of dispute 
resolution. This change is intended to support cooperative dispute 
resolution efforts, and not to result in uniform extensions. Proposed 
Sec.  300.152(c)(1) would revise the language in current Sec.  
300.661(c)(1) to provide a simplified process for setting aside 
complaints that also are the subject of a due process hearing, which 
should aid State implementation of the State complaint process. 
Finally, current Sec.  300.661(c)(3) regarding a complaint involving a 
public agency's failure to implement a due process decision would be 
removed. The enforcement and implementation of due process hearing 
decisions are matters in the province of State and Federal courts.
    Proposed Sec.  300.153, regarding the filing of a complaint, would 
retain the current provisions in Sec.  300.662, with some changes. 
Proposed Sec.  300.153(b)(3) and (4) would add new information 
requirements for complaints, similar to the basic notice requirement 
for filing a due process complaint, in order to give the public agency 
the information that would allow it to attempt to resolve the complaint 
at the earliest opportunity. Proposed Sec.  300.153(c) would revise the 
language in current Sec.  300.662(c) to require that the complaint must 
allege a violation that occurred not more than one year prior to the 
date the complaint is received, removing references to longer periods 
for continuing violations and for compensatory services claims, to 
ensure expedited resolution for public agencies and children with 
disabilities. A one-year timeline is reasonable, and will assist in 
smooth implementation of the State complaint procedures. Finally, 
proposed Sec.  300.153(d) would add a new requirement that the party 
filing a complaint forward a copy to the public agency involved at the 
same time as the party files the complaint with the SEA. This will 
ensure that the public agency involved has knowledge of the issues 
raised, and an opportunity to resolve them directly with the 
complaining party.

Methods of Ensuring Services

    Proposed Sec.  300.154, regarding methods of ensuring services, 
generally would retain the current provisions in Sec.  300.142. 
Consistent with changes in section 612(a)(11) of the Act, the proposed 
regulation would clarify in Sec.  300.154(b)(1)(i), that a public 
agency

[[Page 35791]]

may fulfill its obligation to ensure FAPE either directly or through 
contracts or other arrangements pursuant to Sec.  300.154(a) or (c). 
Likewise, the proposed regulation would clarify, in Sec.  
300.154(b)(2), that the LEA or State agency is authorized to claim 
reimbursement and, in Sec.  300.154(c)(3), that other appropriate 
written methods also must be approved by the Secretary. Consistent with 
statutory changes regarding submission of State information, the 
proposed regulation would remove the current regulatory language in 
Sec.  300.142(d), that the State have on file with the Secretary, 
information to demonstrate that the requirements of this regulation are 
met. However, as reflected in proposed Sec.  300.704(a)(3), section 
611(e)(1)(C) of the Act requires that States certify to the Secretary 
that agreements to establish responsibility for services are current 
before the State may expend section 611 funds for State administration.
    Proposed Sec.  300.154(d)(2)(iv) would include a new provision that 
to access the parent's public insurance proceeds, the public agency 
must obtain parental consent, in accordance with proposed Sec.  300.622 
the first time that access is sought, and notify parents that refusal 
to allow access to their public insurance does not relieve the public 
agency of its responsibility to ensure that all required services are 
provided at no cost to the parents. Under Part B of the Act, special 
education and related services, as well as supplementary aids and 
services and supports that an IEP Team determines a child with a 
disability needs in order to receive FAPE, must be provided at no cost 
to the parents or the child. Use of a parent's insurance often imposes 
costs to the parent that are not, and often cannot be known at the time 
the costs are billed to the insurance provider. Under the Family 
Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g (FERPA), a 
child's records cannot be released without parental consent, except for 
a few specified exceptions. No FERPA exception permits public agencies 
to release educational records for insurance billing purposes without a 
parent's consent. We must ensure that a parent consents to the release 
of a child's records for that purpose and that the parents are informed 
that refusing to give consent to the release of education records for 
that purpose will not prevent a child from receiving the services that 
are in the child's IEP.
    Proposed Sec.  300.154(e) would retain the current requirements 
regarding children with disabilities who are covered by private 
insurance. Proposed Sec.  300.154(f), (g), and (h), respectively, 
regarding use of Part B funds, proceeds from public and private 
insurance, and construction are essentially the same as paragraphs (g), 
(h), and (i) of Sec.  300.142 of the current regulations.

Additional Eligibility Requirements

    Proposed Sec.  300.155, regarding hearings for LEA eligibility, 
would remove the current requirements in Sec.  300.144 that States have 
procedures on file with the Secretary, but generally would retain the 
requirement that States have procedures to give an LEA notice and an 
opportunity for a hearing prior to a final determination that it is not 
eligible for funds under Part B.
    Current Sec. Sec.  300.135 and 300.136, regarding a comprehensive 
system of personnel development and personnel standards, would be 
removed consistent with the statutory removal of these provisions in 
the Act (see section 612(a)(14) and (15) of the Act in effect before 
December 3, 2004) relating to the comprehensive system of personnel 
development and personnel standards.
    Proposed Sec.  300.156, regarding personnel qualifications, would 
include the statutory provisions related to States' establishment and 
maintenance of personnel qualifications for special education teachers 
that align Part B of the Act with the highly qualified teacher 
provisions in section 1119(a)(2) of the ESEA; and also address 
personnel qualifications for related services providers and 
paraprofessionals. As provided in note 21 of the Conf. Rpt., the 
incorporated provisions require that special education teachers obtain 
full State certification as special education teachers, but it does not 
prevent regular education and other teachers who are highly qualified 
in particular subjects from providing instruction in core academic 
subjects to children with disabilities in those subjects. For example, 
a reading specialist who is highly qualified in reading instruction, 
but who is not certified as a special education teacher, would not be 
prohibited from providing reading instruction to children with 
disabilities. Proposed Sec.  300.156(a) contains the general 
requirement that a State's qualifications ensure that personnel 
carrying out the purposes of part 300 are appropriately and adequately 
prepared and trained, including that those personnel have the content 
knowledge and skills to serve children with disabilities.
    Proposed Sec.  300.156(b) would incorporate the provisions in 
section 612(a)(14)(B) of the Act regarding personnel qualifications for 
related services providers and paraprofessionals. This would include 
the requirement that the State's standards must ensure that related 
services personnel and paraprofessionals meet qualifications that are 
consistent with any State-approved or recognized certification, 
licensing, registration or other comparable requirements for their 
professional discipline. These procedures also must ensure that related 
services personnel who deliver services meet applicable qualification 
standards and have not had certification or licensure requirements 
waived on an emergency, temporary, or provisional basis. Proposed Sec.  
300.156(b) reflects the comment in note 97 of the Conf. Rpt. that the 
current regulations requiring related services providers to meet the 
highest State standard applicable to their profession across all State 
agencies have established an unreasonable standard for SEAs to meet, 
and as a result, have led to a shortage of the availability of related 
services for students with disabilities. Conferees intended for SEAs to 
establish rigorous qualifications for related services providers to 
ensure that students with disabilities receive the appropriate quality 
and quantity of care. SEAs are encouraged to consult with LEAs, other 
State agencies, the disability community, and professional 
organizations to determine the appropriate qualifications for related 
services providers, including the use of consultative, supervisory, and 
collaborative models to ensure that students with disabilities receive 
the services described in their individual IEPs. To that end, proposed 
Sec.  300.156(b)(2)(iii), similar to the current regulation in Sec.  
300.136(f), generally would permit States to allow paraprofessionals 
and assistants who are appropriately trained and supervised to assist 
in providing special education and related services under Part B of the 
Act to children with disabilities.
    Proposed Sec.  300.156(c) would incorporate the new requirement in 
section 612(a)(14)(C) of the Act that all special education teachers be 
highly qualified by the deadline established in the ESEA (the end of 
the 2005-2006 school year). It would also specify that this requirement 
applies only to public school special education teachers, in light of 
the statutory definition of ``highly qualified'' in section 602(10) of 
the Act. Proposed Sec.  300.156(d) would include the statutory 
authorization for a State to adopt a policy requiring LEAs to take 
measurable steps to recruit, hire, train, and retain highly qualified 
personnel.
    Proposed Sec.  300.156(e) would incorporate the language in section 
612(a)(14)(E) of the Act, regarding the

[[Page 35792]]

rule of construction that these provisions do not create a right of 
action on behalf of an individual student for the failure of a 
particular SEA or LEA staff person to be highly qualified or prevent a 
parent from filing a State complaint with the SEA about staff 
qualifications under Sec. Sec.  300.151 through 300.153 of the proposed 
regulations.
    Proposed Sec.  300.157, regarding performance goals and indicators, 
would revise the current Sec.  300.137, consistent with the revised 
provisions in section 612(a)(15) of the Act. Proposed Sec.  
300.157(a)(2) would include a new provision that aligns the goals and 
indicators with the State's definition of adequate yearly progress, 
including progress by children with disabilities, under section 
1111(b)(2)(C) of the ESEA. Proposed Sec.  300.157(a)(3) would retain 
the current provision in Sec.  300.137(b), that public agencies must 
address graduation and dropout rates. In order to conform to the 
language in section 612(a)(15) of the Act, the proposed regulation 
would contain the following changes: proposed Sec.  300.157(a)(4) would 
remove from the current provision in Sec.  300.137(a)(2), the term 
``maximum'' before ``extent appropriate'' and add the word ``any'' 
before ``other goals and standards for all children established by the 
State.'' Likewise, proposed Sec.  300.157(b) would remove from the 
current provision in Sec.  300.137(b), the words appearing after the 
word, ``achieving'' and add, in their place, the words, ``the goals 
described in paragraph (a) of this section, including measurable annual 
objectives for progress by children with disabilities under section 
1111(b)(2)(C)(v)(II)(cc) of the ESEA; and''. Proposed Sec.  300.157(c) 
would change the requirement for reporting to the public and to the 
Secretary in current Sec.  300.137(c) from every two years to annually 
and would provide that elements of the report under section 1111(h) of 
the ESEA may be included in the annual report under Part B of the Act.
    Proposed Sec.  300.160, regarding participation in assessments, 
would replace Sec. Sec.  300.138 and 300.139 of the current regulations 
and would incorporate the changes in section 612(a)(16) of the Act. For 
reasons of burden reduction described throughout this preamble, the 
proposed regulation would remove the current requirement in Sec.  
300.138 that the State have information on file with the Secretary.
    Consistent with language in section 613(a)(16) of the Act, proposed 
Sec.  300.160(a) would add to the current provision in Sec.  300.138(a) 
the word ``all'' before the word ``children'', and before the phrase 
``general State and districtwide assessment programs'' and would 
clarify that this requirement includes assessments described in section 
1111 of the ESEA. Proposed Sec.  300.160(a) also would remove, from the 
current provision in Sec.  300.138(a), ``modifications in 
administration'' and add, in its place, ``alternate assessments'' and 
would add after the word ``necessary'', the words, and ``as indicated 
in their respective IEPs.''
    Proposed Sec.  300.160(b) would require that States, (or, in the 
case of districtwide assessments, LEAs) develop guidelines for 
providing appropriate accommodations in assessments. Proposed Sec.  
300.160(c)(1) would address guidelines for participation in alternate 
assessments for those children who cannot participate in regular 
assessments as indicated in their IEPs. Proposed Sec.  300.160(c)(2) 
would include a provision that, in the case of assessments of student 
academic progress, alternate assessments and guidelines under proposed 
Sec.  300.160(c)(1) are aligned with the State's challenging academic 
content and challenging student academic achievement standards or the 
alternate achievement standards, if adopted under the regulations 
implementing section 1111(b)(1) of the ESEA. Proposed Sec.  
300.160(c)(3) would require that the State conduct the alternate 
assessments described in section 1111(b)(1) of the ESEA.
    Proposed Sec.  300.160(d) would incorporate the requirement in 
section 612(a)(16)(D) of the Act for the SEA, in the case of a 
statewide assessment, and the LEA, in the case of a districtwide 
assessment, to report to the public on the assessment of children with 
disabilities with the same frequency and in the same detail that it 
reports on the assessment of nondisabled children, and replace the 
current requirements in Sec.  300.139.
    Proposed Sec.  300.160(e) would incorporate the new requirement in 
section 612(a)(16)(E) of the Act that the SEA, in the case of statewide 
assessments, and the LEA, in the case of districtwide assessments, to 
the extent possible, use universal design in developing and 
implementing assessments.
    Consistent with section 612(a)(17) of the Act, the current 
provisions in Sec.  300.155, regarding use of funds; Sec.  300.152, 
regarding non-commingling; and Sec.  300.153, regarding State-level 
nonsupplanting, would be combined into proposed Sec.  300.162. The 
proposed regulation generally would retain the requirements that Part B 
funds be expended in accordance with Part B of the Act, that Part B and 
State funds not be commingled, and that Part B funds be used to 
supplement, and in no case to supplant other Federal, State, and local 
funds expended for special education and related services. Consistent 
with statutory changes discussed previously, the proposed regulation 
would eliminate the current provision in Sec.  300.155, that States 
have policies and procedures on file with the Secretary; would replace 
the current provisions in Sec.  300.152(a), that States provide the 
Secretary an assurance; and would replace the current provision in 
Sec.  300.153(a)(2), that the State have information on file with the 
Secretary demonstrating compliance with the use of Part B funds to 
supplement and not supplant, with straightforward statements of the 
statutory requirements. These changes would be consistent with changes 
in section 612(a) of the Act regarding State submission of information. 
Proposed Sec.  300.162(b)(2) would retain the current provision in 
Sec.  300.152(b) clarifying that use of a separate accounting system 
including an audit trail of expenditures of Part B funds would satisfy 
the prohibition on commingling.
    Proposed Sec.  300.162(c)(1) would retain the current provision in 
Sec.  300.153(a)(1), regarding the basic non-supplanting requirement. 
Proposed Sec.  300.162(c)(2) would retain the current provision in 
Sec.  300.153(b), regarding the Secretary's ability to waive, in whole 
or in part, the State-level nonsupplanting requirement if the State 
provides clear and convincing evidence regarding the availability of 
FAPE to all children with disabilities. This waiver would be addressed 
further in proposed Sec.  300.164.
    Proposed Sec.  300.163 generally would retain the current 
provisions in Sec.  300.154, regarding maintenance of State financial 
support. However, consistent with the language in section 612(a) of the 
Act, the proposed regulation would eliminate the provision regarding 
information that States must have on file with the Secretary 
demonstrating, 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.
    Proposed Sec.  300.164, regarding waiver of the requirement 
regarding supplementing and not supplanting Part B funds, would retain 
the current provisions in Sec.  300.589, except that to reduce 
regulatory burden, proposed Sec.  300.164(c)(4) would reduce the number 
of entities with which a State must consult when determining that FAPE 
is currently available to all

[[Page 35793]]

eligible children with disabilities in the State, and eliminate the 
requirement for a summary of the input of the entities consulted.
    Proposed Sec.  300.165(a) would incorporate the language in section 
612(a)(19) of the Act regarding public participation in the adoption of 
policies and procedures to implement Part B of the Act, which is the 
same as the current provision in Sec.  300.148(a)(1). Current Sec.  
300.148(a)(2) and (b), regarding alternate ways of meeting the public 
participation requirement and the requirement that the State 
documentation be on file with the Secretary, would be removed. The 
current provisions in Sec. Sec.  300.280 through 300.284 regarding 
public participation also would be removed. Removing the requirement 
for States to submit extensive documentation to the Secretary on how 
the public participation requirements are met should reduce regulatory 
burden on States. States are required to comply with the public 
participation requirements of the General Education Provisions Act, in 
20 U.S.C. 1232d(b)(7), as provided for in proposed Sec.  300.165(b), as 
well as State-specific requirements, in adopting policies and 
procedures relating to Part B of the Act, which should provide 
sufficient opportunities for public participation.
    Proposed Sec.  300.166 would incorporate the language in section 
612(a)(20) of the Act, regarding the rule of construction on use of 
Federal funds to satisfy State-mandated funding of obligations to LEAs 
for purposes of complying with proposed Sec. Sec.  300.162 and 300.163.

State Advisory Panel

    Proposed Sec.  300.167, regarding State advisory panels, would 
incorporate the provisions in section 612(a)(21)(A) of the Act and 
would remove from current Sec.  300.650, language regarding information 
on file with the Secretary. The proposed regulation also would remove 
the provision from current Sec.  300.650 permitting modification of 
existing advisory panels to be consistent with section 612(a)(21)(A) of 
the Act.
    Proposed Sec.  300.168, regarding the membership of State advisory 
panels, generally would retain the current provisions in Sec.  300.651. 
In addition, proposed Sec.  300.168(a)(5) and (10), would incorporate 
the statutory references to officials who carry out activities under 
subtitle B of title VII of the McKinney-Vento Homeless Assistance Act, 
42 U.S.C. 11431 et seq., and a representative from the State child 
welfare agency responsible for foster care, respectively. Consistent 
with the Act, proposed Sec.  300.168(b) would include a provision in 
the special rule that clarifies that for panel membership a majority of 
the members of the panel must be individuals with disabilities or 
parents of children with disabilities (ages birth through 26).
    Proposed Sec.  300.169, regarding duties of the advisory panel, 
generally would retain the current provisions of Sec.  300.652, except 
that the current language in Sec.  300.652(b), regarding advising on 
eligible students with disabilities in adult prisons, would be removed. 
Given the breadth of its statutory responsibilities, nonstatutory 
mandates on the State advisory panels would be removed.
    To provide greater flexibility for States in the operations of 
advisory panels, the current provision in Sec.  300.653, regarding 
procedures of the advisory panel, would be removed.

Other Provisions Required for State Eligibility

    Proposed Sec.  300.170, regarding suspension and expulsion rates, 
would retain most of the current provisions in Sec.  300.146, but would 
remove the language that the States have information on file with the 
Secretary, consistent with statutory changes on State submission of 
information. In addition, consistent with section 612(a)(22) of the 
Act, proposed Sec.  300.170(b) would replace, from the current Sec.  
300.146(b), ``behavioral interventions'' with ``positive behavioral 
interventions and supports.''
    Proposed Sec.  300.171, regarding the annual description of the use 
of Part B funds, would clarify the current Sec.  300.156(a)(1) that 
addresses the amounts retained for State administration and State-level 
activities, generally would retain the current provisions in Sec.  
300.156(a)(2) and (b), and would remove the current provision in Sec.  
300.156(c) regarding percentages distributed to LEAs since this 
information does not assist the Department in determining whether an 
SEA is complying with Part B of the Act in this regard. Proposed Sec.  
300.171 also would add a new paragraph (c) to clarify that, based on 
section 611(g)(2) of the statute, the provisions of this section do not 
apply to the Virgin Islands, Guam, American Samoa, the Commonwealth of 
the Northern Mariana Islands, and the freely associated States.
    Proposed Sec.  300.172, regarding access to instructional 
materials, would incorporate the new language in section 612(a)(23) of 
the Act regarding the timely provision of instructional materials to 
blind persons or other persons with print disabilities. Proposed Sec.  
300.172 uses ``persons'' to conform to the language in the Act. 
However, in the context of this regulatory provision, ``persons'' means 
``children.'' Proposed Sec.  300.172(a) would repeat the requirement 
from section 612(a)(23)(A) of the Act that the State must adopt the 
National Instructional Materials Accessibility Standard (NIMAS) in a 
timely manner after its publication in the Federal Register by the 
Department. The NIMAS will be the subject of a separate rulemaking 
process. In that proposed rulemaking document, we will propose to add 
the NIMAS to part 300 as an appendix.
    Proposed Sec.  300.172(b) would incorporate the provision in 
section 612(a)(23)(B) of the Act that a State is not required to 
coordinate with the National Instructional Materials Accessibility 
Center (NIMAC) and the requirements that apply if an SEA chooses not to 
coordinate with the NIMAC. Proposed Sec.  300.172(b)(3) would provide 
that nothing in this section would relieve an SEA of its responsibility 
to ensure that children with disabilities who need instructional 
materials in accessible formats, but who do not fall within the 
category of children for whom the SEA may receive assistance from 
NIMAC, receive those instructional materials in a timely manner. Timely 
access to appropriate and accessible instructional materials is an 
inherent component of public agencies' obligations under the Act to 
ensure that FAPE is available for children with disabilities and that 
they participate in the general education curriculum as specified in 
their IEPs. The provisions in section 612(a)(23) of the Act will assist 
SEAs in carrying out that responsibility for most children with 
disabilities who need accessible instructional materials. Section 
674(e)(3)(A) of the Act limits the authority of the NIMAC to provide 
assistance to SEAs and LEAs in acquiring instructional materials for 
children who are blind, have visual disabilities, are unable to read or 
use standard printed materials because of physical limitations, and 
children who have reading disabilities that result from organic 
dysfunction, as provided for in 36 CFR Sec.  701.10(b). Clearly, SEAs 
and LEAs that choose to use the services of the NIMAC will be able to 
assist blind persons or other persons with print disabilities who need 
accessible instructional materials through this mechanism. However, 
SEAs and LEAs still have an obligation to provide accessible 
instructional materials in a timely manner to other children with 
disabilities, who also may need accessible materials even though SEAs

[[Page 35794]]

and LEAs may not receive assistance for these children from NIMAC.
    Proposed paragraph Sec.  .172(c) would incorporate the provision in 
section 612(a)(23)(C) of the Act regarding preparation and delivery of 
files if an SEA chooses to coordinate with the NIMAC.
    In accordance with section 612(a)(23)(D) of the Act, Sec.  
300.172(d) would require an SEA, to the maximum extent possible, to 
collaborate with the State agency responsible for assistive technology 
programs. Proposed Sec.  300.172(e) contains, in accordance with 
section 612(a)(23)(E) of the Act, definitions of blind persons or other 
persons with print disabilities, NIMAC, NIMAS, and specialized formats.
    Proposed Sec.  300.173, regarding State policies and procedures 
designed to prevent inappropriate overidentification and 
disproportionality, would incorporate the new provision in section 
612(a)(24) of the Act. This proposed regulation would require the State 
to have in effect, consistent with section 618(d) of the Act, policies 
and procedures to prevent the inappropriate overidentification or 
disproportionate representation by race and ethnicity of children as 
children with disabilities, including children with disabilities with a 
particular impairment.
    Proposed Sec.  300.174 would incorporate the new provision in 
section 612(a)(25) of the Act and would prohibit State and LEA 
personnel from requiring parents to obtain prescriptions for controlled 
substances for a child as a condition of the child's school attendance, 
the child's receipt of a Part B evaluation, or the child's receipt of 
services. Proposed paragraph Sec.  300.174(b) would contain the 
statutory rule of construction in section 612(a)(25)(B) of the Act and 
would clarify that this provision does not create a Federal prohibition 
against teachers and other school personnel consulting or sharing with 
parents their observations on the student's functional or academic 
performance, and behavior in the classroom or school, or the child's 
possible need for an initial evaluation for special education and 
related services.
    Proposed Sec.  300.175, regarding the SEA as provider of FAPE or 
direct services, generally would retain the current provisions in Sec.  
300.147. The proposed regulation would remove the provision that States 
must have information on file with the Secretary demonstrating that 
they meet these requirements, consistent with statutory changes 
discussed previously.
    Consistent with the statutory changes, proposed Sec.  300.176, 
regarding exceptions for prior State plans and modifications to the 
plans, generally would combine and retain the current provisions in 
Sec. Sec.  300.111 and 300.112, with some minor changes. The date in 
proposed Sec.  300.176(a) would be changed to December 3, 2004, the 
date on which the Act was signed into law. Consistent with the statute, 
proposed Sec.  300.176(b)(1) would revise the current language from 
``State decides are necessary'' to ``State determines necessary.'' 
Consistent with the Act, proposed Sec.  300.176(b)(2) would replace 
references to ``policies and procedures'' with ``application'' and 
``original'' State plan. Consistent with the Act, proposed Sec.  
300.176(c)(1) would reference December 3, 2004, the date on which the 
Act was signed into law.

Department Procedures

    Proposed Sec.  300.178, regarding the Secretary's determination of 
State eligibility to receive a grant, would retain the current 
requirements in Sec. Sec.  300.113(a) and 300.580.
    Proposed Sec.  300.179, regarding notice and hearing before 
determining a State is not eligible to receive a grant, would retain 
the current requirements in Sec. Sec.  300.113(b) and 300.581.
    Proposed Sec.  300.180, regarding the hearing official or panel, 
would retain the current requirements in Sec.  300.582.
    Proposed Sec.  300.181, regarding the hearing procedures, would 
retain the current requirements in Sec.  300.583.
    Proposed Sec.  300.182, regarding the initial and final hearing 
decisions, would retain the current requirements in Sec.  300.584 
except proposed Sec.  300.182(h) would be revised to clarify that the 
Secretary rejects or modifies the initial decision of the Hearing 
Official or Hearing Panel if the Secretary finds that it is clearly 
erroneous.
    Proposed Sec.  300.183, regarding filing requirements, would retain 
the current requirements in Sec.  300.585.
    Proposed Sec.  300.184, regarding judicial review, would retain the 
current requirements in Sec.  300.586.
    Proposed Sec.  300.186, regarding assistance under other Federal 
programs, would incorporate the provisions in section 612(e) of the 
Act. Proposed Sec.  300.186 would clarify the current requirements in 
Sec.  300.601, regarding the relation of Part B to assistance under 
other Federal programs, and would continue to provide that Part B of 
the Act may not be construed to permit a State to reduce or alter 
eligibility for medical or other assistance for children with 
disabilities under titles V and IX of the Social Security Act, but 
would reference ``with respect to the provision of FAPE for children 
with disabilities'' instead of ``services that are part of FAPE.''

By-pass for Children in Private Schools

    The proposed regulations regarding by-pass for children in private 
schools would incorporate changes in section 612(f) of the Act and 
would represent the first amendments to these regulations since they 
were adopted in 1984. Because the statutory changes related to the 
participation of parentally-placed private school children with 
disabilities should make it more likely that these procedures will be 
implemented, these proposed revisions would align the by-pass 
provisions from Part B of the Act with the general by-pass procedures 
in the Department's general administrative regulations in 34 CFR 76.670 
through 76.677 that apply to other Department programs, including 
programs under titles I and IX of the ESEA. This alignment should help 
to ensure consistent implementation of the by-pass provisions 
throughout the Department.
    Proposed Sec.  300.190, regarding the general by-pass provision, 
would revise the current requirements in Sec.  300.480. Consistent with 
changes in section 612(f)(1) of the Act, the proposed regulation would 
retain the current authority for a by-pass and would add additional 
authority in cases where the Secretary determines that an SEA, LEA, or 
other entity has substantially failed or is unwilling to provide for 
equitable participation. The proposed regulation generally would retain 
the current provision in Sec.  300.480(b) regarding waiver of the 
requirements in these proposed regulations governing parentally-placed 
private school children with disabilities.
    Proposed Sec.  300.191, regarding services under a by-pass, 
generally would retain the current provisions in Sec.  300.481, but 
with some exceptions. Proposed Sec.  300.191(a)(1) would replace ``The 
prohibition'' with ``Any prohibition'' and would add ``and'' at the end 
of Sec.  300.191(a)(1). The current provision in Sec.  300.481(a)(3), 
regarding policies and procedures, would be removed consistent with 
other burden reduction changes in these proposed regulations. Proposed 
Sec.  300.191(a) would add ``and, as appropriate, LEA or other public 
agency officials'' and paragraphs (b) and (c)(1) of proposed Sec.  
300.191 would add ``LEA or other public agency.'' These changes are 
necessary to ensure effective implementation of the by-pass provision 
within an affected State because, in general, a by-pass would be 
implemented only in a specific LEA or

[[Page 35795]]

other public agency within the State and not statewide. Thus, the 
change in proposed Sec.  300.191(a) would ensure that the Secretary 
also consults with appropriate agency officials in any affected LEA or 
public agency within the State.
    Proposed Sec.  300.191(c)(1), regarding the calculation of the 
amount per child that is to be paid to providers, would revise the 
current provision in Sec.  300.481(c)(1) to reflect the provision in 
section 612(f)(2)(A) of the Act.
    Proposed Sec. Sec.  300.192 and 300.193, regarding notice of intent 
to implement a by-pass and request to show cause, would retain the 
current provisions in Sec. Sec.  300.482 and 300.483, but would add 
``LEA or other public agency'' for consistency with statutory language.
    Proposed Sec.  300.194, regarding the show cause hearing, would 
retain the current provisions in Sec.  300.484 and would add language 
to address statutory changes and align the proposed regulation with the 
by-pass regulations in 34 CFR 76.673 and 76.674 that apply to other 
Department programs. Proposed Sec.  300.194(a) would add ``LEA or other 
public agency'' to make the provisions consistent with language in 
section 612(f) of the Act. Proposed Sec.  300.194(a)(3) is a new 
provision that would provide an opportunity for an SEA, LEA, or other 
public agency and representatives of private schools to be represented 
by legal counsel and to submit oral or written evidence and arguments. 
Proposed Sec.  300.194(d) would incorporate the by-pass provision in 34 
CFR 76.763(b), and would specify that the designee conducting the 
hearing has no authority to require or conduct discovery. Proposed 
Sec.  300.194(g) would incorporate the by-pass provision in 34 CFR 
76.674(b), and would specify that within 10 days after the hearing, the 
designee indicates that a decision will be issued on the basis of the 
existing record or requests further information from one or more of the 
parties to the hearing.
    Proposed Sec.  300.195, regarding the show cause hearing decision, 
would retain the current provisions in Sec.  300.485 and add language 
to address statutory changes and to align the proposed regulation with 
the by-pass regulations in 34 CFR 76.675. Proposed Sec.  300.195(a)(1) 
would incorporate the 120-day time period for closing the record of the 
hearing from the by-pass provision in 34 CFR 76.675(a)(1). Proposed 
Sec.  300.195(b) would replace the 15-day time period to submit 
comments and recommendations on the designee's decision with the 30-day 
time period consistent with 34 CFR 76.675(b). Proposed Sec.  300.195(c) 
would replace ``SEA'' with ``all parties to the show cause hearing'' in 
order to make the provision consistent with language in section 612(f) 
of the Act.
    Proposed Sec. Sec.  300.196 and 300.197, regarding filing 
requirements and judicial review, would retain the current regulations 
in Sec. Sec.  300.486 and 300.487, respectively.
    Proposed Sec.  300.198, regarding continuation of a by-pass, is a 
new provision that would incorporate the continuation of a by-pass 
requirement in 34 CFR 76.677 and would permit continuation of the by-
pass until the Secretary determines that the SEA, LEA, or other public 
agency will meet the requirements for providing services to private 
school children.
    Proposed Sec.  300.199, regarding State administration, would 
incorporate the requirements in section 608 of the Act requiring that 
rulemaking conducted by the State conform to the purposes of Part B of 
the Act, that States minimize the number of rules, regulations, and 
policies to which LEAs and schools are subject to under the Act, and 
identify in writing any rule, regulation, or policy that is State-
imposed and not required under the Act and its implementing 
regulations.

Subpart C--LEA Eligibility

    Proposed Sec.  300.200 would be similar to the current Sec.  
300.180 regarding the conditions of LEA eligibility, but would be 
revised consistent with the change in section 613(a) of the Act to 
require LEAs to provide assurances, rather than demonstrate, to the 
State that they meet the eligibility conditions. Cross-references to 
those eligibility conditions would be updated.
    Proposed Sec.  300.201, regarding consistency with State policies, 
would be essentially the same as the current Sec.  300.220(a), with 
appropriate updating to reflect the structure of these proposed 
regulations. Current Sec.  300.220(b) concerning policies on file with 
the SEA would be removed in light of the statutory change requiring 
only that an LEA provide assurances regarding its policies and 
procedures.
    Proposed Sec.  300.202 would combine the provisions addressed in 
current Sec. Sec.  300.184(c) and 300.185, regarding excess cost 
requirements, and current Sec.  300.230, regarding use of funds, with 
appropriate updating. Current Sec.  300.184(a) would be removed because 
it is duplicative of the requirement in proposed Sec.  300.202(a)(2) 
that Part B funds must be used only to pay the excess costs of special 
education and related services to children with disabilities. The 
definition of excess costs in the current Sec.  300.184(b) would be 
moved to proposed Sec.  300.16 of subpart A of these proposed 
regulations.
    Proposed Sec.  300.203 would incorporate current Sec.  300.231 on 
LEA maintenance of effort, with appropriate updating to reflect the 
structure of these proposed regulations. The standard for determining 
whether an LEA is complying with the LEA maintenance of effort 
requirement would be in proposed Sec.  300.203(b) and would be 
substantively the same as current Sec.  300.231(c). The language in 
current Sec.  300.231(b) would be removed, based on the statutory 
change requiring LEAs to provide assurances in their applications to 
the State, rather than information that demonstrates their compliance.
    Proposed Sec.  300.204 would replace current Sec.  300.232, 
regarding the exceptions to the LEA maintenance of effort provision, 
with language that more closely reflects the language in section 
613(a)(2)(B) of the Act and clarifies the conditions under which the 
LEA may reduce the level of expenditures under Part B of the Act below 
the level of expenditures for the preceding year. As a result, we would 
remove the provisions in the current Sec.  300.232(a) that limit the 
circumstances under which LEAs may reduce expenditures as a result of 
the voluntary departure of special education personnel only to 
situations in which those departing personnel are replaced with 
qualified, lower-salaried staff. In addition, the requirements that the 
voluntary departures be in conformity with existing board policies, 
collective bargaining agreements, and applicable State statutes would 
be removed. These changes would reduce regulatory burden on school 
districts and provide increased flexibility in funding decisions. 
However, the basic requirement that LEAs must ensure the provision of 
FAPE to eligible children, regardless of the costs, would remain the 
same.
    Proposed Sec.  300.204(e) would add a condition based on section 
611(e)(3) of the Act, regarding the assumption of costs by the high 
cost fund, under which an LEA may reduce its level of expenditures. 
Proposed Sec.  300.204(e) is needed because LEAs should not be required 
to maintain a level of fiscal effort based on costs that are assumed by 
the SEA's high cost fund.
    Section 613(a)(2)(C)(i) of the Act was substantially revised to 
provide an adjustment to local fiscal effort in certain years in place 
of a provision in the prior law that permitted LEAs to use a portion of 
the Federal funds they received as local funds for special education. 
As a result, we would remove the current Sec.  300.233, which

[[Page 35796]]

was based on the prior statutory language, and replace it with proposed 
Sec.  300.205, which is based on the revised statute. Proposed Sec.  
300.205 would add an exception that, if an SEA exercises its authority 
under Sec.  300.230(a), LEAs in the State may not reduce local effort 
under Sec.  300.205 by more than the reduction in the State funds they 
receive. Section 300.230 only applies if an SEA pays or reimburses all 
LEAs in the State 100 percent of the non-Federal share of the costs of 
special education and related services.
    Under proposed Sec.  300.205, in years when the LEA receives an 
allocation of formula funds that exceeds the amount it received in the 
prior year, the LEA would be permitted to reduce the level of its local 
maintenance of effort amount by not more than 50 percent of the 
increase in its section 611 allocation. The LEA would then be required 
to use local funds equal to the reduction to carry out activities 
authorized under the ESEA, as explained in proposed Sec.  300.205(b). 
In subsequent years, an LEA that reduced local fiscal effort in 
accordance with proposed Sec.  300.205(a) would be required to meet 
this lower fiscal effort amount, unless it could again reduce local 
fiscal effort based on proposed Sec.  300.205. Proposed Sec.  
300.205(c) would describe circumstances under which the SEA may 
prohibit an LEA from reducing the level of local expenditure. Proposed 
Sec.  300.205(d) would implement the provision in section 
613(a)(2)(C)(iv) of the Act that provides that the amount of funds 
expended for early intervening services will count toward the maximum 
amount by which an LEA may reduce local maintenance of effort.
    LEAs wanting to exercise the authority in section 613(a)(2)(C)(iv) 
of the Act in conjunction with the authority to use not more than 15 
percent of the LEA's total grant for early intervening services under 
proposed Sec.  300.226 should use caution, however, because as noted in 
proposed Sec. Sec.  300.205(a) and (d), and 300.226(a), the operation 
of the local maintenance of effort reduction provision and the 
authority to use Part B funds for early intervening services under 
section 613(f)(1) of the Act and proposed Sec.  300.226(a) would be 
interconnected. The decisions that an LEA makes about the amount of 
funds that it would use for one purpose would affect the amount that it 
may use for the other. The following examples illustrate how these 
provisions affect one another:

    Example 1: In this example, the amount that is 15 percent of the 
LEA's total grant (see proposed Sec.  300.226(a)), which is the 
maximum amount that the LEA may use for early intervening services 
(EIS), is greater than the amount that may be used for local 
maintenance of effort (MOE) reduction (50 percent of the increase in 
the LEA's grant from the prior year's grant) (see proposed Sec.  
300.205(a)).

    Prior Year's Allocation: $900,000.
    Current Year's Allocation: $1,000,000.
    Increase: $100,000.
    Maximum Available for MOE Reduction: $50,000.
    Maximum Available for EIS: $150,000.
     If the LEA chooses to set aside $150,000 for EIS, it may 
not reduce its MOE (MOE maximum $50,000 less $150,000 for EIS means $0 
can be used for MOE).
     If the LEA chooses to set aside $100,000 for EIS, it may 
not reduce its MOE (MOE maximum $50,000 less $100,000 for EIS means $0 
can be used for MOE).
     If the LEA chooses to set aside $50,000 for EIS, it may 
not reduce its MOE (MOE maximum $50,000 less $50,000 for EIS means $0 
can be used for MOE).
     If the LEA chooses to set aside $30,000 for EIS, it may 
reduce its MOE by $20,000 (MOE maximum $50,000 less $30,000 for EIS 
means $20,000 can be used for MOE).
     If the LEA chooses to set aside $0 for EIS, it may reduce 
its MOE by $50,000 (MOE maximum $50,000 less $0 for EIS means $50,000 
can be used for MOE).

    Example 2: In this example, the amount that is 15 percent of the 
LEA's total grant (see proposed Sec.  300.226(a)), which is the 
maximum amount that the LEA may use for EIS, is less than the amount 
that may be used for MOE reduction (50 percent of the increase in 
the LEA's grant from the prior year's grant) (see proposed Sec.  
300.205(a)).

    Prior Year's Allocation: $1,000,000.
    Current Year's Allocation: $2,000,000.
    Increase: $1,000,000.
    Maximum Available for MOE Reduction: $500,000.
    Maximum Available for EIS: $300,000.
     If the LEA chooses to use no funds for MOE, it may set 
aside $300,000 for EIS (EIS maximum $300,000 less $0 means $300,000 for 
EIS).
     If the LEA chooses to use $100,000 for MOE, it may set 
aside $200,000 for EIS (EIS maximum $300,000 less $100,000 means 
$200,000 for EIS).
     If the LEA chooses to use $150,000 for MOE, it may set 
aside $150,000 for EIS (EIS maximum $300,000 less $150,000 means 
$150,000 for EIS).
     If the LEA chooses to use $300,000 for MOE, it may not set 
aside anything for EIS (EIS maximum $300,000 less $300,000 means $0 for 
EIS).
     If the LEA chooses to use $500,000 for MOE, it may not set 
aside anything for EIS (EIS maximum $300,000 less $500,000 means $0 for 
EIS).
    With regard to the new statutory provision on which proposed Sec.  
300.205 is based, note 122 of the Conf. Rpt. states:

    The Conferees intend for school districts to have meaningful 
flexibility to use local funds that are generated from their 
reduction in the maintenance of effort. The Conferees do not intend 
that school districts have to use these local funds for programs 
exclusively authorized under the Elementary and Secondary Education 
Act of 1965. The conferees recognize that most state and local 
education programs are consistent with the broad flexibility that is 
provided in section 5131 of the Elementary and Secondary Education 
Act of 1965.
    The Conferees intend that in any fiscal year in which the local 
educational agency or State educational agency reduces expenditures 
pursuant to section 613(a)(2)(C) or section 613(j), the reduced 
level of effort shall be considered the new base for purposes of 
determining the required level of fiscal effort for the succeeding 
year.

    In order to effectuate the flexibility in the use of local funds 
suggested by this language, proposed Sec.  300.205(b) would provide 
that the local funds equal to the reduction in local expenditures for 
special education and related services authorized by proposed Sec.  
300.205(a) may be used to carry out activities that could be supported 
with funds under the ESEA regardless of whether the LEA is actually 
using funds under the ESEA for those activities. An LEA can demonstrate 
that it meets the requirements in proposed Sec.  300.205(b) by showing 
that it has expended, for elementary and secondary education, an 
increased amount of local funds equal to the reduction under proposed 
Sec.  300.205(a) when compared to local expenditures for elementary and 
secondary education for the prior year.
    Proposed Sec.  300.206, regarding schoolwide programs under title I 
of the ESEA, would be essentially the same as the current Sec.  
300.234, with appropriate updating.
    Proposed Sec.  300.207, regarding personnel development, would 
reflect the new requirement under section 613(a)(3) of the Act that 
LEAs ensure that all needed personnel be appropriately and adequately 
prepared subject to the requirements that apply to SEAs regarding 
personnel qualifications and requirements under section 2122 of the 
ESEA.
    Current Sec.  300.221 on implementation of the State's 
comprehensive system of personnel development (CSPD) would be removed, 
as section 612(a) of the Act

[[Page 35797]]

no longer requires that a State develop and implement a CSPD.
    Proposed Sec.  300.208 on permissive uses of LEA funds would revise 
the current Sec.  300.235 in the following ways: Paragraph (a)(2) from 
the current Sec.  300.235 would be removed, as the authority to use 
Part B funds to develop and implement an integrated and coordinated 
services system was removed from the statute. Paragraphs (a)(2) and (3) 
of proposed Sec.  300.208 would incorporate the new statutory 
provisions permitting LEAs to use Part B funds for early intervening 
services and to establish and implement cost or risk sharing 
arrangements for high cost special education and related services, 
consistent with section 613(a)(4)(A)(ii) and (iii) of the Act. 
Paragraph (b) of proposed Sec.  300.208 would incorporate the new 
statutory authority for LEAs to use Part B funds for administrative 
case management services related to serving children with disabilities 
in section 613(a)(4)(B) of the Act. Current Sec.  300.235(b) would be 
removed because that information would be conveyed by the introductory 
material in proposed Sec.  300.208(a), with the cross-references 
updated.
    Proposed Sec.  300.209 would revise current Sec.  300.241, 
concerning treatment of charter schools and their students (based on 
changes in section 613(a)(5) of the Act), and would also incorporate 
current Sec.  300.312, regarding children with disabilities in public 
charter schools. Paragraph (a) of proposed Sec.  300.209 would include 
current Sec.  300.312(a), to clarify that children with disabilities 
who attend public charter schools retain all rights afforded under this 
part. Proposed Sec.  300.209(b) would include the provisions from 
section 613(a)(5) of the Act to clarify (in paragraph (b)(1)(i)) that, 
in providing services to children with disabilities attending charter 
schools that are public schools of the LEA, the LEA must provide 
supplementary and related services on site at the charter school to the 
same extent as it does at its other public schools. Paragraph 
(b)(1)(ii) of proposed Sec.  300.209 would specify that an LEA must 
provide funds under Part B of the Act to the LEA's charter schools on 
the same basis as it provides funds to its other schools, including 
proportional distribution based on the relative enrollment of children 
with disabilities, and that it must provide those funds at the same 
time as the LEA distributes funds to its other public schools.
    Proposed Sec.  300.209(b)(2) would include current Sec.  
300.312(c), to provide that if the public charter school is a school of 
an LEA that receives funding under Sec.  300.705 and includes other 
public schools, 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 must meet the requirements of 
proposed paragraph (b)(1) of this section.
    Proposed Sec.  300.209(c) would add current Sec.  300.312(b) 
(regarding public charter schools that are LEAs), to specify that a 
charter school covered by this paragraph is responsible for ensuring 
that the requirements of this part are met, unless State law assigns 
that responsibility to some other entity.
    Proposed Sec.  300.209(d) would include current Sec.  300.312(d). 
Paragraph (d)(1) of proposed Sec.  300.209 would provide that if a 
public charter school is not an LEA receiving funding under this part 
or a school that is part of an LEA receiving funding, the SEA is 
responsible for ensuring that the requirements of this part are met. 
Proposed Sec.  300.209(d)(2) would clarify that a State would not be 
precluded from assigning that responsibility to another entity, but the 
SEA must maintain the ultimate responsibility for ensuring compliance 
with this part.
    Proposed Sec.  300.210 would incorporate the new requirement in 
section 613(a)(6) of the Act that not later than two years after the 
date of enactment of the Individuals with Disabilities Education 
Improvement Act of 2004 (that is, not later than December 3, 2006), an 
LEA, when purchasing print instructional materials, must acquire those 
materials in the same manner as an SEA under proposed Sec.  300.172. 
Proposed Sec.  300.210(b)(1) also would make clear that an LEA would 
not be required to coordinate with the NIMAC, and proposed Sec.  
300.210(b)(2) would explain that if it chooses not to so coordinate, 
the LEA would be required to provide an assurance to the SEA that the 
LEA will provide instructional materials to blind and other print 
disabled persons in a timely manner. For the reasons explained 
elsewhere in this preamble under the discussion of proposed Sec.  
300.172, we would add paragraph (b)(3) to proposed Sec.  300.210 
specifying that nothing in proposed Sec.  300.210 would relieve an LEA 
of its obligations to ensure that children with disabilities who need 
instructional materials in accessible formats receive those 
instructional materials in a timely manner, even if it could not obtain 
assistance from NIMAC in doing so.
    Proposed Sec.  300.211 on LEAs providing information to the SEA to 
enable the SEA to carry out its duties under Part B of the Act would be 
essentially the same as the current Sec.  300.240(a), but would be 
appropriately updated. The current Sec.  300.240(b) regarding 
assurances the LEA would have to file with the SEA would be removed as 
unnecessary because that condition would be covered by proposed Sec.  
300.200.
    Proposed Sec.  300.212 on public availability of LEA eligibility 
information would be essentially the same as current Sec.  300.242, but 
with appropriate updating.
    Proposed Sec.  300.213 would reflect the new provision in section 
613(a)(9) of the Act regarding LEA cooperation with the Secretary's 
efforts under section 1308 of the ESEA to ensure the linkage of health 
and educational information pertaining to migratory children among the 
States.
    Proposed Sec.  300.220 on an exception for prior local plans would 
essentially consolidate the requirements in current Sec. Sec.  300.181 
and 300.182. In proposed Sec.  300.220, we use the term ``policies and 
procedures'' in place of the term ``application,'' which is used in 
section 613(b)(2) of the Act because we use the term policies and 
procedures in the current regulation. The statutory authority for 
proposed Sec.  300.220 is not new, and was not changed from prior law.
    Proposed Sec.  300.221 on notification of the LEA or State agency 
if determined ineligible, proposed Sec.  300.222 on LEA and State 
agency compliance determinations, proposed Sec.  300.223 on joint 
establishment of eligibility, and proposed Sec.  300.224 on the 
requirements for establishing joint eligibility are essentially the 
same as current Sec. Sec.  300.181, 300.196, 300.197, 300.190 and 
300.192, respectively, but with appropriate updating.
    The requirements in current Sec.  300.244 regarding permissible use 
of a portion of the LEA's Part B funds on coordinated services systems 
and current Sec. Sec.  300.245 through 300.250 regarding LEA use of 
Part B funds in school based improvement plans would be removed, as the 
statutory authority for those uses has been eliminated.
    Proposed Sec.  300.226 would implement the new authority under 
section 613(f) of the Act, which provides that an LEA may use not more 
than 15 percent of the Part B funds it receives for a fiscal year, less 
certain reductions, if any, to develop and implement coordinated, early 
intervening services for children who have not been identified as 
eligible under the Act but who need additional academic and behavioral 
support to succeed in a general education environment. Paragraph (c) of 
proposed Sec.  300.226 would clarify that nothing in proposed Sec.  
300.226 is construed to either limit or create a right to FAPE

[[Page 35798]]

under Part B of the Act or to delay appropriate evaluation of a child 
suspected of having a disability. We have included the language 
regarding evaluation of children suspected of having a disability in 
proposed Sec.  300.226(c) because we believe it is critical to ensure 
that any child suspected of being a child with a disability is 
evaluated in a timely manner and without any undue or unnecessary 
delay. Proposed paragraph Sec.  300.226(d) would reflect the reporting 
requirement in section 613(f)(4) of the Act. The term ``children'' 
would be used in this provision, in lieu of the statutory term 
``students'' to be consistent throughout part 300. Proposed Sec.  
300.226(e) would implement the provision in section 613(f)(5) of the 
Act that funds to provide early intervening services may be used in 
conjunction with ESEA funds for early intervening services aligned with 
ESEA activities under certain circumstances.
    Proposed Sec.  300.227 would incorporate provisions from the 
regulations in current Sec. Sec.  300.360 and 300.361 on direct 
services by the SEA when an LEA or State agency has not demonstrated 
its eligibility or has failed to apply for funds, is unable to 
establish and maintain programs of FAPE consistent with Part B of the 
Act, is unable or unwilling to be consolidated with one or more LEAs in 
order to establish and maintain programs of FAPE, or has one or more 
children best served by a regional or State program or service delivery 
system. Proposed Sec.  300.227(a)(1) would include the phrase ``or 
elected not to apply for its Part B allotment'' because there could be 
situations in which an LEA chooses not to accept funds under Part B of 
the Act. Finally, proposed Sec.  300.227 would reflect editorial 
changes made to eliminate repetition.
    Proposed Sec.  300.228 on State agency eligibility would be 
essentially the same as current Sec.  300.194, but with the appropriate 
updating of cross-references.
    Proposed Sec.  300.229 regarding disciplinary information would be 
the same as current Sec.  300.576.
    Proposed Sec.  300.230 would incorporate the new provision from 
section 613(i) of the Act on exceptions to SEA maintenance of effort 
requirements for a State for which the amount of the State's allocation 
under section 611 of the Act exceeds the amount available to the State 
for the preceding fiscal year and the State pays or reimburses all LEAs 
in the State, from State revenues, 100 percent of the non-Federal share 
of the costs of special education. Under these conditions, the SEA 
would be permitted to reduce its level of expenditures from State 
sources for the education of children with disabilities by not more 
than 50 percent of the amount of the increase in its section 611 
allocation from the prior fiscal year, unless prohibited from doing so 
by the Secretary, as provided in proposed Sec.  300.230(b). Paragraph 
(e)(2) of proposed Sec.  300.230, which is not in section 613(i) of the 
Act, would specify that if an SEA used its authority to reduce its 
effort under proposed Sec.  300.230, LEAs in the State would not be 
able to reduce local effort under proposed Sec.  300.205 by more than 
the reduction in State funds that they receive. Proposed Sec.  
300.230(e)(2) is necessary to ensure that SEAs and LEAs are not 
independently calculating the reduction in maintenance of effort 
permitted when a State is providing 100 percent of the non-Federal 
share of the costs of special education and related services.

Subpart D--Evaluations, Eligibility Determinations, IEPs, and 
Educational Placements

    The provisions in subpart D of these proposed regulations would 
reflect the requirements of section 614 of the Act. As a result, the 
provisions on parental consent and evaluations and reevaluations 
contained in subpart E of current regulations would be moved to subpart 
D of these proposed regulations. Also, the provisions on IEPs contained 
in subpart C of the current regulations would be renumbered, and in 
some cases, have been moved to subpart D of these proposed regulations.

Parental Consent

    Proposed Sec.  300.300 regarding parental consent for initial 
evaluations, reevaluations, and the initial provision of services would 
replace Sec.  300.505 of the current regulations and would incorporate 
new requirements regarding parental consent contained in section 
614(a)(1)(D) of the Act. Some of the provisions contained in proposed 
Sec.  300.300 would be similar to those contained in Sec.  300.505 of 
the current regulations, but with some differences.
    Proposed Sec.  300.300(a)(1)(i) would incorporate section 
614(a)(1)(D)(i)(I) of the Act, and would provide that with the 
exception of children who are wards of the State, the public agency 
proposing to conduct the evaluation must obtain informed parental 
consent before conducting an initial evaluation of a child to determine 
if the child qualifies as a child with a disability under the Act.
    Proposed Sec.  300.300(a)(1)(ii) would retain the provision in 
Sec.  300.505(a)(2) of the current regulations that consent for the 
initial evaluation may not be construed as consent for the initial 
provision of special education and related services. The proposed 
regulations would use the term ``initial provision'' rather than the 
statutory term ``receipt'' of special education and related services. 
This would make clear that consent does not need to be sought every 
time a particular service is provided to the child. The proposed 
regulation would continue to refer to consent for the initial provision 
of services, in lieu of using the statutory language, which refers to 
``consent for placement for receipt of special education and related 
services.'' This would be consistent with the revised language in 
section 614(a)(1)(D)(i)(I) of the Act and the Department's position 
that placement refers to the provision of special education services 
rather than as a specific place, such as a specific classroom or 
specific school.
    Proposed Sec.  300.300(a)(2)(i), which would incorporate the new 
requirement in section 614(a)(1)(D)(iii) of the Act regarding informed 
parental consent prior to the initial evaluation for wards of the 
State, would set out the general rule that the public agency must make 
reasonable efforts to obtain informed consent from the parent for an 
initial evaluation if the child is a ward of the State and is not 
residing with the parent. Proposed Sec.  300.300(a)(2)(ii) would 
incorporate the language in section 614(a)(1)(D)(iii)(II) of the Act, 
which identifies the exceptions to this general rule. These include 
when the public agency cannot find the parent, despite reasonable 
efforts to do so, when parental rights have been terminated under State 
law, or when parental rights have been subrogated by a judge in 
accordance with State law, and consent has been given by an individual 
appointed by the judge to represent the child. With regard to this last 
exception, note 146(b) of the Conf. Rpt. explains Congressional intent 
that ``* * * in the case of children who are wards of the State, 
consent may be provided by individuals legally responsible for the 
child's welfare or appointed by the judge to protect the rights of the 
child.'' This should ensure that consent for a child who is a ward of 
the State is obtained from an appropriate individual who has the legal 
authority to provide consent.
    Proposed paragraph (a)(3) of Sec.  300.300 would replace Sec.  
300.505(b) of the current regulations and would reflect language in 
section 614(a)(1)(D)(ii) of the Act regarding absence of consent. As 
was true under Sec.  300.505(b) of the current regulations, the 
proposed

[[Page 35799]]

regulations would provide that if a parent does not provide consent or 
if the parent fails to respond to a request for consent, the public 
agency may pursue the initial evaluation of a child by using the 
procedural safeguards in subpart E of these proposed regulations, 
including applicable mediation and due process procedures, except to 
the extent inconsistent with State law. However, consistent with the 
Department's position that public agencies should use their consent 
override procedures only in rare circumstances, proposed Sec.  
300.300(a)(3) would clarify that a public agency is not required to 
pursue an initial evaluation of a child suspected of having a 
disability if the parent does not provide consent for the initial 
evaluation. States and LEAs do not violate their obligation to locate, 
identify, and evaluate children suspected of being children with 
disabilities under the Act if they decline to pursue an evaluation to 
which a parent has failed to consent.
    In addition, paragraph (a)(3) of this section would permit consent 
override only for children who are enrolled in public school or seeking 
to be enrolled in public school. For children who are home schooled or 
placed in a private school by the parents at their own expense, consent 
override is not authorized. The district can always use the override 
procedures to evaluate the child at some future time should the parents 
choose to return their child to public school.
    Of course, public agencies do have an obligation to actively seek 
parental consent to evaluate private school (including home school, if 
considered a private school under State law) children who are suspected 
of being children with disabilities under the Act. However, if the 
parents of a private school child withhold consent for an initial 
evaluation, the public agency would have no authority to conduct an 
evaluation under proposed Sec.  300.131 and no obligation to consider 
that child as eligible for services under proposed Sec. Sec.  300.132 
through 300.144.
    Proposed Sec.  300.300(b)(1), which is essentially the same as, and 
would replace, Sec.  300.505(a)(1)(ii) of the current regulations, 
would incorporate the provision in section 614(a)(1)(D)(i)(II) of the 
Act specifying that the public agency responsible for making FAPE 
available to the child must seek to obtain informed parental consent 
before the initial provision of special education and related services.
    Proposed Sec.  300.300(b)(2) would incorporate the new requirement 
added by section 614(a)(1)(D)(ii)(II) of the Act that prohibits a 
public agency from providing special education and related services by 
using the procedural safeguards in subpart E of these proposed 
regulations if the parents fail to respond or do not provide consent to 
services. We believe that the Act gives parents the ultimate choice as 
to whether their child should receive special education and related 
services, and this proposed regulation would reflect this statutory 
interpretation.
    Proposed Sec.  300.300(b)(3) would incorporate the new provision in 
section 614(a)(1)(D)(ii)(III) of the Act, that relieves public agencies 
of any potential liability for failure to convene an IEP meeting or for 
failure to provide the special education and related services for which 
consent was requested but withheld.
    Proposed Sec.  300.300(c)(1) would reflect the requirement in 
current Sec.  300.505(b)(1)(i) that parental consent be obtained before 
a reevaluation.
    Proposed Sec.  300.300(c)(2) would incorporate the provision in 
Sec.  300.505(c)(1) of the current regulations that informed parental 
consent need not be obtained for a reevaluation if the public agency 
can demonstrate that it has taken reasonable measures to obtain that 
consent and the parent failed to respond.
    However, in lieu of prescribing ``reasonable measures,'' and to 
reduce regulatory burden, Sec.  300.505(c)(2) of the current 
regulations, which refers to the reasonable measures that public 
agencies must use in this situation, would be removed. As a practical 
matter, because public agencies take seriously their obligation to 
obtain parental consent for a reevaluation because of their ongoing 
obligation to ensure the provision of FAPE to eligible students with 
disabilities, they typically would use a number of informal measures to 
obtain such consent. Eliminating the provision currently in Sec.  
300.505(c)(2) from these proposed regulations should give public 
agencies increased flexibility to use the measures they deem reasonable 
and appropriate.
    Proposed paragraph (d)(1) of Sec.  300.300 is the same as Sec.  
300.505(a)(3) of the current regulations and would provide that public 
agencies are not required to obtain parental consent before reviewing 
the existing data as part of an evaluation or reevaluation, or before 
administering a test or evaluation that is administered to all 
children, unless consent is required of parents of all children. 
Proposed paragraph Sec.  300.300(d)(2) is the same as Sec.  300.505(d) 
of the current regulations, regarding additional State consent 
requirements, and would continue to permit a State to maintain such 
requirements, provided its public agencies establish and implement 
effective procedures to ensure that the failure to provide consent does 
not result in the failure to provide FAPE to a child with a disability. 
Proposed Sec.  300.300(d)(3) would incorporate the provision, in Sec.  
300.505(e) of the current regulations, consistent with the Department's 
longstanding policy that a public agency may not use a parent's refusal 
to consent to one service or activity as a basis for denying the child 
any other service, benefit, or activity of the public agency, except as 
required by Part B of the Act.

Evaluations and Reevaluations

    Most of the provisions contained in subpart E of the current 
regulations governing procedures for evaluation and determination of 
eligibility would be moved to subpart D of the proposed regulations. 
Section 300.530 of the current regulations governing the SEA's 
obligation to ensure that LEAs establish and implement conforming 
evaluation procedures would be removed as unnecessary. It is covered 
elsewhere by proposed Sec.  300.122 governing the SEA's 
responsibilities regarding evaluations.
    Proposed Sec.  300.301(a) would incorporate the requirements in 
Sec.  300.531 of the current regulations that a public agency conduct a 
full and individual initial evaluation before the initial provision of 
special education and related services to a child with a disability. 
The cross-references to the regulations governing the initial 
evaluation would be updated. Proposed paragraph (b) of this section 
would incorporate section 614(a)(1)(B) of the Act and would provide 
that, consistent with the parental consent requirements in proposed 
Sec.  300.300, either a parent or a public agency may initiate a 
request for an initial evaluation to determine if a child is a child 
with a disability. This clarification underscores that a public agency 
may only conduct an evaluation of a child subject to the informed 
consent requirements discussed previously.
    Proposed Sec.  300.301(c)(1) would incorporate the new provision in 
section 614(a)(1)(C)(i)(I) of the Act regarding conducting the initial 
evaluation within 60 days of receiving parental consent for the 
evaluation, or within another timeframe if the State establishes a 
timeframe for conducting the initial evaluation. Section 300.343(b) of 
the current regulations requires that the public agency ensure, within 
a reasonable period of time following receipt of parental consent, that 
the child is evaluated, and if found eligible, that special education 
and related

[[Page 35800]]

services are made available to the child. The current regulation does 
not specify a timeframe for conducting the initial evaluation following 
receipt of parental consent.
    Proposed Sec.  300.301(c)(2), regarding procedures for the initial 
evaluation, would incorporate the provision in section 
614(a)(1)(C)(i)(I) of the Act as well as portions of Sec.  
300.320(a)(1) and (2) of the current regulations, and would clarify 
that the initial evaluation must consist of procedures to determine 
whether the child is a child with a disability under Sec.  300.8 and to 
determine the child's educational needs. The remainder of Sec.  300.320 
of the current regulations would be removed as these requirements are 
addressed in proposed Sec. Sec.  300.304 through 300.306.
    Proposed Sec.  300.301(d) would incorporate the new provision in 
section 614(a)(1)(C)(ii) of the Act, which provides an exception to the 
timeframe requirement for conducting the initial evaluation following 
receipt of parental consent and specifies when this exception would 
apply. However, for greater clarity, the proposed regulations would 
reorder the statutory language to make clear that the 60-day timeframe 
or a timeframe established by State law is inapplicable to a public 
agency if the child's parent repeatedly refuses to produce the child 
for an evaluation or the child enrolls in a school after the timeframe 
has commenced for the child's previous public agency to have completed 
an evaluation of the child, and the parent and subsequent public agency 
agree to a specific timeframe by which the evaluation must be 
completed. Proposed Sec.  300.301(d)(2)(ii) would clarify, in 
accordance with section 614(a)(1)(C)(ii) of the Act, that this 
exception would apply only if the subsequent public agency is making 
sufficient progress to ensure a prompt completion of the evaluation and 
the parent and the public agency agree to a specific timeframe when the 
evaluation will be completed.
    Proposed Sec.  300.302 would incorporate the new requirement in 
section 614(a)(1)(E) of the Act to clarify that screening for 
instructional purposes by a teacher or specialist to determine 
appropriate instructional strategies for curriculum implementation is 
not considered an evaluation for eligibility for special education and 
related services, and therefore could occur without obtaining informed 
parental consent for the screening.
    Proposed Sec.  300.303, regarding reevaluations, would incorporate 
section 614(a)(2)(A) of the Act, and would supersede Sec.  300.536 of 
the current regulations, which does not reflect the new requirements 
governing the timing and conduct of reevaluations. Proposed Sec.  
300.303(a) would require a public agency to ensure that a reevaluation 
is conducted in accordance with proposed Sec. Sec.  300.304 through 
300.311 if it determines that the educational or related services 
needs, including the need for improved academic achievement and 
functional performance of the child, would warrant a reevaluation, or 
if the child's parent or teacher requests a reevaluation.
    Under the circumstances set forth in the Act and proposed Sec.  
300.303(a), proposed paragraph (b)(1) of this section would provide 
that the reevaluation occur not more than once a year unless the parent 
and the public agency agree otherwise. Proposed Sec.  300.303(b)(2) 
would continue the general requirement for three-year reevaluations 
from current Sec.  300.536(b), except that in accordance with section 
614(a)(2)(B) of the Act, a parent and a public agency could agree that 
a three-year reevaluation is unnecessary.
    Proposed Sec. Sec.  300.304 and 300.305 would incorporate some of 
the evaluation procedures contained in Sec. Sec.  300.532 and 300.533 
of the current regulations, with appropriate updates to reflect 
statutory changes in section 614(b) of the Act. Proposed Sec.  
300.304(a) would incorporate the new requirement in section 614(b)(1) 
of the Act that the public agency provide notice to the parents of a 
child with a disability, in accordance with Sec.  300.503 of these 
proposed regulations, of any evaluation procedures that the agency 
proposes to conduct. (Under proposed Sec.  300.503(b)(3), public 
agencies are required to include in the prior written notice to parents 
a description of each evaluation procedure, test, record, or report the 
agency used as the basis for the proposal or refusal, not the tests the 
agency would be proposing to conduct.)

Evaluation Procedures

    Proposed Sec.  300.304(b)(1) would incorporate the procedures 
governing conduct of evaluations in section 614(b)(2) of the Act. This 
proposed regulation would replace Sec.  300.532(b)(1) and (2) of the 
current regulations and would require that the public agency use a 
variety of assessment tools and strategies, including information 
provided by the parent, to gather relevant functional, developmental, 
and academic information about the child.
    Proposed Sec.  300.304(b)(2) would incorporate the language from 
Sec.  300.532(f) of the current regulations, based on section 
612(a)(6)(B) of the Act, prohibiting the use of a single measure or 
assessment as the sole criterion for determining whether a child is a 
child with a disability or for determining an appropriate educational 
program for the child.
    Proposed Sec.  300.304(b)(3) would replace Sec.  300.532(i) of the 
current regulations and would require, in accordance with section 
614(b)(2)(c) of the Act, that the public agency, in conducting the 
evaluation, use technically sound instruments that may assess the 
relative contribution of cognitive and behavioral factors, in addition 
to developmental factors.
    Proposed Sec.  300.304(c) would address other evaluation procedures 
and would incorporate the requirements of sections 612(a)(6)(B) and 
614(b)(3) of the Act regarding the use of assessments and other 
evaluation materials. Unlike the current regulations, which refer to 
standardized tests, the proposed regulations would refer to assessments 
and other evaluation materials, which is the terminology used in 
section 614(b)(3) of the Act.
    Proposed Sec.  300.304(c)(1)(i) would incorporate the provision in 
section 612(a)(6)(B) of the Act and continue the longstanding 
requirement that procedures used for evaluation and placement of 
children with disabilities not be discriminatory on a racial or 
cultural basis. This proposed regulation would replace Sec.  
300.532(a)(1)(i) of the current regulations, which contains a similar 
requirement.
    In order to provide information and guidance regarding evaluation 
and assessment in one place, proposed Sec.  300.304(c)(1)(ii) would 
incorporate section 614(b)(3)(A)(ii) of the Act, and also would include 
language from the requirement in section 612(a)(6)(B) of the Act 
regarding the form of assessments and other evaluation materials used 
to assess limited English proficient children under the Act. Based on 
additional clarity provided in the statute, the proposed regulation 
would require public agencies to provide and administer assessments in 
the child's native language, including ensuring that the form in which 
the test is provided or administered is most likely to yield accurate 
information on what the child knows and can do academically, 
developmentally, and functionally, unless it is clearly not feasible to 
provide or administer the assessment in this manner. This proposed 
regulation would replace Sec.  300.532(a)(1)(ii) of the current 
regulations, which contains the general standard for assessing limited 
English proficient children, and provides, in accordance with section 
612(a)(6)(B) of the Act, that the child be assessed in his or her 
native language or

[[Page 35801]]

other mode of communication, unless clearly not feasible to do so.
    Proposed Sec.  300.304(c)(1)(iii) through (v) would incorporate the 
requirements of section 614(b)(3)(A)(iii) through (v) of the Act. This 
proposed regulation would replace similar requirements contained in 
300.532(a)(2)(i) and (ii) of the current regulations. Proposed 
paragraph (c)(1)(iii) would reflect new language in section 
614(b)(3)(A)(iii) of the Act, which requires assessments or measures to 
be used for purposes that are valid and reliable. Current Sec.  
300.532(c)(2), which requires that the evaluation report include a 
description of the extent to which the evaluation varied from standard 
conditions, has been removed from these proposed regulations. This is 
standard test administration practice and need not be repeated in the 
regulations.
    Proposed Sec.  300.304(c)(2) would be substantially the same as 
Sec.  300.532(d) of the current regulations and would reflect the 
longstanding regulatory requirement that assessments and other 
evaluation materials be tailored to address individual educational 
needs, rather than merely designed to provide a single general 
intelligence quotient. Proposed Sec.  300.304(c)(3)(v)(C) would replace 
Sec.  300.532(e) of the current regulations and would reflect the 
longstanding regulatory requirement that assessment selection or 
administration ensures that the assessment results accurately reflect 
the child's aptitude or achievement levels, or whatever other factors 
the assessment purports to measure, not the child's impaired sensory, 
manual, or speaking skills, unless the assessment purports to measure 
those skills.
    Proposed Sec.  300.304(c)(4), which would incorporate section 
614(b)(3)(B) of the Act, would require that the child be assessed in 
all areas related to the suspected disability, and would replace Sec.  
300.532(g) of the current regulations. This proposed section would 
incorporate the longstanding requirement that the child 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.
    Proposed Sec.  300.304(c)(5) would incorporate the new requirement 
from section 614(b)(3)(D) of the Act that provides for expeditious 
coordination among school districts to better ensure prompt completion 
of full evaluations for children with disabilities who transfer from 
one public agency to another public agency in the same academic year. 
Section 300.532(h) of the current regulations would be reflected in 
proposed Sec.  300.304(c)(6), and would continue to require that the 
evaluation be 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 is classified. 
With regard to this requirement, note 152 of the Conf. Rpt. states:

    Conferees intend the evaluation process for determining 
eligibility of a child under this Act to be a comprehensive process 
that determines whether the child has a disability, and as a result 
of that disability, whether the child has a need for special 
education and related services. As part of the evaluation process, 
conferees expect the multi-disciplinary evaluation team to address 
the educational needs of the child in order to fully inform the 
decisions made by the IEP Team when developing the educational 
components of the child's IEP. Conferees expect the IEP Team to 
independently review any determinations made by the evaluation team, 
and that the IEP Team will utilize the information gathered during 
the evaluation to appropriately inform the development of the IEP 
for the child.

    Thus, proposed Sec.  300.304(c)(6) would emphasize the direct link 
between the evaluation and the IEP processes and should ensure that the 
evaluation is sufficiently comprehensive to inform the development of 
the child's IEP.
    Proposed Sec.  300.304(c)(7), in accordance with section 614(c) of 
the Act, would replace Sec. Sec.  300.532(j) of the current regulations 
and would continue to require that the public agency use assessment 
tools and strategies providing relevant information that directly 
assists persons in determining the educational needs of the child.
    Proposed Sec.  300.305, which addresses additional requirements for 
evaluations and reevaluations, would combine Sec. Sec.  300.533 and 
300.534(c) of the current regulations. Proposed Sec.  300.305(a)(2) 
would include the language in section 614(c)(1)(B)(i) through (iv) of 
the Act regarding determinations about the child's eligibility under 
this part. Proposed paragraphs (b) through (d) of Sec.  300.305 would 
reflect Sec.  300.533 of the current regulations regarding procedures 
for determining whether additional data are needed as part of the 
initial evaluation or the reevaluation, but with minor modifications to 
incorporate section 614(c)(2) of the Act. For example, in accordance 
with section 614(c)(2) of the Act, proposed paragraph (c) of Sec.  
300.305, regarding source of data, would replace Sec.  300.533(c) of 
the current regulations, regarding need for additional data.
    Proposed Sec.  300.305(e), regarding evaluations before change in 
placement, would replace Sec.  300.534(c) of the current regulations, 
regarding the requirement to conduct an evaluation before determining 
that the child is no longer a child with a disability, as well as the 
exception to that requirement for students who graduate from secondary 
school with a regular high school diploma or who exceed age eligibility 
for FAPE under State law. However, proposed paragraph (e)(3) would 
incorporate the new requirement in section 614(c)(5)(B)(ii) of the Act 
that the public agency provide a summary of academic and functional 
performance, including recommendations to assist the student in meeting 
postsecondary goals, for students whose eligibility terminates because 
of graduation with a regular high school diploma or because of 
exceeding the age eligibility for FAPE under State law.
    Proposed Sec.  300.306, regarding determination of eligibility, 
would replace paragraphs (a) and (b) of Sec. Sec.  300.534 and 300.535 
of the current regulations and would incorporate the language in 
section 614(b)(4) and (5) of the Act, which is substantially the same 
as the language in the current regulations. This proposed regulation 
would provide that, upon completion of the administration of 
assessments and other evaluation measures, a group of qualified 
professionals, including the child's parent, determine whether the 
child is a child with a disability and the educational needs of the 
child. As is true under the current regulation, the public agency would 
be required to provide a copy of the evaluation report to the parent, 
including the documentation of determination of eligibility.
    Proposed section Sec.  300.306(b) would include the provision in 
current Sec.  300.534(b)(2) that makes clear that a child must not be 
determined to be a child with a disability under this part if the 
determinant factor is lack of instruction in reading, lack of 
instruction in math, or limited English proficiency, and the child does 
not otherwise meet the eligibility criteria under 300.8(a).
    Proposed paragraph (c) of Sec.  300.306 would replace Sec.  300.535 
of the current regulations and would incorporate the longstanding 
regulatory requirements that public agencies use a multifactored 
approach in determining eligibility and placement and develop an IEP 
for a child found eligible for services under the Act.

[[Page 35802]]

Additional Procedures for Evaluating Children With Specific Learning 
Disabilities

    Proposed Sec. Sec.  300.307 through 300.311 would revise Sec. Sec.  
300.540 through 300.543 of the current regulations regarding additional 
procedures for evaluating children suspected of having specific 
learning disabilities and would implement the new requirements of 
section 614(b)(6) of the Act. Proposed Sec.  300.307(a) would generally 
require a State to adopt criteria for determining whether a child has a 
specific learning disability (SLD) as defined in proposed Sec.  300.8. 
Specifically, proposed Sec.  300.307(a)(1) would allow States to 
prohibit the use of a severe discrepancy between achievement and 
intellectual ability criterion for determining whether a child has an 
SLD. Proposed Sec.  300.307(a)(2) would make it clear that the State 
may not require LEAs to use a discrepancy model for determining whether 
a child has an SLD. In addition, proposed Sec.  300.307(a)(3) would 
require States to permit a process that examines whether the child 
responds to scientific, research-based intervention as part of the 
evaluation procedures. Proposed Sec.  300.307(a)(4) would allow States 
to permit the use of other alternative procedures for determining 
whether a child has an SLD as defined in Sec.  300.8. Proposed Sec.  
300.307(b) would clarify that a public agency must use State criteria 
in determining whether a child has an SLD.
    Recent consensus reports and empirical syntheses concur in 
suggesting major changes in the approach to the identification of an 
SLD. These reports recommend abandoning the IQ-discrepancy model and 
recommend the use of response to intervention (RTI) models (Donovan & 
Cross, 2002; Lyon et al., 2001; President's Commission on Excellence in 
Special Education, 2002; Stuebing et al., 2002). These reports find 
that SLD is a group of heterogeneous disorders, but recommend changes 
in the seven domains identified in current Sec.  300.541(a)(2) because 
of areas of difficulty for students with SLD that have not been 
identified under current regulations (e.g., reading fluency).
    There are many reasons why use of the IQ-discrepancy criterion 
should be abandoned. The IQ-discrepancy criterion is potentially 
harmful to students as it results in delaying intervention until the 
student's achievement is sufficiently low so that the discrepancy is 
achieved. For most students, identification as having an SLD occurs at 
an age when the academic problems are difficult to remediate with the 
most intense remedial efforts (Torgesen et al., 2001). Not 
surprisingly, the ``wait to fail'' model that exemplifies most current 
identification practices for students with SLD does not result in 
significant closing of the achievement gap for most students placed in 
special education. Many students placed in special education as SLD 
show minimal gains in achievement and few actually leave special 
education (Donovon & Cross, 2002).
    The use of the IQ-discrepancy drives assessment practices for most 
special education services (President's Commission on Excellence in 
Special Education, 2002). Nationwide, virtually every student 
considered for special education eligibility receives IQ tests. This 
practice consumes significant resources, with the average cost of an 
eligibility evaluation running several thousand dollars (MacMillan & 
Siperstein, 2002; President's Commission on Excellence in Special 
Education, 2002). Yet these assessments have little instructional 
relevance and often result in long delays in determining eligibility 
and therefore services.
    Alternative models are possible. The type of model most 
consistently recommended uses a process based on systematic assessment 
of the student's response to high quality, research-based general 
education instruction. The Department strongly recommends that States 
consider including this model in its criteria. Other models focus on 
the assessment of achievement skills identifying SLD by examining the 
strengths and weaknesses in achievement, or simply rely on an absolute 
level of low achievement. These models are directly linked to 
instruction. (Fletcher, et al., 2003). Other models use alternative 
approaches to determining aptitude-achievement discrepancies that do 
not involve IQ, including multiple assessments of cognitive skills. 
However, these models do not identify a unique group of low achievers 
and maintain a focus on assessment as opposed to intervention. In 
considering alternative models for identification, we believe that the 
focus should be on assessments that are related to instruction, and 
that identification should promote intervention. For these reasons, 
models that incorporate response to a research-based intervention 
should be given priority in any effort to identify students with SLD. 
Identification models that incorporate response to intervention 
represent a shift in special education toward the goals of better 
achievement and behavioral outcomes for students identified with SLD 
because the students who are identified under such models are most 
likely to require special education and related services.
    Proposed Sec.  300.308, regarding eligibility group members, would 
revise Sec.  300.540 of the current regulations. Under this proposed 
regulation, the group making the determination of whether a child has 
an SLD would include a special education teacher. Further, this 
proposed regulation would require that the group be collectively 
qualified to conduct individual diagnostic assessments relevant to SLD, 
interpret and apply critical analysis to assessment data, develop 
appropriate educational and transitional recommendations, and deliver 
specifically designed instruction and services to meet the needs of 
students with SLD. It is intended that the group described in proposed 
Sec.  300.308 would serve as the required group under proposed Sec.  
300.306(a)(1).
    The current requirements in Sec.  300.541 permit the group to 
determine that an SLD is present if the child does not achieve 
commensurate with his or her age and ability levels and if the group 
finds a severe discrepancy between achievement and intellectual 
ability. Proposed Sec.  300.309 would address the elements required for 
determining the existence of an SLD and would revise Sec.  300.541 of 
the current regulations in light of the statutory provision in section 
614(b)(6)(A) of the Act, which protects LEAs from being required to use 
a severe discrepancy between intellectual ability and academic 
achievement. Under the proposed regulations, the first element of a 
determination that a child has an SLD is a finding that the child does 
not achieve commensurate with the child's age in one or more of the 
eight specified areas when provided with learning experiences 
appropriate to the child's age.
    The second element for a determination that a child has an SLD is a 
finding that the child failed to make sufficient progress in meeting 
State-approved results when using a response to scientific, research-
based intervention process, or the child exhibits a pattern of 
strengths and weaknesses that the team determines is relevant to the 
identification of an SLD. The pattern of strengths and weaknesses may 
be in performance, achievement, or both or may be in performance, 
achievement, or both relative to intellectual development. Proposed 
Sec.  300.309(a)(3) would incorporate the exclusions from section 
602(30)(C) of the Act and would prohibit the eligibility group from 
finding an SLD if the SLD is primarily

[[Page 35803]]

the result of other visual, hearing, or motor disabilities, of mental 
retardation, of emotional disturbance, or of environmental, cultural, 
or economic disadvantage. These exclusions are in addition to the 
special rule for eligibility determination in section 614(b)(5) of the 
Act and proposed Sec.  300.306(b).
    Proposed Sec.  300.309(b) would require the group to consider 
evidence that the child was provided appropriate instruction prior to, 
or as a part of, the referral process. These requirements would 
emphasize the importance of using high-quality, research-based 
instruction in regular education settings consistent with relevant 
sections of the ESEA, including that the instruction was delivered by 
qualified personnel. Also important is evidence that data-based 
documentation reflecting formal assessment of progress during 
instruction through repeated assessments of achievement at reasonable 
intervals is provided to the parents and documentation that the 
timelines described in proposed Sec. Sec.  300.301 and 300.303 are 
adhered to, unless extended by mutual written agreement of the child's 
parents and a group of qualified professionals as described in Sec.  
300.308. These requirements would be included in Sec.  300.309(c) and 
(d), respectively, of the proposed regulations.
    Proposed Sec.  300.310 would revise Sec.  300.542 of the current 
regulations regarding observation. Proposed Sec.  300.310(a) would 
require that at least one member of the group described in proposed 
Sec.  300.308, other than the child's teacher, who observes the child 
be trained in observation. This should ensure that the group member or 
members conducting the observation know what to look for when they 
observe the child. Proposed Sec.  300.310(a) also would provide 
additional parameters for conducting the observation, and would specify 
that the observation document academic performance and behavior in the 
areas of difficulty. Proposed Sec.  300.310(b) would be substantively 
unchanged from Sec.  300.542(b) of the current regulations.
    Proposed Sec.  300.311, regarding a written report, would revise 
Sec.  300.543 of the current regulations and incorporate much of the 
content of that section. The proposed regulation would remove the 
reference in Sec.  300.543(a)(6) of the current regulation as to 
whether a child has a severe discrepancy between achievement and 
ability that is not correctable without special education and related 
services and the reference in current Sec.  300.543(a)(7) regarding the 
effects of environmental, cultural, and economic disadvantage. This 
language is included in proposed Sec.  300.306. Proposed Sec.  
300.311(a)(5) would require that the report address only whether the 
child does not achieve commensurate with the child's age rather than 
the discrepancy model referred to in current Sec.  300.531(a)(2). The 
proposed regulation also would require that the written report address 
two additional factors: whether there are strengths and weaknesses in 
performance or achievement, or both, or relative to intellectual 
development that require special education and related services; and 
the instructional strategies used and the response to student data 
collected if the response to the scientific, research-based process was 
implemented. These additional provisions should ensure that the report 
is a more useful document for educators in determining the existence of 
an SLD. It is intended that the written report in this section would 
serve as the required evaluation report and documentation of the 
determination of eligibility as required by proposed Sec.  
300.306(a)(2).

Individualized Education Programs

    Proposed Sec. Sec.  300.320 through 300.328 would replace some of 
the provisions in Sec. Sec.  300.340 through 300.350 of the current 
regulations regarding IEPs. Proposed Sec.  300.320 would contain a 
definition of individualized education program or IEP that would 
incorporate the definition in section 614(d)(1)(A)(i) of the Act as 
well as provisions contained in section 614(d)(6) of the Act. This 
definition would replace and expand Sec.  300.340(a) of the current 
regulations, which contains only a brief definition of the term IEP. 
The definition of ``participating agency'' contained in Sec.  
300.340(b) of the current regulations would be removed from these 
proposed regulations as unnecessary. Many of the provisions in the new 
definition of IEP are taken from provisions in Sec. Sec.  300.346 
through 300.347 of the current regulations, but appropriate 
modifications also would be included in this definition to reflect new 
provisions of the Act.
    The first sentence of the definition in Sec.  300.320 would refer 
to the IEP as a written statement for a child with a disability that is 
developed, reviewed, and revised at a meeting in accordance with 
Sec. Sec.  300.320 through 300.324. Proposed paragraph (a)(1) would 
require, in accordance with section 614(d)(1)(A)(i)(I) of the Act, that 
the IEP include a statement of the child's present levels of academic 
achievement and functional performance. This proposed regulation would 
supersede Sec.  300.347(a)(1) of the current regulations, which 
requires that the IEP include a statement of the child's present levels 
of educational performance. Proposed Sec.  300.320(a)(1)(i) would be 
the same as Sec.  300.347(a)(1)(i) of the current regulations, except 
that the phrase used in the Act, ``general education curriculum,'' 
would be substituted for ``general curriculum,'' and the proposed 
regulation would continue to explain, as do the current regulations, 
that the general education curriculum is the same curriculum as for 
nondisabled children. Proposed Sec.  300.320(a)(1)(ii), regarding the 
participation of preschool children in appropriate activities, is the 
same as Sec.  300.347(a)(1)(ii) of the current regulations.
    Proposed Sec.  300.320(a)(2) is similar to Sec.  300.347(a)(2) of 
the current regulations, except for minor language changes from section 
614(d)(1)(A)(i)(II) of the Act. Proposed Sec.  300.320(a)(2)(i)(A) and 
(B) would be the same as Sec.  300.347(a)(2)(i) and (ii) of the current 
regulations.
    Proposed Sec.  300.320(a)(2)(ii) would add a new provision 
consistent with section 614(d)(1)(A)(i)(I)(cc) of the Act that would 
require the IEP to contain a statement of benchmarks or short-term 
objectives for children with disabilities who take alternate 
assessments aligned to alternate achievement standards. In accordance 
with changes made in section 614(d)(1)(A)(i)(III) of the Act, proposed 
Sec.  300.320(a)(3) would replace Sec.  300.347(a)(7) of the current 
regulations, and would require that the IEP include a statement of how 
the child's progress on the annual goals is being measured. In 
accordance with section 614(d)(1)(A)(i)(III) of the Act, proposed Sec.  
300.320(a)(3)(ii) would clarify that periodic progress reports could be 
issued concurrently with quarterly report cards.
    Proposed Sec.  300.320(a)(4) would replace Sec.  300.347(a)(3) of 
the current regulations, and would incorporate the language in section 
614(d)(1)(A)(IV) of the Act regarding a statement of special education 
and related services and supplementary aids and services, based on 
peer-reviewed research, to the extent practicable. Proposed Sec.  
300.320(a)(5), which would require an explanation of the extent, if 
any, to which a child will not participate with nondisabled children in 
the regular class and in other activities, would incorporate current 
Sec.  300.347(a)(4), which is the same as section 614(d)(1)(A)(i)(V) of 
the Act. Proposed Sec.  300.320(a)(6) would replace Sec.  
300.347(a)(5), regarding participation of children with disabilities in 
State and districtwide assessments of student achievement, and would 
incorporate section

[[Page 35804]]

614(d)(1)(A)(VI) of the Act. This section would require that the IEP 
include a statement of any individual appropriate accommodations that 
are necessary to measure the academic achievement and functional 
performance of the child on State and districtwide assessments, 
consistent with proposed Sec.  300.160. If the IEP Team determines that 
the child should take a particular alternate assessment on a particular 
State or districtwide assessment of student achievement, the IEP must 
include a statement of why the child cannot participate in the regular 
assessment and why the particular alternate assessment selected is 
appropriate for the child. Proposed Sec.  300.320(a)(7), regarding the 
projected date for the beginning of services and modifications and the 
anticipated frequency, location, and duration of those services and 
modifications, is the same as Sec.  300.347(a)(6) of the current 
regulations.
    Proposed Sec.  300.320(b) would replace current Sec.  300.347(b), 
regarding transition services, and would incorporate some of the new 
statutory requirements regarding postsecondary goals in section 
614(d)(1)(A)(VIII) of the Act. Beginning with the first IEP in effect 
after the child turns age 16 or younger if determined appropriate, and 
updated annually thereafter, this proposed paragraph would require that 
the IEP include appropriate measurable postsecondary goals based upon 
age appropriate transition assessments related to training, education, 
employment, and, where appropriate, independent living skills, and the 
transition services, including courses of study needed to assist the 
child in reaching those goals. As under the current regulations, 
proposed Sec.  300.320(b) would continue to apply the requirements 
regarding transition services for students younger than age 16, if 
determined appropriate by the IEP Team. However, Sec.  300.347(b)(1) of 
the current regulations, regarding including a statement of transition 
services needs under the applicable components of the student's IEP in 
the IEPs of students beginning at age 14 or younger, would be removed 
from these proposed regulations because it is no longer required under 
the Act. Proposed Sec.  300.320(c) would replace Sec.  300.347(c) of 
the current regulations, regarding transfer of rights, and would 
incorporate section 614(d)(1)(A)(i)(VIII)(cc) of the Act to require 
that beginning not later than one year before the rights transfer, the 
child is informed that his or her rights under Part B will transfer to 
the child upon reaching the age of majority under State law.
    Proposed Sec.  300.320(d) would be based on section 
614(d)(1)(A)(ii) of the Act and Sec.  300.346(e) of the current 
regulations. The first clause would provide that the IEP is not 
required to include additional information beyond what is explicitly 
required under section 614(d) of the Act. The second clause, which is 
the same as Sec.  300.346(e) of the current regulations, would provide 
that this section would not require the IEP to include information 
under one component of the child's IEP that is already contained under 
another component of the IEP.
    Section 300.341 of the current regulations, regarding 
responsibility of the SEA and other public agencies for IEPs, would not 
be retained in these proposed regulations. The statutory authority for 
that section is not based on the IEP provisions in section 614(d) of 
the Act, and the substance of the provision is essentially covered by 
proposed Sec.  300.149, which would address the SEA responsibility for 
general supervision, including responsibility to ensure development and 
implementation of IEPs.
    Proposed Sec.  300.321 would include a requirement regarding the 
composition of the IEP Team, and is substantially the same as Sec.  
300.344 of the current regulations addressing a public agency's 
responsibility to ensure that the IEP Team includes the required 
participants. Proposed Sec.  300.321(a) would replace Sec.  300.344(a) 
of the current regulations. As with the current regulation, proposed 
paragraph (a)(7) would provide that, in accordance with the Act, 
whenever appropriate, the child be a member of the IEP Team.
    Proposed Sec.  300.321(b) would address transition services 
participants and would replace and modify Sec.  300.344(b) of the 
current regulations to reflect changes to the Act's requirements on 
transition services. Proposed Sec.  300.321(b)(1) would provide that 
the child be invited to the IEP meeting if a purpose of the meeting is 
consideration of the child's postsecondary goals and the transition 
services needed to achieve those goals. Proposed Sec.  300.321(b)(2) is 
substantially the same as Sec.  300.344(b)(2) of the current 
regulations, regarding the public agency's obligation to take other 
steps to ensure that the student's preferences and interests are 
considered if the child is unable to attend the meeting. Proposed Sec.  
300.321(b)(3) would replace and modify Sec.  300.344(b)(3)(i) of the 
current regulations and would require, to the extent appropriate, and 
with the consent of the parent or a child who has reached the age of 
majority, that a representative of a participating agency that is 
likely to be responsible for providing or paying for transition 
services be invited to the meeting. Current Sec.  300.344(b)(3)(ii), 
addressing the public agency's obligations to take steps to obtain the 
participation of the other agency in the planning for transition 
services if the other agency does not send a representative, would be 
removed as it is an unnecessary burden. Proposed Sec.  300.321(c), 
regarding determination of knowledge and special expertise of other 
individuals invited by the parent or public agency to be members of the 
IEP Team, is essentially the same as, and would replace, Sec.  
300.344(c) of the current regulations. Proposed Sec.  300.321(d), 
regarding designating a public agency representative, is essentially 
the same as, and would replace, Sec.  300.344(d) of the current 
regulations.
    Proposed Sec.  300.321(e) would add a new provision regarding IEP 
meeting attendance and would incorporate section 614(d)(2)(C) of the 
Act. Proposed Sec.  300.321(e)(1) would specify when a member of the 
IEP Team would not be required to attend the IEP meeting in whole or in 
part. Proposed Sec.  300.321(e)(2) would specify when a member of the 
IEP Team may be excused from attending the IEP meeting in whole or in 
part, subject to the parent's and public agency's written consent to 
the member's excusal, and subject to the member's written submission to 
the parent and public agency of input into the development of the IEP 
prior to the meeting.
    Proposed Sec.  300.321(f) would incorporate a new requirement in 
section 614(d)(2)(D) of the Act for the initial IEP meeting for a child 
who was previously served under Part C of the Act, and would require, 
to ensure the child's smooth transition, that an invitation to that 
meeting, at the request of the parent, be sent to the Part C services 
coordinator or a representative of the Part C system.
    Consistent with the statutory requirement that a parent, as a 
member of the IEP Team, provide significant input into the child's IEP, 
proposed Sec.  300.322 would address parent participation and would 
replace Sec.  300.345 of the current regulations. Proposed Sec.  
300.322(a), regarding notifying the parents of the meeting early enough 
to ensure they will have an opportunity to attend and scheduling the 
meeting at a mutually convenient time and place, would be the same as 
Sec.  300.345(a) of the current regulations. Proposed Sec.  300.322(b), 
regarding information in the notice, would be the

[[Page 35805]]

same as Sec.  300.345(b) of the current regulations, except that 
paragraph (b)(2), regarding notifying a student age 14 or younger about 
an IEP meeting to develop a statement of needed transition services 
would be removed because the participation of a child age 14 or younger 
in the transition services planning process is not required under the 
Act. Proposed Sec.  300.322(b)(1), which would be the same as Sec.  
300.345(b)(1) of the current regulations, would continue to require the 
public agency to notify the parents of the purpose, time, and location 
of the meeting and who will be in attendance, including informing 
parents of the provisions in Sec.  300.322 regarding the participation 
of other individuals with knowledge or special expertise about the 
child. Paragraph (b)(3) of current Sec.  300.345 would be modified, 
would become proposed Sec.  300.322(b)(2) and would require that the 
parent be notified, not later than the first IEP to be in effect when 
the child turns 16, or younger if determined appropriate by the IEP 
Team, if a purpose of the meeting will be the consideration of 
postsecondary goals and transition services for the child. The notice 
would indicate that the agency will invite the child to the meeting and 
also would identify any other agency that will be sending a 
representative to the meeting. Proposed Sec.  300.322(c), regarding 
other methods to ensure parent participation if neither parent can 
attend, would replace Sec.  300.345(c) of the current regulations, and 
would be modified to address the use of other methods, including 
individual or conference telephone calls, subject to Sec.  300.328 of 
the proposed regulations relating to alternative means of meeting 
participation. Proposed Sec.  300.322(d), regarding conducting a 
meeting without a parent in attendance, would replace Sec.  300.345(d) 
of the current regulations, except that the proposed regulation would 
not specify the methods that the public agency must use to keep a 
record of its attempts to convince the parent that he or she should 
attend the meeting. Current section 300.345(e), regarding the use of 
interpreters or other action, as appropriate, would be removed from 
these proposed regulations because public agencies are required by 
other Federal statutes to take appropriate actions to ensure that 
parents who themselves have disabilities and limited English proficient 
parents understand proceedings at the IEP meeting. The other Federal 
statutory provisions that apply in this regard are Section 504 of the 
Rehabilitation Act of 1973 and its implementing regulations in 34 CFR 
Part 104 (prohibiting discrimination on the basis of disability by 
recipients of Federal financial assistance) and title II of the 
Americans With Disabilities Act and its implementing regulations in 28 
CFR Part 35 (prohibiting discrimination on the basis of disability by 
public entities, regardless of receipt of Federal funds), and title VI 
of the Civil Rights Act of 1964 and its implementing regulations in 34 
CFR Part 100 (prohibiting discrimination on the basis of race, color, 
or national origin by recipients of Federal financial assistance).
    Proposed Sec.  300.322(f) would replace Sec.  300.345(f) of the 
current regulations and would continue to require that public agencies 
give a parent a copy of their child's IEP at no cost to the parent.
    Proposed Sec.  300.323 would address when IEPs must be in effect 
and would replace some of the provisions of Sec.  300.342 of the 
current regulations. Proposed Sec.  300.323(a), which is essentially 
the same as Sec.  300.342(a) of the current regulations, would require 
a public agency to ensure that an IEP is in effect for each child with 
a disability at the beginning of each school year. Proposed Sec.  
300.323(b), regarding an IEP or IFSP for children aged three through 
five, would replace and modify Sec.  300.342(c) of the current 
regulations. The proposed regulation would incorporate language in 
section 614(d)(2)(B) of the Act as well as language in section 636 of 
the Act to require the IEP Team to consider an IFSP that contains the 
IFSP content described in section 636 of the Act, and that is developed 
in accordance with Sec.  300.324 of these proposed regulations. Under 
both the Act and the proposed regulations, the IFSP could serve as the 
IEP if consistent with State policy and agreed to by the parent and the 
agency. Proposed Sec.  300.323(b)(1) would specify further that, in 
order for the IFSP to be considered as the IEP, the IFSP must contain 
the IFSP content, including the natural environments statement and an 
educational component that promotes school readiness and incorporates 
pre-literacy, language, and numeracy skills for children with IFSPs who 
are at least three years of age. Proposed Sec.  300.323(b)(2) would be 
consistent with the current regulation in Sec.  300.342(c)(2)(i) and 
(ii) that requires that the child's parents be provided a detailed 
explanation of the differences between an IFSP and an IEP, and written 
informed consent from the parent if the parent chooses an IFSP. 
Proposed Sec.  300.323(c), regarding initial IEPs and provision of 
services, would combine Sec. Sec.  300.342(b)(2)(ii) and 300.343(b)(2) 
of the current regulations and would continue the longstanding 
requirement in Sec.  300.343(b)(2) that an initial IEP be developed 
within 30 days of a determination that the child needs special 
education and related services. However, Sec.  300.342(b)(1)(i) of the 
current regulations, requiring that an IEP be in effect before special 
education and related services are provided to a child, would be 
removed from these proposed regulations. This requirement is covered by 
proposed Sec.  300.323(a), which would require that each public agency 
have an IEP in effect for each child with a disability in the public 
agency's jurisdiction at the beginning of each school year, and by 
section 614(d)(2)(A) of the Act.
    Proposed Sec.  300.323(c)(2) would combine current Sec.  
300.343(b)(2), which requires that a meeting to develop an IEP ``be 
conducted within 30 days of a determination that the child needs 
special education and related services'' with current Sec.  
300.342(b)(1)(ii), which requires an IEP to be ``implemented as soon as 
possible following the meetings described in Sec.  300.343.'' This 
combined language would provide a clearer, more direct, and more 
specific requirement than what is contained in current Sec. Sec.  
300.342((b)(1)(ii) and 300.343(b)(2).
    Proposed Sec.  300.323(d), regarding accessibility of the child's 
IEP to the regular education teacher and others responsible for its 
implementation, would replace Sec.  300.342(b)(2) of the current 
regulations. However Sec.  300.342(b)(3) of the current regulations, 
which requires that each person responsible for implementing the IEP be 
informed of his or her specific responsibilities related to 
implementing the child's IEP, and the specific accommodations, 
modifications and supports that must be provided for the child in 
accordance with the IEP, would be removed from the proposed regulations 
as unnecessary. Public agencies are required to share this information 
with responsible individuals in order to meet their obligations under 
the Act.
    Proposed Sec.  300.323(e) would implement the new requirement in 
section 614(d)(2)(C) of the Act regarding programs for children who 
transfer public agencies within the same academic year. Proposed Sec.  
300.323(e)(1)(i) would implement the Act and the Department's 
longstanding policy regarding students who transfer public agencies 
within the same State. The proposed regulation would require that the 
new school district provide the child with FAPE, including services 
comparable to those described in a previously held IEP until the public 
agency adopts the previously held IEP

[[Page 35806]]

or develops, adopts, and implements a new IEP that is consistent with 
Federal and State law. Proposed Sec.  300.323(e)(1)(ii) would 
incorporate a statutory change that requires, in the case of a child 
who had an IEP in effect and who transfers from a public agency outside 
the State in the same academic year, that the public agency provide the 
child with FAPE, including services comparable to those described in 
the previously held IEP, until the public agency conducts an evaluation 
of the child, if determined necessary by the public agency, and 
develops a new IEP for the child, if appropriate, that is consistent 
with Federal and State law.
    Proposed Sec.  300.323(e)(2) would incorporate the new requirement 
in section 614(d)(2)(C)(ii) of the Act regarding transmittal of 
education records to facilitate the transition of a child who transfers 
public agencies within the same State. It also would address the 
responsibility of the new public agency and previous public agency to 
take reasonable steps regarding making prompt requests for, and 
transmission of, education records consistent with 34 CFR 99.31(a)(2), 
implementing FERPA.
    Paragraph (d) of Sec.  300.342 of the current regulations, 
regarding effective dates for new IEP requirements, is unnecessary and 
would be removed from the proposed regulations. All the IEP 
requirements of Part B of the Act will take effect on July 1, 2005. 
Further, it is not anticipated that public agencies will need 
additional time to implement these new requirements, some of which 
provide additional flexibility to public agencies and parents and 
reduce regulatory burden.

Development of IEP

    Proposed Sec.  300.324 would address the development, review, and 
revision of IEPs. This section would incorporate some requirements 
regarding IEP development, review, and revision, which are currently 
addressed in Sec. Sec.  300.343 and 300.346 of the regulations.
    Proposed Sec.  300.324(a) would incorporate section 614(d)(3)(A) of 
the Act regarding considerations in IEP development. Although most of 
the language from Sec.  300.346(a) of the current regulations would be 
retained, the requirement in Sec.  300.346(a)(1)(iii), regarding 
consideration in IEP development of the child's performance on State or 
districtwide assessments, as appropriate, would be removed. Instead, 
the proposed regulation would include language from section 
614(d)(3)(A)(iv) of the Act regarding consideration of the academic, 
developmental, and functional needs of the child in IEP development. In 
accordance with section 614(d)(3)(B) of the Act, proposed Sec.  
300.324(a)(2), regarding consideration of special factors in IEP 
development, would be substantially the same as, and would replace, 
Sec.  300.346(a)(2) of the current regulations. Proposed Sec.  
300.324(a)(3) would continue to require, in accordance with section 
614(d)(3)(C) of the Act, that the regular education teacher, as a 
member of the IEP Team, to the extent appropriate, participate in IEP 
development in the areas specified in the Act. This proposed regulation 
would replace Sec.  300.346(d) of the current regulations, which 
contains a similar provision regarding the role of the regular 
education teacher in the development, review, and revision of the IEP. 
Because the Act no longer requires the consideration of special factors 
in IEP review and revision, Sec.  300.346(b) of the current regulations 
would be removed. Section 300.346(c) of the current regulations, 
regarding the requirement to include a statement in the child's IEP 
about a child's need for a particular device or service in order to 
receive FAPE, would be removed because it is covered in proposed Sec.  
300.320(a)(4).
    Proposed Sec.  300.324(a)(4) would incorporate section 614(d)(3)(D) 
of the Act and would permit the parent and the public agency to agree 
not to convene an IEP meeting to make changes to the child's IEP after 
the annual IEP meeting for the school year has taken place. Instead, in 
accordance with this new statutory provision, this proposed regulation 
would permit the parent and the public agency to develop a written 
document to amend or modify the child's current IEP without convening 
an IEP meeting.
    To incorporate section 614(d)(3)(E) of the Act, proposed Sec.  
300.324(a)(5) would address consolidation of IEP meetings and would 
require the public agency, to the extent possible, to encourage the 
consolidation of reevaluation meetings and other IEP meetings for the 
child.
    To incorporate section 614(d)(3)(F) of the Act, proposed Sec.  
300.324(a)(6) would permit changes to the IEP to be made either by the 
entire IEP Team, or in accordance with proposed Sec.  300.324(a)(4), by 
amending the IEP, rather than redrafting the entire IEP. This proposed 
paragraph would also provide that a parent who requests a copy of the 
revised IEP with the amendments incorporated must be provided with it.
    Section 300.343(a) of the current regulations, regarding the public 
agency's responsibility to initiate and conduct meetings to develop, 
review, and revise a child's IEP, would be removed because it is 
covered in Sec.  300.320(a) of the proposed regulations. Proposed Sec.  
300.324(b)(1) would address review and revision of IEPs and is 
essentially the same as Sec.  300.343(c) of the current regulations. 
Proposed Sec.  300.324(b)(2) would require the participation of the 
regular education teacher in the review and revision of the child's 
IEP, consistent with proposed Sec.  300.324(a)(3).
    Proposed Sec.  300.324(c), regarding failure to meet transition 
objectives, is essentially the same as, and would replace Sec.  300.348 
of the current regulations. Proposed Sec.  300.324(c)(1) would 
implement section 614(d)(6) of the Act, which requires the public 
agency to reconvene the IEP Team to develop alternative strategies if 
the agency responsible for providing transition services fails to 
provide those services. Proposed Sec.  300.324(c)(2) would continue the 
longstanding regulatory requirement in current Sec.  300.348(b) that a 
participating agency, including a State vocational rehabilitation 
agency, is not relieved of its responsibility to provide or pay for 
transition services that the agency would otherwise provide if the 
student meets the eligibility requirements for those services.
    Proposed Sec.  300.324(d)(1), regarding children with disabilities 
in adult prisons, would conform to section 614(d)(7) of the Act. Unlike 
Sec.  300.347(d) of the current regulations, which merely cross-
references other applicable regulatory requirements, proposed Sec.  
300.324(d)(1) would specify the requirements from which public agencies 
would be exempt with respect to these children. Specifically, public 
agencies would be exempt from the requirements in Sec.  300.160 and 
Sec.  300.320(a)(6), regarding participation in State and districtwide 
assessments, and the requirements in Sec.  300.320(b), regarding 
transition services, which do not apply to children who exceed age 
eligibility under Part B of the Act prior to their release from prison, 
based on their sentence and eligibility for early release.
    Proposed Sec.  300.324(d)(2)(i) would, consistent with section 
614(a)(7) of the Act, continue to permit the IEP Team of a child with a 
disability who is convicted as an adult under State law and 
incarcerated in an adult prison to modify the child's IEP or placement 
if the State has demonstrated a bona fide security or penological 
interest that cannot otherwise be accommodated. Proposed Sec.  
300.324(d)(2)(ii) would continue to provide that the requirements in 
current Sec. Sec.  300.347(d)

[[Page 35807]]

and 300.313, regarding LRE, would not apply to these IEP and placement 
modifications.
    Proposed Sec.  300.325, regarding private school placements by 
public agencies, would be essentially the same as Sec.  300.349 of the 
current regulations, and would implement section 612(a)(10)(B) of the 
Act. The proposed regulation would require that children placed in 
private schools by public agencies receive required special education 
and related services at no cost to the parents in accordance with an 
IEP developed under Part B of the Act. Further, even if the private 
school implements the child's IEP, responsibility for ensuring 
compliance with the Act rests with the SEA and the public agency.
    Section 300.350 of the current regulations, regarding IEP 
accountability, would be removed from the proposed regulations as 
unnecessary. The requirement in Sec.  300.350(a) that each child 
eligible for services under Part B of the Act be provided services in 
accordance with an IEP is unnecessary because entitlement to FAPE under 
the Act includes the provision of special education and related 
services in accordance with an IEP. Paragraph (a)(2) and (b) of Sec.  
300.350 is unnecessary as we believe that other federal laws, such as 
title I of the ESEA, already provide sufficient motivation for agency 
effort to assist children with disabilities in making academic 
progress. Section 300.350(c), regarding accountability, would be 
removed as it merely provides explanatory information.
    Proposed Sec.  300.327, regarding educational placements, would 
replace Sec.  300.501(c)(1) of the current regulations, and would 
continue to require, in accordance with section 614(e) of the Act, that 
each public agency ensure that parents are members of any group that 
makes decisions on the educational placement of their child. Current 
Sec.  300.501(c)(2), regarding other methods to ensure parent 
participation, would be removed from these proposed regulations because 
it is covered by proposed Sec.  300.328.
    Proposed Sec.  300.328 would incorporate section 614(f) of the Act 
and would give a parent and a public agency the option of agreeing to 
use alternative means, such as video conferences and conference calls, 
to meet their obligations for participation in IEP and placement 
meetings and in carrying out administrative matters, such as 
scheduling, exchange of witness lists, and conference calls.

Subpart E--Procedural Safeguards

Due Process Procedures for Parents and Children
    Proposed Sec.  300.500 on the responsibility of SEAs and other 
public agencies would include the current regulatory language in Sec.  
300.500(a), appropriately updated. The definitions of the terms 
``consent,'' ``evaluation,'' and ``personally identifiable'' in current 
Sec.  300.500(b) would be moved to subpart A of 34 CFR part 300.
    Proposed Sec.  300.501 concerning the opportunity to examine 
records and parent participation in meetings generally would reflect 
the language in current Sec.  300.501 with appropriate updating of 
cross-references and two substantive changes. First, proposed Sec.  
300.501(c)(4) would not include the current concluding phrase requiring 
that public agencies keep a record of attempts to involve parents in 
placement decisions, including information consistent with the records 
that must be maintained if an IEP meeting is to be held without a 
parent in attendance. The phrase would be removed to provide school 
personnel greater flexibility in how they document attempts to involve 
parents. However, public agencies still must maintain documentation of 
their efforts in this regard. Second, the regulatory requirement in 
current Sec.  300.501(c)(5) would be removed as unnecessarily 
duplicative. The requirement that agencies make reasonable efforts to 
enable parents to understand and participate in discussions about 
placement of their child is inherent in the obligation in proposed 
Sec.  300.501(b)(1) that parents be afforded an opportunity to 
participate in meetings about the identification, evaluation, 
educational placement and provision of FAPE to their child.
    Proposed Sec. 300.502 would incorporate the provisions of the 
current Sec.  300.502, regarding independent educational evaluations, 
with some minor changes. References to hearings throughout would be 
modified to indicate that the hearing involved is a due process 
hearing, or a hearing on a due process complaint. Proposed Sec.  
300.502(c)(2) also would be revised to clarify that the results of a 
parent-initiated independent educational evaluation at public expense 
may be introduced by any party as evidence at a hearing on a due 
process complaint.
    Proposed Sec.  300.503, on prior written notice, would incorporate 
two substantive changes from current Sec.  300.503. First, current 
Sec.  300.503(a)(2) would be removed. It is not necessary to explain in 
the regulation that prior written notice can be provided at the same 
time as parental consent is requested because parental consent cannot 
be obtained without this notice. Second, the elements of the contents 
of the notice would be revised in Sec.  300.503(b) to reflect new 
statutory language in section 615(c)(1) of the Act.
    Proposed Sec.  300.504(a) would be revised consistent with new 
statutory language in section 615(d)(1) of the Act regarding the timing 
of procedural safeguards notices. In addition, proposed Sec.  
300.504(a)(2) would clarify that a procedural safeguards notice must be 
provided upon receipt of the first filing of a State complaint or 
request for a due process hearing in a school year, as opposed to the 
first request at any point in a child's school career. This should aid 
implementation at the school district level without unduly burdening 
school districts, and ensure that parents have information about the 
due process procedures when they are most likely to need it.
    Throughout these proposed regulations we use the term ``due process 
complaint,'' instead of the statutory term ``complaint'' in order to 
provide clarity and reduce confusion between a due process complaint 
and a complaint under the State complaint procedures in Sec. Sec.  
300.660 through 300.662 of the current regulations and provided for in 
these proposed regulations in Sec. Sec.  300.151 through 300.153.
    A new Sec.  300.504(b) would be added concerning Internet posting 
of the procedural safeguards notice, consistent with section 
615(d)(1)(B) of the Act.
    The contents of the procedural safeguards notice would be updated 
in proposed Sec.  300.504(c), reflecting revised statutory language in 
section 615(d)(2) of the Act. The notice also would have to explain the 
differences between the due process complaint and the State complaint 
procedures as provided for in proposed Sec.  300.504(c)(5)(iii). This 
change also should assist in reducing confusion about these 
alternatives. Cross-references would be updated, as appropriate.
    Proposed Sec.  300.505 would incorporate language from section 
615(n) of the Act providing that a parent may elect to receive required 
notices by electronic mail, if the public agency makes that option 
available. Provisions in current Sec.  300.505 concerning parental 
consent would be moved to subpart D of the proposed regulations that 
addresses parental consent in the context of evaluations, reevaluations 
and the initial provision of services to children with disabilities.

[[Page 35808]]

    Proposed Sec.  300.506 would revise the current regulatory language 
on mediation to reflect changes in section 615(e) of the Act. In 
proposed Sec.  300.506(a), new language would be added providing that 
mediation be made available to resolve any dispute, including matters 
that arise before a party has requested a due process hearing. In 
proposed Sec.  300.506(b), language would be added to reflect section 
615(e)(2)(B) of the Act and would provide that public agencies may 
establish procedures to offer parents and schools that choose not to 
use mediation the opportunity to learn about the benefits and use of 
mediation. In addition, proposed Sec.  300.506(b)(3)(ii) would replace 
the current language in Sec.  300.506(b)(2)(ii), regarding party 
involvement in the selection of mediators, with more general language 
providing that the SEA select mediators on a random, rotational, or 
some other impartial basis. Proposed Sec.  300.506(b)(2)(ii) should 
provide SEAs additional flexibility in selecting mediators, while 
ensuring that mediators are impartial. Proposed Sec.  300.506(b)(6), 
(b)(7), and (b)(8) would include new provisions from section 
615(e)(2)(F) and (G) of the Act concerning written agreements when 
mediation results in an agreement to resolve the dispute, and 
confidentiality of mediation agreements. However, each of these 
provisions would clarify that the limitation placed on the use of 
information discussed during mediation as evidence would apply only to 
actions arising out of the same dispute. Without this clarifying 
language, there could be a misperception that the Department would be 
attempting to restrict the powers of State courts. Proposed Sec.  
300.506(b)(9) would be added in light of note 208 of Conf. Rpt. 
indicating the Conference Committee's intention that parties could be 
required to sign confidentiality pledges prior to the commencement of 
mediation, without regard to whether the mediation ultimately resolves 
the dispute.
    Proposed Sec.  300.506(c) would be similar to current Sec.  
300.506(c) concerning requirements for the impartiality of the 
mediator. However, consistent with the language in section 
615(f)(3)(A)(i)(II) regarding due process hearing officers, and the 
Senate Report No. 108-185, p. 37, proposed Sec.  300.506(c)(1) would 
permit employees of LEAs that are not involved in the education or care 
of the child involved in the dispute being mediated to serve as 
mediators. In addition, the cross-references would be updated. Current 
Sec.  300.506(d), regarding a meeting to encourage mediation, would be 
removed, reflecting the change in section 615(e)(2)(B) of the Act.
    Proposed Sec.  300.507(a)(1) would revise the current regulatory 
language regarding initiating a due process hearing on matters relating 
to the identification, evaluation, or educational placement of a child, 
or the provision of FAPE to the child to specify that a party could 
``file a due process complaint,'' as opposed to ``initiate,'' a hearing 
on these matters. This change would be made in light of new language 
concerning the resolution process, particularly in section 615(b)(7)(B) 
of the Act, requiring that a sufficient due process hearing notice be 
provided, and section 615(f)(1)(B) of the Act, requiring that a 
resolution process occur (unless waived by joint agreement of the 
parties) before a hearing will be available. Current Sec.  
300.507(c)(4), regarding a parent's right to a due process hearing for 
failure to provide the requisite notice, would be removed as it is 
inconsistent with the new statutory language requiring that a 
resolution session occur, unless waived by joint agreement of the 
parties. Current Sec.  300.507(a)(2), providing that parents be advised 
of the availability of mediation whenever a hearing is initiated, would 
be removed. Under the proposed regulations, mediation must be available 
to resolve any dispute, not just when a hearing has been requested, as 
was the case under the prior law. In addition, under the new statute, 
additional opportunities will exist to resolve disputes when a hearing 
has been requested, such as through the resolution process. Proposed 
Sec.  300.507(a)(2) would reflect the new requirement in section 
615(b)(6)(B) of the Act concerning the time period for filing a request 
for a due process hearing after the alleged violation has occurred. 
Proposed Sec.  300.507(b) would contain the information currently in 
the regulations in Sec.  300.507(a)(3) on available free or low-cost 
legal or other relevant services, but would be revised to refer to 
``requests a hearing'' as opposed to ``initiates a hearing'' for the 
reasons discussed previously.
    Proposed Sec.  300.508(a), (b), and (c) would incorporate new 
language from section 615(b)(7) of the Act concerning the obligation to 
provide a due process complaint to the other party, the required 
content of the complaint notice, and the requirement that a due process 
hearing may not be held until the party, or the attorney representing 
the party, files the due process complaint. These changes should also 
help clarify that the complaint and complaint notice would be the same 
document, which should aid in smooth implementation of these new 
provisions. Proposed Sec.  300.508(a) and (b) are similar to current 
Sec.  300.507(c)(1) and (2), but would be revised as required by the 
Act. Proposed Sec.  300.508(a)(2) would require that the party 
requesting the hearing forward a copy of the due process complaint to 
the SEA. Proposed Sec.  300.508(c) would address the contents of this 
due process complaint. Proposed Sec.  300.508(d) and (e) would 
incorporate the new language from section 615(c)(2) of the Act 
concerning due process complaint sufficiency and response to a due 
process complaint. Proposed Sec.  300.508(e) would address the public 
agency's responsibility to send a parent a response to the due process 
complaint if the public agency had not sent a prior written notice to 
the parent regarding the subject matter contained in the parent's due 
process complaint. The proposed regulation would outline what 
information must be contained in the response. Proposed Sec.  300.508 
would incorporate but reorder the statutory provisions slightly to 
clarify and provide an organized discussion of each topic.
    Proposed Sec.  300.509 would incorporate the new requirement from 
section 615(b)(8) of the Act that SEAs develop a model form to assist 
parents in filing a due process complaint, including the content of the 
complaint. Proposed Sec.  300.509 also would require States to develop 
model forms for filing State complaints, consistent with the changes 
regarding proposed Sec. Sec.  300.151 through 300.153 discussed 
elsewhere in this preamble. The proposed language would replace the 
current regulatory requirement in Sec.  300.507(c)(3).
    Proposed Sec.  300.510 would incorporate the new requirements 
concerning resolution process from section 615(f)(1)(B) of the Act. 
Proposed Sec.  300.510(a)(1) would clarify that the resolution meeting 
must be held within 15 days of receipt of notice of the due process 
complaint, and prior to the initiation of a due process hearing. 
Proposed Sec.  300.510(a)(4) would be added in light of note 212 of the 
Conf. Rpt. providing that parents and the LEA must determine the 
relevant members of the IEP Team to attend the resolution meeting. 
Proposed Sec.  300.510(b)(2) would clarify that the regulatory timeline 
for issuing a final due process hearing decision begins at the end of 
the new 30-day resolution period that starts when the due process 
complaint is received. This provision is based on the language in 
section 615(f)(1)(B)(ii) of the Act stating that the applicable due 
process timelines commence at the end

[[Page 35809]]

of this 30-day period. Proposed Sec.  300.510(b)(3) would provide, 
however, that the resolution session and due process hearing would be 
delayed until the meeting is held if a parent filing a due process 
complaint fails to participate in the resolution meeting. Proposed 
Sec.  300.510(b)(3) is based on H. Rep. No. 108-77, page 114 that 
provides:

    [If] the parent and the LEA mutually agree that the meeting does 
not need to occur, the resolution session meeting does not need to 
take place. However, unless such an agreement is reached, the 
failure of the party bringing the complaint to participate in the 
meeting will delay the timeline for convening a due process hearing 
until the meeting is held.
    Proposed Sec.  300.510 would incorporate the requirement from 
section 615(f)(1)(B) of the Act regarding the conducting of resolution 
sessions, unless waived by joint agreement of the parties prior to the 
opportunity for an impartial due process hearing.
    Proposed Sec.  300.511(a) and (b) would incorporate the language 
from section 615(f)(1)(A) of the Act regarding impartial due process 
hearings. Proposed Sec.  300.511(b) is the same as the current Sec.  
300.507(b). Proposed Sec.  300.511(c)(1) would incorporate the language 
regarding qualifications of hearing officers from section 615(f)(3)(A) 
of the Act, and would replace current language in Sec.  300.508(a) and 
(b) of the current regulations. Proposed Sec.  300.511(c)(2) and (3) 
would incorporate the regulatory language currently in Sec.  300.508(b) 
and (c) regarding the non-employee status of the hearing officer and 
the requirement for the public agency to keep a list of hearing 
officers and their qualifications. Proposed Sec.  300.511(d), (e) and 
(f) would include the new requirements in section 615(f)(3)(B), (C), 
and (D) of the Act concerning the subject matter of the due process 
hearings, timelines for requesting hearings and exceptions to the 
timelines.
    Proposed Sec.  300.512(a), (b), and (c) would incorporate the due 
process hearing rights addressed in section 615(f)(2) and (h) of the 
Act, and the current regulatory language in Sec.  300.509(a), (b) and 
(c)(1). The language in current Sec.  300.509(c)(2) concerning 
providing the record of the hearing and decision at no cost to the 
parents would be moved to proposed Sec.  300.512(c)(3). Under proposed 
Sec.  300.512(a)(4), parents would have a right to obtain copies of a 
written, or, at the option of the parents, electronic, verbatim record 
of the hearing and copies of findings of fact and decisions, and public 
agencies would remain responsible for ensuring that these rights are 
effectively implemented.
    Proposed Sec.  300.513(a) would reflect the new language in section 
615(f)(3)(E) of the Act concerning the nature of hearing officer 
decisions, including the requirement that decisions be made on 
substantive grounds, standards for when procedural violations can be 
found to deny FAPE, and clarifying that a hearing officer can order an 
LEA to comply with procedural requirements. Proposed Sec.  300.513(b) 
would incorporate the construction clause from section 615(f)(3)(F) of 
the Act, but would clarify that language based on note 225 of the Conf. 
Rpt., which indicates that the statutory reference to a complaint was 
intended to address a State-level administrative appeal process, if 
available in that State. Proposed Sec.  300.513(c) would incorporate 
the requirement from section 615(o) of the Act that nothing prevents a 
parent from filing a separate due process complaint on an issue 
separate from the due process complaint that has already been filed. 
However, note 220 of the Conf. Rpt. states that ``the Conferees intend 
to encourage the consolidation of multiple issues into a single 
complaint where such issues are known at the time of the filing of the 
initial complaint.''
    Proposed Sec.  300.513(d) would incorporate the current regulatory 
language from Sec.  300.509(d) concerning the availability of hearing 
decisions to the public and the State advisory panel, based on section 
615(h)(4) of the Act.
    Proposed Sec.  300.514, on finality of decisions, appeals, and 
impartial reviews, and Sec.  300.515, regarding timelines and 
convenience of hearings, would be the same as current Sec. Sec.  
300.510 and 300.511 respectively, with cross-references updated. 
Proposed Sec.  300.515(a) also would be revised to start the 45-day 
timeline from the expiration of the 30-day period for resolution under 
proposed Sec.  300.510, rather than from the date when the agency 
receives a request for a due process hearing. This change is based on 
new language in section 615(f)(1)(B)(ii) of the Act providing that the 
timelines for due process commence at the expiration of the resolution 
period.
    Proposed Sec.  300.516, on civil actions, would be essentially the 
same as the current Sec.  300.512 with updated references, and one 
substantive change. Specifically, proposed Sec.  300.516(b) would be 
added to reflect the new requirement in section 615(i)(2)(B) of the Act 
that provides for a time limit of 90 days from the date of the final 
State administrative decision to file a civil action, or if the State 
has an explicit time limitation for bringing a civil action under Part 
B of the Act, in the time allowed by that State law.
    Proposed Sec.  300.517, concerning attorneys' fees, would revise 
current Sec.  300.513 to reflect new language in section 615(i)(3)(B) 
through (G) of the Act. Proposed Sec.  300.517(a)(1) would reflect 
changes in section 615(i)(3)(B) of the Act providing that either the 
parents or an SEA or LEA could receive reasonable attorneys' fees in 
appropriate circumstances. Proposed Sec.  300.517(a)(2) would be added 
to reflect the language in section 615(i)(3)(B)(ii) of the Act 
clarifying that the attorneys' fees limitation in the District of 
Columbia Appropriations Act, 2005, P.L. 108-335, would not be affected 
by this regulation. Proposed Sec.  300.517(c)(2)(iii) would be added to 
incorporate language from section 615(i)(3)(D)(iii) of the Act 
providing that attorneys' fees are not available for preliminary 
meetings that are a part of the new resolution proceedings.
    Finally, proposed Sec.  300.517(c)(4)(i) would provide that action 
by either the parent, or the parent's attorney, to unreasonably 
protract the final resolution of the controversy would be a basis to 
reduce the amount of attorneys' fees, consistent with a corresponding 
change in section 615(i)(3)(F)(i) of the Act.
    Proposed Sec.  300.518, concerning the child's status during 
proceedings, would be substantially the same as the current regulation 
in Sec.  300.514, with appropriate updating of cross-references.
    Proposed Sec.  300.519 would revise the current regulation in Sec.  
300.515 concerning surrogate parents in the following ways: In proposed 
Sec.  300.519(a)(2), we would use the statutory word ``locate'' rather 
than the current ``discover the whereabouts'' of the parent. Proposed 
Sec.  300.519(a)(4) would be added to reflect the new language in 
section 615(b)(2)(A)(ii) of the Act requiring that a child's rights be 
protected if the child is an unaccompanied homeless youth as defined 
under the McKinney-Vento Homeless Assistance Act, 42 U.S.C. 11431 et 
seq. Proposed Sec.  300.519(c) would be added to provide that a judge 
overseeing a child's case could appoint a surrogate if the child were a 
ward of the State, consistent with section 615(b)(2)(A)(i) of the Act. 
Proposed Sec.  300.519 would remove current Sec.  300.515(c)(3) 
regarding the option for a public agency to select as a surrogate an 
employee of a nonpublic agency that only provides noneducational care 
for the child, to ensure that surrogates do not have interests that 
conflict with the interest of the child. Proposed

[[Page 35810]]

Sec.  300.519(f) would be added concerning the potential appointment of 
temporary surrogates for unaccompanied homeless youth based on language 
in note 189 of the Conf. Rpt. providing that:

    The Conferees recognize that, because the parents of homeless 
unaccompanied youth may be unavailable or unwilling to participate 
in the youth's education, homeless unaccompanied youth face unique 
problems in obtaining a free appropriate public education.
    Accordingly, the Conferees intend that the surrogate parent 
process be available for such youth * * * the Conferees intend that 
appropriate staff members of emergency shelters, transitional 
shelters, independent living programs, and street outreach programs 
not be considered to be employees of agencies involved in the 
education or care of youth, for purposes of the prohibition of 
certain agency employees from acting as surrogates for parents * * 
*, provided that such role is temporary until a surrogate can be 
appointed that meets the requirements and such role in no way 
conflicts with, or is in derogation of, the provision of a free 
appropriate public education to these youth.

    Finally, in light of the new requirement in section 615(b)(2)(B) of 
the Act, proposed Sec.  300.519(h) would require that the SEA make 
reasonable efforts to ensure the assignment of a surrogate parent not 
more than 30 days after a public agency determines that a surrogate is 
needed. It is anticipated that only rare situations would cause the 
appointment of a surrogate to take 30 days.
    Proposed Sec.  300.520, concerning the transfer of parental rights 
at the age of majority, would be unchanged from the current regulatory 
language in Sec.  300.517. With regard to the permissive transfer of 
rights to individuals who are in correctional institutions, we would 
not include the reference, from the statute, to Federal correctional 
institutions, as States do not have an obligation to provide special 
education and related services under the Act to individuals in Federal 
facilities.

Discipline Procedures

    The discipline provisions of the regulations would be substantially 
revised or removed, in light of significant changes to section 615(k) 
of the Act. In light of these statutory changes, the current 
regulations in Sec. Sec.  300.520 through 300.528 would be removed. 
Proposed Sec.  300.530(a) would provide that school personnel may 
consider unique circumstances, on a case-by-case basis when deciding 
whether a change in placement, consistent with the requirements of 
proposed Sec.  300.530, would be appropriate for a particular child for 
a violation of a school code of student conduct. This provision would 
be based on statutory language in section 615(k)(1)(A) of the Act, and 
the Conf. Rpt. in notes 237-245, which provides that ``[It] is the 
intent of the Conferees that when a student has violated a code of 
conduct school personnel may consider any unique circumstances on a 
case-by-case basis to determine whether a change of placement for 
discipline purposes is appropriate.'' Proposed Sec.  300.530(b) would 
reflect the language in section 615(k)(1)(B)(1) of the Act, permitting 
school personnel to remove a child with a disability who violates a 
school code of conduct for not more than 10 school days, except that 
the regulatory language would clarify that these removals could be for 
not more than 10 consecutive school days, and that additional removals 
in the same school year would be possible, as long as those removals do 
not amount to a change of placement for the child. It is important for 
purposes of school safety and order to preserve the authority that 
school personnel have under the regulations to be able to remove a 
child for a discipline infraction for a short period of time, even 
though the child may have been removed for more than 10 days in that 
school year, as long as the pattern of removals does not itself 
constitute a change in placement of the child.
    However, because it is also important to preserve the concept from 
the current regulations that discipline not be used as a means of 
disconnecting a child with a disability from education, the requirement 
in proposed Sec.  300.530(b)(2) would provide that a child receive 
educational services consistent with paragraph (d) of Sec.  300.530 
after the first 10 days of removal in a school year.
    Paragraphs (c) and (d)(1) and (2) of proposed Sec.  300.530 would 
incorporate the statutory provisions from section 615(k)(1)(C) and (D) 
of the Act concerning removals for more than 10 school days and the 
provision of services during periods of removal. Proposed Sec.  
300.530(d)(3) would clarify that public agencies need not provide 
services to a child removed for 10 school days or less in a school 
year, as long as the public agency does not provide educational 
services to nondisabled children removed for the same amount of time. 
This is the same policy as in the current regulations in Sec.  
300.121(d)(1).
    Paragraph (d)(4) of proposed Sec.  300.530 would provide that where 
a child has been removed for more than 10 school days in the same 
school year, but not for more than 10 consecutive school days and not a 
change of placement, school personnel, in consultation with at least 
one of the child's teachers, would determine the extent to which 
services are needed, if any, and the location where needed services 
would be provided. We believe that this requirement is important to 
ensure that children with disabilities in this situation receive 
appropriate services, while preserving the flexibility of school 
personnel to move quickly to remove a child when needed and determine 
how best to address the child's needs during these relatively brief 
periods of removal. The consultation by school personnel with at least 
one of the child's teachers does not require that a meeting be held.
    Proposed Sec.  300.530(d)(5) would provide that the child's IEP 
Team determines appropriate services, including the location of 
services when a child is removed for more than 10 consecutive school 
days, or the removal otherwise is a change of placement. We believe 
that in instances of these longer-term removals, the child's IEP Team 
should make the determination of what services are appropriate for the 
child.
    Proposed Sec.  300.530(e) and (f) would incorporate the new 
requirements concerning manifestation determinations from section 
615(k)(1)(E) and (F) of the Act, with one addition. An introductory 
phrase would be included in proposed Sec.  300.530(e)(1) to clarify 
that a manifestation determination would not need to be conducted for 
removals for not more than 10 consecutive school days or that do not 
otherwise constitute a change of placement. This added language is 
consistent with the regulatory policy in current Sec.  300.523(a).
    Proposed Sec.  300.530(g) and (h) would incorporate the 
requirements from section 615(k)(1)(G) and (H) of the Act, which 
address the circumstances under which school personnel can remove a 
child for not more than 45 school days, including the new authority to 
remove a child who has inflicted serious bodily injury upon another 
person while at school, on school premises, or at a school function 
under the jurisdiction of an SEA or LEA. In addition, proposed Sec.  
300.530(h) would contain parental notification requirements. Proposed 
Sec.  300.530(i) would contain definitions drawn from section 615(k)(7) 
of the Act. The Act uses the definition of ``serious bodily injury'' 
from section 1365 of title 18, United States Code (i.e., ``bodily 
injury which involves--(A) a substantial risk of death; (B) extreme 
physical pain; (C) protracted or obvious disfigurement; or (D) 
protracted loss or impairment of the function of a bodily member, 
organ, or mental faculty'').

[[Page 35811]]

    Proposed Sec. Sec.  300.531 and 300.532(a) and (b) reflect the new 
language in section 615(k)(2) and (3) of the Act concerning the 
determination of the interim alternative educational setting by the IEP 
Team, the right to request a hearing to appeal placement and 
manifestation decisions, and the authority of the hearing officer in 
appeals under the discipline procedures. We add proposed Sec.  
300.532(b)(3) to the regulations to clarify that in appropriate 
circumstances, a school district could seek a subsequent hearing to 
continue a child in an interim alternative educational placement if the 
school district believes that the child would be dangerous if returned 
to his or her original placement at the end of a removal that was based 
on a determination that maintaining the child's regular placement was 
substantially likely to result in injury to the child or others. 
Proposed Sec.  300.532(c)(1) would incorporate the statutory right to a 
hearing from section 615(f)(1)(A) of the Act.
    Proposed Sec.  300.532(c)(2) would reflect the language in section 
615(k)(4)(B) of the Act regarding expedited timelines in cases of 
hearings under the discipline procedures. In proposed Sec.  
300.532(c)(3) and (4), we propose shortened timelines for the 
resolution session process in expedited hearings in light of the 
shortened timelines for these expedited hearings under the statute. 
Proposed Sec.  300.532(c)(5) and (6) would repeat language from current 
Sec.  300.528(c) and (d) that provides useful flexibility for States in 
designing their expedited hearing procedures.
    Proposed Sec.  300.533 would address the issue of the child's 
placement during appeals. This section would reflect the language in 
section 615(k)(4)(A) of the Act providing that the child remain in the 
interim alternative educational setting pending the decision of the 
hearing officer or the expiration of the time period provided for 
removals based on a determination that the behavior is not a 
manifestation of the child's disability. We would add, however, in 
proposed Sec.  300.530(g), that this provision also would apply to 
removals of up to 45 school days.
    Proposed Sec.  300.534 concerning, in the context of discipline, 
the protections for children not yet determined eligible for special 
education and related services would replace the current Sec.  300.527, 
and would reflect the new language in section 615(k)(5) of the Act. 
Proposed Sec.  300.535 would be essentially the same as current Sec.  
300.529, and is based on section 615(k)(6) of the Act. Proposed Sec.  
300.536 would include a description of when a change in placement 
occurs because of a disciplinary removal. The concept of change of 
placement under discipline is raised in section 615(k)(1)(A) and 
(k)(3)(B) of the Act, and it is important to have a clear understanding 
of when a change in placement occurs so as to ensure that discipline 
does not effectively result in the cessation of services to a child 
with a disability, in violation of the FAPE requirements in section 
612(a)(1)(A) of the Act. Proposed Sec.  300.536 is similar to current 
Sec.  300.519 but would include the additional provision that the 
child's behavior, if substantially similar to the child's behavior in 
the incidents that resulted in a series of removals, taken 
cumulatively, is a manifestation of the child's disability. This 
addition should assist in the appropriate application of the change in 
placement provisions.

Current Sections Incorporated Elsewhere in This Part

    Current Sec. Sec.  300.530 through 300.543 are incorporated into 
subpart D of these proposed regulations, as appropriate. Current 
Sec. Sec.  300.550 through 300.556 are incorporated into subpart B of 
these proposed regulations, as appropriate. Current Sec. Sec.  300.560 
through 300.577 are incorporated into subpart F of these proposed 
regulations. Current Sec. Sec.  300.580 through 300.586 and Sec.  
300.589 are incorporated in subpart B of these proposed regulations. 
Current Sec.  300.587 is incorporated into subpart F of these proposed 
regulations, as appropriate.

Subpart F--Monitoring, Enforcement, Confidentiality, and Program 
Information

Monitoring, Technical Assistance and Enforcement

    Subpart F reflects certain portions of section 616 of the Act that 
address State activities and those activities where the Department must 
establish and enforce particular procedures for withholding actions. 
Proposed Sec.  300.600 would reflect the new provisions of section 
616(a) and (b)(2)(c)(ii) of the Act concerning monitoring and 
enforcement, which sets forth the responsibility of States to monitor 
the implementation of, enforce, and annually report on performance 
under part 300. Proposed Sec.  300.600 would further reflect the new 
statutory requirement that the primary focus of monitoring is on 
improving educational results and functional outcomes for children with 
disabilities. The provisions of current Sec.  300.600 have been moved 
to proposed Sec.  300.149 to follow the order of the Act. Proposed 
Sec.  300.600(c) would reflect new requirements in section 616(a)(3) of 
the Act that States measure performance in monitoring priority areas 
using quantifiable indicators and such qualitative indicators as are 
needed to adequately measure performance. Proposed Sec.  300.600(c) 
clarifies that these indicators are established by the Secretary in the 
context of informing States of what they need to do under the State's 
performance plan.
    Proposed Sec.  300.601 would reflect new statutory language 
requiring States to have a performance plan that evaluates their 
efforts to implement the requirements and purposes of part 300 and 
describes how the State will improve implementation within one year of 
enactment of the Act. Under proposed Sec.  300.601 the plan must 
establish measurable and rigorous targets for the indicators 
established by the Secretary under the priority areas described in 
section 613(a)(3) of the Act and must be submitted to the Secretary for 
approval. Consistent with the new statutory language, proposed Sec.  
300.601 would require States to review their performance plans at least 
once every six years and submit any amendments to the Secretary. The 
proposed regulation also incorporates the statutory requirements from 
section 616(b)(2)(B)(ii) regarding data collection and specifies that 
nothing in these regulations authorizes the development of a nationwide 
database of personally identifiable information on individuals involved 
in studies or other data collections. These provisions are based on 
section 616(b)(1), (2)(A) and (2)(B) of the Act.
    Proposed Sec.  300.601(b)(1) contains language requiring that each 
State must collect valid and reliable information on all the indicators 
in the performance plan concerning the priority areas in section 
616(a)(3) of the Act.
    Proposed Sec.  300.602 would reflect new statutory language from 
section 616(b)(2)(C) of the Act requiring States to use the targets 
established in their performance plans to analyze the performance of 
each LEA. These targets will include the priority areas in section 
616(a)(3) of the Act. Under proposed Sec.  300.602, which largely 
tracks the language in section 616(b)(2)(C) of the Act, States would be 
required to report annually to the public on the performance of each 
LEA in the State on the targets in the performance plan and make the 
performance plan available to the public. Notes 253 through 258 of the 
Conf. Rpt. explain that the expectation is that the State performance 
plans, indicators and targets are to be developed with broad 
stakeholder input

[[Page 35812]]

and public dissemination. Proposed Sec.  300.602(b)(1)(i) would include 
the statutory requirements from section 616(b)(2)(C) of the Act that 
States report annually to the public on the performance of each LEA in 
the State on the targets in the State's performance plan, and make the 
State's performance plan publicly available. Proposed Sec.  
300.602(b)(1)(ii) would add that if the State, in meeting the 
requirements of Sec.  300.602(b)(1)(i), collects performance data 
through State monitoring or sampling, the State must include in its 
report the most recently available performance data on each LEA and the 
date the data were obtained. When appropriate, monitoring or sampling 
can be an effective means of data collection, reduce burden on States, 
and provide meaningful information on LEAs' performance.
    Reflecting new language in section 616(b)(2)(C) of the Act, 
proposed Sec.  300.602(b)(2) also would require each State to report 
annually to the Secretary on the performance of the State under its 
performance plan, but the State would not be required to report to the 
public or the Secretary any information on performance that would 
disclose personally identifiable information about individual children. 
Furthermore, under proposed Sec.  300.602(b)(3), States would not be 
required to report their student data if the available data are 
insufficient to yield statistically reliable information.
    Proposed Sec.  300.603 would reflect new language in section 616(d) 
of the Act requiring the Secretary to review the State's annual 
performance report and based on information in the annual performance 
report, or information obtained through monitoring visits or other 
public information, determine if the State (1) meets the requirements 
and purposes of Part B of the Act, (2) needs assistance in implementing 
the requirements of Part B of the Act, (3) needs intervention in 
implementing the requirements of Part B of the Act, or (4) needs 
substantial intervention in implementing the requirements of Part B of 
the Act. Proposed Sec.  300.603(b)(2) would reflect the language from 
section 616(d)(2)(B) of the Act that would provide States with notice 
and an opportunity for a hearing for determinations under proposed 
Sec.  300.603(b)(1)(iii) and (b)(1)(iv). Proposed Sec.  
300.603(b)(2)(ii) also would clarify that the hearing would consist 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 the determination. We propose this 
regulatory provision because the Department has determined that this 
type of hearing would provide the appropriate amount of process due a 
State prior to one of these determinations. Should specific enforcement 
action subsequently be contemplated, as provided for in section 616(e) 
of the Act, other hearing procedures then may apply, as provided for in 
proposed Sec.  300.604 and in the General Education Provisions Act as 
amended, 20 U.S.C. 1221 et seq. (GEPA), and implementing regulations.
    Proposed Sec.  300.604 (Enforcement) would reflect new requirements 
in section 616(e) of the Act that set forth the various actions the 
Secretary takes with respect to each State's level of compliance as 
determined by the Secretary's review of the state performance reports 
under proposed Sec.  300.603. Thus, if the Secretary determines that a 
State needs assistance, needs intervention, or needs significant 
intervention, there are specific enforcement actions that the Secretary 
may take. For example, if it is determined that a State needs 
substantial intervention, the Secretary takes one or more of the 
actions described in paragraph (c) of proposed Sec.  300.604, including 
recovering funds under section 452 of GEPA, withholding in whole or in 
part any further payments to the State under Part B of the Act, 
referring the case to the Office of the Inspector General at the 
Department of Education, or referring the matter for appropriate 
enforcement action, which may include referral to the Department of 
Justice.
    Under proposed Sec.  300.604(d), the Secretary reports to 
appropriate congressional committees within 30 days of taking 
enforcement action against a State for any of the levels of compliance 
described in the preceding paragraph, describing the specific action 
that has been taken, and the reasons why the action was taken.
    Proposed Sec.  300.605(a), which reflects the language in section 
616(e)(4)(A) of the Act on reasonable notice and the opportunity for a 
hearing prior to a withholding, would essentially be the same as 
current Sec.  300.587(c)(4).
    Proposed Sec.  300.605(b) would reflect new language from section 
616(e)(4)(B) of the Act that, pending the outcome of any hearing to 
withhold payments, the Secretary may do one or both of the following: 
Suspend payments to a recipient or suspend authority of the recipient 
to obligate funds under Part B of the Act provided that the recipient 
has been given reasonable notice and an opportunity to show cause why 
future payments or the authority to obligate Part B funds should not be 
suspended. Proposed Sec.  300.605(c) on the nature of withholding 
actions would reflect the current regulatory provisions in Sec.  
300.587(c)(1) and (c)(2) with minor language revisions to make the 
section consistent with the language in section 616(e)(6) of the Act.
    Proposed Sec.  300.606, on bringing pending withholding actions to 
the attention of the public, would reflect the new language in section 
616(e)(7) of the Act, which is very similar to the language in current 
Sec.  300.587(c)(3), except that section 616(e)(7) of the Act would 
apply to States only and not to SEAs, LEAs, or other agencies.
    Proposed Sec.  300.607 regarding divided State responsibility would 
reflect the regulatory language in current Sec.  300.587(e), which is 
consistent with the language from section 616(h) of the Act.
    Proposed Sec.  300.608 would reflect the new language in section 
616(f) of the Act that requires an SEA to prohibit an LEA from reducing 
the LEA's maintenance of effort under 613(a)(2)(C) if the SEA 
determines that the LEA is not meeting the requirements of Part B of 
the Act, including the targets in the State's performance plan.
    Consistent with the new statutory provisions in section 616(e) of 
the Act, proposed Sec.  300.609 would provide that nothing in the 
proposed regulations restricts the Secretary from utilizing any 
authority under GEPA to monitor and enforce the requirements under the 
Act.

Confidentiality of Information

    Proposed Sec.  300.610 would reflect the provision in section 
617(c) of the Act regarding confidentiality of information. Proposed 
Sec. Sec.  300.611 through 300.627 on the confidentiality of 
information would be the same as current Sec. Sec.  300.560 through 
300.575 and 300.577, with minor updates to cross-references. (Current 
Sec.  300.576 would be addressed in proposed Sec.  300.229.)

Reports--Program Information

    Proposed Sec. Sec.  300.640 through 300.646 on program information 
would substantially reflect the regulatory provisions from current 
Sec. Sec.  300.750 through 300.755, with some changes. Proposed Sec.  
300.640(a) would remove the requirement from current Sec.  300.750 that 
the information required by section 618 of the Act be submitted no 
later than February 1 and would replace it with the requirement that 
the information be submitted at times specified by the Secretary. 
Proposed Sec.  300.640(b) on reporting on forms provided by the 
Secretary would be the same as the

[[Page 35813]]

regulatory language in current Sec.  300.750(b).
    Proposed Sec.  300.641(a) would revise the regulatory provisions in 
current Sec.  300.751 by removing the age spans listed in current Sec.  
300.751(a)(1) through (a)(3). Proposed Sec.  300.641 also would remove 
the requirement from current Sec.  300.751(c) that reports must include 
the number of children with disabilities within each disability 
category. SEAs must specify information required by these regulatory 
provisions on the forms provided by the Secretary pursuant to proposed 
Sec.  300.640(b). Finally, proposed Sec.  300.641(a) would permit 
States to count children with disabilities for purposes of the 
reporting required by proposed Sec.  300.640 on any date between 
October 1 and December 1 of each year. This change will provide States 
greater flexibility in coordinating their IDEA Part B child count date 
with counts they conduct for other State purposes, while providing 
reasonable consistency across States.
    Proposed Sec.  300.641(b), regarding age at count date, would be 
substantially the same as current regulation Sec.  300.751(b), but 
would reflect the revision in the count date proposed in paragraph (a) 
of this section. Proposed Sec.  300.641(c) and (d) would be 
substantially the same as the regulatory provisions in current Sec.  
300.751(e) and (f) regarding how to meet the reporting requirements.
    Proposed Sec.  300.642(a) would reflect the new provisions in 
section 618(b)(1) of the Act requiring each State to report data in a 
manner that does not result in disclosure of personally identifiable 
information. Proposed Sec.  300.642(b) on sampling, which reflects the 
language in section 618(b)(2) of the Act, would be substantially 
unchanged from current Sec.  300.751(d).
    Proposed Sec.  300.643 on certification of the annual report of 
children served is substantially unchanged from current Sec.  300.752.
    Proposed Sec.  300.644 on criteria for counting children in the 
annual report of children served would be substantially unchanged from 
current Sec.  300.753(a). Current 300.753(b) on reporting on children 
receiving special education that is solely funded by the Federal 
government would be removed as unnecessary because the funding formula 
is no longer based on child count. Proposed Sec.  300.644(c) clarifies 
current Sec.  300.753(a)(3) regarding the counting of children enrolled 
by their parents in private schools.
    Proposed Sec.  300.645 on other responsibilities of the SEA related 
to the annual report of children served would be the same as current 
Sec.  300.754.
    Proposed Sec.  300.646(a) would revise the regulatory provisions in 
current Sec.  300.755 on determination of significant 
disproportionality to reflect changes in section 618(d) of the Act. 
Proposed Sec.  300.646(a) would include new language requiring States 
to collect and examine data on disproportionality based on ethnicity as 
well as race. Proposed Sec.  300.646(a) also would require States to 
determine if significant disproportionality is occurring in the State 
as well as within the LEAs of the State. Proposed Sec.  300.646(a)(1) 
and (a)(2) on collecting and examining data related to identification 
of children with disabilities would be the same as the regulatory 
language in current Sec.  300.755(a)(1) and (a)(2). Proposed Sec.  
300.646(a)(3) would reflect the new provisions in section 618(d)(1)(C) 
of the Act requiring States to collect and examine race and ethnicity 
data with respect to the incidence, duration and type of disciplinary 
actions, including suspensions and expulsions.
    Proposed Sec.  300.646(b)(1) concerning the review and revision of 
policies, practices and procedures, which reflects the language in 
section 618(d)(2) of the Act, would be the same as current Sec.  
300.755(b). Proposed Sec.  300.646(b)(2) would incorporate the new 
requirement in section 618(d)(2)(B) of the Act that States must ensure 
that any LEA identified under proposed Sec.  300.646(b)(1) as having 
policies, practices, or procedures that do not comply with Part B of 
the Act reserves the maximum amount of funds under section 613(f) of 
the Act to provide comprehensive coordinated early intervening services 
to children in the LEA, particularly children in those groups that were 
significantly overidentified. Proposed Sec.  300.646(b)(3) would 
incorporate new language from section 618(d)(2)(C) of the Act that 
requires the LEA to report on the revision of policies, practices and 
procedures that do not comply with the Act.

Subpart G: Authorization; Allotment; Use of Funds; Authorization of 
Appropriations

    Proposed subpart G would reflect the provisions in section 611 of 
the Act regarding the Department's allocation of Part B section 611 
funds to States, outlying areas, the freely associated States, and the 
Secretary of the Interior. The proposed title of subpart G, 
``Authorization; Allotment; Use of Funds; Authorization of 
Appropriations,'' would be revised from ``Allocation of Funds; 
Reports'' to reflect the statutory headings listed under section 611 of 
the Act.
    Proposed Sec.  300.700, regarding grants to States, would contain 
the language in current Sec.  300.701 but would be revised to reflect 
the order of, and revisions to, section 611(a) of the Act. Specific 
revisions would include the changes that were made in: (1) Section 
611(a)(1) of the Act to include a reference to freely associated States 
as receiving Part B grants; (2) section 611(a)(2)(A) of the Act to 
clarify that the current definition of the maximum amount a State may 
receive applies for fiscal years 2005 and 2006; and (3) section 
611(a)(2)(B) of the Act to clarify the maximum amount a State may 
receive for fiscal year 2007 and subsequent fiscal years and to allow 
for adjustments described in 611(a)(2)(B)(iii) of the Act. The 
adjustments would be reflected in proposed Sec.  300.700(b)(2)(iii). 
Current Sec.  300.700, regarding the special definition of the term 
State, and current Sec.  300.702, regarding the definition of average 
per-pupil expenditure in public elementary and secondary schools in the 
United States, would not be substantively changed but would be moved to 
proposed Sec.  300.717 to a general ``Definitions'' section for subpart 
G.
    Proposed Sec.  300.701, regarding grants to outlying areas and 
freely associated States, and the Secretary of the Interior, would 
incorporate the language in the current regulations in Sec. Sec.  
300.715(a), 300.717, 300.719, and 300.720, as revised to reflect 
changes in section 611(b) of the Act. Proposed Sec.  300.701 would not 
contain the definition of ``freely associated states'' from section 
611(b)(1)(C) of the Act. The definition of ``freely associated 
states,'' which is substantively unchanged, would be in proposed Sec.  
300.717 in the general ``Definitions'' section for subpart G. As noted 
in the preceding paragraph, current Sec.  300.701, regarding grants to 
States, would be moved to proposed Sec.  300.700, consistent with the 
structure of section 611 of the Act. Proposed Sec.  300.701(a)(1)(ii) 
would clarify the provision in section 611(b)(1)(A)(ii) of the Act that 
requires that, as a condition of receiving a grant under this part, 
each freely associated State must meet the ``applicable requirements of 
Part B of the Act.'' The proposed revision would specify what the 
``applicable requirements'' are, similar to what is done with respect 
to information requirements for the Secretary of the Interior in 
current Sec.  300.260 (proposed Sec.  300.708).
    Proposed Sec.  300.702, regarding technical assistance, would 
contain the language in section 611(c) of the Act, which allows the 
Secretary to reserve Part B funds to support technical

[[Page 35814]]

assistance activities authorized under section 616(i) of the Act.
    Proposed Sec.  300.703, regarding allocations to States, would be 
revised to incorporate the language of current Sec. Sec.  300.703 and 
303.706 through 303.709. The proposed regulation would be revised to 
reflect section 611(d) of the Act, which: (1) Requires the Secretary to 
allocate Part B funds to States after reserving funds for technical 
assistance under section 611(c) of the Act and making payments to 
outlying areas, the freely associated States and the Secretary of 
Interior under section 611(b); (2) removed language regarding interim 
and permanent formulas; and (3) established 1999 as the base year for 
minimum state allocations under section 611(d)(3)(A)(i)(I) and 
(B)(ii)(I) of the Act and calculations of ratable reductions if the 
amount available for allocations to States is less than the amount 
allocated for the preceding fiscal year under section 611(d)(4) of the 
Act.
    Proposed Sec.  300.704, regarding State-level activities, would 
incorporate certain provisions of section 611(e) of the Act regarding 
the use of Part B funds under section 611 of the Act for authorized 
State-level activities. Proposed Sec.  300.704(a)(1) and (2) would 
contain the new maximum amount States and outlying areas may reserve 
for State administration. The proposed regulation would establish 
fiscal year 2004 as the base year for States (as defined under proposed 
Sec.  300.717) and the greater of $35,000 or five percent of the Part B 
grant for outlying areas and would provide for cumulative annual 
adjustments based on the rate of inflation to the maximum amount a 
State may reserve, consistent with section 611(e)(1)(A) and (B) of the 
Act. Proposed Sec.  300.704(a)(3) would contain the new certification 
requirement language in section 611(e)(1)(C) of the Act that prior to 
the expenditure of funds under section 611(e)(1) of the Act, the State 
must certify to the Secretary that the arrangements to establish 
financial responsibility for services pursuant to section 612(a)(12)(A) 
of the Act are current. Proposed Sec.  300.704(a)(4) would contain a 
regulatory provision that would allow SEAs that reserve funds under 
Sec.  300.704(a) to use Part B State administration funds to administer 
Part C of the Act if the SEA is the lead agency designated under Part 
C, consistent with section 611(e)(1)(D) of the Act.
    Proposed Sec.  300.704(b)(1) and (2) would generally reflect and 
clarify the new requirements in section 611(e)(2)(A) of the Act 
regarding the amount of funds that States may reserve for other State-
level activities, depending on the amount they reserve for 
administration and whether they establish a high-cost fund under 
section 611(e)(3) of the Act. Proposed Sec.  300.704(b)(3) would 
incorporate the new provision in section 611(e)(2)(B) of the Act, but 
would clarify that some portion of funds reserved for other State-level 
activities under Sec.  300.704(b)(1) must be used for monitoring, 
enforcement and complaint investigation, and to establish and implement 
the mediation process required under section 615(e) of the Act. 
Proposed Sec.  300.704(b)(3) would not prohibit States from using State 
funds for these monitoring, enforcement, complaint investigation, or 
mediation activities.
    Proposed Sec.  300.704(b)(4) would incorporate section 611(e)(2)(C) 
of the Act, which allows funds reserved for other State-level 
activities under Sec.  300.704(b)(1) to be used for certain authorized 
activities. These activities would include support and direct services, 
paperwork reduction activities and capacity building activities, and 
improving the delivery of services by LEAs, improving the use of 
technology in the classroom and supporting its use, developing and 
implementing postsecondary transition programs, providing technical 
assistance to schools and LEAs identified for improvement under section 
1116 of the ESEA, and assisting LEAs in providing positive behavioral 
interventions and supports and appropriate mental health services for 
children with disabilities and meeting personnel shortages.
    Proposed Sec.  300.704(c) would contain a new provision that 
incorporates the language of section 611(e)(3) of the Act regarding the 
State's option to use ten percent of the amount it reserves for other 
State-level activities under Sec.  300.704(b)(1) for financing an LEA 
high cost fund and would set forth detailed content and timeline 
requirements for the State's plan for the high cost fund. Proposed 
Sec.  300.704(c)(1)(i)(A) would clarify the statutory language by 
providing that these funds would be used by a State to finance the high 
cost fund and to make disbursements from that fund. Proposed Sec.  
300.704(c)(1)(i)(B) and (ii) would reflect the statutory language on 
using the high cost fund to support innovative cost sharing and the 
special definition of LEA that applies in this context. Proposed Sec.  
300.704(c)(2)(i) would generally reflect the language in section 
611(e)(3)(B)(i) of the Act, but also would clarify that the funds 
reserved for the high cost fund are solely for disbursement to the LEAs 
and may not be used for costs associated with establishing, supporting, 
and otherwise administering the high cost fund. This provision also 
would specify that the State may use State administration funds under 
Sec.  300.704(a) for those administrative costs, consistent with the 
language in section 611(e)(3)(B)(i) of the Act.
    Proposed Sec.  300.704(c)(2)(ii) would limit States to not more 
than five percent of the funds they reserve each fiscal year under 
proposed Sec.  300.704(c) to support innovative cost sharing, 
consistent with section 611(e)(3)(B)(ii) of the Act.
    Proposed Sec.  300.704(c)(3) would incorporate the requirements in 
section 611(e)(3)(C) of the Act, regarding the State plan for the high 
cost fund, with one addition. Proposed Sec.  300.704(c)(3)(i)(C) would 
add a requirement that the State plan establish criteria to ensure that 
the placements of children whose costs are supported under the high 
cost fund are made consistent with the LRE requirements. This would 
reinforce that the funds would not be used to encourage inappropriate 
placements outside of the general education environment. Nothing in the 
proposed regulations would prohibit an SEA from using high cost funds 
to support costs of providing appropriate services in a general 
education environment when those costs meet the standard established by 
the State in its State plan. Proposed Sec.  300.704(c)(3)((i)(A)(2) 
would incorporate the requirement in section 611(e)(3)(C)(ii)(I)(bb) of 
the Act that the State must establish a definition of a high need child 
with a disability that, at a minimum, ensures that the cost of the high 
need child with a disability is greater than three times the average 
per pupil expenditure (APPE). Under this provision, a State could, for 
example, establish a definition that ensures that the cost of a high 
need child with a disability is four times greater than the APPE.
    Proposed Sec.  300.704(c)(4) through (c)(6) would incorporate the 
requirements in section 611(e)(3)(D) through (F) of the Act regarding 
disbursements from the fund, legal fees, and assurance of FAPE, with 
two additions. In proposed Sec.  300.704(c)(4)(ii), we would add 
language on appropriate costs to clarify that the costs of room and 
board for a necessary residential placement could be supported by the 
high cost fund. Proposed Sec.  300.704(c)(4)(iii) would provide that 
the funds in the high cost fund would remain under the control of the 
SEA until disbursed, under the State

[[Page 35815]]

plan, to support a specific child, or until reallocated to LEAs in the 
subsequent year. This provision is needed to make clear that these 
funds must be distributed to LEAs under the high cost State plan 
formula.
    Proposed Sec.  300.704(c)(7) through (9) would incorporate the 
provisions of section 611(e)(3)(G) through (I) of the Act regarding the 
special rule for risk pool and high need assistance programs that 
predated the new statute, the effect on Medicaid services, and the 
reallocation of funds remaining at the end of the fiscal year. Proposed 
Sec.  300.704(c)(9) generally would reflect and clarify the requirement 
in section 611(e)(3)(I) of the Act that funds reserved for a high cost 
fund, but not spent in accordance with section 611(e)(3)(D) of the Act 
before the beginning of their last year of availability for obligation, 
must be allocated to LEAs in the same manner as other funds from the 
appropriation for that fiscal year are allocated to LEAs under section 
611(f) of the Act during their final year of availability. States that 
are not reserving funds for the high cost fund, but that offer LEAs 
support for extraordinary expenses for particular children from other 
funds would not need to develop a State plan for a high cost fund under 
the proposed regulations.
    Proposed Sec.  300.704(d) would incorporate the language of section 
611(e)(4) of the Act, which contains the exemptions of funds reserved 
for administration and other State-level activities from Part B's 
commingling and nonsupplanting provisions in sections 612(a)(17)(B) and 
(C) of the Act. Proposed Sec.  300.704(e) would incorporate section 
611(e)(6) of the Act, which allows a State to use funds reserved for 
administration under Sec.  300.704(a)(1) as a result of inflationary 
increases to carry out activities such as providing support and direct 
services, assisting LEAs in providing positive behavioral interventions 
and supports, assisting LEAs in meeting personnel shortages, and 
supporting capacity building, as authorized under Sec.  
300.704(b)(4)(i), (iii), (vii), or (viii). Proposed Sec.  300.704(f) 
would incorporate the new provisions of section 611(e)(7) of the Act 
that allow flexibility in using certain Part B funds (identified in 
sections 611(e)(1)(A), 611(f)(3) and 619(f)(5) of the Act). States may 
use these funds to develop and implement a State policy option that is 
available under section 635(c) of the Act for making Part C early 
intervention services available to children beyond age three who are 
eligible under section 619 under the circumstances set forth under 
proposed Sec.  300.704 and Part C of the Act.
    Proposed Sec.  300.705, regarding subgrants to LEAs, would contain 
the language in current Sec. Sec.  300.711, 300.712, and 300.714 and 
would incorporate section 611(f) of the Act regarding State subgrants 
to LEAs using Part B section 611 funds. Proposed Sec.  300.705(a) would 
specify that LEAs include public charter schools that operate as LEAs, 
consistent with section 611(f)(1) of the Act. The language in current 
Sec.  300.713 regarding former Chapter 1 State agencies would be 
removed as the corresponding statutory provision was also removed. 
Proposed Sec.  300.705(b)(1) and (2) would establish 1999 as the base 
year for allocation to LEAs, consistent with section 611(f)(2)(A) of 
the Act.
    Proposed Sec.  300.706 would contain the language in current Sec.  
300.710 regarding allocations to a State in which a by-pass is 
implemented for parentally-placed private school children with 
disabilities, consistent with section 612(f) of the Act, with cross-
references updated.

Secretary of The Interior--Eligibility

    Proposed Sec. Sec.  300.707 through 300.716 would incorporate and 
update current Sec. Sec.  300.260 through 300.267 and Sec. Sec.  
300.715 through 300.716 based on the requirements in section 611(h) of 
the Act concerning the payment to the Secretary of the Interior.
    Proposed Sec.  300.707(a) would add new definitions of Reservation 
and Tribal governing body of a school to apply for purposes of 
Sec. Sec.  300.707 through 300.716. The term reservation would be 
defined to mean Indian Country under 18 U.S.C. 1151. The term tribal 
governing body of a school would be defined to mean the body or bodies 
of the Indian tribe involved and that represent at least 90 percent of 
the students served by the school. Adding these definitions should 
provide clarity to the responsibilities of the Department of the 
Interior under the IDEA.
    The Department of Education seeks comment on the necessity of 
adding a new definition of LEA for the purposes of regulations related 
to schools operated or funded by the Secretary of the Department of the 
Interior. The Department of Education also seeks comment on the 
necessity of adding a new definition of SEA for the purposes of 
regulations related to schools operated or funded by the Secretary of 
the Department of the Interior.
    Proposed Sec.  300.707(b) would incorporate current Sec.  
300.715(b) and add the new requirement in section 611(h)(1)(A)(i) and 
(ii) of the Act that 80 percent of the amount allotted under section 
611(b)(2) of the Act must be allocated to elementary schools and 
secondary schools operated or funded by the Secretary of the Interior 
by July 1, after the Secretary of the Interior reserves funds for 
administration under proposed Sec.  300.710. The remaining 20 percent 
must be allocated to those schools by September 30. Current Sec.  
300.715(a) is reflected in section 611(b)(2) of the Act and would be 
incorporated in proposed Sec.  300.701(b) to align with the order of 
section 611. Current Sec.  300.715 (c) has been removed from the 
regulations because a State can no longer require a BIA funded school 
to attain or maintain State accreditation. This provision is not 
applicable at this time. Paragraph (c) of proposed Sec.  300.707 would 
reflect the language in section 611(h)(1)(C) of the Act concerning 
children aged 3 through 21 on reservations. This provision would 
replace current Sec.  300.300(c) to align with the order of the 
statute. Under paragraph (c) of proposed Sec.  300.707, with respect to 
all other children aged 3 through 21 on reservations, the SEA of the 
state in which the reservation is located, must ensure that all of the 
requirements of Part B of the Act are implemented. Generally, if the 
reservation were located in more than one State, the State in which the 
student resides would be responsible for ensuring the requirements of 
Part B of the Act are met for that student.
    Proposed Sec.  300.708 would incorporate current Sec.  300.260, 
update references to the eligibility requirements that apply to the 
Secretary of the Interior to reflect the new requirements in the Act, 
and add one new paragraph discussed as follows. Paragraph (a) of 
proposed Sec.  300.708 would modify current Sec.  300.260(a) by 
updating references to section 612 of the Act and adding the new 
requirements in section 612 of the Act that apply to the Secretary of 
the Interior. Paragraph (b) of proposed Sec.  300.708 would incorporate 
current Sec.  300.260(b). Paragraph (c) of proposed Sec.  300.708 would 
incorporate current Sec.  300.260(c) with updated references to section 
613 of the Act. Paragraph (c) of proposed Sec.  300.708 also would 
clarify that references to LEAs in section 613 of the Act that are 
included in proposed Sec.  300.708(c) must be read as references to 
elementary schools and secondary schools for Indian children operated 
or funded by the Secretary of the Interior. Proposed Sec.  300.708 
would add a new paragraph (d) that would reflect the requirements in 
section 611(h)(2)(A) and (F) and section 611(h)(3) of the Act, which 
provide that the monitoring and enforcement requirements in section 616 
of the Act apply to the Secretary of

[[Page 35816]]

the Interior. Paragraph (d) of proposed Sec.  300.708 would also 
clarify that references to LEAs in section 616 of the Act must be read 
as references to elementary schools and secondary schools for Indian 
children operated or funded by the Secretary of the Interior.
    Proposed paragraphs (e) through (j) of proposed Sec.  300.708 would 
incorporate current Sec.  300.260(d) through (i), with cross-references 
updated. Consistent with section 611(h)(3) of the Act, proposed Sec.  
300.708(j) would remove the sentence in current Sec.  300.260(i) that 
section 616(a) of the Act applies to the information described in this 
section. Instead, the proposed regulation would add a sentence 
providing that the Secretary withholds payments under Sec.  300.707 
with respect to the requirements described in this section in the same 
manner as the Secretary withholds payments under section 616(e)(6) of 
the Act.
    Proposed Sec. Sec.  300.709 through 300.710 would incorporate the 
current regulations in Sec. Sec.  300.261 through 300.262 concerning 
public participation and use of Part B funds for administration, with 
cross-references updated.
    Proposed Sec.  300.711 would add a provision that would permit the 
Secretary of the Interior to allow each elementary school and secondary 
school for Indian children operated or funded by the Secretary of the 
Interior to use funds to develop and implement coordinated, early 
intervening services consistent with section 613(f) of the Act.
    Proposed Sec.  300.712 would incorporate the current regulation in 
Sec.  300.716 concerning payments for education and services for Indian 
children with disabilities aged three through five with cross-
references updated.
    Proposed Sec.  300.713 would incorporate the current regulation in 
Sec.  300.263 regarding the plan for coordination of services. This 
provision does not make the BIA responsible for services for children 
with disabilities not enrolled in BIA funded schools. The Department of 
Education seeks comment on the best way to implement section 611(h)(5) 
of the Act for developing a plan for coordination of services on 
reservations. The Department of Education seeks comments on how a plan 
would be developed to cover those reservations where the State provides 
all services and those reservations where the State and BIA provide 
services.
    The proposed regulations would remove current Sec.  300.264, which 
sets out the definition of Indian and Indian tribe. Proposed Sec.  
300.21 would incorporate the definition of Indian and Indian tribe.
    Proposed Sec. Sec.  300.714 through 715 would incorporate current 
Sec. Sec.  300.265 through 300.266 regarding the establishment of the 
advisory board and annual reports.
    Proposed Sec.  300.716 would incorporate current Sec.  300.267 
regarding the regulatory provisions that apply to the Secretary of the 
Interior, with cross-references updated and regulatory provisions added 
that implement the new statutory requirements that apply to the 
Secretary of the Interior.
    Proposed Sec.  300.717 would contain definitions that would be 
substantively unchanged from current regulations and that would apply 
only in subpart G. The defined terms would be: ``freely associated 
States'' (from section 611(b)(1)(C) of the Act), ``outlying areas'' 
(from section 602(22) of the Act), ``State'' (from section 611(g) of 
the Act), and ``Average per-pupil expenditure in public elementary and 
secondary schools in the United States'' (from section 611(g) of the 
Act). The definitions for ``outlying areas,'' ``State,'' and ``Average 
per-pupil expenditure in public elementary and secondary schools in the 
United States'' are contained in current Sec. Sec.  300.718, 300.700, 
and 300.702, respectively.
    Proposed Sec.  300.718, regarding the acquisition of equipment and 
the construction or alteration of facilities, would incorporate the 
requirements of current Sec.  300.756.
    Current requirements in Sec. Sec.  300.750 through 300.755 
regarding State Part B data reporting requirements under section 618 of 
the Act would be moved to proposed Sec. Sec.  300.640 through 300.646 
in subpart F, consistent with the structure of the Act.

Subpart H--Preschool Grants for Children With Disabilities

    Proposed Sec. Sec.  300.800 through 300.818 would reflect an 
overall change in the placement of the Preschool Grants for Children 
with Disabilities Program from current 34 CFR part 301 to subpart H of 
part 300. Proposed Sec. Sec.  300.800 through 300.810 and Sec. Sec.  
300.812 through 300.818 would incorporate current language from 34 CFR 
part 301, but with minor changes to reflect statutory language and the 
structure of the Act. Proposed Sec.  300.811 would be added to clarify 
how the Secretary would make allocations under section 619 of the Act 
for a State in which a by-pass is implemented for parentally-placed 
private school children with disabilities. Proposed Sec.  300.813(b) 
would reflect the statutory change in section 619(e) of the Act that a 
State may use funds reserved for administration for the administration 
of Part C of the Act even if the SEA is not the lead agency under Part 
C of the Act. Proposed Sec.  300.814 would incorporate two new 
substantive amendments from section 619(f) of the Act concerning the 
use of funds reserved for other State-level activities.
    Proposed Sec.  300.800 would reflect the language in section 619(a) 
of the Act describing the general purpose of the program. This 
provision would replace current Sec.  301.1.
    Consistent with a change made in subpart A, the current Sec.  
301.4, regarding applicable regulations, would be removed, as those 
regulations apply by their own terms.
    Proposed Sec.  300.803 would specify the definition of State, which 
would be the same as the definition used in current Sec.  301.5, except 
that it would add the phrase, ``As used in this subpart'' to reflect 
different usages of the term in other subparts. Other definitions in 
current Sec.  301.5 would be removed as unnecessary or as already 
covered in subpart A.
    Proposed Sec.  300.804 would describe a State's eligibility for 
grants under section 619 of the Act, consistent with section 619(b) of 
the Act. This provision would replace current Sec.  301.10.
    Proposed Sec.  300.806, concerning sanctions, would update current 
Sec.  301.12(c) to be consistent with section 681(e) of the Act. 
Paragraphs (a) and (b) of current Sec.  301.12 would be removed. 
Paragraph (a) of current Sec.  301.12 would be reflected in proposed 
Sec.  300.804. Paragraph (b) of current Sec.  301.12 appears in section 
611(d)(2) of the Act and would be incorporated in proposed Sec.  
300.703(b).
    Proposed Sec.  300.807 on allocations to States would amend current 
Sec.  301.20 to reflect changes in the statutory language. Consistent 
with section 619(c)(1) of the Act, proposed Sec.  300.807 would remove 
the phrase, ``After reserving funds for studies and evaluations under 
section 674(e) of the Act.'' Proposed Sec.  300.807 would also update a 
cross-reference to allocations provisions in proposed Sec. Sec.  
300.808 through 300.810.
    Proposed Sec.  300.808 on increases in appropriated funds would 
amend current Sec.  301.21 to reflect changes in statutory language. 
Proposed Sec.  300.808 would also update the cross-references to other 
allocations provisions to be consistent with other proposed 
regulations.
    Proposed Sec.  300.809 on limitations in State allocations would 
update all cross-references to other proposed regulations from those in 
current Sec.  301.22, and make other minor changes to conform to the 
statutory language.

[[Page 35817]]

    Proposed Sec.  300.810 would make minor technical changes to 
current Sec.  301.23 to reflect statutory language, but would retain 
most of the regulatory language on the decrease in funds. However, 
paragraph (b)(2) of current Sec.  301.23 would be removed as 
unnecessary, because it would be incorporated into proposed Sec.  
300.810(b) by adding the words ``or less than'' after ``is equal to'' 
and by substituting ``fiscal year 1997, ratably reduced, if necessary'' 
for ``that year.'' Proposed Sec.  300.810 also would update the cross-
reference to other regulations addressing allocations to States.
    Proposed Sec.  300.811 would be added to clarify how the Secretary 
would make allocations under section 619 of the Act for States in which 
a by-pass is implemented for parentally-placed private school children 
with disabilities, consistent with section 612(f)(2) of the Act.
    Proposed Sec.  300.812 on reservation for State activities would be 
substantively unchanged from current Sec.  301.24, but would make a few 
changes, including updating the cross-references to State 
administration and State-level activities provisions, and substituting 
the word, ``reserve'' for the word ``retain.''
    Proposed Sec.  300.813 on State administration would make technical 
changes to current Sec.  301.25 to conform to revised statutory 
language. Consistent with section 619(e)(2) of the Act, proposed Sec.  
300.813(b) would remove the phrase ``if the SEA is the lead agency for 
the State under that Part'' from current Sec.  301.25(b) to clarify 
that a State may use funds reserved for administration for the 
administration of Part C of the Act even if the SEA is not the lead 
agency under that Part.
    Proposed Sec.  300.814 relating to use of State funds for other 
State-level activities under section 619 of the Act reflects both 
substantive and technical changes to conform current Sec.  301.26 to 
revised language in section 619(f) of the Act. Proposed Sec.  300.814 
would require States to use funds they reserve under Sec.  300.812, but 
do not use for administration under Sec.  300.813, for one or more of 
the activities outlined in Sec.  300.814(a) through (f). Proposed Sec.  
300.814 also would update both the cross-references to other proposed 
regulations (reservation for State activities and State administration) 
and the cross-reference to the applicable sections in the Act.
    Proposed Sec.  300.814(e) would, in conformity with section 
619(f)(5) of the Act, provide that a State may use any funds reserved 
for State activities and not used for administration to provide early 
intervention services in accordance with Part C of the Act to children 
with disabilities who are eligible for services under section 619 of 
the Act, and who previously received services under Part C of the Act, 
until such children enter, or are eligible under State law to enter 
kindergarten.
    Proposed Sec.  300.814(f) would, consistent with section 619(f)(6) 
of the Act, provide that a State that elects to provide early 
intervention services to children eligible under section 619 of the Act 
in accordance with section 635(c) of the Act may use funds reserved for 
State activities and not used for administration, to continue service 
coordination or case management for families who receive services under 
Part C of the Act, consistent with proposed Sec.  300.814(e).
    Proposed Sec.  300.815 on subgrants to LEAs would amend current 
regulatory language in Sec.  301.30 by updating cross-references and by 
making a few technical amendments consistent with statutory language in 
section 619(g)(1) of the Act.
    Proposed Sec.  300.816 on allocations to LEAs would update the 
cross-reference to subgrants to LEAs and would make technical changes 
to current Sec.  301.31, consistent with minor changes to the language 
in section 619(g)(1) of the Act.
    Proposed Sec.  300.817 on reallocation of LEA funds would reflect 
technical changes to current Sec.  301.32 consistent with the statutory 
language in section 619(g)(2) of the Act. The proposed language would 
also be similar to current Sec.  300.32, except that current Sec.  
301.32(b) would be removed. Current Sec.  301.32(b) reflects the 
requirement in section 613(g) of the Act and would be incorporated in 
the proposed Sec.  300.227 consistent with the structure of the Act.
    Proposed Sec.  300.818 would incorporate the statutory language 
from section 619(h) of the Act on the circumstances of Part C 
inapplicability. This provision would replace current Sec.  301.6.

Part 304--Service Obligations Under Special Education--Personnel 
Development To Improve Services and Results for Children With 
Disabilities

    Current Sec. Sec.  304.2, 304.4, and 304.20, all of which refer to 
the personnel preparation grant program generally, would be removed 
because the Department intends for part 304 to focus on the service 
obligation component of the program only and not on the personnel 
preparation grant program generally.
    Proposed Sec.  304.3 would remove the reference to the terms 
defined in 34 CFR part 77 because those definitions apply to all 
personnel preparation grant competitions. Proposed Sec.  304.3(c), 
regarding early intervention services, would change current Sec.  
304.3(b)(2), to clarify that an infant or toddler with a disability, as 
defined in section 632(5) of the Act, includes, at a State's 
discretion, at risk infants and toddlers. In addition, proposed Sec.  
304.3(f) would define the term repayment instead of payback (defined in 
the current Sec.  304.3(b)) to conform to the language used elsewhere 
in this proposed part 304.
    Proposed Sec. Sec.  304.21 and 304.22, regarding allowable costs 
and requirements for grantees in disbursing scholarships, would clarify 
that stipends are not included in the cost of attendance and thus are 
not limited by the cap in proposed 304.22(b), which references Title IV 
of the Higher Education Act of 1965, as amended.
    Proposed Sec.  304.23 would retain the grantee's obligation to 
enter into an agreement with the scholar. However, the requirements 
that the scholar must carry out with respect to the service obligation 
would be moved to proposed Sec.  304.30 to more clearly identify the 
obligations of the scholar. Also, while retaining the requirements that 
the grantee establish exit certification policies and provide necessary 
information and notices to the Secretary, proposed Sec.  304.23 would 
conform these requirements to the new statutory language in section 
662(h)(3) of the Act, which requires that the Secretary, rather than 
grantees, ensure that scholars comply with the service obligation 
requirements.
    Proposed Sec.  304.30 would consolidate all the requirements 
imposed on scholars into one section and eliminate some duplicative 
provisions. Proposed Sec.  304.30 would describe the content of the 
agreement that grantees must enter into with scholars, which is 
contained in the current Sec.  304.23, and the consequences of a 
scholar failing to meet the service obligation requirements, which are 
contained in current Sec.  304.32. Proposed Sec.  304.30(i) would 
require the scholar to provide information to the Secretary, reflecting 
the new language in section 662(h)(3) of the Act, which requires that 
the Secretary rather than grantees ensure that scholars comply with the 
service obligation requirements.
    Proposed Sec.  304.30(e) would clearly state how a scholar could 
satisfy the work obligation through positions in supervision, 
postsecondary faculty, and research. Proposed Sec.  304.30(e) also 
would clarify that a scholar who goes on to receive a more advanced 
degree can satisfy the work obligation requirement for a lesser degree 
in special education by maintaining relevant employment in

[[Page 35818]]

the areas of supervision, postsecondary faculty, or research. Likewise, 
Sec.  304.30(e) would allow a scholar who receives a scholarship from a 
leadership preparation program (for an advanced degree) to satisfy the 
work obligation by providing special education, related services, or 
early intervention services.
    Proposed Sec.  304.31 would reflect the new statutory language in 
section 662(h)(3) of the Act, which requires that the Secretary rather 
than grantees ensure that scholars comply with the service obligation 
requirements. Proposed Sec.  304.31 also would delete the specific 
deferrals in current Sec.  304.31(5) and (6) for scholars with a 
temporary disability that prevents the scholar from working or for 
scholars who are unable to secure employment by reason of care provided 
to a disabled family member. The Department believes that these 
deferrals are inappropriate.

Executive Order 12866

1. Potential Costs and Benefits

    Under Executive Order 12866, we have assessed the potential costs 
and benefits of this regulatory action.
Summary of Potential Costs and Benefits Costs and Benefits 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 
the Act that are incorporated into the proposed regulations governing 
the Assistance to States for the Education of Children with 
Disabilities program under Part B of the IDEA. In conducting this 
analysis, the Department examined the extent to which the proposed 
regulations would add to or reduce the costs for public agencies and 
others in relation to the costs of implementing the program regulations 
prior to the enactment of the new statute. Based on this analysis, the 
Secretary has concluded that the statutory changes reflected in these 
proposed regulations would not impose significant net costs in any one 
year, and may result in savings to SEAs and LEAs. An analysis of 
specific provisions follows:
Requirement for State Certification for Highly Qualified Special 
Education Teachers
    Proposed Sec.  300.156(c) would require that persons employed as 
special education teachers in elementary or secondary schools be highly 
qualified as defined in proposed Sec.  300.18 by no later than the end 
of the 2005-2006 school year. Proposed Sec.  300.18(b)(1) would require 
that every public elementary and secondary school special education 
teacher obtain full State certification as a special education teacher 
or pass the State special education teacher licensing examination, and 
hold a license to teach in the State as a special education teacher as 
one of the conditions of being considered highly qualified to teach 
special education. Previously, special education teachers were not 
required by Federal law to be certified as special education teachers 
in their States. The proposed regulation would preclude teachers for 
whom the special education certification or licensure requirements were 
waived on an emergency, temporary, or provisional basis from meeting 
the definition of a highly qualified special education teacher. 
Teachers employed by a public charter school would be exempt from these 
requirements and subject to the requirements for highly qualified 
teachers in their State's public charter school law.
    The impact of the requirement in the proposed regulation that all 
special education teachers have full special education certification by 
the end of the 2005-2006 school year will depend on whether States and 
districts comply with the requirement by helping existing teachers who 
lack certification acquire it, or by hiring new fully-certified 
teachers, or some combination of the two.
    According to State-reported data collected by the Department's 
Office of Special Education Programs, certification or licensure 
requirements have been waived for eight percent of special education 
teachers or approximately 30,000 teachers. If States and districts 
responded to the proposed regulation by hiring certified teachers to 
fill these positions, it would cost well over $1 billion to cover the 
salaries for a single year. (Occupational Employment and Wages Survey, 
November 2003, indicates a median national salary of $42,630 for 
elementary school teachers and $44,920 for secondary school teachers.) 
However, given that the Study of Personnel Needs in Special Education 
(SPENSE) found that in 1999-2000, 12,241 positions for special 
education teachers were left vacant or filled by substitute teachers 
because suitable candidates could not be found, it is unlikely that 
States and districts would be able to meet this requirement through 
hiring.
    The SPENSE study also found that 12 percent of special education 
teachers who lack full certification in their main teaching assignment 
field are fully certified in another State. This means that States 
should be able to certify an estimated 3,600 additional special 
education teachers at relatively little expense through reciprocal 
certification agreements with other States.
    Responses to the 1999-2000 Schools and Staffing Survey indicate 
that nearly 10 percent (approximately 3,000 teachers) of special 
education teachers who lacked full certification, including those 
teaching under provisional, temporary, or emergency certification, were 
enrolled in a program to obtain State certification. If teachers 
already participating in a certification program are presumed to be 
within 10 semester hours of meeting their coursework requirements and 
the estimated cost of a semester hour in a university or college 
program is $200, then it would cost $6 million to help these teachers 
obtain full State certification. If teachers require more than 10 
semester hours to complete their certification programs, they are 
unlikely to obtain certification through coursework by the end of the 
2005-2006 school year.
    States and districts are unlikely to be able to meet the 
requirements of the proposed regulation entirely through reciprocity 
agreements and college and university programs. The above estimates 
involve fewer than 7,000 of the approximately 30,000 teachers who lack 
full certification. Other options States and districts might use to 
certify the more than 23,000 remaining teachers include assessments of 
academic skill and subject matter knowledge and professional 
development. Assessment requirements for special education teachers 
vary across States and teaching assignment fields, but most States 
require at least two subject matter tests, a general test on core 
content knowledge, and a disability-specific test, for special 
education teacher certification. The average cost of each test is $75. 
The SPENSE study found that one-fourth of beginning special education 
teachers who took a certification test reported having to take it more 
than once before passing. If States and districts certified the 
remaining 23,000 teachers through existing assessments and 25 percent 
of the teachers took the tests twice, the cost would be approximately 
$4.3 million.
    Some subset of special education teachers currently teaching 
through waivers will require additional training to obtain special 
education certification. The cost of certifying these teachers will 
depend on State special education certification requirements and the 
types of professional development needed to help these teachers meet 
the requirements. Most studies found that district expenditures for 
professional

[[Page 35819]]

development range from one to four percent of a district's total budget 
or $2,062 per teacher in 2000 dollars. If 18,000 teachers need 
additional training, costing an average expenditure of $2,000 per 
teacher for professional development, the cost of certifying these 
teachers through training would be $36 million.
    Because there is little information available on what would be 
required to implement this proposed regulation and the cost of doing 
so, the Secretary concludes that the cost may be significant given the 
number of special education teachers who lack certification. The 
Secretary further concludes that the benefits of State certification 
may not necessarily outweigh the costs.
    The Secretary believes that teacher certification can be a valuable 
tool in ensuring that teachers have the knowledge and skills they need 
to help students meet high academic standards. Since the highly 
qualified teacher requirements in the No Child Left Behind Act, which 
focus on content knowledge, already applied to special education 
teachers providing instruction in core academic subjects, the benefits 
of requiring special education teachers to also meet State 
certification requirements for special education teachers will largely 
depend on the extent to which these requirements reflect pedagogical 
knowledge and other teacher characteristics that are likely to have a 
positive effect on achievement of students with disabilities. As of 
now, there is a dearth of research showing the relationship between 
special education certification and academic achievement for students 
with disabilities.

Special Education Teachers Teaching To Alternate Achievement Standards

    Section 9101 of the ESEA requires that teachers of a core academic 
subject have full State teacher certification, hold at least a 
bachelor's degree, and be able to demonstrate knowledge of the subject 
matter they teach by the end of the 2005-2006 school year. Elementary 
level teachers may demonstrate subject matter expertise by passing a 
rigorous State test of their subject knowledge and teaching skills in 
reading, writing, mathematics, and other areas of the basic elementary 
school curriculum, but middle or secondary school teachers must 
demonstrate a high level of competence in each of the academic subjects 
that they teach.
    Proposed Sec.  300.18(c) would permit special education teachers 
who teach core academic subjects exclusively to children who are 
assessed against the alternate achievement standards, established under 
34 CFR 200.1(d), to fulfill the highly qualified teacher requirements 
in section 9101(23) of the ESEA as applied to an elementary school 
teacher, or, in the case of instruction above the elementary level, to 
meet the requirements for an elementary school teacher and have subject 
matter knowledge appropriate to the level of instruction being 
provided, including at a minimum, subject matter knowledge at the 
elementary level or above, as determined by the State, needed to 
effectively teach to those standards.
    The cost of demonstrating subject area competence under current law 
depends on the number of special education teachers who teach core 
academic subjects exclusively to children assessed against alternate 
achievement standards, the number of these teachers who already would 
be considered highly qualified under section 9101(23) of the ESEA and 
the number who would not, and the cost of helping special education 
teachers who are not highly qualified meet the highly qualified teacher 
requirements for teaching core academic subjects at the middle and high 
school levels (or replacing them with highly qualified teachers). The 
proposed regulation would generate savings for public agencies to the 
extent that the cost of helping teachers demonstrate subject area 
competence at the elementary level and obtain the knowledge appropriate 
to the level of instruction needed to teach to alternate achievement 
standards is lower than the cost of demonstrating subject matter 
competence at the level (middle or high school) at which they are 
teaching.
    Under 34 CFR 200.1(d), States are permitted to assess up to one 
percent of students against alternate achievement standards. Based on 
projections of school enrollment in 2005-2006 using school enrollment 
data collected by the National Center for Education Statistics (NCES) 
for the 2002-2003 school year, States could assess up to 257,650 
students in the middle and secondary levels (grades 6-12) against 
alternate achievement standards. Based on a typical ratio of one 
teacher for every six students for instruction based on alternate 
achievement standards, as many as 43,000 special education teachers may 
be able to demonstrate that they fulfill the requirements for highly 
qualified teachers in section 9101 of the ESEA by demonstrating subject 
matter knowledge appropriate to the level of instruction being provided 
instead of the student's grade level. The number of affected teachers 
will depend on the extent to which these special education teachers are 
teaching exclusively children assessed against alternate achievement 
standards.
    Although it is difficult to estimate the potential savings from 
this proposed regulation, the Secretary would expect some savings to be 
produced because affected special education teachers would not be 
required to demonstrate the same level of content knowledge as other 
middle and high school teachers of core academic subjects, thereby 
reducing the amount of additional coursework or professional 
development that might have been needed to meet State standards. The 
savings would depend on the gap between what State standards require in 
terms of content knowledge for middle and high school teachers in 
various academic areas and what the affected teachers would have been 
able to demonstrate in the academic subjects they are teaching. Any 
savings will be offset in part by the cost of developing a means for 
the affected teachers to demonstrate subject matter knowledge 
appropriate to the level of instruction being provided. However, this 
cost is not expected to be significant. Since States have already 
developed standards for demonstration of core academic subject 
competence at the elementary level, States would not likely develop 
additional High Objective Uniform State Standards of Evaluation 
(HOUSSE) or subject matter competence evaluations for use with special 
education teachers to comply with the proposed regulation. On balance, 
the Secretary concludes that the proposed regulation could produce 
significant savings without adversely affecting the quality of 
instruction provided to children assessed against alternate achievement 
standards.
Special Education Teachers Teaching Multiple Subjects
    Consistent with current law, proposed Sec.  300.18(d) would permit 
special education teachers who are not new to the profession and teach 
two or more core academic subjects exclusively to children with 
disabilities to demonstrate competence in all the core academic 
subjects that the teacher teaches in the same manner as other teachers, 
including through a single HOUSSE covering multiple subjects. The 
proposed regulation would allow more time (two years after the date of 
employment) for new special education teachers who teach multiple 
subjects and who have met the highly qualified requirements for 
mathematics, language arts, or science to demonstrate competence in 
other core academic

[[Page 35820]]

subjects that they teach, as required by 34 CFR 200.56(c).
    We are unable at this time to estimate the number of new teachers 
who teach two or more core academic subjects exclusively to children 
with disabilities who might be affected by the additional time afforded 
by the proposed regulation. However, the extent of savings would relate 
to the number of subjects taught by teachers of multiple subjects and 
the benefits of enabling the affected teachers to take whatever 
coursework they need to demonstrate competence in those additional 
areas over a longer period of time. Under prior law, public agencies 
might have needed to employ additional teachers (or redeploy some 
existing teachers) in those subject areas in which their newly hired 
teachers could not immediately demonstrate competence. The Secretary 
concludes that the benefits of being able to hire teachers who are 
qualified in at least one subject area outweigh any costs to students 
being taught by teachers who currently do not meet the requirements in 
other areas but are working to demonstrate their knowledge in other 
areas in which they teach.
Limitation on Number of Reevaluations in a Single Year
    Proposed Sec.  300.303(b)(1) would prohibit conducting more than 
one reevaluation in a single year without the agreement of the school 
district and the parent. The current regulations require reevaluations 
when conditions warrant one or at the request of either the child's 
parent or teacher.
    Multiple evaluations in a single year are rare and are conducted in 
instances in which parents are not satisfied with the evaluation 
findings or methodology, children have a degenerative condition that 
affects the special education and related services needed, or very 
young children (ages three through four) are experiencing rapid 
development that may affect the need for services. The proposed 
regulation would not significantly affect the number of evaluations in 
the latter two instances because public agencies and parents are likely 
to agree that multiple evaluations are warranted. These cases, however, 
account for a very small number of the cases in which multiple 
evaluations are conducted each year.
    Because evaluation findings may be used to support complaints, we 
can use data on the number of requests for due process hearings to 
estimate the number of cases in which more than one evaluation in a 
single year would have been conducted because parents were not 
satisfied with the evaluation findings or methodology. Based on data 
from the recent Government Accountability Office (GAO) report, 
``Special Education: Numbers of Formal Disputes Are Generally Low and 
States Are Using Mediation and Other Strategies to Resolve Conflicts'' 
(GAO-03-897), in which States reported receiving 11,068 requests for 
due process hearings during 1999-2000, we estimate that States would 
receive 20 requests for every 10,000 students with disabilities during 
the 2005-2006 school year. Based on the prevalence of complaints by 
parents, we estimate that, of the 1.7 million children estimated to be 
eligible for reevaluation in 2005-2006, multiple evaluations would have 
been requested by parents for an estimated 3,400 children. If we assume 
that these additional evaluations would cost about $1,000 each, public 
agencies could save $3.4 million under the proposed regulation by not 
agreeing to more than one evaluation of children in these instances.
Triennial Evaluations
    The current regulations require a school district to conduct an 
evaluation of each child served under the Act every three years to 
determine, among other things, whether the child is still eligible for 
special education. The current regulations permit the evaluation team 
to dispense with additional tests to determine the child's continued 
eligibility if the team concludes that this information is not needed 
and the parents provide consent. Proposed Sec.  300.303(b)(2) would 
permit districts to dispense with the triennial evaluation altogether 
when the child's parents and the public agency agree that a 
reevaluation is unnecessary. The impact of this change will depend on 
the following factors: the number of children eligible for a 
reevaluation, the cost of the evaluation, and the extent to which 
districts and parents agree to waive reevaluations.
    Published estimates of the cost of multidisciplinary evaluations 
range from $500 to $2,500, but these estimates may overestimate 
potential savings because testing is a significant factor in the cost 
of evaluations, and districts are already permitted to dispense with 
additional testing when extant data are sufficient for reevaluation. 
The extent to which States and districts eliminated unnecessary testing 
during triennial evaluations under the current regulations is unclear, 
but program officers estimate that additional testing or observation by 
a school psychologist is not needed for as many as half of the 
approximately 1.7 million children eligible for triennial evaluations 
each year. In the estimated 850,000 cases in which additional testing 
is not needed, review of the extant data may still be warranted to 
determine if a child still needs special education and related services 
under the Act or to assess whether any additions or modifications to 
the special education and related services being provided are needed to 
help the child meet his or her IEP goals. Even if additions or 
modifications to special education and related services are not likely, 
parents may not want to dispense with the triennial evaluation if they 
believe further information could be gained from the extant data or 
they want to compare their child's progress against his or her previous 
assessments. If parents and the district agree that a reevaluation is 
not needed in 15 percent, or 127,500, of these cases and a reevaluation 
using only extant data would have cost $150, the proposed regulation 
could save $19.125 million.
    These savings would be partially offset by increased administrative 
costs associated with obtaining consent from parents to dispense with 
reevaluation. To estimate the cost of obtaining parental consent, the 
Department assumes that schools could use a standard pre-printed 
document that would take approximately 15 minutes of administrative 
personnel time to fill out and send to parents. In addition, we 
estimate that an average of 2.5 additional written notices or telephone 
calls would be needed to obtain consent, requiring 15 minutes of 
administrative personnel time per additional contact. At an average 
hourly compensation of $24, the cost to public agencies of obtaining 
parental consent would be $2.7 million, resulting in estimated net 
savings to public agencies from the proposed regulation of $16.4 
million.
IEP Team Attendance
    Proposed Sec.  300.321(e)(1) would permit a member of the IEP team 
to be excused from attending an IEP meeting, in whole or in part, if 
the parent of the child with a disability and the public agency agree 
in writing that the member's attendance is not necessary because the 
member's area of the curriculum or related services is not being 
modified or discussed. The current regulations require that all IEP 
meetings include the parents of the child, at least one regular 
education teacher (if the child is, or may be, participating in the 
regular education environment), at least one special education teacher, 
a representative of the public agency, and someone who could interpret 
the instructional implications of the evaluation results (who may be 
one of the other required

[[Page 35821]]

IEP team members). The extent to which public agencies may realize 
savings from the proposed regulation depends on which team members are 
excused from how much of the meeting. If the average IEP meeting lasts 
1.5 hours and requires a half an hour of teacher preparation, then we 
estimate that the opportunity costs for a teacher of attending a 
meeting (based on average compensation per hour of $46.25) would be 
$92.50. If we assume an average of 1.2 IEP meetings are held for each 
of the 6.933 million children with disabilities, then 8.32 million IEP 
meetings will be held in 2005-2006. If one teacher could be excused 
from five percent of these meetings, the proposed regulation could 
result in savings of $38.5 million.
    These savings would be partially offset by increased administrative 
costs associated with obtaining written consent from parents and public 
agency staff. Based on the above estimate of the cost of obtaining 
consent from parents under proposed Sec.  300.303(b)(2), the Department 
estimates that cost to public agencies of obtaining written consent for 
these parents would be $8.7 million, resulting in net savings to public 
agencies from the proposed regulation of $29.8 million.
    Proposed Sec.  300.321(e)(2) would permit members of an IEP team to 
be excused from attending an IEP meeting that involves a modification 
to or discussion of the member's area of the curriculum or related 
service if the parent and the public agency consent in writing to the 
excusal and the member submits written input to the parent and the 
other members of the IEP team prior to the meeting. The proposed change 
is unlikely to generate notable savings because reduced time spent in 
meetings is likely to be offset by the time required to draft written 
input, send it to the parents and other IEP team members, and secure 
the consent of parents and public agency to the excusal. In cases in 
which IEP meetings take longer than the average time of 1.5 hours, 
there are likely to be controversial issues or significant 
modifications to the IEP under discussion. Parents are presumably less 
likely to consent to the excusal of team members in these instances.
Definition of Individualized Education Program
    Proposed Sec.  300.320(a)(2)(i) would require that each IEP include 
a statement of measurable annual goals, including academic and 
functional goals, for the child. The current regulations require that 
each IEP contain benchmarks or short-term objectives for each of the 
annual goals. By eliminating the need to develop benchmarks or short-
term objectives, the proposed regulation could result in teachers 
spending less time on each IEP. Under proposed Sec.  300.320(a)(2)(ii), 
however, IEPs for the estimated 488,000 children with disabilities who 
take alternate assessments aligned to alternate achievement standards 
would still be required to include a statement of benchmarks or short-
term objectives.
    Based on average compensation for teachers of $46.25 per hour, a 
reduction in time as modest as 15 minutes could save approximately 
$11.56 per IEP or $74.5 million total in opportunity costs for teachers 
related to the development of IEPs during the 2005-2006 school year for 
the 6.445 million children with disabilities who do not take alternate 
assessments aligned to alternate achievement standards.
Amendments to an IEP
    When changes to a child's IEP are needed after the annual IEP 
meeting for the school year has been held, proposed Sec.  300.324(a)(4) 
would allow the parent of a child with a disability and the public 
agency to agree to forego a meeting and develop a written document to 
amend or modify the child's current IEP. Under the current regulations, 
the IEP team must be reconvened in order to make amendments to an IEP. 
Based on our estimate of an average of 1.2 IEP meetings per child per 
year, approximately 1.4 million IEP meetings beyond the required annual 
IEP meeting would be held during the 2005-2006 school year. If half of 
these meetings concerned amendments or modifications to an IEP and 
parents and agency representatives agreed to forego a meeting and 
develop a written document in half of these cases, then 346,650 IEP 
meetings would not be needed. The combined opportunity costs for 
personnel participating in a typical IEP meeting are estimated at $297. 
If drafting a written document to amend or modify an IEP is assumed to 
cost half as much as a meeting, then this change could result in 
savings of $51.4 million.
Procedural Safeguards Notice
    Proposed Sec.  300.504(a), which incorporates changes in section 
615(d)(1) of the Act, would require that a copy of the procedural 
safeguards notice be given to parents of children with disabilities 
only once a year, except that a copy must also be given: when an 
initial evaluation or request for an evaluation occurs; the first time 
a due process hearing is requested during a school year; and when a 
parent requests the notice. The prior law required that a copy of the 
procedural safeguards notice be given to the parents upon initial 
referral for an evaluation, each notification of an IEP team meeting, 
each reevaluation of the child, and the registration of each request 
for a due process hearing. Under the proposed regulation, a copy of the 
procedural safeguards notice would no longer have to be given to 
parents upon each notice for an IEP team meeting or every time a 
request for a due process hearing is received. Instead, the document 
only would have to be given to parents once a year, and the first time 
a due process hearing is requested in a year, when a copy of the 
document is specifically requested by a parent, or when an initial 
evaluation or request for a reevaluation occurs.
    To determine the impact of this change, it is necessary to estimate 
the savings created by providing fewer notices to parents who are 
notified about more than one IEP meeting during the year or who file 
more than one request for a due process hearing. Given the small number 
of hearing requests in a year (about 20 per 10,000 children with 
disabilities), our analysis will focus on the number of parents 
involved in more than one IEP meeting. Although we lack detailed data 
on the number of IEP meetings conducted each year, we estimate that 
approximately 6.933 million children with disabilities will be served 
in school year 2005-2006. For the vast majority of these children, we 
believe there will only be one IEP meeting during the year. For 
purposes of estimating an upper limit on savings, if we assume an 
average of 1.2 meetings per year per child, 1.39 million children will 
have two IEP meetings each year and the change reflected in proposed 
Sec.  300.504(a) will result in 1.39 million fewer procedural notices 
provided to parents. While some people may believe this change 
represents a significant reduction in paperwork for schools, the actual 
savings are likely to be minimal given the low cost of producing a 
notice of this size (about 10 pages) and the small amount of 
administrative staff time involved in providing this notice to parents 
(about 10 minutes). Taking all of this into consideration, total 
savings are unlikely to exceed $5 million.
Due Process Request Notices
    Proposed Sec.  300.511(d) would prohibit the party who requested 
the due process hearing from raising issues not raised in the due 
process request notice, unless the other party agrees. Under current 
regulations, there is no prohibition on raising issues at due process 
hearings

[[Page 35822]]

that were not raised in the due process notice.
    By encouraging the party requesting the hearing to clearly identify 
and articulate issues sooner, the proposed regulation could generate 
actual savings by facilitating early resolution of disagreements 
through less costly means, such as mediation or resolution sessions. 
But early identification of issues could come at the cost of more 
extensive involvement of attorneys earlier in the process. At the same 
time, prohibiting the party requesting the hearing from raising new 
issues at the time of the hearing could result in additional complaints 
or protracted conflict and litigation. On balance, net costs or savings 
are not likely to be significant.
    Using data from recent State data collections conducted by the 
Consortium for Appropriate Dispute Resolution in Special Education 
(CADRE), in which States reported receiving 12,914 requests for due 
process hearings during 2000-2001, we estimate that there will be 
approximately 14,031 requests in 2005-2006. Because some parties 
already hire attorneys or consult other resources such as advocates or 
parent training centers to develop the request for due process, the 
Department assumes that only a portion of the requests would be 
affected by this new requirement. Although we have no reliable data on 
average attorneys' fees in due process cases, for purposes of this 
analysis, the Department assumes an hourly rate of $300 as an upper 
limit. The Department further assumes that each instance in which a 
party chooses to hire an attorney sooner as a result of this change 
will involve no more than three additional hours of work. Even if we 
assume that parties requesting the hearing will incur this additional 
cost in the case of 8,000 of the expected requests for due process, the 
total costs would not be significant (less than $8 million), and could 
be outweighed by the benefits of early identification and resolution of 
issues. Although such benefits are largely unquantifiable, early 
identification and resolution of disputes would likely benefit all 
parties involved in disputes.
Resolution Sessions
    Proposed Sec.  300.510 would require the parents, relevant members 
of the IEP team, and a representative of the public agency to 
participate in a resolution session, prior to the initiation of a due 
process hearing, unless the parents and LEA agree to use mediation or 
agree to waive the requirement for a resolution session. The impact of 
this proposed regulation will depend on the following factors: The 
number of requests for due process hearings, the extent to which 
disagreements are already resolved without formal hearings, the 
likelihood that parties will agree to participate in mandatory 
resolution sessions instead of other potentially more expensive 
alternatives to due process hearings (e.g., mediation), and the 
likelihood that parties will avoid due process hearings by reaching 
agreement as a result of mandatory resolution sessions.
    Available data suggest that overall savings are not likely to be 
significant because of the small number of due process requests and the 
extent to which disagreements are already being successfully resolved 
through mediation.
    Based on data reported in a recent CADRE State data collection in 
which States reported receiving 12,914 requests for due process 
hearings during 2000-2001, we estimate that there will be approximately 
14,031 requests for due process hearings in school year 2005-2006. 
Based on data from the same study, we also estimate that the large 
majority of these disagreements will be successfully resolved through 
mediation or dropped. Out of the 12,914 requests for school year 2000-
2001, approximately 5,536 went to mediation and only 3,659 ended up in 
formal hearings. Assuming no change in the use and efficacy of 
mediation, we predict that 6,021 requests would go to mediation in 
school year 2005-2006. We further predict that another 4,035 complaints 
will be dropped, leaving no more than 3,975 requests for due process 
that would require resolution sessions.
    Because of the high cost of due process hearings and the low 
expected cost of conducting a resolution session, there would likely be 
some savings for all parties involved if resolution sessions are 
relatively successful in resolving disagreements. For example, 
California reports an average cost of $18,600 for a due process 
hearing, while Texas reports having spent an average of $9,000 for a 
hearing officer's services. Anticipating that attorneys will 
participate in approximately 40 percent of the predicted 3,945 
resolution sessions (including drafting legally binding agreements when 
parties reach agreement), we expect resolution sessions to cost just 
over twice the average cost of IEP meetings, or approximately $700 per 
session. Even with a very low success rate (eight percent), given the 
expected costs of these sessions compared to the high cost of 
conducting a hearing, all parties involved would likely realize some 
modest savings. However, because disputes that result in formal 
hearings tend to be the most difficult to resolve, we do not expect 
that mandatory resolution sessions will be highly successful in 
resolving such cases. By definition, these are cases in which the 
parties are not amenable to using existing alternatives to formal 
hearings such as mediation. Moreover, assuming an average cost of 
between $10,000 and $20,000 per due process hearing, even if as many as 
20 percent of the 3,975 complaints were successfully resolved through 
resolution sessions, net savings still would not exceed $10 million. 
(Note that it is unclear to what extent data on average mediation and 
due process hearing costs account for LEA opportunity costs (e.g., cost 
per teacher and/or administrator participating). To the extent that 
these data do not reflect the opportunity costs of participating LEA 
officials and staff, we have underestimated the potential savings from 
resolution session).
    Beyond those savings to all parties resulting from reductions in 
the total number of formal hearings, we would also expect some 
additional savings to the extent parties agree to participate in 
resolution sessions instead of mediation, particularly if the 
resolution sessions are as effective as mediation in resolving 
disagreements. However, unlike due process, the expected cost of 
conducting a resolution session ($700 per session) is only somewhat 
less than the cost of a mediation session (between $600 and $1,800 per 
session). Because the cost differential between resolution sessions and 
mediations is relatively small (compared to the difference in cost 
between resolutions sessions and due process hearings) the potential 
for savings generated by parties agreeing to resolution sessions 
instead of mediation is minimal.
    The Secretary concludes that requiring parties to participate in 
resolution sessions prior to due process hearings could generate modest 
savings for all parties to disputes, insofar as mandatory resolution 
sessions could result in fewer due process hearings and may be used as 
a less expensive alternative to mediation.
Manifestation Determination Review Procedures
    Proposed Sec.  300.530(e) and (f) would incorporate the change in 
the statutory standard for conducting manifestation determination 
reviews. Under the prior law, the IEP team could conclude that the 
behavior of a child with a disability was not a manifestation of his or 
her disability only after considering a list of factors, determining 
that the child's IEP

[[Page 35823]]

and placement were appropriate, and that FAPE, supplemental services, 
and behavioral intervention strategies were being provided in a manner 
consistent with the child's IEP. Previous law also required the IEP 
team to consider whether a child's disability impaired his or her 
ability to understand the impact and consequences of the behavior in 
question, and to control such behavior. The new statute eliminated or 
substantially revised these requirements. The proposed regulations 
would simply require IEP teams to review all relevant information in 
the student's file to determine if the conduct in question was caused 
by, or had a direct and substantial relationship to, the child's 
disability, or if the conduct in question was the direct result of the 
LEA's failure to implement the IEP. The purpose of the change in the 
law is to simplify the discipline process and make it easier for school 
officials to discipline children with disabilities when discipline is 
appropriate and justified.
    Because fewer factors would need to be considered during each 
manifestation determination review, the time required to conduct such 
reviews would likely be reduced, and some minimal savings may be 
realized. However, the more significant impact relates to secondary 
effects. Because it would be less burdensome for school personnel to 
conduct manifestation determinations, it is reasonable to expect an 
overall increase in the number of these reviews as school personnel 
take advantage of the streamlined process to pursue disciplinary 
actions against those students with disabilities who commit serious 
violations of student codes of conduct. Even more importantly, the 
changes in the law would make it less difficult for review team members 
to conclude that the behavior in question is not a manifestation of a 
child's disability, enabling school personnel to apply disciplinary 
sanctions in more cases involving children with disabilities.
    We have minimal data on the number of manifestation determination 
reviews being conducted. However, State-reported data for the 2002-2003 
school year suggest that schools are conducting a relatively small 
number of manifestation reviews. According to these data, for every 
1,000 children with disabilities, approximately 11 will be suspended or 
expelled for longer than 10 days during the school year (either through 
a single suspension or as a result of multiple short-term 
suspensions)--the disciplinary action triggering a manifestation 
review. (Please note that we have no way of accurately estimating what 
portion of short-term suspensions that sum to 10 days would be 
determined by school personnel to constitute a change in placement. 
Therefore, we assume, for purposes of this analysis, that 100 percent 
of these instances would require a manifestation review because they 
would be deemed a change in placement). Based on a recent GAO study, 
which concludes there is little difference in how school personnel 
discipline regular and special education students, we assume that under 
previous law, at least 85 percent of manifestation reviews resulted in 
disciplinary actions (e.g., long-term suspensions or expulsion). In 
other words, approximately 15 percent of all manifestation reviews did 
not result in disciplinary action because the behavior in question was 
determined to be a manifestation of the child's disability.
    Without taking into consideration increases in the frequency of 
manifestation reviews, using suspension and expulsion data from 
previous years, we estimate that the total number of manifestation 
reviews in 2005-2006 would be approximately 87,701. If we assume that 
the streamlining reflected in the proposed regulation would produce a 
20 percent increase in the total number of manifestation reviews, we 
predict that 17,540 additional meetings would occur, for a total of 
105,241 meetings.
    Under the proposed regulation, the Secretary also expects an 
increase in the total number of manifestation reviews resulting in 
disciplinary actions, but it is not likely to be a significant 
increase. GAO's finding that there is little practical difference in 
how school personnel disciplined regular and special education students 
under previous law suggests that manifestation reviews are already 
highly likely to result in disciplinary actions.
    The Secretary concludes that the proposed regulation would generate 
some minimal savings from the reduction in time required to conduct the 
manifestation reviews. Schools would also realize some unquantifiable 
benefits related to the increased likelihood that the outcome of the 
review will result in disciplinary action, thereby fostering a school 
environment that is safer, more orderly, and more conducive to 
learning. The Secretary acknowledges that the proposed regulation could 
create additional costs for parents of children who, but for this 
change, would not have been subject to disciplinary removals to the 
extent that such parents disagree with the manifestation determination 
and choose to appeal it. On balance, the Secretary believes that the 
benefits likely to result from this change relating to school safety 
and order outweigh the costs to families.
Authority To Remove Students With Disabilities to Interim Alternative 
Educational Settings
    Proposed Sec. Sec.  300.530(g) through 300.532 would incorporate 
two significant statutory changes relating to the authority of school 
personnel to remove children with disabilities to interim alternative 
educational settings. First, the Act now gives school personnel the 
authority to remove students who have inflicted serious bodily injury 
to interim alternative educational settings. Under previous law, school 
personnel were only authorized to remove students to alternative 
settings for misconduct involving: (1) The use and possession of 
weapons; and (2) the knowing possession, sale, or use of illegal drugs 
or controlled substances. The Act added the commission of serious 
bodily injury to this list. In cases involving serious bodily injury, 
school personnel would be able to unilaterally remove children with 
disabilities to interim alternative educational settings for up to 45 
school days without having to request a hearing officer review of the 
facts to determine whether or not the student is substantially likely 
to harm himself or others. Second, the 45-day rule has changed. Under 
previous law, students could not be removed to interim alternative 
settings for more than 45 days. Now, under the Act, the comparable time 
limitation is 45 school days.
    Although the addition of serious bodily injury significantly 
simplifies the process for removing a student who has engaged in such 
misconduct, the data suggest that the savings from the proposed 
regulation would be minimal. Recent Department of Justice data show 
that ``fighting without a weapon'' is by far the most common type of 
serious misconduct engaged in by all students. However, State-reported 
data suggest that of the 20,000 instances in 2002-2003 in which 
children with disabilities were suspended or expelled for longer than 
10 days, only 1,200 involved serious bodily injury or removal ``by a 
hearing officer for likely injury.'' We estimate that approximately 
6.933 million students with disabilities will be served during the 
2005-2006 school year. Using these data, we project that there would 
have been approximately 1,258 instances in 2005-2006 in which a school 
district might have requested approval from a hearing officer to remove 
a child for inflicting serious

[[Page 35824]]

bodily injury, if the law had not been changed. Taking into account the 
time that would have been spent by both relevant school administrators 
and the hearing officers and their estimated hourly wages (about $125 
per hour for hearing officers and $50 per hour for school 
administrators), we conclude that the unilateral authority afforded 
school officials under the proposed regulation produces only minimal 
savings (less than $1 million).
    A much more significant benefit relates to the enhanced ability of 
school officials to provide for a safe and orderly environment for all 
students in the 1,258 cases in which school officials would have been 
expected to seek and secure hearing officer approval for removing a 
student to an alternative setting and the other cases in which they 
might not have taken such action, but where removal of a student who 
has caused injury is justified and produces overall benefits for the 
school.
    The change in how days are to be counted (e.g., from ``calendar 
days'' under previous law to ``school days'' under the proposed 
regulation) would allow school officials to extend placements in 
alternative settings for approximately two additional weeks. This would 
generate some savings to the extent that it obviates the need for 
school officials to seek hearing officer approval to extend a student's 
placement in an alternative setting.
    While school personnel are not required to use the new authority to 
remove children who have inflicted serious bodily injury or to remove 
children for the total amount of time that is authorized, we 
acknowledge that it would create additional costs for schools that 
choose to take full advantage of this authority because of the added 
costs of providing educational services in an alternative setting. 
Using data from a recent GAO study, we estimate that approximately 
3,000 students will be removed to an alternative interim setting in 
2005-2006 for misconduct involving drugs or weapons and at least 
another 1,258 for misconduct involving serious bodily injury. Although 
we do not have data on the costs of educating these students in an 
alternative setting for 45 school days, the Secretary concludes that 
the costs of doing so would be outweighed by the unquantifiable 
benefits to schools associated with ensuring students a safe and 
orderly environment that is conducive to learning.

Costs and Benefits of Proposed Non-Statutory Regulatory Provisions

    The following is an analysis of the costs and benefits of the 
proposed non-statutory regulatory provisions that includes 
consideration of the special effects these changes may have on small 
entities.
    The proposed regulations would primarily affect SEAs and LEAs, 
which are responsible for carrying out the requirements of Part B of 
the Act as a condition of receiving Federal financial assistance under 
the Act. Some of the proposed changes would 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 LEAs because these regulations most directly 
affect local public agencies. The analysis uses a definition of small 
school district developed by the NCES for purposes of its recent 
publication, Characteristics of Small and Rural School Districts. In 
that publication, NCES defines a small school 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 38 percent of the nation's public 
agencies in the 2002-2003 Common Core of Data were considered small and 
served three percent of the Nation's students. Approximately 17 percent 
of students in small districts had IEPs.
    Both small and large districts would be affected economically by 
the proposed regulations, but no data are available to analyze the 
effect on small districts separately. For this reason, this analysis 
assumes that the effect of the proposed regulations on small entities 
would be roughly proportional to the number of children with 
disabilities served by those districts.
    For school year 2005-2006, we project that approximately 48.8 
million children will be enrolled in public elementary and secondary 
schools. Using the NCES definition and assuming that all districts grew 
at the same rate between school year 2002-2003 and 2005-2006, we 
estimate that in the 2005-2006 school year approximately 1.48 million 
children will be enrolled in small districts. Based on the percentage 
of students in small districts with IEPs in 2002-2003, we estimate that 
in the 2005-2006 school year these districts will serve approximately 
251,000 children with disabilities of the 6.9 million children with 
disabilities served nationwide.
    There are many provisions in the proposed regulations that are 
expected to result in economic impacts, both positive and negative. The 
following analysis estimates the impact of the proposed regulations 
that were not required by the Act:

Procedures for Evaluating Children With Specific Learning Disabilities

    Proposed Sec.  300.307(a) would require that States adopt criteria 
for determining whether a child has a specific learning disability. 
Under the proposed regulation, States may not require, but may 
prohibit, that LEAs use criteria based on a severe discrepancy between 
intellectual ability and achievement for determining whether a child 
has a specific learning disability. The proposed regulation would also 
require that criteria adopted by States permit the use of a process 
that determines if the child responds to scientific, research-based 
intervention. States would also be permitted to use other alternative 
procedures to determine if a child has a specific learning disability.
    Before determining that a child has a specific learning disability, 
proposed Sec.  300.309(b) would require that the evaluation team 
consider data that demonstrate that prior to, or as part of the 
referral process, the child received appropriate high-quality, 
research-based instruction in regular education settings and that data-
based documentation of repeated assessments of achievement during 
instruction was provided to the child's parents. If the child had not 
made adequate progress under these conditions after an appropriate 
period of time, the proposed regulation would further require that the 
public agency refer the child for an evaluation to determine if special 
education and related services are needed. Under the proposed 
regulation, the child's parents and the team of qualified 
professionals, described in proposed Sec.  300.308, would be permitted 
to extend the evaluation timelines described in proposed Sec. Sec.  
300.301 through 300.303 by mutual written agreement.
    If the estimated number of initial evaluations each year is 1.7 
million and the percentage of evaluations involving children with 
specific learning disabilities is equivalent to the percentage of all 
children served under Part B of the Act with specific learning 
disabilities, then the proposed regulation would affect approximately 
816,000 evaluations each year. Depending on the criteria adopted by 
their States pursuant to proposed Sec.  300.307(a), public agencies 
could realize savings under the proposed regulation by reducing the 
amount of a school psychologist's time involved in conducting cognitive 
assessments that would have been needed to document

[[Page 35825]]

an IQ discrepancy. However, these savings could be offset by increased 
costs associated with documenting student achievement through regular 
formal assessments of their progress, as required under proposed Sec.  
300.309(b).
    Although the cost of evaluating children suspected of having 
specific learning disabilities might be affected by the proposed 
regulations, the Department expects that the most significant benefits 
of the proposed changes would be achieved through improved 
identification of children suspected of having specific learning 
disabilities. By requiring that States permit alternatives to an IQ-
discrepancy criterion, the proposed regulation would facilitate more 
appropriate and timely identification of children with specific 
learning disabilities, so that they can benefit from research-based 
interventions that have been shown to produce better achievement and 
behavioral outcomes.
    The proposed regulations may impose additional costs on small 
public agencies that lack capacity currently to conduct repeated 
assessments of achievement during instruction and provide parents with 
documentation of the formal assessments of their child's progress. 
These costs are likely to be offset by reduced need for psychologists 
to administer intellectual assessments. To the extent that small 
districts may not employ school psychologists, the proposed criteria 
may alleviate testing burdens felt disproportionately by small 
districts under an IQ discrepancy evaluation model.
Transition Requirements
    Proposed Sec.  300.321(b) would modify current regulations 
regarding transition services planning for children with disabilities 
who are 16 through 21 years old. Public agencies would still be 
required to invite other agencies that are likely to be responsible for 
providing or paying for transition services to the child's IEP meeting. 
If the invited agency does not send a representative, public agencies 
would no longer be required to take additional steps to obtain the 
participation of those agencies in the planning of transition, as 
required under current Sec.  300.344(b)(3)(ii).
    Public agencies would realize savings from the proposed change to 
the extent that they would not have to continue to contact agencies 
that declined to participate in IEP meetings on transition planning. In 
school year 2005-2006, we project that public agencies will conduct 
1,191,218 meetings for students with disabilities who are 16 through 21 
years old. We used data from the National Longitudinal Transition Study 
2 (NLTS2) on school contacts of outside agency personnel to project the 
number of instances in which outside agencies would be invited to IEP 
meetings during the 2005-2006 school year. Based on these data, we 
project that schools will invite 1,490,241 personnel from other 
agencies to IEP meetings for these students during the 2005-2006 school 
year. The NLTS2 also collected data on the percentage of students with 
a transition plan for whom outside agency staff were actively involved 
in transition planning. Based on these data, we project that 436,047 
(29 percent) of the contacts will result in the active participation of 
outside agency personnel in transition planning for students with 
disabilities 16 through 21.
    We base our estimate of the potential savings from the proposed 
change on the projected 1,054,194 (71 percent) instances in which 
outside agencies would not participate in transition planning despite 
school contacts that, under the current regulations, would include both 
an invitation to participate in the child's IEP meeting and additional 
follow-up attempts. If public agencies made only one additional attempt 
to contact the outside agency and each attempt required 15 minutes of 
administrative personnel time, then the proposed change would save $6.3 
million (based on an average hourly compensation for office and 
administrative support staff of $24).
    Studies of best practices conducted by the National Center on 
Secondary Education and Transition indicate that effective transition 
planning requires structured interagency collaboration. Successful 
approaches cited in the studies included memoranda of understanding 
between relevant agencies and interagency teams or coordinators to 
ensure that educators, State agency personnel and other community 
service providers share information with parents and children with 
disabilities. The current regulation focuses on administrative contact 
instead of active strategic partnerships between agencies that 
facilitate seamless transitions for students with disabilities between 
school and adult settings. For this reason, the Department believes 
that the proposed elimination of the non-statutory requirement that 
public agencies make additional attempts to contact other agencies 
would reduce administrative burden and allow public agencies to focus 
their efforts on interagency collaborative transition planning for 
children with disabilities.
2. Clarity of the Regulations
    Executive Order 12866 and the Presidential Memorandum on ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand.
    The Secretary invites comments on how to make these proposed 
regulations easier to understand, including answers to questions such 
as the following:
     Are the requirements in the proposed regulations clearly 
stated?
     Do the proposed regulations contain technical terms or 
other wording that interferes with their clarity?
     Does the format of the proposed regulations (use of 
headings, paragraphing, etc.) aid or reduce their clarity?
     Would the proposed regulations be easier to understand if 
we divided them into more (but shorter) sections? (A ``section'' is 
preceded by the symbol ``Sec.  '' and a number heading; for example, 
Sec.  300.172 Access to instructional materials.)
     Could the description of the proposed regulations in the 
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in 
making the proposed regulation easier to understand? If so, how?
     What else could we do to make the proposed regulations 
easier to understand?
    Send any comments that concern how the Department could make this 
proposed regulation easier to understand to the person listed in the 
ADDRESSES section of the preamble.

Regulatory Flexibility Act Certification

    The Secretary certifies that these proposed regulations would not 
impose significant net costs in any one year, and may result in savings 
to SEAs and LEAs.
    The small entities that would be affected by these proposed 
regulations are small local educational agencies (LEAs) receiving 
Federal funds under this program. Both small and large school districts 
will be affected economically by the proposed regulations. The effect 
of the proposed regulations on small entities would be roughly 
proportional to the number of children with disabilities served by 
those districts.
    To the extent that small districts may not employ school 
psychologists, the proposed changes to the procedures for evaluating 
children with specific learning disabilities may alleviate testing 
burdens felt disproportionately by small districts that would no longer 
be required to use a discrepancy model.

[[Page 35826]]

Paperwork Reduction Act of 1995

    These proposed regulations contain information collection 
provisions that are subject to review by OMB under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501-3520). A description of these 
provisions is given below with an estimate of the annual recordkeeping 
burden. Included in the estimate is the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing each 
collection of information.
    The Department invites comments on:
     Whether the proposed collections are necessary for the 
proper performance of our functions, including whether the information 
will have practical use;
     The accuracy of our estimate of the burden of the proposed 
collections, including the validity of our methodology and assumptions;
     The quality, usefulness, and clarity of the information we 
collect; and
     Ways to minimize the burden on those who must respond. 
This includes exploring 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.
    The proposed IDEA regulation includes 21 information collection 
requirements associated with the following provisions: Proposed 
Sec. Sec.  300.100 through 300.176, Sec.  300.182, Sec.  300.199, 
Sec. Sec.  300.201 through 300.213, Sec.  300.224, Sec.  300.226, 
Sec. Sec.  300.506 through 300.507, Sec.  300.511, Sec. Sec.  300.601 
through 300.602, Sec.  300.640, Sec.  300.704, Sec.  300.804, and 
Sec. Sec.  304.1 through 304.31 In compliance with the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3507(d)), the Department has submitted 
the information collections provisions of this proposed rule to OMB for 
review. The Department recognizes that information collection requests 
requiring aggregate data on race and ethnicity do not reflect the 1997 
OMB Standards for Data on Race and Ethnicity. The Department 
anticipates providing guidance to implement those standards in 
forthcoming collections.
    Interested persons are requested to send comments regarding the 
information collections to the Department of Education within 60 days 
after publication of the proposed rule. This comment period does not 
affect the deadline for public comments associated with the proposed 
rule.
    Collection of Information: Annual State Application under Part B of 
the Act. Sec. Sec.  300.100 through 300.176 and Sec.  300.182, and 
Sec.  300.804. Each State is eligible for assistance under Part B of 
the Act for a fiscal year if the State submits a plan that provides 
assurances to the Secretary that the State has in effect policies and 
procedures to ensure that the State meets the eligibility criteria 
under Part B of the Act and these proposed regulations. Under the new 
statute, States will no longer be required to have on file with the 
Secretary policies and procedures to demonstrate to the satisfaction of 
the Secretary that the State meets specific conditions for assistance 
under Part B of the Act. Information collection 1820-0030 has been 
revised to reflect this change in the statute and appropriate proposed 
regulations.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average eight hours for each response for 
57 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 
information collection 1820-0030 is estimated to be 456 hours. This new 
statutory change will result in a reduction in the burden to States and 
in the overall cost to the Federal Government.
    Under 34 CFR 1320.11, we requested that OMB review information 
collection 1820-0030 on an emergency basis. Although OMB has approved 
this information collection on an emergency basis, we continue to 
invite your comments on this collection.
    Collection of Information: Part B State Performance Plan (SPP) and 
Annual Performance Report (APR). Sec. Sec.  300.601 through 300.602. 
Each State must have in place, not later than one year after the date 
of enactment of the Individuals with Disabilities Education Improvement 
Act of 2004, a performance plan that evaluates the State's efforts to 
implement the requirements and purposes of Part B of the Act and these 
proposed regulations and describe how the State will improve such 
implementation. Each State shall report annually to the public on the 
performance of each LEA located in the State on the targets in the 
State's performance plan. The State must report annually to the 
Secretary on the performance of the State under the State's performance 
plan. A notice was initially published in the Federal Register on March 
8, 2005 giving the public 60 days to comment on this information 
collection (OMB No. 1820-0624). The initial comment period for this 
collection ended on May 9, 2005. Comments regarding this information 
collection are being reviewed and revisions are being made to the 
collection based on the comments received. A second notice will be 
published in the Federal Register notifying the public of an additional 
30-day public comment period. Once the information collection is 
approved, the Department will disseminate the collection instrument to 
the public and collect the required information. If, as a result of the 
final regulations adopted by the Department, additional changes are 
required to the collection, the Department will revise the information 
collection and resubmit the collection for public comment.
    Annual reporting and record keeping burden for this collection of 
information is estimated to average 300 hours for each response for 60 
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 information collection 
1820-0624 is estimated to be 18,000 hours.
    Collection of Information: LEA Application under Part B of the Act. 
Sec. Sec.  300.201 through 300.213, Sec.  300.224, and Sec.  300.226. 
Each LEA must submit a plan to the SEA that provides assurances to the 
SEA that the LEA meets each of the conditions in proposed Sec. Sec.  
300.201 through 300.213, if applicable, meets the requirements in Sec.  
300.224, and, if applicable, reports to the SEA on the number of 
children served under proposed Sec.  300.226 and the number of children 
served under Sec.  300.226 who subsequently receive special education 
and related services under Part B of the Act during the preceding two 
year period. Under the new statute, LEAs are no longer required to have 
on file with the SEA information to demonstrate that the agency meets 
such requirements. Information collection 1820-0600 has been revised to 
reflect these changes and the appropriate proposed regulations.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average two hours for each response for 
15,000 respondents, including the time for reviewing the collection of 
information. Thus, the total annual reporting and recordkeeping burden 
for information collection 1820-0600 is estimated to be 30,000 hours.
    Collection of Information: List of Hearing Officers and Mediators. 
Sec. Sec.  300.506(b)(3)(i) and 300.511(c)(3). Each State must maintain 
a list of

[[Page 35827]]

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. Information collection 1820-0509 has been 
revised to reflect appropriate proposed regulations.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average three hours annually for each of 57 
States and 14,312 public agencies to develop and maintain these lists. 
Thus, the total annual reporting and recordkeeping burden for 
information collection 1820-0509 is estimated to be 43,107 hours.
    Collection of Information: Complaint Procedures. Sec. Sec.  300.151 
through 300.153. 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. It is estimated there are 1,191 complaints 
resolved annually. Thus, the annual reporting and recordkeeping burden 
for information collection 1820-0599 is estimated to be 11,910 hours.
    Collection of Information: Early Intervening Services Annual 
Report. Sec. Sec.  300.208(a)(2) and 300.226. Each LEA that develops 
and maintains coordinated, early intervening services is required to 
annually report to the SEA on the number of children served through 
early intervening services and the number of children who subsequently 
receive special education and related services under Part B of the Act 
during the preceding two year period. The Secretary has determined that 
it is necessary to require each State to report these data to the 
Secretary to assist in determining that these provisions are properly 
implemented.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 22 hours for each of 5,691 LEAs to 
gather the data needed and prepare information to submit to SEAs. It is 
estimated to average 16 hours annually for each of 60 SEAs to collect, 
review, and maintain data received from LEAs and seven hours for each 
SEA to prepare and report the data to the Secretary. Thus, the total 
annual reporting and recordkeeping burden for this new collection is 
estimated to be 126,582 hours.
    Collection of Information: LEA Consultation with Private School 
Representatives. Sec. Sec.  300.134(e) and 300.135. The LEA is required 
to provide to private school officials a written explanation of the 
reasons why the LEA chose not to provide services directly or through a 
contract and, when timely and meaningful consultation as required under 
Part B of the Act has occurred, the LEA is required to obtain a written 
affirmation signed by the representatives of participating private 
schools and forward the documentation of the consultation process to 
the SEA.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 12 hours for each of 2,849 LEAs to 
obtain a written affirmation and forward documentation to the SEA and 
24 hours for each SEA to review and maintain records. Thus, the total 
annual reporting and recordkeeping burden for this new collection is 
estimated to be 35,556 hours.
    Collection of Information: Private School Complaint of 
Noncompliance with Consultation Requirements. Sec.  300.136. A private 
school official is permitted to submit a complaint to the SEA that the 
LEA did not engage in consultation that was meaningful and timely, or 
did not give due consideration of the private school official. Further, 
a private school official may submit a complaint to the Secretary if 
the official is dissatisfied with the decision of the SEA.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average two hours for each of 200 private 
school officials to submit a complaint to the SEA, two hours for each 
of 30 private school officials to submit a complaint to the Secretary, 
16 hours for each SEA decision rendered for each of 200 complaints, two 
hours for the SEA to forward documentation to the Secretary for each of 
30 complaints, and four hours for each of 200 LEAs to forward 
documentation to the SEA, including the time for reviewing the 
collection of information. Thus, the total annual reporting and 
recordkeeping burden for this new collection is estimated to be 4,520 
total hours.
    Collection of Information: Identification of State-Imposed Rules, 
Regulations, or Policies. Sec.  300.199. Each State that receives funds 
under Part B of the Act must identify in writing to LEAs located in the 
State and the Secretary any rule, regulation, or policy as a State-
imposed requirement that is not required by Part B of the Act and 
Federal regulations.
    It is estimated that 50 States will be required to inform LEAs and 
the Secretary in writing of State-imposed requirements that are not 
required by Federal regulations implementing Part B of the Act. It is 
estimated that it will take respondents 40 hours to identify all State-
imposed requirements and inform LEAs and the Secretary in writing. The 
total annual reporting and recordkeeping burden for this new collection 
is estimated to be 2,000 hours annually.
    Collection of Information: Number of Children with Disabilities 
Enrolled in Private Schools by Their Parents. Sec.  300.132. Each LEA 
is required to maintain in its records and annually provide to the SEA 
the number of children enrolled in private schools by their parents 
that are evaluated by the LEA to determine whether they are children 
with disabilities under Part B of the Act, the number of children 
determined to be children with disabilities under Part B of the Act, 
and the number of children receiving special education and related 
services in accordance with Part B of the Act.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 10 hours for each of 14,229 LEAs to 
maintain a record of the number of children and report the numbers to 
the SEA and 20 hours for each SEA to process, review, and maintain the 
reports. Thus, the total annual reporting and recordkeeping burden for 
this new collection is estimated to be 143,430 hours.
    Collection of Information: State Plan for High Cost Fund. Sec.  
300.704(c)(3)(ii). Any SEA that chooses to reserve funds under Part B 
of the Act shall annually review, and amend as necessary, a State plan 
for the high cost fund.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 40 hours for each response for 40 
respondents, including the time for reviewing the collection of 
information. Thus, the total annual reporting and recordkeeping burden 
for this new collection is estimated to be 1,600 hours.
    Collection of Information: Free and Low-Cost Legal Services. Sec.  
300.507(b). Each public agency must inform the parent of any free or 
low-cost legal or other relevant services available in the area if the 
parent requests the information or the parent or agency requests a 
hearing under Part B of the Act.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 30 minutes for each response for 
13,056 requests, including the time for preparing the information. 
Thus, the total annual reporting and recordkeeping burden for this new 
collection is estimated to be 6,528 hours.
    Collection of Information: Confidentiality Pledge Prior to the

[[Page 35828]]

Commencement of Mediation. Sec.  300.506(b)(9). Parties to mediation 
may be required to sign a confidentiality pledge prior to the 
commencement of mediation to ensure that all discussions that occur 
during mediation remain confidential.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 30 minutes for each response for 
4,668 requests, including the time for preparing the information and 
obtaining the signed pledge. Thus, the total annual reporting and 
recordkeeping burden for this new collection is estimated to be 2,334 
hours.
    Collection of Information: Report of Children with Disabilities 
Receiving Special Education under Part B of the Individuals with 
Disabilities Education Act. Sec.  300.160. Each State that receives 
assistance under Part B of the Act shall provide data each year to the 
Secretary and the public on children with disabilities by race/
ethnicity, disability, gender, and Limited English Proficiency status 
receiving special education and related services in each State.
    Annual reporting and recordkeeping burden for this collection is 
estimated to be 8.5 hours for each of 60 State agencies and 2 hours for 
each of an average of 260 LEAs per State. Thus, the total annual 
reporting and recordkeeping burden for collection 1820-0043 is 31,710.
    Collection of Information: Special Education-Personnel Preparation 
to Improve Services and Results for Children with Disabilities. 
Sec. Sec.  304.1 through 304.31. Individuals who receive a scholarship 
through personnel preparation projects funded under the Act must 
subsequently provide early intervention, special education or related 
services to children with disabilities. These proposed regulations 
would implement requirements governing, among other things, the service 
obligation for scholars, oversight by grantees, repayment of 
scholarship, and procedures for obtaining deferrals or exemptions from 
service or repayment obligations.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 4 hours for a grantee to establish 
written agreements and maintain information on each scholarship 
recipient. It is estimated that each of the 375 grantees will establish 
agreements and maintain information for 20 scholars. It is estimated to 
average 2 hours for each of 4,000 scholars to provide information to 
the Secretary of their progress in meeting the service requirement. 
Thus, the total annual reporting burden for collection 1820-0622 is 
38,000 hours.
    Collection of Information: Report of the Participation and 
Performance of Students with Disabilities on State Assessments. Sec.  
300.160(d). Each State (or, in the case of a district-wide assessment, 
the LEA) must report to the public with the same frequency and in the 
same detail as it reports on the assessment of nondisabled children, by 
grade and subject, the number of children with disabilities served 
under part B of the Act that participated in regular assessments; 
regular assessments with accommodations; alternate assessments aligned 
with academic content and achievement standards; and alternate 
assessments aligned with alternate achievement standards, and the 
performance results of children with disabilities on regular 
assessments and on alternate assessments. Information collection 1820-
0659 has been revised to reflect changes in the statute and appropriate 
proposed regulations.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 60 hours for each of 60 State 
agencies, including the time for collecting and aggregating the data 
and reporting data to the Secretary. Thus, the total annual reporting 
and recordkeeping burden for information collection 1820-0659 is 3,600 
hours.
    Collection of Information: Report of Children with Disabilities 
Subject to Disciplinary Removal. Sec.  300.640. Each State must provide 
data to the Secretary and the public by race, ethnicity, limited 
English proficiency status, gender, and disability category on children 
with disabilities who are removed to an interim alternative educational 
setting and the acts or items precipitating those removals. Data must 
also be reported by race, ethnicity, limited English proficiency 
status, gender, and disability category on the number of children with 
disabilities who are subject to long-term suspensions or expulsions. In 
addition, data must be reported on the number and percentage of 
children with disabilities who are removed to alternative educational 
settings or expelled as compared to children without disabilities, and 
on the incidence and duration of disciplinary actions, including 
suspensions of one day or more. Information collection 1820-0621 has 
been revised to reflect the new statutory requirements and the proposed 
regulations.
    Annual reporting and record keeping burden for this collection of 
information is estimated to average 17.5 hours for each of an average 
of 260 LEAs per State to collect, review, and report the data and 74 
hours per State agency (60) to collect, maintain, and report these 
data. Thus, the total annual reporting and recordkeeping burden for 
information collection 1820-0621 for all States (60) is estimated to be 
277,440 hours.
    Collection of Information: Personnel (in Full-time Equivalency of 
Assignments) Employed to Provide Special Education and Related Services 
for Children with Disabilities. Sec.  300.207. Each LEA must ensure 
that all personnel are appropriately and adequately prepared and each 
SEA must establish and maintain qualifications to ensure that personnel 
are appropriately and adequately prepared and trained, including that 
those personnel have the content knowledge and skills to serve children 
with disabilities. To help ensure that these requirements are met, the 
Secretary must collect data that can be used to monitor these 
requirements. Information collection 1820-0518 has been revised to 
reflect the new statutory requirements and the proposed regulations.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 0.5 hours for each of an average of 
260 LEAs per State and 2.5 hours for each of 60 State agencies. Thus, 
the total annual reporting and recordkeeping burden for information 
collection 1820-0518 for all States is 7,950 hours.
    Collection of Information: Report of Children with Disabilities 
Exiting Special Education. Sec.  300.640. Each State must report to the 
Secretary children by race, ethnicity, limited English proficiency 
status, gender, and disability category, the number of children with 
disabilities aged 14 through 21 who stopped receiving special education 
and related services because of program completion (including 
graduation with a regular secondary school diploma), or other reasons, 
and the reasons why those children stopped receiving special education 
and related services. Information collection 1820-0521 has been revised 
to reflect the new statutory requirements and the proposed regulations.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 6 hours for each of an average of 
260 LEAs per State and 11 hours for each of 60 State agencies. Thus, 
the total annual reporting and recordkeeping burden for information 
collection 1820-0521 for all States is 94,260 hours.
    Collection of Information: Part B, Individuals with Disabilities 
Education Act Implementation of FAPE Requirements. Sec.  300.640. Each 
State

[[Page 35829]]

must provide to the Secretary and the public data on children with 
disabilities by race, ethnicity, limited English proficiency status, 
gender, and disability category who are receiving a free appropriate 
public education, participating in regular education, in separate 
classes, separate schools or facilities, or public or private 
residential facilities. Information collection 1820-0517 has been 
revised to reflect the new statutory requirement.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 27 hours for each of an average of 
260 LEAs per State and 28 hours for each of 60 State agencies. Thus, 
the total annual reporting and recordkeeping burden for information 
collection 1820-0517 for all States is 422,880 hours.
    Collection of Information: Report of Dispute Resolution Under Part 
B of the Individuals with Disabilities Education Act: Complaints, 
Mediations, and Due Process Hearings. Sec.  300.640. Each State must 
report to the Secretary and the public, the number of due process 
complaints filed under section 615 of the Act and the number of 
hearings conducted; the number of hearings requested under section 
615(k) of the Act and the number of changes in placement ordered as a 
result of those hearings; and the number of mediations held and the 
number of settlement agreements reached through those mediations. This 
new information collection has been developed to reflect the new 
statutory requirement.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 70 hours for each of 60 State 
agencies. Thus, the total annual reporting and recordkeeping burden for 
this new information collection is estimated to be 4,200 hours.
    Requests for copies of the submission for OMB review may be 
accessed from http//edicsweb.ed.gov by selecting the ``Browse Pending 
Collections'' link. When you access the information collection, click 
on ``Download Attachments'' to view. Written request for information 
should be addressed to U.S. Department of Education, 400 Maryland 
Avenue, SW., Potomac Center, 9th Floor, Washington, DC 20202-4700. 
Requests may also be electronically mailed to the Internet address 
[email protected] or faxed to (202) 245-6621.
    If you want to comment on the information collection requirements, 
please send your comments to Troy R. Justesen, U.S. Department of 
Education, 400 Maryland Avenue, SW., Potomac Center Plaza, room 5126, 
Washington, DC 20202-2641.

Intergovernmental Review

    This program is subject to the Executive Order 12372 and the 
regulations in 34 CFR part 79. One of the objectives 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.
    This document provides early notification of the Department's 
specific plans and actions for this program.

Assessment of Educational Impact

    The Secretary particularly requests comments on whether these 
proposed regulations would require transmission of information that any 
other agency or authority of the United States gathers or makes 
available.

Electronic Access to This Document

    You may view this document, as well as all other Department of 
Education documents published in the Federal Register, in text or 
portable document format (PDF) at the following site:  http://www.ed.gov/news/fedregister.
    To use PDF you must have Adobe Acrobat, which is available free at 
this site. If you have questions about using PDF, call the U.S. 
Government Printing Office (GPO) toll free at 1-800-293-4922; or in the 
Washington, DC area at (202) 512-1530.


    Note: The official version of this document is the document 
published in the Federal Register. Free Internet access to the 
official edition of the Federal Register and the Code of Federal 
Regulations is available on GPO Access at: http://www.gpoaccess.gov/nara/index.html.



  Redesignation Table Showing Each Current Regulatory Section in 34 CFR
         Part 300 and the Corresponding Section in This NPRM \1\
------------------------------------------------------------------------
                                             B. Corresponding section in
   A. Current regulatory section number                 NPRM
------------------------------------------------------------------------
                           Subpart A--General
------------------------------------------------------------------------
 
300.1 Purposes............................  300.1.
300.2 Applicability of this part to State,  300.2.
 local, and private agencies.
300.3 Regulations that apply..............  Removed.
 
       Definitions Used in This Part
 
300.4 Act.................................  300.4.
300.5 Assistive technology device.........  300.5.
300.6 Assistive technology service........  300.6.
300.7 Child with a disability.............  300.8.
300.8 Consent.............................  Removed.
300.9 Day; business day; school day.......  300.11.
300.10 Educational service agency.........  300.12.
300.11 Equipment..........................  300.14.
300.12 Evaluation.........................  Removed.
300.13 Free appropriate public education..  300.17.
300.14 Include............................  300.20.
300.15 Individualized education program...  Removed.
300.16 Individualized education program     300.23.
 team.
300.17 Individualized family service plan.  300.24.
300.18 Local educational agency...........  300.28.
300.19 Native language....................  300.29.
300.20 Parent.............................  300.30.
300.21 Personally identifiable............  Removed.
300.22 Public agency......................  300.33.
300.23 Qualified personnel................  Removed.
300.24 Related services...................  300.34.
300.25 Secondary school...................  300.35.
300.26 Special education..................  300.38.
300.27 State..............................  300.39.
300.28 Supplementary aids and services....  300.41.
300.29 Transition services................  300.42.
300.30 Definitions in EDGAR...............  Removed.
-------------------------------------------
 
                 Subpart B--State and Local Eligibility
------------------------------------------------------------------------
 
300.110 Condition of assistance...........  300.100.
300.111 Exception for prior State policies  300.176(a).
 and procedures on file with the Secretary.
300.112 Amendments to State policies and    300.176(b) and (c).
 procedures.
300.113 Approval by the Secretary.........  300.178.
    (a) General.                            ............................
    (b) Notice and hearing before           300.179.
     determining a State is not eligible.
300.121 Free appropriate public education   300.101(a)
 (FAPE).
    (a) General.
    (b) Required information..............  Removed.

[[Page 35830]]

 
    (c) FAPE for children beginning at age  300.101(b).
     3.
    (d) FAPE for children suspended or      300.530(d)
     expelled from school.
    (e) Children advancing from grade to    300.101(c).
     grade..
300.122 Exception to FAPE for certain ages  300.102.
300.123 Full educational opportunity goal   300.109.
 (FEOG).
300.124 FEOG--timetable...................  300.109.
300.125 Child find........................  300.111(a).
    (a) General requirement...............
    (b) Documents related to child find...  Removed.
    (c) Child find for children from birth  Removed.
     through age 2 when the SEA and lead
     agency for the Part C program are
     different.
    (d) Construction......................  300.111(d).
    (e) Confidentiality of child find data  Removed.
300.126 Procedures for evaluation and       300.122.
 determination of eligibility.
300.127 Confidentiality of personally       300.123.
 identifiable information.
300.128 Individualized education programs.  300.112.
    (a) General
    (b) Required information..............  Removed.
300.129 Procedural safeguards.............  300.121.
300.130 Least restrictive environment.....  300.114.
300.132 Transition of children from Part C  300.124.
 to preschool programs.
300.133 Children in private schools.......  300.129.
300.134 [Reserved]
300.135 Comprehensive system of personnel   Removed.
 development.
300.136 Personnel standards...............  Removed.
300.137 Performance goals and indicators..  300.157.
300.138 Participation in assessments......  300.160.
300.139 Reports relating to assessments...  300.160(d).
300.141 SEA responsibility for general      Removed.
 superision.
300.142 Methods of ensuring services......  300.154.
    (a)-(c); (e)-(i).
    (d) Information.......................  Removed.
300.143 SEA implementation of procedural    300.150.
 safeguards.
300.144 Hearings relating to LEA            300.155.
 eligibility.
300.145 Recovery of funds for               Removed.
 misclassified children.
300.146 Suspension and expulsion rates....  300.170.
300.147 Additional information if SEA       300.175.
 provides direct services.
300.148 Public participation..............  300.165.
    (a) General; exception. (1)
    (2) [Conditions Re-(a)(1)]............  Removed.
    (b) Documentation.....................  Removed.
300.150 State advisory panel..............  Removed.
300.151 [Reserved].
300.152 Prohibition against commingling...  300.162(b).
300.153 State-level nonsupplanting........  300.162(c), 300.164.
300.154 Maintenance of State financial      300.163.
 support.
300.155 Policies and procedures for use of  300.162(a).
 Part B funds.
300.156 Annual description of use of Part   300.171.
 B funds.
    (a)(1)-(2) and (b).
    (a)(3) [Re: % to LEAs]................  Removed.
 
     LEA and State Agency Eligibility
 
300.180 Condition of assistance...........  300.200.
300.181 Exception for prior LEA or State    300.220(a).
 agency policies and procedures on file
 with the SEA.
300.182 Amendments to LEA policies and      300.220(b) and (c).
 procedures.
300.184 Excess cost requirement...........  300.202(a)(2).
    (a) General.
    (b) Definition........................  300.16.
    (c) Limitation on use of Part B funds.  300.202(b).
300.185 Meeting the excess cost             300.202(b)(2).
 requirement.
300.190 Joint establishment of eligibility  300.202(b)(3), 300.223.
300.192 Requirements for establishing       300.224.
 eligibility.
300.194 State agency eligibility..........  300.228.
300.196 Notification of LEA or State        300.221.
 agency in case of ineligibility.
300.197 LEA and State agency compliance...  300.222.
300.200 Consistency with State policies.
    (a) General...........................  300.201.
    (b) Policies on file with SEA.........  Removed.
300.221 Implementation of CSPD.
    (a)...................................  300.207.
    (b)...................................  Removed.
300.230 Use of amounts....................  300.202.
300.231 Maintenance of effort.............  300.203.
300.232 Exception to maintenance of effort  300.204.
300.233 Treatment of federal funds in       300.205.
 certain fiscal years.
300.234 Schoolwide programs under title I   300.206.
 of the ESEA.
300.235 Permissive use of funds...........  300.208.
300.240 Information for SEA.
    (a)...................................  300.211.
    (b)...................................  Removed.
300.241 Treatment of charter schools and    300.209.
 their students.
300.242 Public information................  300.212.
300.244 Coordinated services system.......  Removed.
300.245 School-based improvement plan.....  Removed.
300.246 Plan requirements.................  Removed.
300.247 Responsibilities of the LEA.......  Removed.
300.248 Limitation........................  Removed.
300.249 Additional requirements...........  Removed.
300.250 Extension of plan.................  Removed.
 
         Secretary of the Interior
 
300.260 Submission of information.........  300.708.
300.261 Public participation..............  300.709.
300.262 Use of Part B funds...............  300.710.
300.263 Plan for coordination of services.  300.713.
300.264 Definitions.......................  300.21.
300.265 Establishment of advisory board...  300.714.
300.266 Annual report by advisory board...  300.715.
300.267 Applicable regulations............  300.716.
 
           Public Participation
 
300.280 Public hearings before adopting     Removed.
 State policies and procedures.
300.281 Notice............................  Removed.

[[Page 35831]]

 
300.282 Opportunity to participate;         Removed.
 comment period.
300.283 Review of public comments before    Removed.
 adopting policies and procedures.
300.284 Publication and availability of     Removed.
 approved policies and procedures.
300.300 Provision of FAPE.................  300.101.
300.301 FAPE--methods and payments........  300.103.
300.302 Residential placement.............  300.104
300.303 Proper functioning of hearing aids  300.105(b).
300.304 Full educational opportunity goal.  300.109.
300.305 Program options...................  300.110.
300.306 Nonacademic services..............  300.107.
300.307 Physical education................  300.108.
300.308 Assistive technology..............  300.105(a).
300.309 Extended school year..............  300.106.
300.311 FAPE requirements for students      300.324(d).
 with disabilities in adult prisons.
300.312 Children with disabilities in       300.209.
 public charter schools.
300.313 Children experiencing               300.111(b).
 developmental delays.
300.320 Initial evaluations...............  300.301.
300.321 Reevaluations.....................  300.303.
300.340 Definitions related to IEPs.......  300.320.
    (a) Individualized education program.
    (b) Participating agency..............  Removed.
300.341 Responsibility of SEA and other     Removed.
 public agencies for IEPs.
300.342 When IEPs must be in effect.......  300.323.
300.343 IEP Meetings......................  300.323(c).
300.344 IEP team..........................  300.321.
300.345 Parent participation..............  300.322.
    (a)-(d) and (f).
    (e) Use of interpreters or other        Removed.
     action as appropriate.
300.346 Development, review, and revision   300.324.
 of IEP.
300.347 Content of IEP....................  300.320.
300.348 Agency responsibilities for         300.324(c).
 transition services.
300.349 Private school placements by        300.325.
 public agencies.
300.350 IEPs-accountability...............  Removed.
300.360 Use of LEA allocation for direct    300.227(a).
 services.
    (a) General
    (b) SEA responsibility if an LEA does   300.227(a)(1).
     not apply for Part B funds.
    (c) SEA administrative procedures.....  300.227(a)(2).
300.361 Nature and location of services...  300.227(b).
300.370 Use of SEA allocations............  300.704.
300.372 Nonapplicability of requirements    300.704(d).
 that prohibit commingling and supplanting
 of funds.
300.380 General CSPD requirements.........  Removed.
300.381 Adequate supply of qualified        Removed.
 personnel.
300.382 Improvement strategies............  Removed.
 
        Private School Requirements
 
300.400 Applicability of Sec.   Sec.        300.145.
 300.400-300.402.
300.401 Responsibility of State             300.146.
 educational agency.
300.402 Implementation by State             300.147.
 educational agency.
300.403 Placement of children by parents    300.148.
 if FAPE is at issue.
300.450 Definition of ``private school      300.130.
 children with disabilities''.
300.451 Child find for private school       300.131.
 children with disabilities.
300.452 Provision of services--basic        300.132.
 requirement.
300.453 Expenditures......................  300.133.
300.454 Services determined...............  300.137.
300.455 Services provided.................  300.138
300.456 Location of services;               300.139.
 transportation.
300.457 Complaints........................  300.140.
300.458 Separate classes prohibited.......  300.143.
300.459 Requirement that funds not benefit  300.141.
 a private school.
300.460 Use of public school personnel....  300.142(a).
300.461 Use of private school personnel...  300.142(b).
300.462 Requirements concerning property,   300.144.
 equipment, and supplies for the benefit
 of private school children with
 disabilities.
300.480 By-pass-general...................  300.190.
300.481 Provisions for services under a by- 300.191.
 pass.
300.482 Notice of intent to implement a by- 300.192.
 pass.
300.483 Request to show cause.............  300.193.
300.484 Show cause hearing................  300.194.
300.485 Decision..........................  300.195.
300.486 Filing requirements...............  300.196.
300.487 Judicial review...................  300.197.
-------------------------------------------
 
                     Subpart E--Procedural Safeguards
------------------------------------------------------------------------
 
 300.500 General responsibility of public   300.500.
 agencies; definitions.
    (a) Responsibility of SEA and other
     public agencies.
    (b) Definitions.......................  300.9.
    (1) Consent
    (2) Evaluation........................  300.15.
    (3) Personally identifiable...........  300.32.
300.501 Opportunity to examine records;     300.501.
 parent participation in meetings.
300.502 Independent educational evaluation  300.502.
300.503 Prior notice by the public agency;  300.503.
 content of notice.
300.504 Procedural safeguards notice......  300.504.
300.505 Parental consent..................  300.300.
300.506 Mediation.........................  300.506.
300.507 Impartial due process hearing;      300.507, 300.508,
 parent notice.
300.508 Impartial hearing officer.........  300.511(c).
300.509 Hearing rights....................  300.512.
300.510 Finality of decision; appeal;       300.514.
 impartial review.
300.511 Timelines and convenience of        300.515.
 hearings and reviews.
300.512 Civil action......................  300.516.
300.513 Attorneys' fees...................  300.517.
300.514 Child's status during proceedings.  300.518.
300.515 Surrogate parents.................  300.519.
 
           Discipline Procedures
 
300.517 Transfer of parental rights at age  300.520.
 of majority.
300.519 Change of placement for             300.536.
 disciplinary removals.
300.520 Authority of school personnel.....  300.530.
300.521 Authority of hearing officer......  300.532(b).
300.522 Determination of setting..........  300.531.

[[Page 35832]]

 
300.523 Manifestation determination review  300.530(e).
300.524 Determination that behavior was     300.530(c).
 not manifestation of disability.
300.525 Parent appeal.....................  300.532.
300.526 Placement during appeals..........  300.533.
300.527 Protections for children not yet    300.534.
 eligible for special education and
 related services.
300.528 Expedited due process hearings....  300.532(c).
300.529 Referral to and action by law       300.535.
 enforcement and judicial authorities.
 
       Procedures for Evaluation and
       Determination of Eligibility
 
300.530 General...........................  300.121.
300.531 Initial evaluation................  300.121, 300.301.
300.532 Evaluation procedures.............  300.304.
300.533 Determination of needed evaluation  300.305.
 data.
300.534 Determination of eligibility......  300.306(a) and (b).
300.535 Procedures for determining          300.306(c).
 eligibility and placement.
300.536 Reevaluation......................  300.303.
 
   Additional Procedures for Evaluating
      Children With Specific Learning
               Disabilities
 
300.540 Additional team members...........  300.308.
300.541 Criteria for determining the        300.309.
 existence of a specific learning
 disability.
300.542 Observation.......................  300.310.
300.543 Written report....................  300.311.
 
       Least Restrictive Environment
 
300.550 General LRE requirements..........  300.114.
300.551 Continuum of alternative            300.115.
 placements.
300.552 Placements........................  300.116.
300.553 Nonacademic settings..............  300.117.
300.554 Children in public or private       300.118.
 institutions.
300.555 Technical assistance and training   300.119.
 activities.
300.556 Monitoring activities.............  300.120.
 
      Confidentiality of Information
 
300.560 Definitions.......................  300.611.
300.561 Notice to parents.................  300.612.
300.562 Access rights.....................  300.613.
300.563 Record of access..................  300.614.
300.564 Records on more than one child....  300.615.
300.565 List of types and locations of      300.616.
 information.
300.566 Fees..............................  300.617.
300.567 Amendment of records at parent's    300.618.
 request.
300.568 Opportunity for a hearing.........  300.619.
300.569 Result of hearing.................  300.620.
300.570 Hearing procedures................  300.621.
300.571 Consent...........................  300.622.
300.572 Safeguards........................  300.623.
300.573 Destruction of information........  300.624.
300.574 Children's rights.................  300.625.
300.575 Enforcement.......................  300.626.
300.576 Disciplinary information..........  300.229.
300.577 Department use of personally        300.627
 identifiable information.
 
          .Department Procedures
 
300.580 Determination by the Secretary      300.178.
 that a State is eligible.
300.581 Notice and hearing before           300.179.
 determining that a State is not eligible.
300.582 Hearing official or panel.........  300.180.
300.583 Hearing procedures................  300.181.
300.584 Initial decision; final decision..  300.182.
300.585 Filing requirements...............  300.183.
300.586 Judicial review...................  300.184.
300.587 Enforcement.......................  300.604-300.607
300.589 Waiver of requirement regarding     300.164.
 supplementing and not supplanting with
 Part B funds.
-------------------------------------------
 
                     Subpart F--State Administration
------------------------------------------------------------------------
 
 300.600 Responsibility for all             300.149.
 educational programs.
300.601 Relation of Part B to other         300.186.
 Federal programs.
300.602 State-level activities............  Removed.
300.620 Use of funds for State              300.704(a).
 administration.
300.621 Allowable costs...................  300.704(b)(4).
300.622 Subgrants to LEAs for capacity-     Removed.
 building and improvement.
300.623 Amount required for subgrants to    Removed.
 LEAs.
300.624 State discretion in awarding        Removed.
 subgrants.
300.650 Establishment of advisory panels..  300.167.
300.651 Membership........................  300.168.
300.652 Advisory panel functions..........  300.169.
300.653 Advisory panel procedures.........  Removed.
300.660 Adoption of State complaint         300.151.
 procedures.
300.661 Minimum State complaint procedures  300.152.
300.662 Filing a complaint................  300.153.
-------------------------------------------
 
           Subpart G Allocation of Funds; Reports; Allocations
------------------------------------------------------------------------
 
 300.700 Special definition of the term     300.717(c).
 ``State''.
300.701 Grants to States..................  300.700.
300.702 Definition........................  300.717(d).
300.703 Allocations to States.............  300.703(a).
300.706 Permanent formula.................  Removed.
300.707 Increase in funds.................  300.703(c)(1).
300.708 Limitation........................  300.703(c)(2), (3).
300.709 Decrease in funds.................  300.703(d).
300.710 Allocation for State in which by-   300.706.
 pass is implemented for private school
 children with disabilities.
300.711 Subgrants to LEAs.................  300.705(a).
300.712 Allocations to LEAs...............  300.705(b).
300.713 Former Chapter 1 State agencies...  Removed.
300.714 Reallocation of LEA funds.........  300.705(c).
300.715(a) and (b) Payments to the          300.707.
 Secretary of the Interior for the
 education of Indian children.
300.715(c) Calculation of number of         Removed.
 children.
300.716 Payments for education and          300.712.
 services for Indian children with
 disabilities aged 3 through 5.
300.717 Outlying areas and freely           300.701.
 associated States.
300.718 Outlying area-definition..........  300.717(b).
300.719 Limitation for freely associated    Removed.
 States.
300.720 Special rule......................  300.701(a)(2).
300.722 Definition........................  300.717(a).

[[Page 35833]]

 
300.750 Annual report of children served--  300.640.
 report requirement.
300.751 Annual report of children served--  300.641.
 information required in the report.
300.752 Annual report of children served--  300.643.
 certification.
300.753 Annual report of children served--  300.644.
 criteria for counting children.
300.754 Annual report of children served    300.645.
 other responsibilities of the SEA.
300.755 Disproportionality................  300.646.
300.756 Acquisition of equipment;           300.718.
 construction or alteration of facilities.
------------------------------------------------------------------------
\1\ See explanation at the end of this table.

    Explanation of Table: The purpose of this table is to help readers 
find where a given section number in the current regulations (column A 
of Table) is located in this NPRM, as shown under column B. (In 
general, the table does not include any new requirements added by Pub. 
L. 108-446, or any proposed new regulations that would be added.) In 
the Table, if a specific section of the current regulations would be 
removed by the NPRM (e.g., ``Consent'' under current Sec.  300.8, which 
includes a reference to the definition of ``Consent'' in Sec.  
300.500(b)(1)), it would be shown as ``Removed'' under column B. 
However, because the definition of ``consent'' under current Sec.  
300.500(b)(1) would be moved to Subpart A (``Definitions'') of this 
NPRM, its new location (Sec.  300.9) would be shown opposite Sec.  
300.500(b)(1) in column B of the Table.

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 301

    Education of individuals with disabilities, Elementary and 
secondary education, Equal educational opportunity, Grant programs--
education, Infants and children, Reporting and recordkeeping 
requirements

34 CFR Part 304

    Service obligations under special education, Personnel development 
to improve services and results for children with disabilities.

    Dated: June 10, 2005.
Margaret Spellings,
Secretary of Education.

    For the reasons discussed in this preamble, the Secretary proposes 
to amend title 34 of the Code of Federal Regulations as follows:
    1. Revise part 300 to read as follows:

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

Subpart A--General

Purposes and Applicability

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

Definitions Used in This Part

300.4 Act.
300.5 Assistive technology device.
300.6 Assistive technology service.
300.7 Charter school.
300.8 Child with a disability.
300.9 Consent.
300.10 Core academic subjects.
300.11 Day; business day; school day.
300.12 Educational service agency.
300.13 Elementary school.
300.14 Equipment.
300.15 Evaluation.
300.16 Excess costs.
300.17 Free appropriate public education.
300.18 Highly qualified special education teacher.
300.19 Homeless children.
300.20 Include.
300.21 Indian and Indian tribe.
300.22 Individualized education program.
300.23 Individualized education program team.
300.24 Individualized family service plan.
300.25 Infant and toddler with a disability.
300.26 Institution of higher education.
300.27 Limited English proficient.
300.28 Local educational agency.
300.29 Native language.
300.30 Parent.
300.31 Parent training and information center.
300.32 Personally identifiable.
300.33 Public agency.
300.34 Related services.
300.35 Secondary school.
300.36 Services plan.
300.37 Secretary.
300.38 Special education.
300.39 State.
300.40 State educational agency.
300.41 Supplementary aids and services.
300.42 Transition services.
300.43 Universal design.
300.44 Ward of the State.
Subpart B--State Eligibility

General

300.100 Eligibility for assistance.

FAPE Requirements

300.101 Free appropriate public education (FAPE).
300.102 Limitation-Exception to FAPE for certain ages.

Other FAPE Requirements

300.103 FAPE-methods and payments.
300.104 Residential placement.
300.105 Assistive technology; proper functioning of hearing aids.
300.106 Extended school year services.
300.107 Nonacademic services.
300.108 Physical education.
300.109 Full educational opportunity goal (FEOG).
300.110 Program options.
300.111 Child find.
300.112 Individualized education programs (IEP).
300.113 [Reserved]

Least Restrictive Environment (LRE)

300.114 LRE requirements.
300.115 Continuum of alternative placements.
300.116 Placements.
300.117 Nonacademic settings.
300.118 Children in public or private institutions.
300.119 Technical assistance and training activities.
300.120 Monitoring activities.

Additional Eligibility Requirements

300.121 Procedural safeguards.
300.122 Evaluation.
300.123 Confidentiality of personally identifiable information.
300.124 Transition of children from Part C to preschool programs.
300.125-300.128 [Reserved]

Children in Private Schools

300.129 State responsibility regarding children in private schools.

Children With Disabilities Enrolled by Their Parents in Private Schools

300.130 Definition of parentally-placed private school children with 
disabilities.
300.131 Child find for parentally-placed private school children 
with disabilities.
300.132 Provision of services for parentally-placed private school 
children with disabilities--basic requirement.
300.133 Expenditures.
300.134 Consultation.
300.135 Written affirmation.
300.136 Compliance.
300.137 Equitable services determined.
300.138 Equitable services provided.
300.139 Location of services and transportation.
300.140 Due process complaints and State complaints.
300.141 Requirement that funds not benefit a private school.

[[Page 35834]]

300.142 Use of personnel.
300.143 Separate classes prohibited.
300.144 Property, equipment, and supplies.

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

300.145 Applicability of Sec. Sec.  300.145-300.147.
300.146 Responsibility of State educational agency.
300.147 Implementation by State educational agency.

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

300.148 Placement of children by parents if FAPE is at issue.
300.149 SEA responsibility for general supervision.
300.150 SEA implementation of procedural safeguards.

State Complaint Procedures

300.151 Adoption of State complaint procedures.
300.152 Minimum State complaint procedures.
300.153 Filing a complaint.

Methods of Ensuring Services

300.154 Methods of ensuring services.

Additional Eligibility Requirements

300.155 Hearings relating to LEA eligibility.
300.156 Personnel qualifications.
300.157 Performance goals and indicators.
300.160 Participation in assessments.
300.161 [Reserved]
300.162 Supplementation of State, local, and other Federal funds.
300.163 Maintenance of State financial support.
300.164 Waiver of requirement regarding supplementing and not 
supplanting with Part B funds.
300.165 Public participation.
300.166 Rule of construction.

State Advisory Panel

300.167 State advisory panel.
300.168 Membership.
300.169 Duties.

Other Provisions Required for State Eligibility

300.170 Suspension and expulsion rates.
300.171 Annual description of use of Part B funds.
300.172 Access to instructional materials.
300.173 Overidentification and disproportionality.
300.174 Prohibition on mandatory medication.
300.175 SEA as provider of FAPE or direct services.
300.176 Exception for prior State plans.
300.177 [Reserved]

Department Procedures

300.178 Determination by the Secretary that a State is eligible to 
receive a grant.
300.179 Notice and hearing before determining that a State is not 
eligible to receive a grant.
300.180 Hearing official or panel.
300.181 Hearing procedures.
300.182 Initial decision; final decision.
300.183 Filing requirements.
300.184 Judicial review.
300.185 [Reserved]
300.186 Assistance under other Federal programs.

By-Pass for Children in Private Schools

300.190 By-pass--general.
300.191 Provisions for services under a by-pass.
300.192 Notice of intent to implement a by-pass.
300.193 Request to show cause.
300.194 Show cause hearing.
300.195 Decision.
300.196 Filing requirements.
300.197 Judicial review.
300.198 Continuation of a by-pass.
300.199 State administration.
Subpart C--Local Educational Agency Eligibility
300.200 Condition of assistance.
300.201 Consistency with State policies.
300.202 Use of amounts.
300.203 Maintenance of effort.
300.204 Exception to maintenance of effort.
300.205 Adjustment to local fiscal efforts in certain fiscal years.
300.206 Schoolwide programs under title I of the ESEA.
300.207 Personnel development.
300.208 Permissive use of funds.
300.209 Treatment of charter schools and their students.
300.210 Purchase of instructional materials.
300.211 Information for SEA.
300.212 Public information.
300.213 Records regarding migratory children with disabilities.
300.214-300.219 [Reserved]
300.220 Exception for prior local plans.
300.221 Notification of LEA or State agency in case of 
ineligibility.
300.222 LEA and State agency compliance.
300.223 Joint establishment of eligibility.
300.224 Requirements for establishing eligibility.
300.225 [Reserved]
300.226 Early intervening services.
300.227 Direct services by the SEA.
300.228 State agency eligibility.
300.229 Disciplinary information.
300.230 SEA flexibility.
Subpart D--Evaluations, Eligibility Determinations, Individualized 
Education Programs, and Educational Placements

Parental Consent

300.300 Parental consent.

Evaluations and Reevaluations

300.301 Initial evaluations.
300.302 Screening for instructional purposes is not evaluation.
300.303 Reevaluations.
300.304 Evaluation procedures.
300.305 Additional requirements for evaluations and reevaluations.
300.306 Determination of eligibility.

Additional Procedures for Evaluating Children With Specific Learning 
Disabilities.

300.307 Specific learning disabilities.
300.308 Group members.
300.309 Determining the existence of a specific learning disability.
300.310 Observation.
300.311 Written report.

Individualized Education Programs

300.320 Definition of individualized education program.
300.321 IEP Team.
300.322 Parent participation.
300.323 When IEPs must be in effect.

Development of IEP

300.324 Development, review, and revision of IEP.
300.325 Private school placements by public agencies.
300.326 [Reserved]
300.327 Educational placements.
300.328 Alternative means of meeting participation.
Subpart E--Procedural Safeguards

Due Process Procedures for Parents and Children

300.500 Responsibility of SEA and other public agencies.
300.501 Opportunity to examine records; parent participation in 
meetings.
300.502 Independent educational evaluation.
300.503 Prior notice by the public agency; content of notice.
300.504 Procedural safeguards notice.
300.505 Electronic mail.
300.506 Mediation.
300.507 Filing a due process complaint.
300.508 Due process complaint.
300.509 Model forms.
300.510 Resolution process.
300.511 Impartial due process hearing.
300.512 Hearing rights.
300.513 Hearing decisions.
300.514 Finality of decision; appeal; impartial review.
300.515 Timelines and convenience of hearings and reviews.
300.516 Civil action.
300.517 Attorneys' fees.
300.518 Child's status during proceedings.
300.519 Surrogate parents.
300.520 Transfer of parental rights at age of majority.
300.521-300.529 [Reserved]

Discipline Procedures

300.530 Authority of school personnel.
300.531 Determination of setting.
300.532 Appeal.
300.533 Placement during appeals.
300.534 Protections for children not yet eligible for special 
education and related services.
300.535 Referral to and action by law enforcement and judicial 
authorities.
300.536 Change of placement because of disciplinary removals.
300.537-300.599 [Reserved]
Subpart F--Monitoring-Enforcement, Confidentiality, and Program 
Information

Monitoring, Technical Assistance, and Enforcement

300.600 State Monitoring and enforcement.
300.601 State performance plans and data collection.

[[Page 35835]]

300.602 State use of targets and reporting.
300.603 Secretary's review and determination regarding State 
performance.
300.604 Enforcement.
300.605 Withholding funds.
300.606 Public attention.
300.607 Divided State agency responsibility.
300.608 State enforcement.
300.609 Rule of construction.

Confidentiality of Information

300.610 Confidentiality.
300.611 Definitions.
300.612 Notice to parents.
300.613 Access rights.
300.614 Record of access.
300.615 Records on more than one child.
300.616 List of types and locations of information.
300.617 Fees.
300.618 Amendment of records at parent's request.
300.619 Opportunity for a hearing.
300.620 Result of hearing.
300.621 Hearing procedures.
300.622 Consent.
300.623 Safeguards.
300.624 Destruction of information.
300.625 Children's rights.
300.626 Enforcement.
300.627 Department use of personally identifiable information.

Reports--Program Information

300.640 Annual report of children served--report requirement.
300.641 Annual report of children served--information required in 
the report.
300.642 Data reporting.
300.643 Annual report of children served--certification.
300.644 Annual report of children served--criteria for counting 
children.
300.645 Annual report of children served--other responsibilities of 
the SEA.
300.646 Disproportionality.
Subpart G--Authorization; Allotment; Use of Funds; Authorization of 
Appropriations
300.700 Grants to States.
300.701 Outlying areas and freely associated States and Secretary of 
the Interior.
300.702 Technical assistance.
300.703 Allocations to States.
300.704 State-level activities.
300.705 Subgrants to local educational agencies.
300.706 Allocation for State in which by-pass is implemented for 
private school children with disabilities.
300.707 Use of amounts by Secretary of the Interior.
300.708 Submission of information.
300.709 Public participation.
300.710 Use of Part B funds of the Act.
300.711 Early intervening services.
300.712 Payments for education and services for Indian children with 
disabilities aged three through five.
300.713 Plan for coordination of services.
300.714 Establishment of advisory board.
300.715 Annual reports.
300.716 Applicable regulations.
300.717 Definitions.
300.718 Acquisition of equipment and construction or alteration of 
facilities.
Subpart H--Preschool Grants for Children With Disabilities
300.800 In general.
300.801-300.802 Reserved
300.803 Definition of State.
300.804 Eligibility.
300.805 [Reserved]
300.806 Eligibility for financial assistance.
300.807 Allocations to States.
300.808 Increase in funds.
300.809 Limitations.
300.810 Decrease in funds.
300.811 Allocation for State in which by-pass is implemented for 
parentally-placed private school children with disabilities.
300.812 Reservation for State activities.
300.813 State administration.
300.814 Other State-level activities.
300.815 Subgrants to local educational agencies.
300.816 Allocations to local educational agencies.
300.817 Reallocation of local educational agency funds.
300.818 Part C of the Act inapplicable.

    Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, unless otherwise 
noted.

Subpart A--General

Purposes and Applicability


Sec.  300.1  Purposes.

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

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

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

    (a) States. This part applies to each State that receives payments 
under Part B of the Act, as defined in Sec.  300.4.
    (b) Public agencies within the State. The provisions of this part--
    (1) Apply to all political subdivisions of the State that are 
involved in the education of children with disabilities, including:
    (i) The State educational agency (SEA).
    (ii) Local educational agencies (LEAs), educational service 
agencies (ESAs), and public charter schools that are not otherwise 
included as LEAs or ESAs and are not a school of an LEA or ESA.
    (iii) Other State agencies and schools (such as Departments of 
Mental Health and Welfare and State schools for children with deafness 
or children with blindness).
    (iv) State and local juvenile and adult correctional facilities; 
and
    (2) Are binding on each public agency in the State that provides 
special education and related services to children with disabilities, 
regardless of whether that agency is receiving funds under Part B of 
the Act.
    (c) Private schools and facilities. Each public agency in the State 
is responsible for ensuring that the rights and protections under Part 
B of the Act are given to children with disabilities--
    (1) Referred to or placed in private schools and facilities by that 
public agency; or
    (2) Placed in private schools by their parents under the provisions 
of Sec.  300.148(b)

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

Definitions Used in This Part


Sec.  300.4  Act.

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

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

Sec.  300.5  Assistive technology device.

    Assistive technology device means any item, piece of equipment, or 
product system, whether acquired commercially off the shelf, modified, 
or customized, that is used to increase, maintain, or improve the 
functional capabilities of a child with a disability. The term does not 
include a medical device that is surgically implanted, or the 
replacement of that device.

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

Sec.  300.6  Assistive technology service.

    Assistive technology service means any service that directly 
assists a child with a disability in the selection, acquisition, or use 
of an assistive technology device. The term includes--
    (a) The evaluation of the needs of a child with a disability, 
including a functional evaluation of the child in the child's customary 
environment;
    (b) Purchasing, leasing, or otherwise providing for the acquisition 
of assistive technology devices by children with disabilities;
    (c) Selecting, designing, fitting, customizing, adapting, applying, 
maintaining, repairing, or replacing assistive technology devices;

[[Page 35836]]

    (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  Charter school.

    Charter school has the meaning given the term in section 5210(1) of 
the Elementary and Secondary Education Act of 1965, as amended, 20 
U.S.C. 6301 et seq. (ESEA).
    (Authority: 20 U.S.C. 7221i(1))


Sec.  300.8  Child with a disability.

    (a) General. (1) Child with a disability means a child evaluated in 
accordance with Sec. Sec.  300.304 through 300.311 as having mental 
retardation, a hearing impairment (including deafness), a speech or 
language impairment, a visual impairment (including blindness), a 
serious emotional disturbance (referred to in this part as emotional 
disturbance), an orthopedic impairment, autism, traumatic brain injury, 
an other health impairment, a specific learning disability, deaf-
blindness, or multiple disabilities, and who, by reason thereof, needs 
special education and related services.
    (2)(i) Subject to paragraph (a)(2)(ii) of this section, if it is 
determined, through an appropriate evaluation under Sec. Sec.  300.304 
through 300.311, that a child has one of the disabilities identified in 
paragraph (a)(1) of this section, but only needs a related service and 
not special education, the child is not a child with a disability under 
this part.
    (ii) If, consistent with Sec.  300.38(a)(2), the related service 
required by the child is considered special education rather than a 
related service under State standards, the child would be determined to 
be a child with a disability under paragraph (a)(1) of this section.
    (b) Children aged three through nine experiencing developmental 
delays. Child with a disability for children aged three through nine 
(or any subset of that age range, including ages three through five), 
may, at the discretion of the State and the LEA and in accordance with 
Sec.  300.111(b), include a child--
    (1) Who is experiencing developmental delays, as defined by the 
State and as measured by appropriate diagnostic instruments and 
procedures, in one or more of the following areas: Physical 
development, cognitive development, communication development, social 
or emotional development, or adaptive development; and
    (2) Who, by reason thereof, needs special education and related 
services.
    (c) Definitions of disability terms. The terms used in this 
definition of a child with a disability are defined as follows:
    (1) Autism means a developmental disability significantly affecting 
verbal and nonverbal communication and social interaction, generally 
evident before age three, that adversely affects a child's educational 
performance. Other characteristics often associated with autism are 
engagement in repetitive activities and stereotyped movements, 
resistance to environmental change or change in daily routines, and 
unusual responses to sensory experiences.
    (i) Autism does not apply if a child's educational performance is 
adversely affected primarily because the child has an emotional 
disturbance, as defined in paragraph (c)(4) of this section.
    (ii) A child who manifests the characteristics of autism after age 
three could be identified as having autism if the criteria in paragraph 
(c)(1)(i) of this section are satisfied.
    (2) Deaf-blindness means concomitant hearing and visual 
impairments, the combination of which causes such severe communication 
and other developmental and educational needs that they cannot be 
accommodated in special education programs solely for children with 
deafness or children with blindness.
    (3) Deafness means a hearing impairment that is so severe that the 
child is impaired in processing linguistic information through hearing, 
with or without amplification, that adversely affects a child's 
educational performance.
    (4)(i) Emotional disturbance means a condition exhibiting one or 
more of the following characteristics over a long period of time and to 
a marked degree that adversely affects a child's educational 
performance:
    (A) An inability to learn that cannot be explained by intellectual, 
sensory, or health factors.
    (B) An inability to build or maintain satisfactory interpersonal 
relationships with peers and teachers.
    (C) Inappropriate types of behavior or feelings under normal 
circumstances.
    (D) A general pervasive mood of unhappiness or depression.
    (E) A tendency to develop physical symptoms or fears associated 
with personal or school problems.
    (ii) Emotional disturbance includes schizophrenia. The term does 
not apply to children who are socially maladjusted, unless it is 
determined that they have an emotional disturbance under paragraph 
(c)(4)(i) of this section.
    (5) Hearing impairment means an impairment in hearing, whether 
permanent or fluctuating, that adversely affects a child's educational 
performance but that is not included under the definition of deafness 
in this section.
    (6) Mental retardation means significantly subaverage general 
intellectual functioning, existing concurrently with deficits in 
adaptive behavior and manifested during the developmental period, that 
adversely affects a child's educational performance.
    (7) Multiple disabilities means concomitant impairments (such as 
mental retardation-blindness, 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. Multiple disabilities does not include 
deaf-blindness.
    (8) Orthopedic impairment means a severe orthopedic impairment that 
adversely affects a child's educational performance. The term includes 
impairments caused by a congenital anomaly, impairments caused by 
disease (e.g., poliomyelitis, bone tuberculosis, 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. (i) General. Specific learning 
disability means a disorder in one or more of the basic psychological 
processes involved in understanding or in using language, spoken or 
written, that may manifest itself in the imperfect ability to listen, 
think, speak, read, write, spell, or to do

[[Page 35837]]

mathematical calculations, including conditions such as perceptual 
disabilities, brain injury, minimal brain dysfunction, dyslexia, and 
developmental aphasia.
    (ii) Disorders not included. Specific learning disability does not 
include learning problems that are primarily the result of visual, 
hearing, or motor disabilities, of mental retardation, of emotional 
disturbance, or of environmental, cultural, or economic disadvantage.
    (11) Speech or language impairment means a communication disorder, 
such as stuttering, impaired articulation, a language impairment, or a 
voice impairment, that adversely affects a child's educational 
performance.
    (12) Traumatic brain injury means an acquired injury to the brain 
caused by an external physical force, resulting in total or partial 
functional disability or psychosocial impairment, or both, that 
adversely affects a child's educational performance. Traumatic brain 
injury applies to open or closed head injuries resulting in impairments 
in one or more areas, such as cognition; language; memory; attention; 
reasoning; abstract thinking; judgment; problem-solving; sensory, 
perceptual, and motor abilities; psychosocial behavior; physical 
functions; information processing; and speech. Traumatic brain injury 
does not apply to brain injuries that are congenital or degenerative, 
or to brain injuries induced by birth trauma.
    (13) Visual impairment including blindness means an impairment in 
vision that, even with correction, adversely affects a child's 
educational performance. The term includes both partial sight and 
blindness.

(Authority: 20 U.S.C. 1401(3); 1401(30))

Sec.  300.9  Consent.

    Consent means that--
    (a) The parent has been fully informed of all information relevant 
to the activity for which consent is sought, in his or her native 
language, or other mode of communication;
    (b) The parent understands and agrees in writing to the carrying 
out of the activity for which his or her consent is sought, and the 
consent describes that activity and lists the records (if any) that 
will be released and to whom; and (c)(1) The parent understands that 
the granting of consent is voluntary on the part of the parent and may 
be revoked at anytime.
    (2) If a parent revokes consent, that revocation is not retroactive 
(i.e., it does not negate an action that has occurred after the consent 
was given and before the consent was revoked).

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

Sec.  300.10  Core academic subjects.

    Core academic subjects means English, reading or language arts, 
mathematics, science, foreign languages, civics and government, 
economics, arts, history, and geography.

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

Sec.  300.11  Day; business day; school day.

    (a) Day means calendar day unless otherwise indicated as business 
day or school day.
    (b) Business day means Monday through Friday, except for Federal 
and State holidays (unless holidays are specifically included in the 
designation of business day, as in Sec.  300.148(c)(1)(ii)).
    (c)(1) School day means any day, including a partial day, that 
children are in attendance at school for instructional purposes.
    (2) School day has the same meaning for all children in school, 
including children with and without disabilities.

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

Sec.  300.12  Educational service agency.

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

(Authority: 20 U.S.C. 1401(5))

Sec.  300.13  Elementary school.

    Elementary school means a nonprofit institutional day or 
residential school, including a public elementary charter school, that 
provides elementary education, as determined under State law.

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

Sec.  300.14  Equipment.

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

(Authority: 20 U.S.C. 1401(7))

Sec.  300.15  Evaluation.

    Evaluation means procedures used in accordance with Sec. Sec.  
300.304 through 300.311 to determine whether a child has a disability 
and the nature and extent of the special education and related services 
that the child needs.

(Authority: 20 U.S.C. 1414(a)-(c))

Sec.  300.16  Excess costs.

    Excess costs means those costs that are in excess of the average 
annual per-student expenditure in an LEA during the preceding school 
year for an elementary school or secondary school student, as may be 
appropriate, and that must be computed after deducting--
    (a) Amounts received--
    (1) Under Part B of the Act;
    (2) Under Part A of title I of the ESEA; and
    (3) Under Parts A and B of title III of the ESEA and;
    (b) Any State or local funds expended for programs that would 
qualify for assistance under any of the parts described in paragraph 
(a) of this section.

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

Sec.  300.17  Free appropriate public education.

    Free appropriate public education or FAPE means special education 
and related services that--
    (a) Are provided at public expense, under public supervision and 
direction, and without charge;
    (b) Meet the standards of the SEA, including the requirements of 
this part;
    (c) Include an appropriate preschool, elementary school, or 
secondary school education in the State involved; and
    (d) Are provided in conformity with an individualized education 
program (IEP) that meets the requirements of Sec. Sec.  300.320 through 
300.324.

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

Sec.  300.18  Highly qualified special education teacher.

    (a) General. For any public elementary or secondary school special 
education teacher, the term highly qualified has the meaning given the 
term in section 9101 of the ESEA and 34 CFR 200.56, except that the 
requirements for highly qualified also--

[[Page 35838]]

    (1) Include the requirements described in paragraph (b) of this 
section; and
    (2) Include the option for teachers to meet the requirements of 
section 9101 of the ESEA by meeting the requirements of paragraphs (c) 
and (d) of this section.
    (b) Requirements for highly qualified special education teachers. 
(1) When used with respect to any public elementary school or secondary 
school special education teacher teaching in a State, highly qualified 
means that--
    (i) The teacher has obtained full State certification as a special 
education teacher (including certification obtained through alternative 
routes to certification), or passed the State special education teacher 
licensing examination, and holds a license to teach in the State as a 
special education teacher, except that when used with respect to any 
teacher teaching in a public charter school, highly qualified means 
that the teacher meets the requirements set forth in the State's public 
charter school law;
    (ii) The teacher has not had special education certification or 
licensure requirements waived on an emergency, temporary, or 
provisional basis; and
    (iii) The teacher holds at least a bachelor's degree.
    (2) A teacher will be considered to meet the standard in paragraph 
(b)(1)(i) of this section if that teacher is participating in an 
alternative route to certification program under which--
    (i) The teacher--
    (A) Receives high-quality professional development that is 
sustained, intensive, and classroom-focused in order to have a positive 
and lasting impact on classroom instruction, before and while teaching;
    (B) Participates in a program of intensive supervision that 
consists of structured guidance and regular ongoing support for 
teachers or a teacher mentoring program;
    (C) Assumes functions as a teacher only for a specified period of 
time not to exceed three years; and
    (D) Demonstrates satisfactory progress toward full certification as 
prescribed by the State; and
    (ii) The State ensures, through its certification and licensure 
process, that the provisions in paragraph (b)(2)(i) of this section are 
met.
    (3) Any public elementary school or secondary school special 
education teacher teaching in a State, who is not teaching a core 
academic subject, is highly qualified if the teacher meets the 
requirements of paragraph (b)(1) or (b)(2) of this section.
    (c) Requirements for highly qualified special education teachers 
teaching to alternate achievement standards. When used with respect to 
a special education teacher who teaches core academic subjects 
exclusively to children who are assessed against alternate achievement 
standards established under 34 CFR 200.1(d), highly qualified means the 
teacher, whether new or not new to the profession, may either--
    (1) Meet the applicable requirements of section 9101 of the ESEA 
and 34 CFR 200.56 for any elementary, middle, or secondary school 
teacher who is new or not new to the profession; or
    (2) Meet the requirements of subparagraph (B) or (C) of section 
9101(23) of the ESEA as applied to an elementary school teacher, or, in 
the case of instruction above the elementary level, meet the 
requirements of subparagraph (B) or (C) of section 9101(23) of the ESEA 
as applied to an elementary school teacher and have subject matter 
knowledge appropriate to the level of instruction being provided, as 
determined by the State, needed to effectively teach to those 
standards.
    (d) Requirements for highly qualified special education teachers 
teaching multiple subjects. When used with respect to a special 
education teacher who teaches two or more core academic subjects 
exclusively to children with disabilities, highly qualified means that 
the teacher may either--
    (1) Meet the applicable requirements of section 9101 of the ESEA 
and 34 CFR 200.56(b) or (c);
    (2) In the case of a teacher who is not new to the profession, 
demonstrate competence in all the core academic subjects in which the 
teacher teaches in the same manner as is required for an elementary, 
middle, or secondary school teacher who is not new to the profession 
under 34 CFR 200.56(c) which may include a single, high objective 
uniform State standard of evaluation covering multiple subjects; or
    (3) In the case of a new special education teacher who teaches 
multiple subjects, and who is highly qualified in mathematics, language 
arts, or science, demonstrate, not later than two years after the date 
of employment, competence in the other core academic subjects in which 
the teacher teaches in the same manner as is required for an 
elementary, middle, or secondary school teacher under 34 CFR 200.56(c), 
which may include a single, high objective State standard of evaluation 
covering multiple subjects.
    (e) Rule of construction. Notwithstanding any other individual 
right of action that a parent or student may maintain under this part, 
nothing in this section or part shall be construed to create a right of 
action on behalf of an individual student or class of students for the 
failure of a particular SEA or LEA employee to be highly qualified.
    (f) Definition for purposes of the ESEA. A teacher who is highly 
qualified under this section is considered highly qualified for 
purposes of the ESEA.
    (g) The requirements in this section do not apply to teachers hired 
by private elementary schools and secondary schools.

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

Sec.  300.19  Homeless children.

    Homeless children has the meaning given the term homeless children 
and youths in section 725 (42 U.S.C. 11434a) of the McKinney-Vento 
Homeless Assistance Act, as amended, 42 U.S.C. 11431 et seq.

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

Sec.  300.20  Include.

    Include means that the items named are not all of the possible 
items that are covered, whether like or unlike the ones named.

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

Sec.  300.21  Indian and Indian tribe.

    (a) Indian means an individual who is a member of an Indian tribe.
    (b) Indian tribe means any Federal or State Indian tribe, band, 
rancheria, pueblo, colony, or community, including any Alaska Native 
village or regional village corporation (as defined in or established 
under the Alaska Native Claims Settlement Act, 43 U.S.C. 1601 et seq.).

(Authority: 20 U.S.C. 1401(12) and (13))

Sec.  300.22  Individualized education program.

    Individualized education program or IEP means a written statement 
for a child with a disability that is developed, reviewed, and revised 
in accordance with Sec. Sec.  300.320 through 300.324.

(Authority: 20 U.S.C. 1401(14))

Sec.  300.23  Individualized education program team.

    Individualized education program team or IEP Team means a group of 
individuals described in Sec.  300.321 that is responsible for 
developing, reviewing, or revising an IEP for a child with a 
disability.

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

Sec.  300.24  Individualized family service plan.

    Individualized family service plan or IFSP has the meaning given 
the term in section 636 of the Act.

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


[[Page 35839]]




Sec.  300.25  Infant or toddler with a disability.

    Infant or toddler with a disability has the meaning given the term 
in section 632(5) of the Act.

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

Sec.  300.26  Institution of higher education.

    Institution of higher education--
    (a) Has the meaning given the term in section 101 of the Higher 
Education Act of 1965, as amended, 20 U.S.C. 1021 et seq. (HEA); and
    (b) Also includes any community college receiving funds from the 
Secretary of the Interior under the Tribally Controlled Community 
College or University Assistance Act of 1978, 25 U.S.C. 1801, et seq.

(Authority: 20 U.S.C. 1401(17))

Sec.  300.27  Limited English proficient.

    Limited English proficient has the meaning given the term in 
section 9101(25) of the ESEA.

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

Sec.  300.28  Local educational agency.

    (a) General. Local educational agency or LEA means a public board 
of education or other public authority legally constituted within a 
State for either administrative control or direction of, or to perform 
a service function for, public elementary or secondary schools in a 
city, county, township, school district, or other political subdivision 
of a State, or for a combination of school districts or counties as are 
recognized in a State as an administrative agency for its public 
elementary schools or secondary schools.
    (b) Educational service agencies and other public institutions or 
agencies. The term includes--
    (1) An educational service agency, as defined in Sec.  300.12; and
    (2) Any other public institution or agency having administrative 
control and direction of a public elementary school or secondary 
school, including a public charter school that is established as an LEA 
under State law.
    (c) BIA funded schools. BIA funded schools include an elementary 
school or secondary school funded by the Bureau of Indian Affairs, and 
not subject to the jurisdiction of any SEA other than the Bureau of 
Indian Affairs, but only to the extent that the inclusion makes the 
school eligible for programs for which specific eligibility is not 
provided to the school in another provision of law and the school does 
not have a student population that is smaller than the student 
population of the LEA receiving assistance under the Act with the 
smallest student population.

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

Sec.  300.29  Native language.

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

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

Sec.  300.30  Parent.

    (a) Parent means--
    (1) A natural or adoptive parent of a child;
    (2) A foster parent, unless State law, regulations or contractual 
obligations with a State or local entity prohibit a foster parent from 
acting as a parent;
    (3) A guardian (but not the State if the child is a ward of the 
State);
    (4) An individual acting in the place of a natural or adoptive 
parent (including a grandparent, stepparent, or other relative) with 
whom the child lives, or an individual who is legally responsible for 
the child's welfare; or
    (5) A surrogate parent who has been appointed in accordance with 
sections 615(b)(2) or 639(a)(5) of the Act.
    (b)(1) Except as provided in paragraph (b)(2) of this section, the 
natural or adoptive parent, when attempting to act as the parent under 
this part and when more than one party is qualified under paragraph (a) 
of this section to act as a parent, must be presumed to be the parent 
for purposes of this section unless the natural or adoptive parent does 
not have legal authority to make educational decisions for the child.
    (2) If a judicial decree or order identifies a specific person or 
persons to act as the ``parent'' of a child or to make educational 
decisions on behalf of a child, then such person or persons shall be 
determined to be the ``parent'' for purposes of this section, except 
that a public agency that provides education or care for the child may 
not act as the parent.

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

Sec.  300.31  Parent training and information center.

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

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

Sec.  300.32  Personally identifiable.

    Personally identifiable means information that contains--
    (a) The name of the child, the child's parent, or other family 
member;
    (b) The address of the child;
    (c) A personal identifier, such as the child's social security 
number or student number; or
    (d) A list of personal characteristics or other information that 
would make it possible to identify the child with reasonable certainty.

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

Sec.  300.33  Public agency.

    Public agency includes the SEA, LEAs, ESAs, public charter schools 
that are not otherwise included as LEAs or ESAs and are not otherwise 
included as LEAs or ESAs, and any other political subdivisions of the 
State that are responsible for providing education to children with 
disabilities.

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

Sec.  300.34  Related services.

    (a) General. Related services means transportation and such 
developmental, corrective, and other supportive services as are 
required to assist a child with a disability to benefit from special 
education, and includes speech-language pathology and audiology 
services, interpreting services, psychological services, physical and 
occupational therapy, recreation, including therapeutic recreation, 
counseling services, including rehabilitation counseling, orientation 
and mobility services, and medical services for diagnostic or 
evaluation purposes. Related services also includes school health 
services, school nurse services designed to enable a child with a 
disability to receive a free appropriate public education as described 
in the IEP of the child, social work services in schools, and parent 
counseling and training.
    (b) Exception. Related services do not include a medical device 
that is surgically implanted, the optimization of device functioning, 
maintenance of the device, or the replacement of that device.
    (c) Individual related services terms defined. The terms used in 
this definition are defined as follows:
    (1) Audiology includes--
    (i) Identification of children with hearing loss;

[[Page 35840]]

    (ii) Determination of the range, nature, and degree of hearing 
loss, including referral for medical or other professional attention 
for the habilitation of hearing;
    (iii) Provision of habilitative activities, such as language 
habilitation, auditory training, speech reading (lip-reading), hearing 
evaluation, and speech conservation;
    (iv) Creation and administration of programs for prevention of 
hearing loss;
    (v) Counseling and guidance of children, parents, and teachers 
regarding hearing loss; and
    (vi) Determination of children's needs for group and individual 
amplification, selecting and fitting an appropriate aid, and evaluating 
the effectiveness of amplification.
    (2) Counseling services means services provided by qualified social 
workers, psychologists, guidance counselors, or other qualified 
personnel.
    (3) Early identification and assessment of disabilities in children 
means the implementation of a formal plan for identifying a disability 
as early as possible in a child's life.
    (4) Interpreting services, as used with respect to children who are 
deaf or hard of hearing, includes oral transliteration services, cued 
language transliteration services, and sign language interpreting 
services.
    (5) Medical services means services provided by a licensed 
physician to determine a child's medically related disability that 
results in the child's need for special education and related services.
    (6)(i) Occupational therapy means--
    (i) Services provided by a qualified occupational therapist; and
    (ii) Includes--
    (A) Improving, developing or restoring functions impaired or lost 
through illness, injury, or deprivation;
    (B) Improving ability to perform tasks for independent functioning 
if functions are impaired or lost; and
    (C) Preventing, through early intervention, initial or further 
impairment or loss of function.
    (7) Orientation and mobility services--(i) Means services provided 
to blind or visually impaired 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 travel training instruction, and 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 or a service animal 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.
    (8) 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.
    (9) Physical therapy means services provided by a qualified 
physical therapist.
    (10) Psychological services includes--
    (i) Administering psychological and educational tests, and other 
assessment procedures;
    (ii) Interpreting assessment results;
    (iii) Obtaining, integrating, and interpreting information about 
child behavior and conditions relating to learning;
    (iv) Consulting with other staff members in planning school 
programs to meet the special educational needs of children as indicated 
by psychological tests, interviews, direct observation, and behavioral 
evaluations;
    (v) Planning and managing a program of psychological services, 
including psychological counseling for children and parents; and
    (vi) Assisting in developing positive behavioral intervention 
strategies.
    (11) Recreation includes--
    (i) Assessment of leisure function;
    (ii) Therapeutic recreation services;
    (iii) Recreation programs in schools and community agencies; and
    (iv) Leisure education.
    (12) Rehabilitation counseling services means services provided by 
qualified personnel in individual or group sessions that focus 
specifically on career development, employment preparation, achieving 
independence, and integration in the workplace and community of a 
student with a disability. The term also includes vocational 
rehabilitation services provided to a student with a disability by 
vocational rehabilitation programs funded under the Rehabilitation Act 
of 1973, as amended, 29 U.S.C. 701 et seq.
    (13) School nurse services means services provided by a qualified 
school nurse, designed to enable a child with a disability to receive 
FAPE as described in the child's IEP.
    (14) Social work services in schools includes--
    (i) Preparing a social or developmental history on a child with a 
disability;
    (ii) Group and individual counseling with the child and family;
    (iii) Working in partnership with parents and others on those 
problems in a child's living situation (home, school, and community) 
that affect the child's adjustment in school;
    (iv) Mobilizing school and community resources to enable the child 
to learn as effectively as possible in his or her educational program; 
and
    (v) Assisting in developing positive behavioral intervention 
strategies.
    (15) Speech-language pathology services includes--
    (i) Identification of children with speech or language impairments;
    (ii) Diagnosis and appraisal of specific speech or language 
impairments;
    (iii) Referral for medical or other professional attention 
necessary for the habilitation of speech or language impairments;
    (iv) Provision of speech and language services for the habilitation 
or prevention of communicative impairments; and
    (v) Counseling and guidance of parents, children, and teachers 
regarding speech and language impairments.
    (16) Transportation includes--
    (i) Travel to and from school and between schools;
    (ii) Travel in and around school buildings; and
    (iii) Specialized equipment (such as special or adapted buses, 
lifts, and ramps), if required to provide special transportation for a 
child with a disability.

(Authority: 20 U.S.C. 1401(26))

Sec.  300.35  Secondary school.

    Secondary school means a nonprofit institutional day or residential 
school, including a public secondary charter school, that provides 
secondary education, as determined under State law, except that it does 
not include any education beyond grade 12.

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

Sec.  300.36  Services plan.

    Services plan means a written statement that describes the special 
education and related services the LEA will provide to a parentally-
placed child with a disability enrolled in a private school who has 
been designated to receive services, including the location

[[Page 35841]]

of the services and any transportation necessary, consistent with Sec.  
300.132, and is developed and implemented in accordance with Sec. Sec.  
300.137 through 300.139.

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

Sec.  300.37  Secretary.

    Secretary means the Secretary of Education.

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

Sec.  300.38  Special education.

    (a) General. (1) Special education means specially designed 
instruction, at no cost to the parents, to meet the unique needs of a 
child with a disability, including--
    (i) Instruction conducted in the classroom, in the home, in 
hospitals and institutions, and in other settings; and
    (ii) Instruction in physical education.
    (2) Special education includes each of the following, if the 
services otherwise meet the requirements of paragraph (a)(1) of this 
section--
    (i) Speech-language pathology services, or any other related 
service, if the service is considered special education rather than a 
related service under State standards;
    (ii) Travel training; and
    (iii) Vocational education.
    (b) Individual special education terms defined. The terms in this 
definition are defined as follows:
    (1) At no cost means that all specially-designed instruction is 
provided without charge, but does not preclude incidental fees that are 
normally charged to nondisabled students or their parents as a part of 
the regular education program.
    (2) Physical education:
    (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 (i) organized educational programs 
that are directly related to the preparation of individuals for paid or 
unpaid employment, or for additional preparation for a career not 
requiring a baccalaureate or advanced degree; and
    (ii) Includes vocational and technical education.
    (6) Vocational and technical education means organized educational 
activities that--
    (i) Offer a sequence of courses that--
    (A) Provides individuals with the rigorous and challenging academic 
and technical knowledge and skills the individuals need to prepare for 
further education and for careers (other than careers requiring a 
Master's or doctoral degree) in current or emerging employment sectors;
    (B) May include the provision of skills or courses necessary to 
enroll in a sequence of courses that meet the requirements of this 
subparagraph; and
    (C) Provides, at the postsecondary level, for a 1-year certificate, 
an associate degree, or industry-recognized credential; and
    (ii) Include competency-based applied learning that contributes to 
the academic knowledge, higher-order reasoning and problem-solving 
skills, work attitudes, general employability skills, technical skills, 
and occupation-specific skills, or an individual.

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

Sec.  300.39  State.

    State means each of the 50 States, the District of Columbia, the 
Commonwealth of Puerto Rico, and each of the outlying areas.

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

Sec.  300.40  State educational agency.

    State educational agency or SEA means the State board of education 
or other agency or officer primarily responsible for the State 
supervision of public elementary schools and secondary schools, or, if 
there is no such officer or agency, an officer or agency designated by 
the Governor or by State law.

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

Sec.  300.41  Supplementary aids and services.

    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 Sec. Sec.  300.112 through 300.116.

(Authority: 20 U.S.C. 1401(33))

Sec.  300.42  Transition services.

    (a) Transition services means a coordinated set of activities for a 
child with a disability that--
    (1) Is designed to be within a results-oriented process, that is 
focused on improving the academic and functional achievement of the 
child with a disability to facilitate the child's movement from school 
to post-school activities, including postsecondary education, 
vocational education, integrated employment (including supported 
employment), continuing and adult education, adult services, 
independent living, or community participation;
    (2) Is based on the individual child's needs, taking into account 
the child's strengths, preferences and interests; and includes--
    (i) Instruction;
    (ii) Related services;
    (iii) Community experiences;
    (iv) The development of employment and other post-school adult 
living objectives; and
    (v) If appropriate, acquisition of daily living skills and 
functional vocational evaluation.
    (b) Transition services for children with disabilities may be 
special education, if provided as specially designed instruction, or a 
related service, if required to assist a child with a disability to 
benefit from special education.

(Authority: 20 U.S.C. 1401(34))

Sec.  300.43  Universal design.

    Universal design has the meaning given the term in section 3 of the 
Assistive Technology Act of 1998, as amended, 29 U.S.C. 3002.

(Authority: 20 U.S.C. 1401(35))

Sec.  300.44  Ward of the State.

    (a) General. Subject to paragraph (b) of this section, ward of the 
State means a child who, as determined by the State where the child 
resides, is--
    (1) A foster child;
    (2) A ward of the State; or
    (3) In the custody of a public child welfare agency.

[[Page 35842]]

    (b) Exception. Ward of the State does not include a foster child 
who has a foster parent who meets the definition of a parent in Sec.  
300.30.

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

Subpart B--State Eligibility

General


Sec.  300.100  Eligibility for assistance.

    A State is eligible for assistance under Part B of the Act for a 
fiscal year if the State submits a plan that provides assurances to the 
Secretary that the State has in effect policies and procedures to 
ensure that the State meets the conditions in Sec. Sec.  300.101 
through 300.176.

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

FAPE Requirements


Sec.  300.101  Free appropriate public education (FAPE).

    (a) General. A free appropriate public education must be available 
to all children residing in the State between the ages of 3 and 21, 
inclusive, including children with disabilities who have been suspended 
or expelled from school, as provided for in Sec.  300.530(d).
    (b) FAPE for children beginning at age 3. (1) Each State must 
ensure that--
    (i) The obligation to make FAPE available to each eligible child 
residing in the State begins no later than the child's third birthday; 
and
    (ii) An IEP or an IFSP is in effect for the child by that date, in 
accordance with Sec.  300.323(b).
    (2) If a child's third birthday occurs during the summer, the 
child's IEP Team shall determine the date when services under the IEP 
or IFSP will begin.
    (c) Children advancing from grade to grade. (1) Each State must 
ensure that FAPE is available to any individual child with a disability 
who needs special education and related services, even though the child 
is advancing from grade to grade.
    (2) The determination that a child described in paragraph (a) of 
this section is eligible under this part, must be made on an individual 
basis by the group responsible within the child's LEA for making those 
determinations.

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

Sec.  300.102  Limitation--exception to FAPE for certain ages.

    (a) General. The obligation to make FAPE available to all children 
with disabilities does not apply with respect to the following:
    (1) Children aged 3, 4, 5, 18, 19, 20, or 21 in a State to the 
extent that its application to those children would be inconsistent 
with State law or practice, or the order of any court, respecting the 
provision of public education to children of those ages.
    (2)(i) Children aged 18 through 21 to the extent that State law 
does not require that special education and related services under Part 
B of the Act be provided to students with disabilities who, in the last 
educational placement prior to their incarceration in an adult 
correctional facility--
    (A) Were not actually identified as being a child with a disability 
under Sec.  300.8; and
    (B) Did not have an IEP under Part B of the Act.
    (ii) The exception in paragraph (a)(2)(i) of this section does not 
apply to children with disabilities, aged 18 through 21, who--
    (A) Had been identified as a child with a disability under Sec.  
300.8 and had received services in accordance with an IEP, but who left 
school prior to their incarceration; or
    (B) Did not have an IEP in their last educational setting, but who 
had actually been identified as a child with a disability under Sec.  
300.8.
    (3)(i) Children with disabilities who have graduated from high 
school with a regular high school diploma.
    (ii) The exception in paragraph (a)(3)(i) of this section does not 
apply to students who have graduated but have not been awarded a 
regular high school diploma.
    (iii) Graduation from high school with a regular high school 
diploma constitutes a change in placement, requiring written prior 
notice in accordance with Sec.  300.503.
    (4) Children with disabilities who are eligible under subpart H of 
this part, but who receive early intervention services under Part C of 
the Act.
    (b) Documents relating to exceptions. The State must assure that 
the information it has provided to the Secretary regarding the 
exceptions in paragraph (a) of this section, as required by Sec.  
300.700 (for purposes of making grants to States under this part), is 
current and accurate.

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

Other FAPE Requirements


Sec.  300.103  FAPE--methods and payments.

    (a) Each State may use whatever State, local, Federal, and private 
sources of support are available in the State to meet the requirements 
of this part. For example, if it is necessary to place a child with a 
disability in a residential facility, a State could use joint 
agreements between the agencies involved for sharing the cost of that 
placement.
    (b) Nothing in this part relieves an insurer or similar third party 
from an otherwise valid obligation to provide or to pay for services 
provided to a child with a disability.
    (c) Consistent with Sec.  300.323(c), the State must ensure that 
there is no delay in implementing a child's IEP, including any case in 
which the payment source for providing or paying for special education 
and related services to the child is being determined.

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

Sec.  300.104  Residential placement.

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

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

Sec.  300.105  Assistive technology; proper functioning of hearing 
aids.

    (a)(1) Each public agency must ensure that assistive technology 
devices or assistive technology services, or both, as those terms are 
defined in Sec. Sec.  300.5 and 300.6, respectively, are made available 
to a child with a disability if required as a part of the child's--
    (i) Special education under Sec.  300.36;
    (ii) Related services under Sec.  300.34; or
    (iii) Supplementary aids and services under Sec. Sec.  300.38 and 
300.114(a)(2)(ii).
    (2) 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.
    (b) Each public agency must ensure that hearing aids worn in school 
by children with hearing impairments, including deafness, are 
functioning properly.

(Authority: 20 U.S.C. 1412(a)(1), 1412(a)(12)(B)(i))

Sec.  300.106  Extended school year services.

    (a) General. (1) Each public agency must ensure that extended 
school year services are available as necessary to provide FAPE, 
consistent with paragraph (a)(2) of this section.
    (2) Extended school year services must be provided only if a 
child's IEP team determines, on an individual basis, in accordance with 
Sec. Sec.  300.320 through 300.324, that the services are necessary for 
the provision of FAPE to the child.

[[Page 35843]]

    (3) In implementing the requirements of this section, a public 
agency may not--
    (i) Limit extended school year services to particular categories of 
disability; or
    (ii) Unilaterally limit the type, amount, or duration of those 
services.
    (b) Definition. As used in this section, the term extended school 
year services means special education and related services that--
    (1) Are provided to a child with a disability--
    (i) Beyond the normal school year of the public agency;
    (ii) In accordance with the child's IEP; and
    (iii) At no cost to the parents of the child; and
    (2) Meet the standards of the SEA.

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

Sec.  300.107  Nonacademic services.

    The State must ensure the following:
    (a) Each public agency must take steps 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.  300.108  Physical education.

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

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

Sec.  300.109  Full educational opportunity goal (FEOG).

    The State must have in effect policies and procedures to 
demonstrate that the State has established a goal of providing full 
educational opportunity to all children with disabilities, aged birth 
through 21, and a detailed timetable for accomplishing that goal.

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

Sec.  300.110  Program options.

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

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

Sec.  300.111  Child find.

    (a) General. (1) The State must have in effect policies and 
procedures to ensure that--
    (i) All children with disabilities residing in the State, including 
children with disabilities who are homeless children or are wards of 
the State, and children with disabilities attending private schools, 
regardless of the severity of their disability, and who are in need of 
special education and related services, are identified, located, and 
evaluated; and
    (ii) A practical method is developed and implemented to determine 
which children are currently receiving needed special education and 
related services.
    (b) Use of term developmental delay. (1) The following provisions 
apply with respect to implementing the child find requirements of this 
section:
    (i) A State that adopts a definition of developmental delay under 
Sec.  300.8(b) determines whether the term applies to children aged 
three through nine, or to a subset of that age range (e.g., ages three 
through five).
    (ii) A State may not require an LEA to adopt and use the term 
developmental delay for any children within its jurisdiction.
    (iii) If an LEA uses the term developmental delay for children 
described in Sec.  300.8(b), the LEA must conform to both the State's 
definition of that term and to the age range that has been adopted by 
the State.
    (iv) 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.
    (2) [Reserved].
    (c) Other children in child find. Child find also must include--
    (1) Children who are suspected of being a child with a disability 
under Sec.  300.8 and in need of special education, even though they 
are advancing from grade to grade; and
    (2) Highly mobile children, including migrant children.
    (d) Construction. Nothing in the Act requires that children be 
classified by their disability so long as each child who has a 
disability that is listed in Sec.  300.8 and who, by reason of that 
disability, needs special education and related services is regarded as 
a child with a disability under Part B of the Act.

(Authority: 20 U.S.C. 1401(3)); 1412(a)(3))

Sec.  300.112  Individualized education programs (IEP).

    The State must ensure that an IEP, or an IFSP that meets the 
requirements of section 636(d) of the Act, is developed, reviewed, and 
revised for each child with a disability in accordance with Sec. Sec.  
300.320 through 300.324, except as provided in Sec.  300.300(b)(3)(ii).

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

Sec.  300.113  [Reserved]

Least Restrictive Environment (LRE)


Sec.  300.114  LRE requirements.

    (a) General. (1) Except as provided in Sec.  300.324(d)(2) 
(regarding children with disabilities in adult prisons), the State must 
have in effect policies and procedures to ensure that public agencies 
in the State meet the LRE requirements of this section and Sec. Sec.  
300.115 through 300.120.
    (2) Each public agency must ensure that--
    (i) To the maximum extent appropriate, children with disabilities, 
including children in public or private institutions or other care 
facilities, are educated with children who are nondisabled; and
    (ii) Special classes, separate schooling, or other removal of 
children with disabilities from the regular educational environment 
occurs only if

[[Page 35844]]

the nature or severity of the disability is such that education in 
regular classes with the use of supplementary aids and services cannot 
be achieved satisfactorily.
    (b) Additional requirement-State funding mechanism.
    (1) General. (i) A State funding mechanism must not result in 
placements that violate the requirements of paragraph (a) of this 
section; and
    (ii) A State must not use a funding mechanism by which the State 
distributes funds on the basis of the type of setting in which a child 
is served that will result in the failure to provide a child with a 
disability FAPE according to the unique needs of the child, as 
described in the child's IEP.
    (2) Assurance. If the State does not have policies and procedures 
to ensure compliance with paragraph (b)(1) of this section, the State 
must provide the Secretary an assurance that the State will revise the 
funding mechanism as soon as feasible to ensure that the mechanism does 
not result in placements that violate that paragraph.

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

Sec.  300.115  Continuum of alternative placements.

    (a) Each public agency must ensure that a continuum of alternative 
placements is available to meet the needs of children with disabilities 
for special education and related services.
    (b) The continuum required in paragraph (a) of this section must--
    (1) Include the alternative placements listed in the definition of 
special education under Sec.  300.38 (instruction in regular classes, 
special classes, special schools, home instruction, and instruction in 
hospitals and institutions); and
    (2) Make provision for supplementary services (such as resource 
room or itinerant instruction) to be provided in conjunction with 
regular class placement.

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

Sec.  300.116  Placements.

    In determining the educational placement of a child with a 
disability, including a preschool child with a disability, each public 
agency must ensure that--
    (a) The placement decision--
    (1) Is made by a group of persons, including the parents, and other 
persons knowledgeable about the child, the meaning of the evaluation 
data, and the placement options; and
    (2) Is made in conformity with the LRE provisions of this subpart, 
including Sec. Sec.  300.114 through 300.118;
    (b) The child's placement--
    (1) Is determined at least annually;
    (2) Is based on the child's IEP; and
    (3) Is as close as possible to the child's home, unless the parent 
agrees otherwise;
    (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, unless the parent agrees otherwise;
    (d) In selecting the LRE, consideration is given to any potential 
harmful effect on the child or on the quality of services that he or 
she needs; and
    (e) A child with a disability is not removed from education in age-
appropriate regular classrooms solely because of needed modifications 
in the general education curriculum.

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

Sec.  300.117  Nonacademic settings.

    In providing or arranging for the provision of nonacademic and 
extracurricular services and activities, including meals, recess 
periods, and the services and activities set forth in Sec.  300.107, 
each public agency must ensure that each child with a disability 
participates with nondisabled children in those services and activities 
to the maximum extent appropriate to the needs of that child.

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

Sec.  300.118  Children in public or private institutions.

    Except as provided in Sec.  300.149(d) (regarding agency 
responsibility for general supervision for some individuals in adult 
prisons), an SEA must ensure that Sec.  300.114 is effectively 
implemented, including, if necessary, making arrangements with public 
and private institutions (such as a memorandum of agreement or special 
implementation procedures).

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

Sec.  300.119  Technical assistance and training activities.

    Each SEA must carry out activities to ensure that teachers and 
administrators in all public agencies--
    (a) Are fully informed about their responsibilities for 
implementing Sec.  300.114; and
    (b) Are provided with technical assistance and training necessary 
to assist them in this effort.

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

Sec.  300.120  Monitoring activities.

    (a) The SEA must carry out activities to ensure that Sec.  300.112 
is implemented by each public agency.
    (b) If there is evidence that a public agency makes placements that 
are inconsistent with Sec.  300.114, the SEA must--
    (1) Review the public agency's justification for its actions; and
    (2) Assist in planning and implementing any necessary corrective 
action.

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

Additional Eligibility Requirements


Sec.  300.121  Procedural safeguards.

    (a) General. The State must have procedural safeguards in effect to 
ensure that each public agency in the State meets the requirements of 
Sec. Sec.  300.500 through 300.536.
    (b) Procedural safeguards identified. Children with disabilities 
and their parents must be afforded the procedural safeguards identified 
in paragraph (a) of this section.

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

Sec.  300.122  Evaluation.

    Children with disabilities must be evaluated in accordance with 
Sec. Sec.  300.300 through 300.311 of subpart D of this part.

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

Sec.  300.123  Confidentiality of personally identifiable information.

    The State must have policies and procedures in effect to ensure 
that public agencies in the State comply with Sec. Sec.  300.610 
through 300.626 related to protecting the confidentiality of any 
personally identifiable information collected, used, or maintained 
under Part B of the Act.

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

Sec.  300.124  Transition of children from the Part C program to 
preschool programs.

    The State must have in effect policies and procedures to ensure 
that--
    (a) Children participating in early intervention programs assisted 
under Part C of the Act, and who will participate in preschool programs 
assisted under Part B of the Act, experience a smooth and effective 
transition to those preschool programs in a manner consistent with 
section 637(a)(9) of the Act;
    (b) By the third birthday of a child described in paragraph (a) of 
this section, an IEP or, if consistent with Sec.  300.323(b) and 
section 636(d) of the Act, an IFSP, has been developed and is being 
implemented for the child consistent with Sec.  300.101(b); and
    (c) Each affected LEA will participate in transition planning 
conferences arranged by the designated lead agency under section 
635(a)(10) of the Act.

[[Page 35845]]


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

Sec. Sec.  300.125-300.128  [Reserved]

Children in Private Schools


Sec.  300.129  State responsibility regarding children in private 
schools.

    The State must have in effect policies and procedures that ensure 
that LEAs, and, if applicable, the SEA, meet the private school 
requirements in Sec. Sec.  300.130 through 300.148.

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

Children With Disabilities Enrolled by Their Parents in Private Schools


Sec.  300.130  Definition of parentally-placed private school children 
with disabilities.

    Parentally-placed private school children with disabilities means 
children with disabilities enrolled by their parents in private schools 
or facilities other than children with disabilities covered under 
Sec. Sec.  300.145 through 300.147.

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

Sec.  300.131  Child find for parentally-placed private school children 
with disabilities.

    (a) General. Each LEA must locate, identify, and evaluate all 
children with disabilities who are enrolled by their parents in 
private, including religious, elementary schools and secondary schools 
located in the school district served by the LEA, in accordance with 
paragraphs (b) through (e) of this section, and Sec. Sec.  300.111 and 
300.201.
    (b) Child find design. The child find process must be designed to 
ensure--
    (1) The equitable participation of parentally-placed private school 
children; and
    (2) An accurate count of those children.
    (c) Activities. In carrying out the requirements of this section, 
the LEA, or, if applicable, the SEA, must undertake activities similar 
to the activities undertaken for the agency's public school children.
    (d) Cost. The cost of carrying out the child find requirements in 
this section, including individual evaluations, may not be considered 
in determining if an LEA has met its obligation under Sec.  300.133.
    (e) Completion period. The child find process must be completed in 
a time period comparable to that for other students attending public 
schools in the LEA consistent with Sec.  300.301.

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

Sec.  300.132  Provision of services for parentally-placed private 
school children with disabilities--basic requirement.

    (a) General. To the extent consistent with the number and location 
of children with disabilities who are enrolled by their parents in 
private, including religious, elementary schools and secondary schools 
located in the school district served by the LEA, provision is made for 
the participation of those children in the program assisted or carried 
out under Part B of the Act by providing them with special education 
and related services, including direct services determined in 
accordance with Sec.  300.137, unless the Secretary has arranged for 
services to those children under the by-pass provisions in Sec. Sec.  
300.190 through 300.198.
    (b) SEA responsibility--services plan. In accordance with paragraph 
(a) of this section and Sec. Sec.  300.137 through 300.139, a services 
plan must be developed and implemented for each private school child 
with a disability who has been designated by the LEA in which the 
private school is located to receive special education and related 
services under this part.
    (c) Record keeping. Each LEA must maintain in its records, and 
provide to the SEA, the following information related to parentally-
placed private school children covered under Sec. Sec.  300.130 through 
300.144:
    (1) The number of children evaluated;
    (2) The number of children determined to be children with 
disabilities; and
    (3) The number of children served.

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

Sec.  300.133  Expenditures.

    (a) Formula. To meet the requirement of Sec.  300.132(a), each LEA 
shall spend the following on providing special education and related 
services (including direct services) to parentally-placed private 
school children with disabilities:
    (1) For children aged 3 through 21, an amount that is the same 
proportion of the LEA's total subgrant under section 611(g) of the Act 
as the number of private school children with disabilities aged 3 
through 21 who are enrolled by their parents in private, including 
religious, elementary schools and secondary schools located in the 
school district served by the LEA, is to the total number of children 
with disabilities in its jurisdiction aged 3 through 21.
    (2) For children aged three through five, an amount that is the 
same proportion of the LEA's total subgrant under section 619(g) of the 
Act as the number of parentally-placed private school children with 
disabilities aged three through five who are enrolled by their parents 
in private, including religious, elementary schools and secondary 
schools located in the school district served by the LEA, is to the 
total number of children with disabilities in its jurisdiction aged 
three through five.
    (b) Calculating proportionate amount. In calculating the 
proportionate amount of Federal funds to be provided for parentally-
placed private school children with disabilities, the LEA, after timely 
and meaningful consultation with representatives of private schools 
under Sec.  300.134, must conduct a thorough and complete child find 
process to determine the number of parentally-placed children with 
disabilities attending private schools located in the LEA.
    (c) Child count. (1) Each LEA must--
    (i) Consult with representatives of parentally-placed private 
school children with disabilities (consistent with Sec.  300.134) in 
deciding how to conduct the annual count of the number of parentally-
placed private school children with disabilities; and
    (ii) Ensure that the count is conducted on any date between October 
1 and December 1 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 
parentally-placed private school children with disabilities in the next 
subsequent fiscal year.
    (d) Supplement, not supplant. State and local funds may supplement 
and in no case supplant the proportionate amount of Federal funds 
required to be expended for parentally-placed private school children 
with disabilities under this part.

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

Sec.  300.134  Consultation.

    To ensure timely and meaningful consultation, an LEA, or, if 
appropriate, an SEA, must consult with private school representatives 
and representatives of parents of parentally-placed private school 
children with disabilities during the design and development of special 
education and related services for the children regarding the 
following:
    (a) Child find. The child find process, including--
    (1) How parentally-placed private school children suspected of 
having a disability can participate equitably; and
    (2) How parents, teachers, and private school officials will be 
informed of the process.
    (b) Proportionate share of funds. The determination of the 
proportionate share of Federal funds available to serve parentally-
placed private school children with disabilities under Sec.  
300.133(b), including the

[[Page 35846]]

determination of how the proportionate share of those funds was 
calculated.
    (c) Consultation process. The consultation process among the LEA, 
private school officials, and representatives of parents of parentally-
placed private school children with disabilities, including how the 
process will operate throughout the school year to ensure that 
parentally-placed children with disabilities identified through the 
child find process can meaningfully participate in special education 
and related services.
    (d) Provision of special education and related services. How, 
where, and by whom special education and related services will be 
provided for parentally-placed private school children with 
disabilities, including a discussion of--
    (1) The types of services, including direct services and alternate 
service delivery mechanisms; and
    (2) How special education and related services will be apportioned 
if funds are insufficient to serve all parentally-placed private school 
children; and
    (3) How and when those decisions will be made;
    (e) Written explanation by LEA regarding services. How, if the LEA 
disagrees with the views of the private school officials on the 
provision of services or the types of services (whether provided 
directly or through a contract) the LEA will provide to the private 
school officials a written explanation of the reasons why the LEA chose 
not to provide services directly or through a contract.

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

Sec.  300.135  Written affirmation.

    (a) When timely and meaningful consultation, as required by Sec.  
300.134, has occurred, the LEA must obtain a written affirmation signed 
by the representatives of participating private schools.
    (b) If the representatives do not provide the affirmation within a 
reasonable period of time, the LEA must forward the documentation of 
the consultation process to the SEA.

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

Sec.  300.136  Compliance.

    (a) General. A private school official has the right to submit a 
complaint to the SEA under Sec. Sec.  300.151 through 300.153 that the 
LEA--
    (1) Did not engage in consultation that was meaningful and timely; 
or
    (2) Did not give due consideration to the views of the private 
school official.
    (b) Procedure. (1) If the private school official wishes to submit 
a complaint, the official must provide to the SEA the basis of the 
noncompliance by the LEA with the applicable private school provisions 
in this part; and
    (2) The LEA must forward the appropriate documentation to the SEA.
    (3)(i) If the private school official is dissatisfied with the 
decision of the SEA, the official may submit a complaint to the 
Secretary by providing the information on noncompliance described in 
paragraph (b)(1) of this section; and
    (ii) The SEA must forward the appropriate documentation to the 
Secretary.

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

Sec.  300.137  Equitable services determined.

    (a) No individual right to special education and related services. 
No private school child with a disability has an individual right to 
receive some or all of the special education and related services that 
the child would receive if enrolled in a public school.
    (b) Decisions. (1) Decisions about the services that will be 
provided to parentally-placed private school children with disabilities 
under Sec. Sec.  300.130 through 300.144 must be made in accordance 
with paragraph (c) of this section and Sec.  300.134(c).
    (2) The LEA must make the final decisions with respect to the 
services to be provided to eligible parentally-placed private school 
children with disabilities.
    (c) Services plan for each child served under Sec. Sec.  300.130 
through 300.144. If a child with a disability is enrolled in a 
religious or other private school by the child's parents and will 
receive special education or related services from an LEA, the LEA 
must--
    (1) Initiate and conduct meetings to develop, review, and revise a 
services plan for the child, in accordance with Sec.  300.138(b); and
    (2) Ensure that a representative of the religious or other private 
school attends each meeting. If the representative cannot attend, the 
LEA shall use other methods to ensure participation by the religious or 
other private school, including individual or conference telephone 
calls.

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

Sec.  300.138  Equitable services provided.

    (a) General. (1) The services provided to parentally-placed private 
school children with disabilities must be provided by personnel meeting 
the same standards as personnel providing services in the public 
schools.
    (2) Parentally-placed private school children with disabilities may 
receive a different amount of services than children with disabilities 
in public schools.
    (b) Services provided in accordance with a services plan. (1) Each 
parentally-placed private school child with a disability who has been 
designated to receive services under Sec.  300.132 must have a services 
plan that describes the specific special education and related services 
that the LEA will provide to the child in light of the services that 
the LEA has determined, through the process described in Sec. Sec.  
300.134 and 300.137, it will make available to parentally-placed 
private school children with disabilities.
    (2) The services plan must, to the extent appropriate--
    (i) Meet the requirements of Sec.  300.320, or for a child ages 
three through five, meet the requirements of Sec.  300.323(b) with 
respect to the services provided; and
    (ii) Be developed, reviewed, and revised consistent with Sec. Sec.  
300.321 through 300.324.
    (c) Provision of equitable services. (1) The provision of services 
pursuant to this section and Sec. Sec.  300.139 through 300.143 must be 
provided:
    (i) By employees of a public agency; or
    (ii) Through contract by the public agency with an individual, 
association, agency, organization, or other entity.
    (2) Special education and related services provided to parentally-
placed private school children with disabilities, including materials 
and equipment, must be secular, neutral, and nonideological.

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

Sec.  300.139  Location of services and transportation.

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

[[Page 35847]]

LEA has met the requirement of Sec.  300.133.

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

Sec.  300.140  Due process complaints and State complaints.

    (a) Due process not applicable, except for child find. (1) Except 
as provided in paragraph (a)(2) of this section, the procedures in 
Sec. Sec.  300.504 through 300.519 do not apply to complaints that an 
LEA has failed to meet the requirements of Sec. Sec.  300.132 through 
300.139, including the provision of services indicated on the child's 
services plan.
    (2) The procedures in Sec. Sec.  300.504 through 300.519 do apply 
to complaints that an LEA has failed to meet the requirements of Sec.  
300.131, including the requirements of Sec. Sec.  300.300 through 
300.311.
    (b) State complaints. Complaints that an SEA or LEA has failed to 
meet the requirements of Sec. Sec.  300.132 through 300.144 must be 
filed under the procedures in Sec. Sec.  300.151 through 300.153.

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

Sec.  300.141  Requirement that funds not benefit a private school.

    (a) An LEA may not use funds provided under section 611 or 619 of 
the Act to finance the existing level of instruction in a private 
school or to otherwise benefit the private school.
    (b) The LEA must use funds provided under Part B of the Act to meet 
the special education and related services needs of parentally-placed 
private school children with disabilities, but not for--
    (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.  300.142  Use of personnel.

    (a) Use of public school personnel. An LEA may use funds available 
under sections 611 and 619 of the Act to make public school personnel 
available in other than public facilities--
    (1) To the extent necessary to provide services under Sec. Sec.  
300.130 through 300.144 for parentally-placed private school children 
with disabilities; and
    (2) If those services are not normally provided by the private 
school.
    (b) Use of private school personnel. An LEA may use funds available 
under sections 611 and 619 of the Act to pay for the services of an 
employee of a private school to provide services under Sec. Sec.  
300.130 through 300.144 if--
    (1) The employee performs the services outside of his or her 
regular hours of duty; and
    (2) The employee performs the services under public supervision and 
control.

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

Sec.  300.143  Separate classes prohibited.

    An LEA may not use funds available under section 611 or 619 of the 
Act for classes that are organized separately on the basis of school 
enrollment or religion of the 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.  300.144  Property, equipment, and supplies.

    (a) A public agency must control and administer the funds used to 
provide special education and related services under Sec. Sec.  300.137 
through 300.139, and hold title to and administer materials, equipment, 
and property purchased with those funds for the uses and purposes 
provided in the Act.
    (b) The public agency may place equipment and supplies in a private 
school for the period of time needed for the Part B program.
    (c) The public agency must ensure that the equipment and supplies 
placed in a private school--
    (1) Are used only for Part B purposes; and
    (2) Can be removed from the private school without remodeling the 
private school facility.
    (d) The public agency must remove equipment and supplies from a 
private school if--
    (1) The equipment and supplies are no longer needed for Part B 
purposes; or
    (2) Removal is necessary to avoid unauthorized use of the equipment 
and supplies for other than Part B purposes.
    (e) No funds under Part B of the Act may be used for repairs, minor 
remodeling, or construction of private school facilities.

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

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


Sec.  300.145  Applicability of Sec. Sec.  300.145 through 300.147.

    Sections 300.146 through 300.147 apply only to children with 
disabilities who are or have been placed in or referred to a private 
school or facility by a public agency as a means of providing special 
education and related services.

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

Sec.  300.146  Responsibility of State educational agency.

    Each SEA must ensure that a child with a disability who is placed 
in or referred to a private school or facility by a public agency--
    (a) Is provided special education and related services--
    (1) In conformance with an IEP that meets the requirements of 
Sec. Sec.  300.320 through 300.325; and
    (2) At no cost to the parents;
    (b) Is provided an education that meets the standards that apply to 
education provided by the SEA and LEAs including the requirements of 
this part, except for Sec.  300.18 and Sec.  300.156(c); and
    (c) Has all of the rights of a child with a disability who is 
served by a public agency.

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

Sec.  300.147  Implementation by State educational agency.

    In implementing Sec.  300.146, the SEA must--
    (a) Monitor compliance through procedures such as written reports, 
on-site visits, and parent questionnaires;
    (b) Disseminate copies of applicable standards to each private 
school and facility to which a public agency has referred or placed a 
child with a disability; and
    (c) Provide an opportunity for those private schools and facilities 
to participate in the development and revision of State standards that 
apply to them.

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

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


Sec.  300.148  Placement of children by parents 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 must 
include that child in the population whose needs are addressed 
consistent with Sec. Sec.  300.131 through 300.144.
    (b) Reimbursement for private school placement. If the parents of a 
child with a disability, who previously received special education and 
related services under the authority of a public agency, enroll the 
child in a private preschool, elementary school, or secondary school 
without the consent of or referral by the public agency, a court or a 
hearing

[[Page 35848]]

officer may require the agency to reimburse the parents for the cost of 
that enrollment if the court or hearing officer finds that the agency 
had not made FAPE available to the child in a timely manner prior to 
that enrollment and that the private placement is appropriate. A 
parental placement may be found to be appropriate by a hearing officer 
or a court even if it does not meet the State standards that apply to 
education provided by the SEA and LEAs.
    (c) Limitation on reimbursement. The cost of reimbursement 
described in paragraph (b) 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 (c)(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.
    (d) Exception. Notwithstanding the notice requirement in paragraph 
(c)(1) of this section, the cost of reimbursement--
    (1) Must not be reduced or denied for failure to provide the notice 
if--
    (i) The school prevented the parent from providing the notice;
    (ii) The parents had not received notice, pursuant to section 615 
of the Act, of the notice requirement in paragraph (c)(1) of this 
section; or
    (iii) Compliance with paragraph (c)(1) of this section would likely 
result in physical harm to the child; and
    (2) May, in the discretion of the court or a hearing officer, not 
be reduced or denied for failure to provide this notice if--
    (i) The parent is not literate or cannot write in English; or
    (ii) Compliance with paragraph (c)(1) of this section would likely 
result in serious emotional harm to the child.

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

Sec.  300.149  State educational agency responsibility for general 
supervision.

    (a) The SEA is responsible for ensuring--
    (1) That the requirements of this part are carried out; and
    (2) That each educational program for children with disabilities 
administered within the State, including each program administered by 
any other State or local agency (but not including elementary schools 
and secondary schools for Indian children operated or funded by the 
Secretary of the Interior)--
    (i) Is under the general supervision of the persons responsible for 
educational programs for children with disabilities in the SEA; and
    (ii) Meets the educational standards of the SEA (including the 
requirements of this part).
    (3) In carrying out this part with respect to homeless children, 
the requirements of subtitle B of title VII of the McKinney-Vento 
Homeless Assistance Act (42 U.S.C. 11431 et seq.) are met.
    (b) The State must have in effect policies and procedures to ensure 
that it complies with the monitoring and enforcement requirements in 
Sec. Sec.  300.600 through 300.602 and Sec. Sec.  300.606 through 
300.608.
    (c) Part B of the Act does not limit the responsibility of agencies 
other than educational agencies for providing or paying some or all of 
the costs of FAPE to children with disabilities in the State.
    (d) Notwithstanding paragraph (a) of this section, the Governor (or 
another individual pursuant to State law) may assign to any public 
agency in the State the responsibility of ensuring that the 
requirements of Part B of the Act are met with respect to students with 
disabilities who are convicted as adults under State law and 
incarcerated in adult prisons.

(Authority: 20 U.S.C. 1412(a)(11); 1416)

Sec.  300.150  State educational agency implementation of procedural 
safeguards.

    The SEA (and any agency assigned responsibility pursuant to Sec.  
300.149(d)) must have in effect procedures to inform each public agency 
of its responsibility for ensuring effective implementation of 
procedural safeguards for the children with disabilities served by that 
public agency.

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

State Complaint Procedures


Sec.  300.151  Adoption of State complaint procedures.

    (a) General. Each SEA must adopt written procedures for--
    (1) Resolving any complaint, including a complaint filed by an 
organization or individual from another State, that meets the 
requirements of Sec.  300.153 by--
    (i) Providing for the filing of a complaint with the SEA; and
    (ii) At the SEA's discretion, providing for the filing of a 
complaint with a public agency and the right to have the SEA review the 
public agency's decision on the complaint; and
    (2) Widely disseminating to parents and other interested 
individuals, including parent training and information centers, 
protection and advocacy agencies, independent living centers, and other 
appropriate entities, the State procedures under Sec. Sec.  300.151 
through 300.153.
    (b) Remedies for denial of appropriate services. In resolving a 
complaint in which the SEA has found a failure to provide appropriate 
services, an SEA, pursuant to its general supervisory authority under 
Part B of the Act, must address--
    (1) The failure to provide appropriate services, including 
corrective action appropriate to address the needs of the child; and
    (2) Appropriate future provision of services for all children with 
disabilities.

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

Sec.  300.152  Minimum State complaint procedures.

    (a) Time limit; minimum procedures. Each SEA must include in its 
complaint procedures a time limit of 60 days after a complaint is filed 
under Sec.  300.153 to--
    (1) Carry out an independent on-site investigation, if the SEA 
determines that an investigation is necessary;
    (2) Give the complainant the opportunity to submit additional 
information, either orally or in writing, about the allegations in the 
complaint;
    (3) Provide the public agency with the opportunity to respond to 
the complaint, including, at a minimum--
    (A) At the discretion of the public agency, a proposal to resolve 
the complaint; and
    (B) With the consent of the parent, an opportunity for the public 
agency to engage the parent in mediation, or alternative means of 
dispute resolution;
    (4) Review all relevant information and make an independent 
determination as to whether the public agency is violating a 
requirement of Part B of the Act or of this part; and

[[Page 35849]]

    (5) Issue a written decision to the complainant that addresses each 
allegation in the complaint and contains--
    (i) Findings of fact and conclusions; and
    (ii) The reasons for the SEA's final decision.
    (b) Time extension; final decision; implementation. The SEA's 
procedures described in paragraph (a) of this section also must--
    (1) Permit an extension of the time limit under paragraph (a) of 
this section only if--
    (i) Exceptional circumstances exist with respect to a particular 
complaint; or
    (ii) The parent and the public agency involved agree to extend the 
time to conduct the activities pursuant to paragraph (a)(3)(B) of this 
section; and
    (2) Include procedures for effective implementation of the SEA's 
final decision, if needed, including--
    (i) Technical assistance activities;
    (ii) Negotiations; and
    (iii) Corrective actions to achieve compliance.
    (c) Complaints filed under this section and due process hearings 
under Sec.  300.507 and Sec. Sec.  300.530 through 300.532. (1) If a 
written complaint is received that is also the subject of a due process 
hearing under Sec.  300.507 or Sec. Sec.  300.530 through 300.532, the 
State must set aside the complaint until the conclusion of the 
procedures in Sec.  300.507 or Sec. Sec.  300.530 through 300.532.
    (2) If an issue is raised in a complaint filed under this section 
has previously been decided in a due process hearing involving the same 
parties--
    (i) The due process hearing decision is binding on that issue; and
    (ii) The SEA must inform the complainant to that effect.

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

Sec.  300.153  Filing a complaint.

    (a) An organization or individual may file a signed written 
complaint under the procedures described in Sec. Sec.  300.151 through 
300.152.
    (b) The complaint must include--
    (1) A statement that a public agency has violated a requirement of 
Part B of the Act or of this part;
    (2) The facts on which the statement is based;
    (3) The signature and contact information for the complainant; and
    (4) If alleging violations against a specific child--
    (i) The name and address of the residence of the child;
    (ii) The name of the school the child is attending;
    (iii) In the case of a homeless child or youth (within the meaning 
of section 725(2) of the McKinney-Vento Homeless Assistance Act (42 
U.S.C. 11434a(2)), available contact information for the child, and the 
name of the school the child is attending;
    (iv) A description of the nature of the problem of the child, 
including facts relating to the problem; and
    (v) A proposed resolution of the problem to the extent known and 
available to the party at the time the complaint is filed.
    (c) Except for complaints covered under Sec.  300.507(a)(2), the 
complaint must allege a violation that occurred not more than one year 
prior to the date that the complaint is received in accordance with 
Sec.  300.151.
    (d) The party filing the complaint must forward a copy of the 
complaint to the LEA or public agency serving the child at the same 
time the party files the complaint with the SEA.

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

Methods of Ensuring Services


Sec.  300.154  Methods of ensuring services.

    (a) Establishing responsibility for services. The Chief Executive 
Officer of a State or designee of that officer must ensure that an 
interagency agreement or other mechanism for interagency coordination 
is in effect between each noneducational public agency described in 
paragraph (b) of this section and the SEA, in order to ensure that all 
services described in paragraph (b)(1) of this section that are needed 
to ensure FAPE are provided, including the provision of these services 
during the pendency of any dispute under paragraph (a)(3) of this 
section. The agreement or mechanism must include the following:
    (1) An identification of, or a method for defining, the financial 
responsibility of each agency for providing services described in 
paragraph (b)(1) of this section to ensure FAPE to children with 
disabilities. The financial responsibility of each noneducational 
public agency described in paragraph (b) of this section, including the 
State Medicaid agency and other public insurers of children with 
disabilities, must precede the financial responsibility of the LEA (or 
the State agency responsible for developing the child's IEP).
    (2) The conditions, terms, and procedures under which an LEA must 
be reimbursed by other agencies.
    (3) Procedures for resolving interagency disputes (including 
procedures under which LEAs may initiate proceedings) under the 
agreement or other mechanism to secure reimbursement from other 
agencies or otherwise implement the provisions of the agreement or 
mechanism.
    (4) Policies and procedures for agencies to determine and identify 
the interagency coordination responsibilities of each agency to promote 
the coordination and timely and appropriate delivery of services 
described in paragraph (b)(1) of this section.
    (b) Obligation of noneducational public agencies. (1)(i) If any 
public agency other than an educational agency is otherwise obligated 
under Federal or State law, or assigned responsibility under State 
policy or pursuant to paragraph (a) of this section, to provide or pay 
for any services that are also considered special education or related 
services (such as, but not limited to, services described in Sec.  
300.5 relating to assistive technology devices, Sec.  300.6 relating to 
assistive technology services, Sec.  300.34 relating to related 
services, Sec.  300.41 relating to supplementary aids and services, and 
Sec.  300.42 relating to transition services) that are necessary for 
ensuring FAPE to children with disabilities within the State, the 
public agency must fulfill that obligation or responsibility, either 
directly or through contract or other arrangement pursuant to paragraph 
(a) of this section or an agreement pursuant to paragraph (c) of this 
section.
    (ii) A noneducational public agency described in paragraph 
(b)(1)(i) of this section may not disqualify an eligible service for 
Medicaid reimbursement because that service is provided in a school 
context.
    (2) If a public agency other than an educational agency fails to 
provide or pay for the special education and related services described 
in paragraph (b)(1) of this section, the LEA (or State agency 
responsible for developing the child's IEP) must provide or pay for 
these services to the child in a timely manner. The LEA or State agency 
is authorized to claim reimbursement for the services from the 
noneducational public agency that failed to provide or pay for these 
services and that agency must reimburse the LEA or State agency in 
accordance with the terms of the interagency agreement or other 
mechanism described in paragraph (a) of this section.
    (c) Special rule. The requirements of paragraph (a) of this section 
may be met through--
    (1) State statute or regulation;
    (2) Signed agreements between respective agency officials that 
clearly identify the responsibilities of each agency relating to the 
provision of services; or

[[Page 35850]]

    (3) Other appropriate written methods as determined by the Chief 
Executive Officer of the State or designee of that officer and approved 
by the Secretary.
    (d) Children with disabilities who are covered by public 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 (d)(2) of this 
section.
    (2) With regard to services required to provide FAPE to an eligible 
child under this part, the public agency--
    (i) May not require parents to sign up for or enroll in public 
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;
    (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; and
    (iv) Must obtain parental consent consistent with Sec.  300.622.
    (e) Children with disabilities who are covered by private 
insurance. (1) With regard to services required to provide FAPE to an 
eligible child under this part, a public agency may access a parent's 
private insurance proceeds only if the parent provides informed consent 
consistent with Sec.  300.9.
    (2) Each time the public agency proposes to access the parent's 
private insurance proceeds, the agency must--
    (i) Obtain parental consent in accordance with paragraph (e)(1) of 
this section; and
    (ii) Inform the parents that their refusal to permit the public 
agency to access their private insurance does not relieve the public 
agency of its responsibility to ensure that all required services are 
provided at no cost to the parents.
    (f) Use of Part B funds. (1) If a public agency is unable to obtain 
parental consent to use the 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 that 
the parents otherwise would have to pay to use the parent's insurance 
(e.g., the deductible or co-pay amounts).
    (g) 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 Sec. Sec.  300.163 and 300.203.
    (h) Construction. Nothing in this part should be construed to alter 
the requirements imposed on a State Medicaid agency, or any other 
agency administering a public insurance program by Federal statute, 
regulations or policy under title XIX, or title XXI of the Social 
Security Act, 42 U.S.C. 1396 through 1396v and 42 U.S.C. 1397aa through 
1397jj, or any other public insurance program.

(Authority: 20 U.S.C. 1412(a)(12) and (e))

Additional Eligibility Requirements


Sec.  300.155  Hearings relating to LEA eligibility.

    The SEA must not make any final determination that an LEA is not 
eligible for assistance under Part B of the Act without first giving 
the LEA reasonable notice and an opportunity for a hearing under 34 CFR 
76.401(d).

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

Sec.  300.156  Personnel qualifications.

    (a) General. The SEA must establish and maintain qualifications to 
ensure that personnel necessary to carry out the purposes of this part 
are appropriately and adequately prepared and trained, including that 
those personnel have the content knowledge and skills to serve children 
with disabilities.
    (b) Related services personnel and paraprofessionals. The 
qualifications under paragraph (a) of this section must include 
qualifications for related services personnel and paraprofessionals 
that--
    (1) Are consistent with any State-approved or State-recognized 
certification, licensing, registration, or other comparable 
requirements that apply to the professional discipline in which those 
personnel are providing special education or related services; and
    (2) Ensure that related services personnel who deliver services in 
their discipline or profession--
    (i) Meet the requirements of paragraph (b)(1) of this section; and
    (ii) Have not had certification or licensure requirements waived on 
an emergency, temporary, or provisional basis; and
    (iii) Allow paraprofessionals and assistants who are appropriately 
trained and supervised, in accordance with State law, regulation, or 
written policy, in meeting the requirements of this part to be used to 
assist in the provision of special education and related services under 
this part to children with disabilities.
    (c) Qualifications for special education teachers. The 
qualifications described in paragraph (a) of this section must ensure 
that each person employed as a public school special education teacher 
in the State who teaches in an elementary school, middle school, or 
secondary school is highly qualified as a special education teacher by 
the deadline established in section 1119(a)(2) of the ESEA.
    (d) Policy. In implementing this section, a State must adopt a 
policy that includes a requirement that LEAs in the State take 
measurable steps to recruit, hire, train, and retain highly qualified 
personnel to provide special education and related services under this 
part to children with disabilities.
    (e) Rule of construction. Notwithstanding any other individual 
right of action that a parent or student may maintain under this part, 
nothing in this part shall be construed to--
    (1) Create a right of action on behalf of an individual student for 
the failure of a particular SEA or LEA staff person to be highly 
qualified; or
    (2) Prevent a parent from filing a complaint under Sec. Sec.  
300.151 through 300.153 about staff qualifications with the SEA as 
provided for under this part.

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

Sec.  300.157  Performance goals and indicators.

    The State must--
    (a) Have in effect established goals for the performance of 
children with disabilities in the State that--
    (1) Promote the purposes of this part, as stated in Sec.  300.1;

[[Page 35851]]

    (2) Are the same as the State's objectives for progress by children 
in its definition of adequate yearly progress, including the State's 
objectives for progress by children with disabilities, under section 
1111(b)(2)(C) of the ESEA, 20 U.S.C. 6311;
    (3) Address graduation rates and dropout rates, as well as such 
other factors as the State may determine; and
    (4) Are consistent, to the extent appropriate, with any other goals 
and academic standards for children established by the State;
    (b) Have in effect established performance indicators the State 
will use to assess progress toward achieving the goals described in 
paragraph (a) of this section, including measurable annual objectives 
for progress by children with disabilities under section 
1111(b)(2)(C)(v)(II)(cc) of the ESEA, 20 U.S.C. 6311; and
    (c) Annually report to the Secretary and the public on the progress 
of the State, and of children with disabilities in the State, toward 
meeting the goals established under paragraph (a) of this section, 
which may include elements of the reports required under section 
1111(h) of the ESEA.

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

Sec.  300.160  Participation in assessments.

    (a) General. The State must ensure that all children with 
disabilities are included in all general State and districtwide 
assessment programs, including assessments described in section 1111 of 
the ESEA, 20 U.S.C. 6311, with appropriate accommodations and alternate 
assessments, if necessary, and as indicated in their respective IEPs.
    (b) Accommodation guidelines. The State (or, in the case of a 
districtwide assessment, the LEA) must develop guidelines for the 
provision of appropriate accommodations.
    (c) Alternate assessments. (1) The State (or, in the case of a 
districtwide assessment, the LEA) must develop and implement alternate 
assessments and guidelines for the participation of children with 
disabilities in those alternate assessments for those children who 
cannot participate in regular assessments under paragraph (a) of this 
section with accommodations as indicated in their respective IEPs.
    (2) The alternate assessments and guidelines under paragraph (c)(1) 
of this section must provide for alternate assessments that in the case 
of assessments of student academic progress--
    (i) Are aligned with the State's challenging academic content 
standards and challenging student academic achievement standards; and
    (ii) If the State has adopted alternate achievement standards 
permitted under the regulations promulgated to carry out section 
1111(b)(1) of the ESEA, measure the achievement of children with 
disabilities against those standards.
    (3) The State must conduct the alternate assessments described in 
this section.
    (d) Reports. The SEA (or, in the case of a districtwide assessment, 
the LEA) must make available to the public, and report to the public 
with the same frequency and in the same detail as it reports on the 
assessment of nondisabled children, the following:
    (1) The number of children with disabilities participating in 
regular assessments, and the number of those children who were provided 
accommodations in order to participate in those assessments.
    (2) The number of those children with disabilities participating in 
alternate assessments described in paragraph (c)(2)(i) of this section.
    (3) The number of those children with disabilities participating in 
alternate assessments described in paragraph (c)(2)(ii) of this 
section.
    (4) The performance results of children with disabilities on 
regular assessments and on alternate assessments if--
    (i) The number of those children participating in those assessments 
is sufficient to yield statistically reliable information; and
    (ii) Reporting that information will not reveal personally 
identifiable information about an individual student, compared with the 
achievement of all children, including children with disabilities, on 
those assessments.
    (e) Universal design. The SEA (or, in the case of a districtwide 
assessment, the LEA) must, to the extent possible, use universal design 
principles in developing and administering any assessments under this 
section.

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

Sec.  300.161  [Reserved]


Sec.  300.162  Supplementation of State, local, and other Federal 
funds.

    (a) Expenditures. Funds paid to a State under this part must be 
expended in accordance with all the provisions of this part.
    (b) Prohibition against commingling. (1) Funds paid to a State 
under this part must not be commingled with State funds.
    (2) The requirement in paragraph (b)(1) of this section is 
satisfied by the use of a separate accounting system that includes an 
audit trail of the expenditure of funds paid to a State under this 
part. Separate bank accounts are not required. (See 34 CFR 76.702 
(Fiscal control and fund accounting procedures)).
    (c) State-level nonsupplanting. (1) Except as provided in Sec.  
300.202, funds paid to a State under Part B of the Act must be used to 
supplement the level of Federal, State, and local funds (including 
funds that are not under the direct control of the SEA or LEAs) 
expended for special education and related services provided to 
children with disabilities under Part B of the Act, and in no case to 
supplant those Federal, State, and local funds.
    (2) If the State provides clear and convincing evidence that all 
children with disabilities have available to them FAPE, the Secretary 
may waive, in whole or in part, the requirements of paragraph (c)(1) of 
this section if the Secretary concurs with the evidence provided by the 
State under Sec.  300.164.

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

Sec.  300.163  Maintenance of State financial support.

    (a) General. A State must not reduce the amount of State financial 
support for special education and related services for children with 
disabilities, or otherwise made available because of the excess costs 
of educating those children, below the amount of that support for the 
preceding fiscal year.
    (b) Reduction of funds for failure to maintain support. The 
Secretary reduces the allocation of funds under section 611 of the Act 
for any fiscal year following the fiscal year in which the State fails 
to comply with the requirement of paragraph (a) of this section by the 
same amount by which the State fails to meet the requirement.
    (c) Waivers for exceptional or uncontrollable circumstances. The 
Secretary may waive the requirement of paragraph (a) of this section 
for a State, for one fiscal year at a time, if the Secretary determines 
that--
    (1) Granting a waiver would be equitable due to exceptional or 
uncontrollable circumstances such as a natural disaster or a 
precipitous and unforeseen decline in the financial resources of the 
State; or
    (2) The State meets the standard in Sec.  300.164 for a waiver of 
the requirement to supplement, and not to supplant, funds received 
under Part B of the Act.
    (d) Subsequent years. If, for any fiscal year, a State fails to 
meet the requirement of paragraph (a) of this section, including any 
year for which

[[Page 35852]]

the State is granted a waiver under paragraph (c) of this section, the 
financial support required of the State in future years under paragraph 
(a) of this section shall be the amount that would have been required 
in the absence of that failure and not the reduced level of the State's 
support.

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

Sec.  300.164  Waiver of requirement regarding supplementing and not 
supplanting with Part B funds.

    (a) Except as provided under Sec. Sec.  300.202 through 300.205, 
funds paid to a State under Part B of the Act must be used to 
supplement and increase the level of Federal, State, and local funds 
(including funds that are not under the direct control of SEAs or LEAs) 
expended for special education and related services provided to 
children with disabilities under Part B of the Act and in no case to 
supplant those Federal, State, and local funds. A State may use funds 
it retains under Sec.  300.704(a) and (b) without regard to the 
prohibition on supplanting other funds.
    (b) If a State provides clear and convincing evidence that all 
eligible children with disabilities throughout the State have FAPE 
available to them, the Secretary may waive for a period of one year in 
whole or in part the requirement under Sec.  300.162 (regarding State-
level nonsupplanting) if the Secretary concurs with the evidence 
provided by the State.
    (c) If a State wishes to request a waiver under this section, it 
must submit to the Secretary a written request that includes--
    (1) An assurance that FAPE is currently available, and will remain 
available throughout the period that a waiver would be in effect, to 
all eligible children with disabilities throughout the State, 
regardless of the public agency that is responsible for providing FAPE 
to them. The assurance must be signed by an official who has the 
authority to provide that assurance as it applies to all eligible 
children with disabilities in the State;
    (2) All evidence that the State wishes the Secretary to consider in 
determining whether all eligible children with disabilities have FAPE 
available to them, setting forth in detail--
    (i) The basis on which the State has concluded that FAPE is 
available to all eligible children in the State; and
    (ii) The procedures that the State will implement to ensure that 
FAPE remains available to all eligible children in the State, which 
must include--
    (A) The State's procedures under Sec.  300.111 for ensuring that 
all eligible children are identified, located and evaluated;
    (B) The State's procedures for monitoring public agencies to ensure 
that they comply with all requirements of this part;
    (C) The State's complaint procedures under Sec. Sec.  300.151 
through 300.153; and
    (D) The State's hearing procedures under Sec. Sec.  300.511 through 
300.516 and Sec. Sec.  300.530 through 300.536;
    (3) A summary of all State and Federal monitoring reports, and 
State complaint decisions (see Sec. Sec.  300.151 through 300.153) and 
hearing decisions (see Sec. Sec.  300.511 through 300.516 and 
Sec. Sec.  300.530 through 300.536), issued within three years prior to 
the date of the State's request for a waiver under this section, that 
includes any finding that FAPE has not been available to one or more 
eligible children, and evidence that FAPE is now available to all 
children addressed in those reports or decisions; and
    (4) Evidence that the State, in determining that FAPE is currently 
available to all eligible children with disabilities in the State, has 
consulted with the State advisory panel under Sec.  300.167.
    (d) If the Secretary determines that the request and supporting 
evidence submitted by the State makes a prima facie showing that FAPE 
is, and will remain, available to all eligible children with 
disabilities in the State, the Secretary, after notice to the public 
throughout the State, conducts a public hearing at which all interested 
persons and organizations may present evidence regarding the following 
issues:
    (1) Whether FAPE is currently available to all eligible children 
with disabilities in the State.
    (2) Whether the State will be able to ensure that FAPE remains 
available to all eligible children with disabilities in the State if 
the Secretary provides the requested waiver.
    (e) Following the hearing, the Secretary, based on all submitted 
evidence, will provide a waiver, in whole or in part, for a period of 
one year if the Secretary finds that the State has provided clear and 
convincing evidence that FAPE is currently available to all eligible 
children with disabilities in the State, and the State will be able to 
ensure that FAPE remains available to all eligible children with 
disabilities in the State if the Secretary provides the requested 
waiver.
    (f) A State may receive a waiver of the requirement of section 
612(a)(18)(A) of the Act and Sec.  300.164 if it satisfies the 
requirements of paragraphs (b) through (e) of this section.
    (g) The Secretary may grant subsequent waivers for a period of one 
year each, if the Secretary determines that the State has provided 
clear and convincing evidence that all eligible children with 
disabilities throughout the State have, and will continue to have 
throughout the one-year period of the waiver, FAPE available to them.

(Authority: 20 U.S.C. 1412(a)(17)(C), (18)(C)(ii))

Sec.  300.165  Public participation.

    (a) Prior to the adoption of any policies and procedures needed to 
comply with Part B of the Act (including any amendments to those 
policies and procedures), the State must ensure that there are public 
hearings, adequate notice of the hearings, and an opportunity for 
comment available to the general public, including individuals with 
disabilities and parents of children with disabilities.
    (b) Before submitting a State plan under this part, a State must 
comply with the public participation requirements in paragraph (a) of 
this section and those in 20 U.S.C. 1232d(b)(7).

(Authority: 20 U.S.C. 1412(a)(19); 20 U.S.C. 1232d(b)(7))

Sec.  300.166  Rule of construction.

    In complying with Sec. Sec.  300.162 and 300.163, a State may not 
use funds paid to it under this part to satisfy State-law mandated 
funding obligations to LEAs, including funding based on student 
attendance or enrollment, or inflation.

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

State Advisory Panel


Sec.  300.167  State advisory panel.

    The State must establish and maintain an advisory panel for the 
purpose of providing policy guidance with respect to special education 
and related services for children with disabilities in the State.

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

Sec.  300.168  Membership.

    (a) General. The advisory panel must consist of members appointed 
by the Governor, or any other official authorized under State law to 
make such appointments, be representative of the State population and 
be composed of individuals involved in, or concerned with the education 
of children with disabilities, including--
    (1) Parents of children with disabilities (ages birth through 26);
    (2) Individuals with disabilities;
    (3) Teachers;
    (4) Representatives of institutions of higher education that 
prepare special

[[Page 35853]]

education and related services personnel;
    (5) State and local education officials, including officials who 
carry out activities under subtitle B of title VII of the McKinney-
Vento Homeless Assistance Act, (42 U.S.C. 11431 et seq.);
    (6) Administrators of programs for children with disabilities;
    (7) Representatives of other State agencies involved in the 
financing or delivery of related services to children with 
disabilities;
    (8) Representatives of private schools and public charter schools;
    (9) Not less than one representative of a vocational, community, or 
business organization concerned with the provision of transition 
services to children with disabilities;
    (10) A representative from the State child welfare agency 
responsible for foster care; and
    (11) Representatives from the State juvenile and adult corrections 
agencies.
    (b) Special rule. A majority of the members of the panel must be 
individuals with disabilities or parents of children with disabilities 
(ages birth through 26).

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

Sec.  300.169  Duties.

    The advisory panel must--
    (a) Advise the SEA of unmet needs within the State in the education 
of children with disabilities;
    (b) Comment publicly on any rules or regulations proposed by the 
State regarding the education of children with disabilities;
    (c) Advise the SEA in developing evaluations and reporting on data 
to the Secretary under section 618 of the Act;
    (d) Advise the SEA in developing corrective action plans to address 
findings identified in Federal monitoring reports under Part B of the 
Act; and
    (e) Advise the SEA in developing and implementing policies relating 
to the coordination of services for children with disabilities.

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

Other Provisions Required for State Eligibility


Sec.  300.170  Suspension and expulsion rates.

    (a) General. The SEA must examine data, including data 
disaggregated by race and ethnicity, to determine if significant 
discrepancies are occurring in the rate of long-term suspensions and 
expulsions of children with disabilities--
    (1) Among LEAs in the State; or
    (2) Compared to the rates for nondisabled children within those 
agencies.
    (b) Review and revision of policies. If the discrepancies described 
in paragraph (a) of this section are occurring, the SEA 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 positive behavioral 
interventions and supports, and procedural safeguards, to ensure that 
these policies, procedures, and practices comply with the Act.

(Authority: 20 U.S.C. 1412(a)(22))

Sec.  300.171  Annual description of use of Part B funds.

    (a) In order to receive a grant in any fiscal year a State must 
annually describe--
    (1) How amounts retained for State administration and State-level 
activities under Sec.  300.704 will be used to meet the requirements of 
this part; and
    (2) How those amounts will be allocated among the activities 
described in Sec.  300.704 to meet State priorities based on input from 
LEAs.
    (b) If a State's plans for use of its funds under Sec.  300.704 for 
the forthcoming year do not change from the prior year, the State may 
submit a letter to that effect to meet the requirement in paragraph (a) 
of this section.
    (c) The provisions of this section do not apply to the Virgin 
Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana 
Islands, and the freely associated States.

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

Sec.  300.172  Access to instructional materials.

    (a) General. The State must adopt the National Instructional 
Materials Accessibility Standard (NIMAS) for the purposes of providing 
instructional materials to blind persons or other persons with print 
disabilities, in a timely manner after publication of the NIMAS in the 
Federal Register.
    (b) Rights and responsibilities of SEA. (1) Nothing in this section 
shall be construed to require any SEA to coordinate with the National 
Instructional Materials Access Center (NIMAC).
    (2) If an SEA chooses not to coordinate with the NIMAC, the agency 
must provide an assurance to the Secretary that the agency will provide 
instructional materials to blind persons or other persons with print 
disabilities in a timely manner.
    (3) Nothing in this section relieves an SEA of its responsibility 
to ensure that children with disabilities who need instructional 
materials in accessible formats, but for whom the NIMAC may not provide 
assistance to the SEA, receive those instructional materials in a 
timely manner.
    (c) Preparation and delivery of files. If an SEA chooses to 
coordinate with the NIMAC, not later than December 3, 2006, two years 
after the date of enactment of the Individuals with Disabilities 
Education Improvement Act of 2004, the agency, as part of any print 
instructional materials adoption process, procurement contract, or 
other practice or instrument used for purchase of print instructional 
materials, must enter into a written contract with the publisher of the 
print instructional materials to--
    (1) Require the publisher to prepare and, on or before delivery of 
the print instructional materials, provide to NIMAC electronic files 
containing the contents of the print instructional materials using the 
NIMAS; or
    (2) Purchase instructional materials from the publisher that are 
produced in, or may be rendered in, specialized formats.
    (d) Assistive technology. In carrying out this section, the SEA, to 
the maximum extent possible, must work collaboratively with the State 
agency responsible for assistive technology programs.
    (e) Definitions. In this section and Sec.  300.210--
    (1) Blind persons or other persons with print disabilities means 
children served under this part who may qualify to receive books and 
other publications produced in specialized formats in accordance with 
the Act entitled ``An Act to provide books for adult blind,'' approved 
March 3, 1931, 2 U.S.C 135a;
    (2) National Instructional Materials Access Center or NIMAC means 
the center established pursuant to section 674(e) of the Act;
    (3) National Instructional Materials Accessibility Standard or 
NIMAS has the meaning given the term in section 674(e)(3)(B) of the 
Act; and
    (4) Specialized formats has the meaning given the term in section 
674(e)(3)(D) of the Act.

(Authority: 20 U.S.C. 1412(a)(23))

Sec.  300.173  Overidentification and disproportionality.

    The State must have in effect, consistent with the purposes of this 
part and with section 618(d) of the Act, policies and procedures 
designed to prevent the inappropriate overidentification or 
disproportionate

[[Page 35854]]

representation by race and ethnicity of children as children with 
disabilities, including children with disabilities with a particular 
impairment described in Sec.  300.8.

(Authority: 20 U.S.C. 1412(a)(24))

Sec.  300.174  Prohibition on mandatory medication.

    (a) General. The SEA must prohibit State and LEA personnel from 
requiring parents to obtain a prescription for substances identified 
under schedules I, II, III, IV, or V in section 202(c) of the 
Controlled Substances Act (21 U.S.C. 812(c)) for a child as a condition 
of attending school, receiving an evaluation under Sec. Sec.  300.300 
through 300.311, or receiving services under this part.
    (b) Rule of construction. Nothing in paragraph (a) of this section 
shall be construed to create a Federal prohibition against teachers and 
other school personnel consulting or sharing classroom-based 
observations with parents or guardians regarding a student's academic 
and functional performance, or behavior in the classroom or school, or 
regarding the need for evaluation for special education or related 
services under Sec.  300.111 (related to child find).

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

Sec.  300.175  SEA as provider of FAPE or direct services.

    If the SEA provides FAPE to children with disabilities, or provides 
direct services to these children, the agency--
    (a) Must comply with any additional requirements of Sec. Sec.  
300.201 and 300.202 and Sec. Sec.  300.206 through 300.226 as if the 
agency were an LEA; and
    (b) May use amounts that are otherwise available to the agency 
under Part B of the Act to serve those children without regard to Sec.  
300.202(b) (relating to excess costs).

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

Sec.  300.176  Exception for prior State plans.

    (a) General. If a State has on file with the Secretary policies and 
procedures approved by the Secretary that demonstrate that the State 
meets any requirement of Sec.  300.100, including any policies and 
procedures filed under Part B of the Act as in effect before, December 
3, 2004, the Secretary considers the State to have met the requirement 
for purposes of receiving a grant under Part B of the Act.
    (b) Modifications made by a State. (1) Subject to paragraph (b)(2) 
of this section, policies and procedures submitted by a State in 
accordance with this subpart remain in effect until the State submits 
to the Secretary the modifications that the State determines necessary.
    (2) The provisions of this subpart apply to a modification to an 
application to the same extent and in the same manner that they apply 
to the original plan.
    (c) Modifications required by the Secretary. The Secretary may 
require a State to modify its policies and procedures, but only to the 
extent necessary to ensure the State's compliance with this part, if--
    (1) After December 3, 2004, the provisions of the Act or the 
regulations in this part are amended;
    (2) There is a new interpretation of this Act by a Federal court or 
a State's highest court; or
    (3) There is an official finding of noncompliance with Federal law 
or regulations.

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

Sec.  300.177  [Reserved]

Department Procedures


Sec.  300.178  Determination by the Secretary that a State is eligible 
to receive a grant.

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

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

Sec.  300.179  Notice and hearing before determining that a State is 
not eligible to receive a grant.

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

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

Sec.  300.180  Hearing official or panel.

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

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

Sec.  300.181  Hearing procedures.

    (a) As used in Sec. Sec.  300.179 through 300.184 the term party or 
parties means the following:
    (1) An SEA that requests a hearing regarding the proposed 
disapproval of the State's eligibility under this part.
    (2) The Department official who administers the program of 
financial assistance under this part.
    (3) A person, group or agency with an interest in and having 
relevant information about the case that has applied for and been 
granted leave to intervene by the Hearing Official or Hearing Panel.
    (b) Within 15 days after receiving a request for a hearing, the 
Secretary designates a Hearing Official or Hearing Panel and notifies 
the parties.
    (c) The Hearing Official or Hearing Panel may regulate the course 
of proceedings and the conduct of the parties during the proceedings. 
The Hearing Official or Hearing Panel takes all steps necessary to 
conduct a fair and impartial proceeding, to avoid delay, and to 
maintain order, including the following:
    (1) The Hearing Official or Hearing Panel may hold conferences or 
other types of appropriate proceedings to clarify, simplify, or define 
the issues or to consider other matters that may aid in the disposition 
of the case.
    (2) The Hearing Official or Hearing Panel may schedule a prehearing 
conference with the Hearing Official or Hearing Panel and the parties.
    (3) Any party may request the Hearing Official or Hearing Panel to 
schedule a prehearing or other conference. The Hearing Official or 
Hearing Panel decides whether a conference is necessary and notifies 
all parties.
    (4) At a prehearing or other conference, the Hearing Official or 
Hearing Panel and the parties may consider subjects such as--
    (i) Narrowing and clarifying issues;
    (ii) Assisting the parties in reaching agreements and stipulations;
    (iii) Clarifying the positions of the parties;

[[Page 35855]]

    (iv) Determining whether an evidentiary hearing or oral argument 
should be held; and
    (v) Setting dates for--
    (A) The exchange of written documents;
    (B) The receipt of comments from the parties on the need for oral 
argument or evidentiary hearing;
    (C) Further proceedings before the Hearing Official or Hearing 
Panel (including an evidentiary hearing or oral argument, if either is 
scheduled);
    (D) Requesting the names of witnesses each party wishes to present 
at an evidentiary hearing and estimation of time for each presentation; 
or
    (E) Completion of the review and the initial decision of the 
Hearing Official or Hearing Panel.
    (5) A prehearing or other conference held under paragraph (b)(4) of 
this section may be conducted by telephone conference call.
    (6) At a prehearing or other conference, the parties must be 
prepared to discuss the subjects listed in paragraph (b)(4) of this 
section.
    (7) Following a prehearing or other conference the Hearing Official 
or Hearing Panel may issue a written statement describing the issues 
raised, the action taken, and the stipulations and agreements reached 
by the parties.
    (d) The Hearing Official or Hearing Panel may require parties to 
state their positions and to provide all or part of the evidence in 
writing.
    (e) The Hearing Official or Hearing Panel may require parties to 
present testimony through affidavits and to conduct cross-examination 
through interrogatories.
    (f) The Hearing Official or Hearing Panel may direct the parties to 
exchange relevant documents or information and lists of witnesses, and 
to send copies to the Hearing Official or Panel.
    (g) The Hearing Official or Hearing Panel may receive, rule on, 
exclude, or limit evidence at any stage of the proceedings.
    (h) The Hearing Official or Hearing Panel may rule on motions and 
other issues at any stage of the proceedings.
    (i) The Hearing Official or Hearing Panel may examine witnesses.
    (j) The Hearing Official or Hearing Panel may set reasonable time 
limits for submission of written documents.
    (k) The Hearing Official or Hearing Panel may refuse to consider 
documents or other submissions if they are not submitted in a timely 
manner unless good cause is shown.
    (l) The Hearing Official or Hearing Panel may interpret applicable 
statutes and regulations but may not waive them or rule on their 
validity.
    (m)(1) The parties must present their positions through briefs and 
the submission of other documents and may request an oral argument or 
evidentiary hearing. The Hearing Official or Hearing Panel shall 
determine whether an oral argument or an evidentiary hearing is needed 
to clarify the positions of the parties.
    (2) The Hearing Official or Hearing Panel gives each party an 
opportunity to be represented by counsel.
    (n) If the Hearing Official or Hearing Panel determines that an 
evidentiary hearing would materially assist the resolution of the 
matter, the Hearing Official or Hearing Panel gives each party, in 
addition to the opportunity to be represented by counsel--
    (1) An opportunity to present witnesses on the party's behalf; and
    (2) An opportunity to cross-examine witnesses either orally or with 
written questions.
    (o) The Hearing Official or Hearing Panel accepts any evidence that 
it finds is relevant and material to the proceedings and is not unduly 
repetitious.
    (p)(1) The Hearing Official or Hearing Panel--
    (i) Arranges for the preparation of a transcript of each hearing;
    (ii) Retains the original transcript as part of the record of the 
hearing; and
    (iii) Provides one copy of the transcript to each party.
    (2) Additional copies of the transcript are available on request 
and with payment of the reproduction fee.
    (q) Each party must file with the Hearing Official or Hearing Panel 
all written motions, briefs, and other documents and must at the same 
time provide a copy to the other parties to the proceedings.

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

Sec.  300.182  Initial decision; final decision.

    (a) The Hearing Official or Hearing Panel prepares an initial 
written decision that addresses each of the points in the notice sent 
by the Secretary to the SEA under Sec.  300.179 including any 
amendments to or further clarifications of the issues, under Sec.  
300.181(c)(7).
    (b) The initial decision of a Hearing Panel is made by a majority 
of Panel members.
    (c) The Hearing Official or Hearing Panel mails, by certified mail 
with return receipt requested, a copy of the initial decision to each 
party (or to the party's counsel) and to the Secretary, with a notice 
stating that each party has an opportunity to submit written comments 
regarding the decision to the Secretary.
    (d) Each party may file comments and recommendations on the initial 
decision with the Hearing Official or Hearing Panel within 15 days of 
the date the party receives the Panel's decision.
    (e) The Hearing Official or Hearing Panel sends a copy of a party's 
initial comments and recommendations to the other parties by certified 
mail with return receipt requested. Each party may file responsive 
comments and recommendations with the Hearing Official or Hearing Panel 
within seven days of the date the party receives the initial comments 
and recommendations.
    (f) The Hearing Official or Hearing Panel forwards the parties' 
initial and responsive comments on the initial decision to the 
Secretary who reviews the initial decision and issues a final decision.
    (g) The initial decision of the Hearing Official or Hearing Panel 
becomes the final decision of the Secretary unless, within 25 days 
after the end of the time for receipt of written comments and 
recommendations, the Secretary informs the Hearing Official or Hearing 
Panel and the parties to a hearing in writing that the decision is 
being further reviewed for possible modification.
    (h) The Secretary rejects or modifies the initial decision of the 
Hearing Official or Hearing Panel if the Secretary finds that it is 
clearly erroneous.
    (i) The Secretary conducts the review based on the initial 
decision, the written record, the transcript of the Hearing Official's 
or Hearing Panel's proceedings, and written comments.
    (j) The Secretary may remand the matter to the Hearing Official or 
Hearing Panel for further proceedings.
    (k) Unless the Secretary remands the matter as provided in 
paragraph (j) of this section, the Secretary issues the final decision, 
with any necessary modifications, within 30 days after notifying the 
Hearing Official or Hearing Panel that the initial decision is being 
further reviewed.

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

Sec.  300.183  Filing requirements.

    (a) Any written submission by a party under Sec. Sec.  300.179 
through 300.184 must be filed by hand delivery, by mail, or by 
facsimile transmission. The Secretary discourages the use of facsimile 
transmission for documents longer than five pages.
    (b) The filing date under paragraph (a) of this section is the date 
the document is--
    (1) Hand-delivered;
    (2) Mailed; or
    (3) Sent by facsimile transmission.
    (c) A party filing by facsimile transmission is responsible for

[[Page 35856]]

confirming that a complete and legible copy of the document was 
received by the Department.
    (d) If a document is filed by facsimile transmission, the 
Secretary, the Hearing Official, or the Hearing Panel, as applicable, 
may require the filing of a follow-up hard copy by hand delivery or by 
mail within a reasonable period of time.
    (e) If agreed upon by the parties, service of a document may be 
made upon the other party by facsimile transmission.

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

Sec.  300.184  Judicial review.

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

(Authority: 20 U.S.C. 1416(e)(8))

Sec.  300.185  [Reserved]


Sec.  300.186  Assistance under other Federal programs.

    Part B of the Act may not be construed to permit a State to reduce 
medical and other assistance available, or to alter eligibility, under 
titles V and XIX of the Social Security Act with respect to the 
provision of FAPE for children with disabilities in the State.

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

By-Pass for Children in Private Schools


Sec.  300.190  By-pass--general.

    (a) If, on December 2, 1983, the date of enactment of the Education 
of the Handicapped Act Amendments of 1983, an SEA was prohibited by law 
from providing for the equitable participation in special programs of 
children with disabilities enrolled in private elementary schools and 
secondary schools as required by section 612(a)(10)(A) of the Act, or 
if the Secretary determines that an SEA, LEA, or other public agency 
has substantially failed or is unwilling to provide for such equitable 
participation then the Secretary shall, notwithstanding such provision 
of law, arrange for the provision of services to these children through 
arrangements which shall be subject to the requirements of section 
612(a)(10)(A) of the Act.
    (b) The Secretary waives the requirement of section 612(a)(10)(A) 
of the Act and of Sec. Sec.  300.131 through 300.144 if the Secretary 
implements a by-pass.

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

Sec.  300.191  Provisions for services under a by-pass.

    (a) Before implementing a by-pass, the Secretary consults with 
appropriate public and private school officials, including SEA 
officials, in the affected State, and as appropriate, LEA or other 
public agency officials to consider matters such as--
    (1) Any prohibition imposed by State law that results in the need 
for a by-pass; and
    (2) The scope and nature of the services required by private school 
children with disabilities in the State, and the number of children to 
be served under the by-pass.
    (b) After determining that a by-pass is required, the Secretary 
arranges for the provision of services to private school children with 
disabilities in the State, LEA or other public agency in a manner 
consistent with the requirements of section 612(a)(10)(A) of the Act 
and Sec. Sec.  300.131 through 300.144 by providing services through 
one or more agreements with appropriate parties.
    (c) For any fiscal year that a by-pass is implemented, the 
Secretary determines the maximum amount to be paid to the providers of 
services by multiplying--
    (1) A per child amount determined by dividing the total amount 
received by the State under Part B of the Act for the fiscal year by 
the number of children with disabilities served in the prior year as 
reported to the Secretary under section 618 of the Act; by
    (2) The number of private school children with disabilities (as 
defined in Sec. Sec.  300.8(a) and 300.130) in the State, LEA or other 
public agency, as determined by the Secretary on the basis of the most 
recent satisfactory data available, which may include an estimate of 
the number of those children with disabilities.
    (d) The Secretary deducts from the State's allocation under Part B 
of the Act the amount the Secretary determines is necessary to 
implement a by-pass and pays that amount to the provider of services. 
The Secretary may withhold this amount from the State's allocation 
pending final resolution of any investigation or complaint that could 
result in a determination that a by-pass must be implemented.

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

Sec.  300.192  Notice of intent to implement a by-pass.

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

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

Sec.  300.193  Request to show cause.

    An SEA, LEA or other public agency in receipt of a notice under 
Sec.  300.192 that seeks an opportunity to show cause why a by-pass 
should not be implemented must submit a written request for a show 
cause hearing to the Secretary, within the specified time period in the 
written notice in Sec.  300.192(b)(2).

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

Sec.  300.194  Show cause hearing.

    (a) If a show cause hearing is requested, the Secretary--
    (1) Notifies the SEA and affected LEA or other public agency, and 
other appropriate public and private school officials of the time and 
place for the hearing;
    (2) Designates a person to conduct the show cause hearing. The 
designee must not have had any responsibility for the matter brought 
for a hearing; and
    (3) Notifies the SEA, LEA or other public agency, and 
representatives of private schools that they may be represented by 
legal counsel and submit oral or written evidence and arguments at the 
hearing.
    (b) At the show cause hearing, the designee considers matters such 
as--
    (1) The necessity for implementing a by-pass;
    (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

[[Page 35857]]

conduct of parties during the pendency of the proceedings. The designee 
takes all steps necessary to conduct a fair and impartial proceeding, 
to avoid delay, and to maintain order.
    (d) The designee has no authority to require or conduct discovery.
    (e) The designee may interpret applicable statutes and regulations, 
but may not waive them or rule on their validity.
    (f) The designee arranges for the preparation, retention, and, if 
appropriate, dissemination of the record of the hearing.
    (g) Within 10 days after the hearing, the designee--
    (1) Indicates that a decision will be issued on the basis of the 
existing record; or
    (2) Requests further information from the SEA, LEA, other public 
agency, representatives of private schools or Department officials.

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

Sec.  300.195  Decision.

    (a) The designee who conducts the show cause hearing--
    (1) Within 120 days after the record of a show cause hearing is 
closed, issues a written decision that includes a statement of 
findings; and
    (2) Submits a copy of the decision to the Secretary and sends a 
copy to each party by certified mail with return receipt requested.
    (b) Each party may submit comments and recommendations on the 
designee's decision to the Secretary within 30 days of the date the 
party receives the designee's decision.
    (c) The Secretary adopts, reverses, or modifies the designee's 
decision and notifies all parties to the show cause hearing of the 
Secretary's final action. That notice is sent by certified mail with 
return receipt requested.

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

Sec.  300.196  Filing requirements.

    (a) Any written submission under Sec.  300.194 must be filed by 
hand-delivery, by mail, or by facsimile transmission. The Secretary 
discourages the use of facsimile transmission for documents longer than 
five pages.
    (b) The filing date under paragraph (a) of this section is the date 
the document is--
    (1) Hand-delivered;
    (2) Mailed; or
    (3) Sent by facsimile transmission.
    (c) A party filing by facsimile transmission is responsible for 
confirming that a complete and legible copy of the document was 
received by the Department.
    (d) If a document is filed by facsimile transmission, the Secretary 
or the hearing officer, as applicable, may require the filing of a 
follow-up hard copy by hand-delivery or by mail within a reasonable 
period of time.
    (e) If agreed upon by the parties, service of a document may be 
made upon the other party by facsimile transmission.
    (f) A party must show a proof of mailing to establish the filing 
date under paragraph (b)(2) of this section as provided in 34 CFR 
75.102(d).

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

Sec.  300.197  Judicial review.

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

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

Sec.  300.198  Continuation of a by-pass.

    The Secretary continues a by-pass until the Secretary determines 
that the SEA, LEA or other public agency will meet the requirements for 
providing services to private school children.

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

Sec.  300.199  State administration.

    (a) Rulemaking. Each State that receives funds under Part B of the 
Act must--
    (1) Ensure that any State rules, regulations, and policies relating 
to this part conform to the purposes of this part;
    (2) Identify in writing to LEAs located in the State and the 
Secretary any such rule, regulation, or policy as a State-imposed 
requirement that is not required by Part B of the Act and Federal 
regulations; and
    (3) Minimize the number of rules, regulations, and policies to 
which the LEAs and schools located in the State are subject under Part 
B of the Act.
    (b) Support and facilitation. State rules, regulations, and 
policies under Part B of the Act must support and facilitate LEA and 
school-level system improvement designed to enable children with 
disabilities to meet the challenging State student academic achievement 
standards.

(Authority: 20 U.S.C 1407)

Subpart C--Local Educational Agency Eligibility


Sec.  300.200  Condition of assistance.

    An LEA is eligible for assistance under Part B of the Act for a 
fiscal year if the agency submits a plan that provides assurances to 
the SEA that the LEA meets each of the conditions in Sec. Sec.  300.201 
through 300.213.

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

Sec.  300.201  Consistency with State policies.

    The LEA, in providing for the education of children with 
disabilities within its jurisdiction, must have in effect policies, 
procedures, and programs that are consistent with the State policies 
and procedures established under Sec. Sec.  300.101 through 300.163, 
and Sec. Sec.  300.165 through 300.174.

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

Sec.  300.202  Use of amounts.

    (a) General. Amounts provided to the LEA under Part B of the Act--
    (1) Must be expended in accordance with the applicable provisions 
of this part;
    (2) Must be used only to pay the excess costs of providing special 
education and related services to children with disabilities, 
consistent with paragraph (b) of this section; and
    (3) Must be used to supplement State, local, and other Federal 
funds and not to supplant those funds.
    (b) Excess cost requirement. (1) General.
    (i) The excess cost requirement prevents an LEA from using funds 
provided under Part B of the Act to pay for all of the costs directly 
attributable to the education of a child with a disability, subject to 
paragraph (b)(1)(ii) of this section.
    (ii) The excess cost requirement does not prevent an LEA from using 
Part B funds to pay for all of the costs directly attributable to the 
education of a child with a disability in any of the ages 3, 4, 5, 18, 
19, 20, or 21, if no local or State funds are available for nondisabled 
children of these ages. However, the LEA must comply with the 
nonsupplanting and other requirements of this part in providing the 
education and services for these children.
    (2)(i) An LEA meets the excess cost requirement if it has spent at 
least a minimum average amount for the education of its children with 
disabilities before funds under Part B of the Act are used.
    (ii) The amount described in paragraph (b)(2)(i) of this section is 
determined in accordance with the definition of excess costs in Sec.  
300.16.

[[Page 35858]]

That amount may not include capital outlay or debt service.
    (3) If two or more LEAs jointly establish eligibility in accordance 
with Sec.  300.223, the minimum average amount is the average of the 
combined minimum average amounts determined in accordance with the 
definition of excess costs in Sec.  300.16 in those agencies for 
elementary or secondary school students, as the case may be.

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

Sec.  300.203  Maintenance of effort.

    (a) General. Except as provided in Sec. Sec.  300.204 and 300.205, 
funds provided to an LEA under Part B of the Act must not be used to 
reduce the level of expenditures for the education of children with 
disabilities made by the LEA from local funds below the level of those 
expenditures for the preceding fiscal year.
    (b) Standard. (1) Except as provided in paragraph (b)(2) of this 
section, the SEA must determine 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 (b)(1)(i) of this section for 
any fiscal year 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 the most recent fiscal year for which information 
is available and the standard in paragraph (b)(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.  300.204  Exception to maintenance of effort.

    Notwithstanding the restriction in Sec.  300.203(a), an LEA may 
reduce the level of expenditures by the LEA under Part B of the Act 
below the level of those expenditures for the preceding fiscal year if 
the reduction is attributable to any of the following:
    (a) The voluntary departure, by retirement or otherwise, or 
departure for just cause, of special education or related services 
personnel.
    (b) A decrease in the enrollment of children with disabilities.
    (c) The termination of the obligation of the agency, consistent 
with this part, to provide a program of special education to a 
particular child with a disability that is an exceptionally costly 
program, as determined by the SEA, because the child--
    (1) Has left the jurisdiction of the agency;
    (2) Has reached the age at which the obligation of the agency to 
provide FAPE to the child has terminated; or
    (3) No longer needs the program of special education.
    (d) The termination of costly expenditures for long-term purchases, 
such as the acquisition of equipment or the construction of school 
facilities.
    (e) The assumption of cost by the high cost fund operated by the 
SEA under Sec.  300.704(c).

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

Sec.  300.205  Adjustment to local fiscal efforts in certain fiscal 
years.

    (a) Amounts in excess. Notwithstanding Sec.  300.202(a)(2) and (b) 
and Sec.  300.203(a), and except as provided in paragraph (d) of this 
section and Sec.  300.230(e)(2), for any fiscal year for which the 
allocation received by an LEA under section Sec.  300.705 exceeds the 
amount the LEA received for the previous fiscal year, the LEA may 
reduce the level of expenditures otherwise required by Sec.  300.203(a) 
by not more than 50 percent of the amount of that excess.
    (b) Use of amounts to carry out activities under ESEA. If an LEA 
exercises the authority under paragraph (a) of this section, the LEA 
must use an amount of local funds equal to the reduction in 
expenditures under paragraph (a) of this section to carry out 
activities that could be supported with funds under the ESEA regardless 
of whether the LEA is using funds under the ESEA for those activities.
    (c) State prohibition. Notwithstanding paragraph (a) of this 
section, if an SEA determines that an LEA is unable to establish and 
maintain programs of FAPE that meet the requirements of section 613(a) 
of the Act and this part or the SEA has taken action against the LEA 
under section 616 of the Act and subpart F of these regulations, the 
SEA must prohibit the LEA from reducing the level of expenditures under 
paragraph (a) of this section for that fiscal year.
    (d) Special rule. The amount of funds expended by an LEA for early 
intervening services under Sec.  300.226 shall count toward the maximum 
amount of expenditures that the LEA may reduce under paragraph (a) of 
this section.

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

Sec.  300.206  Schoolwide programs under title I of the ESEA.

    (a) General. Notwithstanding the provisions of Sec. Sec.  300.202 
and 300.203 or any other provision of Part B of the Act, an LEA may use 
funds received under Part B of the Act for any fiscal year to carry out 
a schoolwide program under section 1114 of the ESEA, except that the 
amount used in any schoolwide program may not exceed--
    (1)(i) The amount received by the LEA under Part B of the Act for 
that fiscal year; divided by
    (ii) The number of children with disabilities in the jurisdiction 
of the LEA; and multiplied by
    (2) The number of children with disabilities participating in the 
schoolwide program.
    (b) Funding conditions. The funds described in paragraph (a) of 
this section are subject to the following conditions:
    (1) The funds must be considered as Federal Part B funds for 
purposes of the calculations required by Sec.  300.202(a)(2) and 
(a)(3).
    (2) The funds may be used without regard to the requirements of 
Sec.  300.202(a)(1).
    (c) Meeting other Part B requirements. Except as provided in 
paragraph (b) of this section, all other requirements of Part B of the 
Act must be met by an LEA using Part B funds in accordance with 
paragraph (a) of this section, including ensuring that children with 
disabilities in schoolwide program schools--
    (1) Receive services in accordance with a properly developed IEP; 
and
    (2) Are afforded all of the rights and services guaranteed to 
children with disabilities under the Act.

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

Sec.  300.207  Personnel development.

    The LEA must ensure that all personnel necessary to carry out Part 
B of the Act are appropriately and adequately prepared, subject to the 
requirements of Sec.  300.156 (related to personnel qualifications) and 
section 2122 of the ESEA.

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


[[Page 35859]]




Sec.  300.208  Permissive use of funds.

    (a) Uses. Notwithstanding Sec. Sec.  300.202, 300.203(a), and Sec.  
300.162(b), funds provided to an LEA under Part B of the Act may be 
used for the following activities:
    (1) Services and aids that also benefit nondisabled children. For 
the costs of special education and related services, and supplementary 
aids and services, provided in a regular class or other education-
related setting to a child with a disability in accordance with the IEP 
of the child, even if one or more nondisabled children benefit from 
these services.
    (2) Early intervening services. To develop and implement 
coordinated, early intervening educational services in accordance with 
Sec.  300.226.
    (3) High cost education and related services. To establish and 
implement cost or risk sharing funds, consortia, or cooperatives for 
the LEA itself, or for LEAs working in a consortium of which the LEA is 
a part, to pay for high cost special education and related services.
    (b) Administrative case management. An LEA may use funds received 
under Part B of the Act to purchase appropriate technology for 
recordkeeping, data collection, and related case management activities 
of teachers and related services personnel providing services described 
in the IEP of children with disabilities, that is needed for the 
implementation of those case management activities.

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

Sec.  300.209  Treatment of charter schools and their students.

    (a) Rights of children with disabilities. Children with 
disabilities who attend public charter schools and their parents retain 
all rights under this part.
    (b) Charter schools that are public schools of the LEA. (1) In 
carrying out Part B of the Act and these regulations with respect to 
charter schools that are public schools of the LEA, the LEA must--
    (i) Serve children with disabilities attending those charter 
schools in the same manner as the LEA serves children with disabilities 
in its other schools, including providing supplementary and related 
services on site at the charter school to the same extent to which the 
LEA has a policy or practice of providing such services on the site to 
its other public schools; and
    (ii) Provides funds under Part B of the Act to those charter 
schools--
    (A) On the same basis as the LEA provides funds to the LEA's other 
public schools, including proportional distribution based on relative 
enrollment of children with disabilities; and
    (B) At the same time as the LEA distributes other Federal funds to 
the LEA's other public schools, consistent with the State's charter 
school law.
    (2) If the public charter school is a school of an LEA that 
receives funding under Sec.  300.705 and includes other public 
schools--
    (i) The LEA is responsible for ensuring that the requirements of 
this part are met, unless State law assigns that responsibility to some 
other entity; and
    (ii) The LEA must meet the requirements of paragraph (b)(1) of this 
section.
    (c) Public charter schools that are LEAs. If the public charter 
school is an LEA, consistent with Sec.  300.28, that receives funding 
under Sec.  300.705, that charter school is responsible for ensuring 
that the requirements of this part are met, unless State law assigns 
that responsibility to some other entity.
    (d) Public charter schools that are not an LEA or a school that is 
part of an LEA. (1) If the public charter school is not an LEA 
receiving funding under Sec.  300.705, or a school that is part of an 
LEA receiving funding under Sec.  300.705, the SEA is responsible for 
ensuring that the requirements of this part are met.
    (2) Paragraph (d)(1) of this section does not preclude a State from 
assigning initial responsibility for ensuring the requirements of this 
part are met to another entity. However, the SEA must maintain the 
ultimate responsibility for ensuring compliance with this part, 
consistent with Sec.  300.149.

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

Sec.  300.210  Purchase of instructional materials.

    (a) General. Not later than December 3, 2006, two years after the 
date of enactment of the Individuals with Disabilities Education 
Improvement Act of 2004, an LEA that chooses to coordinate with the 
National Instructional Materials Access Center, when purchasing print 
instructional materials, must acquire those instructional materials in 
the same manner, and subject to the same conditions as an SEA under 
Sec.  300.172.
    (b) Rights of LEA. (1) Nothing in this section shall be construed 
to require an LEA to coordinate with the National Instructional 
Materials Access Center.
    (2) If an LEA chooses not to coordinate with the National 
Instructional Materials Access Center, the LEA must provide an 
assurance to the SEA that the LEA will provide instructional materials 
to blind persons or other persons with print disabilities in a timely 
manner.
    (3) Nothing in this section relieves an LEA of its responsibility 
to ensure that children with disabilities who need instructional 
materials in accessible formats but for whom the NIMAC may not provide 
assistance, receive those instructional materials in a timely manner.

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

Sec.  300.211  Information for SEA.

    The LEA must provide the SEA with information necessary to enable 
the SEA to carry out its duties under Part B of the Act, including, 
with respect to Sec. Sec.  300.157 and 300.160, information relating to 
the performance of children with disabilities participating in programs 
carried out under Part B of the Act.

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

Sec.  300.212  Public information.

    The LEA must make available to parents of children with 
disabilities and to the general public all documents relating to the 
eligibility of the agency under Part B of the Act.

(Authority: 20 U.S.C. 1413(a)(8))

Sec.  300.213  Records regarding migratory children with disabilities.

    The LEA must cooperate in the Secretary's efforts under section 
1308 of the ESEA to ensure the linkage of records pertaining to 
migratory children with disabilities for the purpose of electronically 
exchanging, among the States, health and educational information 
regarding those children.

(Authority: 20 U.S.C. 1413(a)(9))

Sec. Sec.  300.214-300.219  [Reserved]


Sec.  300.220  Exception for prior local plans.

    (a) General. If an LEA or a State agency described in Sec.  300.228 
has on file with the SEA policies and procedures that demonstrate that 
the LEA or State agency meets any requirement of Sec.  300.200, 
including any policies and procedures filed under Part B of the Act as 
in effect before December 3, 2004, the SEA must consider the LEA or 
State agency to have met that requirement for purposes of receiving 
assistance under Part B of the Act.
    (b) Modification made by an LEA or State agency. Subject to 
paragraph (c) of this section, policies and procedures submitted by an 
LEA or a State agency in accordance with this subpart remain in effect 
until the LEA or State agency submits to the SEA the modifications that 
the LEA or State agency determines are necessary.

[[Page 35860]]

    (c) Modifications required by the SEA. The SEA may require an LEA 
or a State agency to modify its policies and procedures, but only to 
the extent necessary to ensure the LEA's or State agency's compliance 
with Part B of the Act or State law, if--
    (1) After December 3, 2004, the effective date of the Individuals 
with Disabilities Education Improvement Act of 2004, the applicable 
provisions of the Act (or the regulations developed to carry out the 
Act) are amended;
    (2) There is a new interpretation of an applicable provision of the 
Act by Federal or State courts; or
    (3) There is an official finding of noncompliance with Federal or 
State law or regulations.

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

Sec.  300.221  Notification of LEA or State agency in case of 
ineligibility.

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

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

Sec.  300.222  LEA and State agency compliance.

    (a) General. If the SEA, after reasonable notice and an opportunity 
for a hearing, finds that an LEA or State agency that has been 
determined to be eligible under this subpart is failing to comply with 
any requirement described in Sec. Sec.  300.201 through 300.213, the 
SEA must reduce or must not provide any further payments to the LEA or 
State agency until the SEA is satisfied that the LEA or State agency is 
complying with that requirement.
    (b) Notice requirement. Any State agency or LEA in receipt of a 
notice described in paragraph (a) of this section must, by means of 
public notice, take the measures necessary to bring the pendency of an 
action pursuant to this section to the attention of the public within 
the jurisdiction of the agency.
    (c) Consideration. In carrying out its responsibilities under this 
section, each SEA must consider any decision resulting from a hearing 
held under Sec. Sec.  300.511 through 300.533 that is adverse to the 
LEA or State agency involved in the decision.

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

Sec.  300.223  Joint establishment of eligibility.

    (a) General. An SEA may require an LEA to establish its eligibility 
jointly with another LEA if the SEA determines that the LEA will be 
ineligible under this subpart because the agency will not be able to 
establish and maintain programs of sufficient size and scope to 
effectively meet the needs of children with disabilities.
    (b) Charter school exception. An SEA may not require a charter 
school that is an LEA to jointly establish its eligibility under 
paragraph (a) of this section unless the charter school is explicitly 
permitted to do so under the State's charter school statute.
    (c) Amount of payments. If an SEA requires the joint establishment 
of eligibility under paragraph (a) of this section, the total amount of 
funds made available to the affected LEAs must be equal to the sum of 
the payments that each LEA would have received under Sec.  300.705 if 
the agencies were eligible for those payments.

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

Sec.  300.224  Requirements for establishing eligibility.

    (a) Requirements for LEAs in general. LEAs that establish joint 
eligibility under this section must--
    (1) Adopt policies and procedures that are consistent with the 
State's policies and procedures under Sec. Sec.  300.101 through 
300.163, and Sec. Sec.  300.165 through 300.174; and
    (2) Be jointly responsible for implementing programs that receive 
assistance under Part B of the Act.
    (b) Requirements for educational service agencies in general. If an 
educational service agency is required by State law to carry out 
programs under Part B of the Act, the joint responsibilities given to 
LEAs under Part B of the Act--
    (1) Do not apply to the administration and disbursement of any 
payments received by that educational service agency; and
    (2) Must be carried out only by that educational service agency.
    (c) Additional requirement. Notwithstanding any other provision of 
Sec. Sec.  300.223 through 300.224, an educational service agency must 
provide for the education of children with disabilities in the least 
restrictive environment, as required by Sec.  300.112.

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

Sec.  300.225  [Reserved]


Sec.  300.226  Early intervening services.

    (a) General. An LEA may not use more than 15 percent of the amount 
such agency receives under Part B of the Act for any fiscal year, less 
any amount reduced by the agency pursuant to Sec.  300.205, if any, in 
combination with other amounts (which may include amounts other than 
education funds), to develop and implement coordinated, early 
intervening services, which may include interagency financing 
structures, for students in kindergarten through grade 12 (with a 
particular emphasis on students in kindergarten through grade three) 
who have not been identified as needing special education or related 
services, but who need additional academic and behavioral support to 
succeed in a general education environment.
    (b) Activities. In implementing coordinated, early intervening 
services under this section, an LEA may carry out activities that 
include--
    (1) Professional development (which may be provided by entities 
other than LEAs) for teachers and other school staff to enable such 
personnel to deliver scientifically based academic and behavioral 
interventions, including scientifically based literacy instruction, 
and, where appropriate, instruction on the use of adaptive and 
instructional software; and
    (2) Providing educational and behavioral evaluations, services, and 
supports, including scientifically based literacy instruction.
    (c) Construction. Nothing in this section shall be construed to 
either limit or create a right to FAPE under Part B of the Act or to 
delay appropriate evaluation of a child suspected of having a 
disability.
    (d) Reporting. Each LEA that develops and maintains coordinated, 
early intervening services under this section must annually report to 
the SEA on--
    (1) The number of children served under this section; and
    (2) The number of children served under this section who 
subsequently receive special education and related services under Part 
B of the Act during the preceding two year period.
    (e) Coordination with ESEA. Funds made available to carry out this 
section may be used to carry out coordinated, early intervening 
services aligned with activities funded by, and carried out under the 
ESEA if those funds are used to supplement, and not supplant, funds 
made available under the ESEA for the activities and services assisted 
under this section.

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

Sec.  300.227  Direct services by the SEA.

    (a) General. (1) An SEA must use the payments that would otherwise 
have been available to an LEA or to a State agency to provide special 
education and related services directly to children with disabilities 
residing in the area served by that LEA, or for whom that State agency 
is responsible, if the SEA

[[Page 35861]]

determines that the LEA or State agency--
    (i) Has not provided the information needed to establish the 
eligibility of the LEA or State agency, or elected not to apply for its 
Part B allotment, under Part B of the Act;
    (ii) Is unable to establish and maintain programs of FAPE that meet 
the requirements of this part;
    (iii) Is unable or unwilling to be consolidated with one or more 
LEAs in order to establish and maintain the programs; or
    (iv) Has one or more children with disabilities who can best be 
served by a regional or State program or service delivery system 
designed to meet the needs of these children.
    (2) SEA administrative procedures. (i) In meeting the requirements 
in paragraph (a)(1) of this section, the SEA may provide special 
education and related services directly, by contract, or through other 
arrangements.
    (ii) The excess cost requirements of Sec.  300.202(b) do not apply 
to the SEA.
    (b) Manner and location of education and services. The SEA may 
provide special education and related services under paragraph (a) of 
this section in the manner and at the locations (including regional or 
State centers) as the SEA considers appropriate. The education and 
services must be provided in accordance with this part.

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

Sec.  300.228  State agency eligibility.

    Any State agency that desires to receive a subgrant for any fiscal 
year under Sec.  300.705 must demonstrate to the satisfaction of the 
SEA that--
    (a) All children with disabilities who are participating in 
programs and projects funded under Part B of the Act receive FAPE, and 
that those children and their parents are provided all the rights and 
procedural safeguards described in this part; and
    (b) The agency meets the other conditions of this subpart that 
apply to LEAs.

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

Sec.  300.229  Disciplinary information.

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

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

Sec.  300.230  SEA flexibility.

    (a) Adjustment to State fiscal effort in certain fiscal years. For 
any fiscal year for which the allotment received by a State under Sec.  
300.703 exceeds the amount the State received for the previous fiscal 
year and if the State in school year 2003-2004 or any subsequent school 
year pays or reimburses all LEAs within the State from State revenue 
100 percent of the non-Federal share of the costs of special education 
and related services, the SEA, notwithstanding Sec. Sec.  300.162 
through 300.163 (related to State-level nonsupplanting and maintenance 
of effort), and Sec.  300.175 (related to direct services by the SEA) 
may reduce the level of expenditures from State sources for the 
education of children with disabilities by not more than 50 percent of 
the amount of such excess.
    (b) Prohibition. Notwithstanding paragraph (a) of this section, if 
the Secretary determines that an SEA is unable to establish, maintain, 
or oversee programs of FAPE that meet the requirements of this part, or 
that the State needs assistance, intervention, or substantial 
intervention under Sec.  300.603, the Secretary prohibits the SEA from 
exercising the authority in paragraph (a) of this section.
    (c) Education activities. If an SEA exercises the authority under 
paragraph (a) of this section, the agency must use funds from State 
sources, in an amount equal to the amount of the reduction under 
paragraph (a) of this section, to support activities authorized under 
the ESEA, or to support need-based student or teacher higher education 
programs.
    (d) Report. For each fiscal year for which an SEA exercises the 
authority under paragraph (a) of this section, the SEA must report to 
the Secretary--
    (1) The amount of expenditures reduced pursuant to that paragraph; 
and
    (2) The activities that were funded pursuant to paragraph (c) of 
this section.
    (e) Limitation. (1) Notwithstanding paragraph (a) of this section, 
an SEA may not reduce the level of expenditures described in paragraph 
(a) of this section if any LEA in the State would, as a result of such 
reduction, receive less than 100 percent of the amount necessary to 
ensure that all children with disabilities served by the LEA receive 
FAPE from the combination of Federal funds received under Part B of the 
Act and State funds received from the SEA.
    (2) If an SEA exercises the authority under paragraph (a) of this 
section, LEAs in the State may not reduce local effort under Sec.  
300.205 by more than the reduction in the State funds they receive.

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

Subpart D--Evaluations, Eligibility Determinations, Individualized 
Education Programs, and Educational Placements

Parental Consent


Sec.  300.300  Parental consent.

    (a) Consent for initial evaluation. (1)(i) Except as provided in 
paragraph (a)(2) of this section (regarding consent for wards of the 
State), the public agency proposing to conduct an initial evaluation to 
determine if a child qualifies as a child with a disability under Sec.  
300.8 must obtain informed consent from the parent of the child before 
conducting the evaluation.
    (ii) Parental consent for initial evaluation must not be construed 
as consent for initial provision of special education and related 
services.
    (2)(i) If the child is a ward of the State and is not residing with 
the child's parent, the public agency must make reasonable efforts to 
obtain the informed consent from the parent for an initial evaluation 
to determine whether the child is a child with a disability.
    (ii) The public agency is not required to obtain informed consent 
from the parent for an initial evaluation to determine whether the 
child is a child with a disability if--
    (A) Despite reasonable efforts to do so, the public agency cannot 
discover the whereabouts of the parent of the child;
    (B) The rights of the parents of the child have been terminated in 
accordance with State law; or
    (C) The rights of the parent to make educational decisions have 
been subrogated by a judge in accordance with State law and consent for 
an initial evaluation has been given by an individual appointed by the 
judge to represent the child.
    (3) If the parent of a child enrolled in public school or seeking 
to be enrolled in public school does not provide consent for initial 
evaluation under paragraph (a)(1) of this section, or the

[[Page 35862]]

parent fails to respond to a request to provide consent, the public 
agency may, but is not required to, pursue the initial evaluation of 
the child by utilizing the procedural safeguards in subpart E of this 
part (including the mediation procedures under Sec.  300.506 or the due 
process procedures under Sec. Sec.  300.507 through 300.516), if 
appropriate, except to the extent inconsistent with State law relating 
to such parental consent.
    (b) Parental consent for services. (1) A public agency that is 
responsible for making FAPE available to a child with a disability must 
seek to obtain informed consent from the parent of the child before the 
initial provision of special education and related services to the 
child.
    (2) If the parent of a child fails to respond or refuses to consent 
to services under paragraph (b)(1) of this section, the public agency 
may not use the procedures in Subpart E of this part (including the 
mediation procedures under Sec.  300.506 or the due process procedures 
under Sec. Sec.  300.507 through 300.516) in order to obtain agreement 
or a ruling that the services may be provided to the child.
    (3) If the parent of the child refuses to consent to the initial 
provision of special education and related services, or the parent 
fails to respond to a request to provide consent for the initial 
provision of special education and related services, the public 
agency--
    (i) Will not be considered to be in violation of the requirement to 
make available FAPE to the child for the failure to provide the child 
with the special education and related services for which the public 
agency requests consent; and
    (ii) Is not required to convene an IEP meeting or develop an IEP 
under Sec. Sec.  300.320 and 300.324 for the child for the special 
education and related services for which the public agency requests 
such consent.
    (c) Parental consent for reevaluations. (1) Subject to paragraph 
(c)(2) of this section, each public agency must obtain informed 
parental consent, in accordance with Sec.  300.300(a), prior to 
conducting any reevaluation of a child with a disability.
    (2) The informed parental consent described in paragraph (c)(1) of 
this ection need not be obtained if the public agency can demonstrate 
that--
    (i) It had taken reasonable measures to obtain such consent; and
    (ii) The child's parent has failed to respond.
    (d) Other consent requirements.
    (1) Parental consent is not required before--(i) Reviewing existing 
data as part of an evaluation or a reevaluation; or
    (ii) Administering a test or other evaluation that is administered 
to all children unless, before administration of that test or 
evaluation, consent is required of parents of all children.
    (2) In addition to the parental consent requirements described in 
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.
    (3) A public agency may not use a parent's refusal to consent to 
one service or activity under paragraphs (a) and (d)(2) of this section 
to deny the parent or child any other service, benefit, or activity of 
the public agency, except as required by this part.

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

Evaluations and Reevaluations


Sec.  300.301  Initial evaluations.

    (a) General. Each public agency must conduct a full and individual 
initial evaluation, in accordance with Sec. Sec.  300.305 and 300.306, 
before the initial provision of special education and related services 
to a child with a disability under this part.
    (b) Request for initial evaluation. Consistent with the consent 
requirements in Sec.  300.300, either a parent of a child, or a public 
agency, may initiate a request for an initial evaluation to determine 
if the child is a child with a disability.
    (c) Procedures for initial evaluation. The initial evaluation--
    (1)(i) Must be conducted within 60 days of receiving parental 
consent for the evaluation; or
    (ii) If the State establishes a timeframe within which the 
evaluation must be conducted, within that timeframe; and
    (2) Must consist of procedures--
    (i) To determine if the child is a child with a disability under 
Sec.  300.8; and
    (ii) To determine the educational needs of the child.
    (d) Exception. The timeframe described in paragraph (c)(1) of this 
section shall not apply to a public agency if--
    (1) The parent of a child repeatedly fails or refuses to produce 
the child for the evaluation; or
    (2)(i) A child enrolls in a school served by the public agency 
after the relevant timeframe in paragraph (c)(1) of this section has 
begun, and prior to a determination by the child's previous public 
agency as to whether the child is a child with a disability under Sec.  
300.8.
    (ii) The exception in paragraph (c)(2)(ii)(A) of this section 
applies only if the subsequent public agency is making sufficient 
progress to ensure a prompt completion of the evaluation, and the 
parent and subsequent public agency agree to a specific time when the 
evaluation will be completed.

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

Sec.  300.302  Screening for instructional purposes is not evaluation.

    The screening of a student by a teacher or specialist to determine 
appropriate instructional strategies for curriculum implementation 
shall not be considered to be an evaluation for eligibility for special 
education and related services.

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

Sec.  300.303  Reevaluations.

    (a) General. A public agency must ensure that a reevaluation of 
each child with a disability is conducted in accordance with Sec. Sec.  
300.304 through 300.311--
    (1) If the public agency determines that the educational or related 
services needs, including improved academic achievement and functional 
performance, of the child warrant a reevaluation; or
    (2) If the child's parent or teacher requests a reevaluation.
    (b) Limitation. A reevaluation conducted under paragraph (a) of 
this section--
    (1) May occur not more than once a year, unless the parent and the 
public agency agree otherwise; and
    (2) Must occur at least once every 3 years, unless the parent and 
the public agency agree that a reevaluation is unnecessary.

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

Sec.  300.304  Evaluation procedures.

    (a) Notice. The public agency must provide notice to the parents of 
a child with a disability, in accordance with Sec.  300.503, that 
describes any evaluation procedures the agency proposes to conduct.
    (b) Conduct of evaluation. In conducting the evaluation, the public 
agency must--
    (1) Use a variety of assessment tools and strategies to gather 
relevant functional, developmental, and academic information about the 
child, including information provided by the parent, that may assist in 
determining--
    (i) Whether the child is a child with a disability under Sec.  
300.8; and
    (ii) The content of the child's IEP, including information related 
to

[[Page 35863]]

enabling the child to be involved in and progress in the general 
education curriculum (or for a preschool child, to participate in 
appropriate activities);
    (2) Not use any single procedure as the sole criterion for 
determining whether a child is a child with a disability and for 
determining an appropriate educational program for the child; and
    (3) Use technically sound instruments that may assess the relative 
contribution of cognitive and behavioral factors, in addition to 
physical or developmental factors.
    (c) Other evaluation procedures. Each public agency must ensure 
that--
    (1) Assessments and other evaluation materials used to assess a 
child under this part--
    (i) Are selected and administered so as not to be discriminatory on 
a racial or cultural basis;
    (ii) Are provided and administered in the child's native language 
or other mode of communication and in the form most likely to yield 
accurate information on what the child knows and can do academically, 
developmentally, and functionally, unless it is clearly not feasible to 
so provide or administer;
    (iii) Are used for the purposes for which the assessments or 
measures are valid and reliable;
    (iv) Are administered by trained and knowledgeable personnel; and
    (v) Are administered in accordance with any instructions provided 
by the producer of the assessments.
    (2) Assessments and other evaluation materials include those 
tailored to assess specific areas of educational need and not merely 
those that are designed to provide a single general intelligence 
quotient.
    (3) Assessments are selected and administered so as best to ensure 
that if an assessment is administered to a child with impaired sensory, 
manual, or speaking skills, the assessment results accurately reflect 
the child's aptitude or achievement level or whatever other factors the 
test purports to measure, rather than reflecting the child's impaired 
sensory, manual, or speaking skills (unless those skills are the 
factors that the test purports to measure).
    (4) The child is assessed in all areas related to the suspected 
disability, including, if appropriate, health, vision, hearing, social 
and emotional status, general intelligence, academic performance, 
communicative status, and motor abilities;
    (5) Assessments of children with disabilities who transfer from one 
public agency to another public agency in the same academic year are 
coordinated with those children's prior and subsequent schools, as 
necessary and as expeditiously as possible, to ensure prompt completion 
of full evaluations.
    (6) In evaluating each child with a disability under Sec. Sec.  
300.304 through 300.306, the evaluation is sufficiently comprehensive 
to identify all of the child's special education and related services 
needs, whether or not commonly linked to the disability category in 
which the child has been classified.
    (7) Assessment tools and strategies that provide relevant 
information that directly assists persons in determining the 
educational needs of the child are provided.

(Authority: 20 U.S.C. 1414(b)(1)-(3), 1412(a)(6)(B))

Sec.  300.305  Additional requirements for evaluations and 
reevaluations.

    (a) Review of existing evaluation data. As part of an initial 
evaluation (if appropriate) and as part of any reevaluation under this 
part, the IEP Team and other qualified professionals, as appropriate, 
must--
    (1) Review existing evaluation data on the child, including--
    (i) Evaluations and information provided by the parents of the 
child;
    (ii) Current classroom-based local or State assessments, and 
classroom-based observations; and
    (iii) Observations by teachers and related services providers; and
    (2) On the basis of that review, and input from the child's 
parents, identify what additional data, if any, are needed to 
determine--
    (i)(A) Whether the child is a child with a disability, as defined 
in Sec.  300.8, and the educational needs of the child; or
    (B) In case of a reevaluation of a child, whether the child 
continues to have such a disability, and the educational needs of the 
child;
    (ii) The present levels of academic achievement and related 
developmental needs of the child;
    (iii)(A) Whether the child needs special education and related 
services; or
    (B) In the case of a reevaluation of a child, whether the child 
continues to need special education and related services; and
    (iv) Whether any additions or modifications to the special 
education and related services are needed to enable the child to meet 
the measurable annual goals set out in the IEP of the child and to 
participate, as appropriate, in the general education curriculum.
    (b) Conduct of review. The group described in paragraph (a) of this 
section may conduct its review without a meeting.
    (c) Source of data. The public agency must administer such 
assessments and other evaluation measures as may be needed to produce 
the data identified under paragraph (a) of this section.
    (d) Requirements if additional data are not needed.
    (1) If the IEP Team and other qualified professionals, as 
appropriate, determine that no additional data are needed to determine 
whether the child continues to be a child with a disability, and to 
determine the child's educational needs, the public agency must notify 
the child's parents of--
    (i) That determination and the reasons for the determination; and
    (ii) The right of the parents to request an assessment to determine 
whether the child continues to be a child with a disability, and to 
determine the child's educational needs.
    (2) The public agency is not required to conduct the assessment 
described in paragraph (d)(1)(ii) of this section unless requested to 
do so by the child's parents.
    (e) Evaluations before change in placement.
    (1) Except as provided in paragraph (e)(2) of this section, a 
public agency must evaluate a child with a disability in accordance 
with Sec. Sec.  300.304 through 300.311 before determining that the 
child is no longer a child with a disability.
    (2) The evaluation described in paragraph (e)(1) of this section is 
not required before the termination of a child's eligibility under this 
part due to graduation from secondary school with a regular diploma, or 
due to exceeding the age eligibility for FAPE under State law.
    (3) For a child whose eligibility terminates under circumstances 
described in paragraph (e)(2) of this section, a public agency must 
provide the child with a summary of the child's academic achievement 
and functional performance, which shall include recommendations on how 
to assist the child in meeting the child's postsecondary goals.

(Authority: 20 U.S.C. 1414(c))

Sec.  300.306  Determination of eligibility.

    (a) General. Upon completion of the administration of assessments 
and other evaluation measures--
    (1) A group of qualified professionals and the parent of the child 
determines whether the child is a child with a disability, as defined 
in Sec.  300.8, in accordance with paragraph (b) of this section and 
the educational needs of the child; and

[[Page 35864]]

    (2) The public agency provides a copy of the evaluation report and 
the documentation of determination of eligibility to the parent.
    (b) Special rule for eligibility determination. A child must not be 
determined to be a child with a disability under this part--
    (1) If the determinant factor for that determination is--
    (i) Lack of appropriate instruction in reading, including the 
essential components of reading instruction (as defined in section 
1208(3) of the ESEA);
    (ii) Lack of instruction in math; or
    (iii) Limited English proficiency; and
    (2) If the child does not otherwise meet the eligibility criteria 
under Sec.  300.8(a).
    (c) Procedures for determining eligibility and placement. (1) In 
interpreting evaluation data for the purpose of determining if a child 
is a child with a disability under Sec.  300.8, and the educational 
needs of the child, each public agency must--
    (i) Draw upon information from a variety of sources, including 
aptitude and achievement tests, parent input, teacher recommendations, 
physical condition, social or cultural background, and adaptive 
behavior; and
    (ii) Ensure that information obtained from all of these sources is 
documented and carefully considered.
    (2) If a determination is made that a child has a disability and 
needs special education and related services, an IEP must be developed 
for the child in accordance with Sec. Sec.  300.320 through 300.324.

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

Additional Procedures for Evaluating Children With Specific Learning 
Disabilities


Sec.  300.307  Specific learning disabilities.

    (a) General. A State must adopt, consistent with Sec.  300.309, 
criteria for determining whether a child has a specific learning 
disability as defined in Sec.  300.8. In addition, the criteria adopted 
by the State--
    (1) May prohibit the use of a severe discrepancy between 
intellectual ability and achievement for determining whether a child 
has a specific learning disability as defined in Sec.  300.8;
    (2) May not require the use of a severe discrepancy between 
intellectual ability and achievement for determining whether a child 
has a specific learning disability as defined in Sec.  300.8;
    (3) Must permit the use of a process that determines if the child 
responds to scientific, research-based intervention as part of the 
evaluation procedures described in Sec.  300.304; and
    (4) May permit the use of other alternative research-based 
procedures for determining whether a child has a specific learning 
disability as defined in Sec.  300.8.
    (b) Consistency with State criteria. A public agency must use the 
State criteria adopted pursuant to paragraph (a) of this section in 
determining whether a child has a specific learning disability.

(Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))

Sec.  300.308  Group members.

    The determination of whether a child suspected of having a specific 
learning disability is a child with a disability, as defined in Sec.  
300.8, is made by the child's parents and the group described under 
Sec.  300.306(a)(1) that--
    (a) Is collectively qualified to--
    (1) Conduct, as appropriate, individual diagnostic assessments in 
the areas of speech and language, academic achievement, intellectual 
development, and social-emotional development;
    (2) Interpret assessment and intervention data, and apply critical 
analysis to those data;
    (3) Develop appropriate educational and transitional 
recommendations based on the assessment data; and
    (4) Deliver, and monitor specifically designed instruction and 
services to meet the needs of a child with a specific learning 
disability; and
    (b) Includes--(1) A special education teacher;
    (2)(i) The child's general education teacher; or
    (ii) If the child does not have a general education teacher, a 
general education teacher qualified to teach a child of the child's 
age; and
    (c) Other professionals, if appropriate, such as a school 
psychologist, reading teacher, or educational therapist.

(Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))

Sec.  300.309  Determining the existence of a specific learning 
disability.

    (a) The group described in Sec.  300.308 may determine that a child 
has a specific learning disability if--
    (1) The child does not achieve commensurate with the child's age in 
one or more of the following areas, when provided with learning 
experiences appropriate for the child's age:
    (i) Oral expression.
    (ii) Listening comprehension.
    (iii) Written expression.
    (iv) Basic reading skill.
    (v) Reading fluency skills.
    (vi) Reading comprehension.
    (vii) Mathematics calculation.
    (viii) Mathematics problem solving.
    (2)(i) The child fails to achieve a rate of learning to make 
sufficient progress to meet State-approved results in one or more of 
the areas identified in paragraph (a)(1) of this section when assessed 
with a response to scientific, research-based intervention process; or
    (ii) The child exhibits a pattern of strengths and weaknesses in 
performance, achievement, or both, or a pattern of strengths and 
weaknesses in performance, achievement, or both, relative to 
intellectual development, that is determined by the team to be relevant 
to the identification of a specific learning disability, using 
appropriate assessments consistent with Sec. Sec.  300.304 and 300.305; 
and
    (3) The group determines that its findings under paragraph (a)(1) 
and (2) of this section are not primarily the result of--
    (i) A visual, hearing, or motor disability;
    (ii) Mental retardation;
    (iii) Emotional disturbance;
    (iv) Cultural factors; or
    (v) Environmental or economic disadvantage.
    (b) For a child suspected of having a specific learning disability, 
the group must consider, as part of the evaluation described in 
Sec. Sec.  300.304 through 300.306, data that demonstrates that--
    (1) Prior to, or as a part of the referral process, the child was 
provided appropriate high-quality, research-based instruction in 
regular education settings, consistent with section 1111(b)(8)(D) and 
(E) of the ESEA, including that the instruction was delivered by 
qualified personnel; and
    (2) Data-based documentation of repeated assessments of achievement 
at reasonable intervals, reflecting formal assessment of student 
progress during instruction, was provided to the child's parents.
    (c) If the child has not made adequate progress after an 
appropriate period of time, during which the conditions in paragraphs 
(b)(1) and (2) of this section have been implemented, a referral for an 
evaluation to determine if the child needs special education and 
related services must be made.
    (d) Once the child is referred for an evaluation to determine if 
the child needs special education and related services, the timelines 
described in Sec. Sec.  300.301 and 300.303 must be adhered to, unless 
extended by mutual written agreement of the child's parents and a group 
of qualified professionals, as described in Sec.  300.308.

(Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))


[[Page 35865]]




Sec.  300.310  Observation.

    (a) At least one member of the group described in Sec.  300.308, 
other than the child's current teacher, who is trained in observation, 
shall observe the child, and the learning environment, including the 
regular classroom setting, to document academic performance and 
behavior in the areas of difficulty.
    (b) In the case of a child of less than school age or out of 
school, a group member must observe the child in an environment 
appropriate for a child of that age.

(Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))

Sec.  300.311  Written report.

    (a) For a child suspected of having a specific learning disability, 
the evaluation report and the documentation of the determination of 
eligibility, as required by Sec.  300.306(a)(2), must include a 
statement of--
    (1) Whether the child has a specific learning disability;
    (2) The basis for making the determination, including an assurance 
that the determination has been made in accordance with Sec.  
300.306(c)(1);
    (3) The relevant behavior, if any, noted during the observation of 
the child and the relationship of that behavior to the child's academic 
functioning;
    (4) The educationally relevant medical findings, if any;
    (5) Whether the child does not achieve commensurate with the 
child's age;
    (6) Whether there are strengths and weaknesses in performance or 
achievement or both, or there are strengths and weaknesses in 
performance or achievement, or both, relative to intellectual 
development in one or more of the areas described in Sec.  300.309(a) 
that require special education and related services; and
    (7) The instructional strategies used and the student-centered data 
collected if a response to scientific, research-based intervention 
process, as described in Sec.  300.309 was implemented.
    (b) Each group member shall certify in writing whether the report 
reflects his or her conclusion. If it does not reflect his or her 
conclusion, the group member must submit a separate statement 
presenting his or her conclusions.

(Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))

Individualized Education Programs


Sec.  300.320  Definition of individualized education program.

    (a) General. As used in this part, the term individualized 
education program or IEP means a written statement for each child with 
a disability that is developed, reviewed, and revised in a meeting in 
accordance with Sec. Sec.  300.320 through 300.324, and that must 
include--
    (1) A statement of the child's present levels of academic 
achievement and functional performance, including--
    (i) How the child's disability affects the child's involvement and 
progress in the general education curriculum (i.e., the same curriculum 
as for nondisabled children); or
    (ii) For preschool children, as appropriate, how the disability 
affects the child's participation in appropriate activities;
    (2)(i) A statement of measurable annual goals, including academic 
and functional goals designed to--
    (A) Meet the child's needs that result from the child's disability 
to enable the child to be involved in and make progress in the general 
education curriculum; and
    (B) Meet each of the child's other educational needs that result 
from the child's disability;
    (ii) For children with disabilities who take alternate assessments 
aligned to alternate achievement standards, a description of benchmarks 
or short-term objectives;
    (3) A description of--
    (i) How the child's progress toward meeting the annual goals 
described in paragraph (2) of this section will be measured; and
    (ii) When periodic reports on the progress the child is making 
toward meeting the annual goals (such as through the use of quarterly 
or other periodic reports, concurrent with the issuance of report 
cards) will be provided;
    (4) A statement of the special education and related services and 
supplementary aids and services, based on peer-reviewed research to the 
extent practicable, to be provided to the child, or on behalf of the 
child, and a statement of the program modifications or supports for 
school personnel that will be provided to enable the child--
    (i) To advance appropriately toward attaining the annual goals;
    (ii) To be involved in and make progress in the general education 
curriculum in accordance with paragraph (a)(1) of this section, and to 
participate in extracurricular and other nonacademic activities; and
    (iii) To be educated and participate with other children with 
disabilities and nondisabled children in the activities described in 
this section;
    (5) An explanation of the extent, if any, to which the child will 
not participate with nondisabled children in the regular education 
environment and in the activities described in paragraph (a)(4) of this 
section;
    (6)(i) A statement of any individual appropriate accommodations 
that are necessary to measure the academic achievement and functional 
performance of the child on State and districtwide assessments 
consistent with Sec.  300.160; and
    (ii) If the IEP Team determines that the child must take an 
alternate assessment instead of a particular regular State or 
districtwide assessment of student achievement, a statement of why--
    (A) The child cannot participate in the regular assessment; and
    (B) The particular alternate assessment selected is appropriate for 
the child; and
    (7) The projected date for the beginning of the services and 
modifications described in paragraph (a)(4) of this section, and the 
anticipated frequency, location, and duration of those services and 
modifications.
    (b) Transition services. Beginning not later than the first IEP to 
be in effect when the child turns 16, or younger if determined 
appropriate by the IEP Team, and updated annually, thereafter, the IEP 
must include--
    (1) Appropriate measurable postsecondary goals based upon age 
appropriate transition assessments related to training, education, 
employment, and, where appropriate, independent living skills; and
    (2) The transition services (including courses of study) needed to 
assist the child in reaching those goals.
    (c) Transfer of rights at age of majority. Beginning not later than 
one year before the child reaches the age of majority under State law, 
the IEP must include a statement that the child has been informed of 
the child's rights under Part B of the Act, if any, that will transfer 
to the child on reaching the age of majority under Sec.  300.520.
    (d) Construction. Nothing in this section shall be construed to 
require--
    (1) That additional information be included in a child's IEP beyond 
what is explicitly required in section 614 of the Act; or
    (2) The IEP Team to include information under one component of a 
child's IEP that is already contained under another component of the 
child's IEP.

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


[[Page 35866]]




Sec.  300.321  IEP Team.

    (a) General. The public agency must ensure that the IEP Team for 
each child with a disability includes--
    (1) The parents of the child;
    (2) Not less than one regular education teacher of the child (if 
the child is, or may be, participating in the regular education 
environment);
    (3) Not less than one special education teacher of the child, or 
where appropriate, not less then one special education provider of the 
child;
    (4) A representative of the public agency who--
    (i) Is qualified to provide, or supervise the provision of, 
specially designed instruction to meet the unique needs of children 
with disabilities;
    (ii) Is knowledgeable about the general education curriculum; and
    (iii) Is knowledgeable about the availability of resources of the 
public agency.
    (5) An individual who can interpret the instructional implications 
of evaluation results, who may be a member of the team described in 
paragraphs (a)(2) through (a)(6) of this section;
    (6) At the discretion of the parent or the agency, other 
individuals who have knowledge or special expertise regarding the 
child, including related services personnel as appropriate; and
    (7) Whenever appropriate, the child with a disability.
    (b) Transition services participants. (1) In accordance with 
paragraph (a)(7) of this section, the public agency must invite a child 
with a disability to attend the child's IEP meeting if a purpose of the 
meeting will be the consideration of the postsecondary goals for the 
child and the transition services needed to assist the child in 
reaching those goals under Sec.  300.320(b).
    (2) If the child does not attend the IEP meeting, the public agency 
must take other steps to ensure that the child's preferences and 
interests are considered.
    (3) To the extent appropriate, with the consent of the parents or a 
child who has reached the age of majority, in implementing the 
requirements of paragraph (b)(1) of this section, the public agency 
must invite a representative of any participating agency that is likely 
to be responsible for providing or paying for transition services.
    (c) Determination of knowledge and special expertise. The 
determination of the knowledge or special expertise of any individual 
described in paragraph (a)(6) of this section must be made by the party 
(parents or public agency) who invited the individual to be a member of 
the IEP Team.
    (d) Designating a public agency representative. A public agency may 
designate a public agency member of the IEP Team to also serve as the 
agency representative, if the criteria in paragraph (a)(4) of this 
section are satisfied.
    (e) IEP Team attendance.
    (1) A member of the IEP Team is not required to attend an IEP 
meeting, in whole or in part, if the parent of a child with a 
disability and the public agency agree, in writing, that the attendance 
of the member is not necessary because the member's area of the 
curriculum or related services is not being modified or discussed in 
the meeting.
    (2) A member of the IEP Team may be excused from attending an IEP 
meeting, in whole or in part, when the meeting involves a modification 
to or discussion of the member's area of the curriculum or related 
services, if--
    (i) The parent, in writing, and the public agency consent to the 
excusal; and
    (ii) The member submits, in writing to the parent and the IEP Team, 
input into the development of the IEP prior to the meeting.
    (f) Initial IEP meeting for child under Part C. In the case of a 
child who was previously served under Part C of the Act, an invitation 
to the initial IEP meeting must, at the request of the parent, be sent 
to the Part C service coordinator or other representatives of the Part 
C system to assist with the smooth transition of services.

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

Sec.  300.322  Parent participation.

    (a) Public agency responsibility--general. Each public agency must 
take steps to ensure that one or both of the parents of a child with a 
disability are present at each IEP meeting or are afforded the 
opportunity to participate, including--
    (1) Notifying parents of the meeting early enough to ensure that 
they will have an opportunity to attend; and
    (2) Scheduling the meeting at a mutually agreed on time and place.
    (b) Information provided to parents. (1) The notice required under 
paragraph (a)(1) of this section must--
    (i) Indicate the purpose, time, and location of the meeting and who 
will be in attendance; and
    (ii) Inform the parents of the provisions in Sec.  300.321(a)(6) 
and (c) (relating to the participation of other individuals on the IEP 
Team who have knowledge or special expertise about the child).
    (2) For a child with a disability beginning not later than the 
first IEP to be in effect when the child turns 16, or younger if 
determined appropriate by the IEP Team, the notice also must--
    (i) Indicate--
    (A) That a purpose of the meeting will be the consideration of the 
postsecondary goals and transition services for the child, in 
accordance with Sec.  300.320(b); and
    (B) That the agency will invite the student; and
    (ii) Identifies 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 must use other methods to ensure parent 
participation, including individual or conference telephone calls, 
consistent with Sec.  300.328 (related to alternative means of meeting 
participation).
    (d) Conducting an IEP meeting without a parent in attendance. A 
meeting may be conducted without a parent in attendance if the public 
agency is unable to convince the parents that they should attend. In 
this case, the public agency must keep a record of its attempts to 
arrange a mutually agreed on time and place.
    (e) Parent copy of child's IEP. The public agency must give the 
parent a copy of the child's IEP at no cost to the parent.

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

Sec.  300.323  When IEPs must be in effect.

    (a) General. At the beginning of each school year, each public 
agency must have in effect, for each child with a disability within its 
jurisdiction, an IEP, as defined in Sec.  300.320.
    (b) IEP or IFSP for children aged three through five.
    (1) In the case of a child with a disability aged three through 
five (or, at the discretion of the SEA, a two-year-old child with a 
disability who will turn age three during the school year), the IEP 
Team must consider an IFSP that contains the IFSP content (including 
the natural environments statement) described in section 636(d) of the 
Act and its implementing regulations (including an educational 
component that promotes school readiness and incorporates pre-literacy, 
language, and numeracy skills for children with IFSPs under this 
section who are at least three years of age), and that is developed in 
accordance with the IEP procedures under this part. The IFSP may serve 
as the IEP of the child, if using the IFSP as the IEP is--
    (i) Consistent with State policy; and
    (ii) Agreed to by the agency and the child's parents.

[[Page 35867]]

    (2) In implementing the requirements of paragraph (b)(1) of this 
section, the public agency must--
    (i) Provide to the child's parents a detailed explanation of the 
differences between an IFSP and an IEP; and
    (ii) If the parents choose an IFSP, obtain written informed consent 
from the parents.
    (c) Initial IEPs; provision of services. Each public agency must 
ensure that--
    (1) A meeting to develop an IEP for a child is conducted within 30-
days of a determination that the child needs special education and 
related services; and
    (2) As soon as possible following development of the IEP, special 
education and related services are made available to the child in 
accordance with the child's IEP.
    (d) Accessibility of child's IEP to teachers and others. Each 
public agency must ensure that 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.
    (e) Program for children who transfer public agencies. (1)(i) In 
the case of a child with a disability who transfers public agencies 
within the same academic year, who enrolls in a new school, and who had 
an IEP that was in effect in the same State, the public agency, in 
consultation with the parents, must provide FAPE to the child, 
including services comparable to those described in the previously held 
IEP, until such time as the public agency adopts the previously held 
IEP or develops, adopts, and implements a new IEP that is consistent 
with Federal and State law.
    (ii) In the case of a child with a disability who transfers public 
agencies within the same academic year, who enrolls in a new school, 
and who had an IEP that was in effect in another State, the public 
agency, in consultation with the parents, must provide the child with 
FAPE, including services comparable to those described in the 
previously held IEP, until such time as the public agency conducts an 
evaluation pursuant to Sec. Sec.  300.304 through 300.306, if 
determined to be necessary by the public agency, and develops a new 
IEP, if appropriate, that is consistent with Federal and State law.
    (2) To facilitate the transition for a child described in paragraph 
(e)(1) of this section--
    (i) The new public agency in which the child enrolls must take 
reasonable steps to promptly obtain the child's records, including the 
IEP and supporting documents and any other records relating to the 
provision of special education or related services to the child, from 
the previous public agency in which the child was enrolled, pursuant to 
section 99.31(a)(2) of title 34, Code of Federal Regulations; and
    (ii) The previous public agency in which the child was enrolled 
must take reasonable steps to promptly respond to the request from the 
new public agency.

(Authority: 20 U.S.C. 1414(d)(2)(A)-(C))

Development of IEP


Sec.  300.324  Development, review, and revision of IEP.

    (a) Development of IEP. (1) General. In developing each child's 
IEP, the IEP Team must consider--
    (i) The strengths of the child;
    (ii) The concerns of the parents for enhancing the education of 
their child;
    (iii) The results of the initial or most recent evaluation of the 
child; and
    (iv) The academic, developmental, and functional needs of the 
child.
    (2) Consideration of special factors. The IEP Team must--
    (i) In the case of a child whose behavior impedes the child's 
learning or that of others, consider the use of positive behavioral 
interventions and supports, and other strategies, to address that 
behavior;
    (ii) In the case of a child with limited English proficiency, 
consider the language needs of the child as those needs relate to the 
child's IEP;
    (iii) In the case of a child who is blind or visually impaired, 
provide for instruction in Braille and the use of Braille unless the 
IEP Team determines, after an evaluation of the child's reading and 
writing skills, needs, and appropriate reading and writing media 
(including an evaluation of the child's future needs for instruction in 
Braille or the use of Braille), that instruction in Braille or the use 
of Braille is not appropriate for the child;
    (iv) Consider the communication needs of the child, and in the case 
of a child who is deaf or hard of hearing, consider the child's 
language and communication needs, opportunities for direct 
communications with peers and professional personnel in the child's 
language and communication mode, academic level, and full range of 
needs, including opportunities for direct instruction in the child's 
language and communication mode; and
    (v) Consider whether the child needs assistive technology devices 
and services.
    (3) Requirement with respect to regular education teacher. A 
regular education teacher of a child with a disability, as a member of 
the IEP Team, must, to the extent appropriate, participate in the 
development of the IEP of the child, including the determination of--
    (i) Appropriate positive behavioral interventions and supports and 
other strategies for the child; and
    (ii) Supplementary aids and services, program modifications, and 
support for school personnel consistent with Sec.  300.320(a)(4).
    (4) Agreement. In making changes to a child's IEP after the annual 
IEP meeting for a school year, the parent of a child with a disability 
and the public agency may agree not to convene an IEP meeting for the 
purposes of making those changes, and instead may develop a written 
document to amend or modify the child's current IEP.
    (5) Consolidation of IEP Team meetings. To the extent possible, the 
public agency must encourage the consolidation of reevaluation meetings 
for the child and other IEP Team meetings for the child.
    (6) Amendments. Changes to the IEP may be made either by the entire 
IEP Team or, as provided in paragraph (a)(4) of this section, by 
amending the IEP rather than by redrafting the entire IEP. Upon 
request, a parent must be provided with a revised copy of the IEP with 
the amendments incorporated.
    (b) Review and revision of IEPs.
    (1) General. Each public agency must ensure that, subject to 
paragraph (b)(2) of this section, the IEP Team--
    (i) Reviews the child's IEP periodically, but not less than 
annually, to determine whether the annual goals for the child are being 
achieved; and
    (ii) Revises the IEP, as appropriate, to address--
    (A) Any lack of expected progress toward the annual goals described 
in Sec.  300.320(a)(2), and in the general education curriculum, if 
appropriate;
    (B) The results of any reevaluation conducted under Sec.  300.303;
    (C) Information about the child provided to, or by, the parents, as 
described under Sec.  300.305(a)(2);
    (D) The child's anticipated needs; or
    (E) Other matters.
    (2) Requirement with respect to regular education teacher. A 
regular education teacher of the child, as a member of the IEP Team, 
must, consistent with paragraph (a)(3) of this section, participate in 
the review and revision of the IEP of the child.
    (c) Failure to meet transition objectives.
    (1) Participating agency failure. If a participating agency, other 
than the public agency, fails to provide the transition services 
described in the IEP in accordance with Sec.  300.320(b), the

[[Page 35868]]

public agency must reconvene the IEP Team to identify alternative 
strategies to meet the transition objectives for the child set out in 
the IEP.
    (2) Construction. Nothing in this part relieves any participating 
agency, including a State vocational rehabilitation agency, of the 
responsibility to provide or pay for any transition service that the 
agency would otherwise provide to children with disabilities who meet 
the eligibility criteria of that agency.
    (d) Children with disabilities in adult prisons.
    (1) Requirements that do not apply. The following requirements do 
not apply to children with disabilities who are convicted as adults 
under State law and incarcerated in adult prisons:
    (i) The requirements contained in Sec.  300.160 and Sec.  
300.320(a)(6) (relating to participation of children with disabilities 
in general assessments).
    (ii) The requirements in Sec.  300.320(b) (relating to transition 
planning and transition services), do not apply with respect to the 
children whose eligibility under Part B of the Act will end, because of 
their age, before they will be eligible to be released from prison 
based on consideration of their sentence and eligibility for early 
release.
    (2) Modifications of IEP or placement.
    (i) Subject to paragraph (c)(2)(ii) of this section, the IEP Team 
of a child with a disability who is convicted as an adult under State 
law and incarcerated in an adult prison may modify the child's IEP or 
placement if the State has demonstrated a bona fide security or 
compelling penological interest that cannot otherwise be accommodated.
    (ii) The requirements of Sec. Sec.  300.320 (relating to IEPs), and 
300.112 (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), 1412(a)(12)(A)(i), 1414(d)(3), 
(4)(B), and (7); and 1414(e))

Sec.  300.325  Private school placements by public agencies.

    (a) Developing IEPs. (1) Before a public agency places a child with 
a disability in, or refers a child to, a private school or facility, 
the agency must initiate and conduct a meeting to develop an IEP for 
the child in accordance with Sec. Sec.  300.320 and 300.324.
    (2) The agency must ensure that a representative of the private 
school or facility attends the meeting. If the representative cannot 
attend, the agency must use other methods to ensure participation by 
the private school or facility, including individual or conference 
telephone calls.
    (b) Reviewing and revising IEPs. (1) After a child with a 
disability enters a private school or facility, any meetings to review 
and revise the child's IEP may be initiated and conducted by the 
private school or facility at the discretion of the public agency.
    (2) If the private school or facility initiates and conducts these 
meetings, the public agency must ensure that the parents and an agency 
representative--
    (i) Are involved in any decision about the child's IEP; and
    (ii) Agree to any proposed changes in the IEP before those changes 
are implemented.
    (c) Responsibility. Even if a private school or facility implements 
a child's IEP, responsibility for compliance with this part remains 
with the public agency and the SEA.

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

Sec.  300.326  [Reserved]


Sec.  300.327  Educational placements.

    Consistent with Sec.  300.501(c), each public agency must ensure 
that the parents of each child with a disability are members of any 
group that makes decisions on the educational placement of their child.

(Authority: 20 U.S.C. 1414(e))

Sec.  300.328  Alternative means of meeting participation.

    When conducting IEP Team meetings and placement meetings pursuant 
to this subpart, and Subpart E, and carrying out administrative matters 
under section 615 of the Act (such as scheduling, exchange of witness 
lists, and status conferences), the parent of a child with a disability 
and a public agency may agree to use alternative means of meeting 
participation, such as video conferences and conference calls.

(Authority: 20 U.S.C. 1414(f))

Subpart E--Procedural Safeguards

Due Process Procedures for Parents and Children


Sec.  300.500  Responsibility of SEA and other public agencies.

    Each SEA must ensure that each public agency establishes, 
maintains, and implements procedural safeguards that meet the 
requirements of Sec. Sec.  300.500 through 300.536.

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

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

    (a) Opportunity to examine records. The parents of a child with a 
disability must be afforded, in accordance with the procedures of 
Sec. Sec.  300.610 through 300.628, an opportunity to inspect and 
review all education records with respect to--
    (1) The identification, evaluation, and educational placement of 
the child; and
    (2) The provision of FAPE to the child.
    (b) Parent participation in meetings. (1) The parents of a child 
with a disability must be afforded an opportunity to participate in 
meetings with respect to--
    (i) The identification, evaluation, and educational placement of 
the child; and
    (ii) The provision of FAPE to the child.
    (2) Each public agency must provide notice consistent with Sec.  
300.322(a)(1) and (b)(1) to ensure that parents of children with 
disabilities have the opportunity to participate in meetings described 
in paragraph (b)(1) of this section.
    (3) A meeting does not include informal or unscheduled 
conversations involving public agency personnel and conversations on 
issues such as teaching methodology, lesson plans, or coordination of 
service provision 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 must ensure that a parent of each child with a disability is a 
member of any group that makes decisions on the educational placement 
of the parent's child.
    (2) In implementing the requirements of paragraph (c)(1) of this 
section, the public agency must use procedures consistent with the 
procedures described in Sec.  300.322(a) through (b)(1).
    (3) If neither parent can participate in a meeting in which a 
decision is to be made relating to the educational placement of their 
child, the public agency must use other methods to ensure their 
participation, including individual or conference telephone calls, or 
video conferencing.
    (4) A placement decision may be made by a group without the 
involvement of a parent, if the public agency is unable to obtain the 
parent's participation in the decision. In this case, the public agency 
must have a record of its attempt to ensure their involvement.

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


[[Page 35869]]




Sec.  300.502  Independent educational evaluation.

    (a) General. (1) The parents of a child with a disability have the 
right under this part to obtain an independent educational evaluation 
of the child, subject to paragraphs (b) through (e) of this section.
    (2) Each public agency must provide to parents, upon request for an 
independent educational evaluation, information about where an 
independent educational evaluation may be obtained, and the agency 
criteria applicable for independent educational evaluations as set 
forth in paragraph (e) of this section.
    (3) For the purposes of this subpart--
    (i) Independent educational evaluation means an evaluation 
conducted by a qualified examiner who is not employed by the public 
agency responsible for the education of the child in question; and
    (ii) Public expense means that the public agency either pays for 
the full cost of the evaluation or ensures that the evaluation is 
otherwise provided at no cost to the parent, consistent with Sec.  
300.103.
    (b) Parent right to evaluation at public expense.
    (1) A parent has the right to an independent educational evaluation 
at public expense if the parent disagrees with an evaluation obtained 
by the public agency, subject to the conditions in paragraphs (b)(2) 
through (4) of this section.
    (2) If a parent requests an independent educational evaluation at 
public expense, the public agency must, without unnecessary delay, 
either--
    (i) File a due process complaint to request a hearing to show that 
its evaluation is appropriate; or
    (ii) Ensure that an independent educational evaluation is provided 
at public expense, unless the agency demonstrates in a hearing pursuant 
to Sec. Sec.  300.507 through 300.513 that the evaluation obtained by 
the parent did not meet agency criteria.
    (3) If the public agency files a due process complaint notice to 
request a hearing and the final decision is that the agency's 
evaluation is appropriate, the parent still has the right to an 
independent educational evaluation, but not at public expense.
    (4) If a parent requests an independent educational evaluation, the 
public agency may ask for the parent's reason why he or she objects to 
the public evaluation. However, the 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 
requesting 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 by any party as evidence at a hearing on a due 
process complaint under subpart E of this part regarding that child.
    (d) Requests for evaluations by hearing officers. If a hearing 
officer requests an independent educational evaluation as part of a 
hearing on a due process complaint, the cost of the evaluation must be 
at public expense.
    (e) Agency criteria. (1) If an independent educational evaluation 
is at public expense, the criteria under which the evaluation is 
obtained, including the location of the evaluation and the 
qualifications of the examiner, must be the same as the criteria that 
the public agency uses when it initiates an evaluation, to the extent 
those criteria are consistent with the parent's right to an independent 
educational evaluation.
    (2) Except for the criteria described in paragraph (e)(1) of this 
section, a public agency may not impose conditions or timelines related 
to obtaining an independent educational evaluation at public expense.

(Authority: 20 U.S.C. 1415(b)(1) and (d)(2)(A))

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

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

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

Sec.  300.504  Procedural safeguards notice.

    (a) General. A copy of the procedural safeguards available to the 
parents of a child with a disability must be given to the parents only 
one time a year, except that a copy also must be given to the parents--
    (1) Upon initial referral or parent request for evaluation;
    (2) Upon receipt of the first State complaint under Sec. Sec.  
300.151 through 300.153 or a due process complaint under Sec.  300.507 
in that school year; and
    (3) Upon request by a parent.
    (b) Internet Web site. A public agency may place a current copy of 
the procedural safeguards notice on its Internet Web site if a Web site 
exists.
    (c) Contents. The procedural safeguards notice must include a full 
explanation of all of the procedural safeguards available under Sec.  
300.148, Sec. Sec.  300.151 through 300.153, Sec. Sec.  300.500 through 
300.536, and Sec. Sec.  300.610 through 300.627 relating to--
    (1) Independent educational evaluations;

[[Page 35870]]

    (2) Prior written notice;
    (3) Parental consent;
    (4) Access to educational records;
    (5) Opportunity to present and resolve complaints through the due 
process complaint or State complaint procedures, including--
    (i) The time period in which to file a complaint;
    (ii) The opportunity for the agency to resolve the complaint; and
    (iii) The difference between the due process complaint and the 
State complaint procedures, including the jurisdiction of each 
procedure, what issues may be raised, filing and decisional timelines, 
and relevant procedures;
    (6) The availability of mediation;
    (7) The child's placement during pendency of hearings on due 
process complaints;
    (8) Procedures for students who are subject to placement in an 
interim alternative educational setting;
    (9) Requirements for unilateral placement by parents of children in 
private schools at public expense;
    (10) Hearings on due process complaints, including requirements for 
disclosure of evaluation results and recommendations;
    (11) State-level appeals (if applicable in that State);
    (12) Civil actions, including the time period in which to file 
those actions; and
    (13) Attorneys' fees.
    (d) Notice in understandable language. The notice required under 
paragraph (a) of this section must meet the requirements of Sec.  
300.503(c).

(Authority: 20 U.S.C. 1415(d)(1) and (2))

Sec.  300.505  Electronic mail.

    A parent of a child with a disability may elect to receive notices 
required by Sec. Sec.  300.503, 300.504, and 300.508 by an electronic 
mail communication, if the public agency makes that option available.

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

Sec.  300.506  Mediation.

    (a) General. Each public agency must ensure that procedures are 
established and implemented to allow parties to disputes involving any 
matter under this part, including matters arising prior to the filing 
of a due process complaint, to resolve disputes through a mediation 
process.
    (b) Requirements. The procedures must meet the following 
requirements:
    (1) The procedures must ensure that the mediation process--
    (i) Is voluntary on the part of the parties;
    (ii) Is not used to deny or delay a parent's right to a hearing on 
the parent's due process complaint, or to deny any other rights 
afforded under Part B of the Act; and
    (iii) Is conducted by a qualified and impartial mediator who is 
trained in effective mediation techniques.
    (2) A public agency may establish procedures to offer to parents 
and schools that choose not to use the mediation process, an 
opportunity to meet, at a time and location convenient to the parents, 
with a disinterested party--
    (i) Who is under contract with an appropriate alternative dispute 
resolution entity, or a parent training and information center or 
community parent resource center in the State established under section 
671 or 672 of the Act; and
    (ii) Who would explain the benefits of, and encourage the use of, 
the mediation process to the parents.
    (3)(i) The State must maintain a list of individuals who are 
qualified mediators and knowledgeable in laws and regulations relating 
to the provision of special education and related services.
    (ii) The SEA must select mediators on a random, rotational, or 
other impartial basis.
    (4) The State must bear the cost of the mediation process, 
including the costs of meetings described in paragraph (b)(2) of this 
section.
    (5) Each session in the mediation process must be scheduled in a 
timely manner and must be held in a location that is convenient to the 
parties to the dispute.
    (6) If the parties resolve a dispute through the mediation process, 
the parties must execute a legally binding agreement that sets forth 
that resolution and that--
    (i) States that all discussions that occurred during the mediation 
process will remain confidential and may not be used as evidence in any 
subsequent due process hearing or civil proceeding arising from that 
dispute; and
    (ii) Is signed by both the parent and a representative of the 
agency who has the authority to bind such agency.
    (7) A written, signed mediation agreement under this paragraph is 
enforceable in any State court of competent jurisdiction or in a 
district court of the United States.
    (8) Discussions that occur during the mediation process must be 
confidential and may not be used as evidence in any subsequent due 
process hearing or civil proceedings arising from that dispute.
    (9) The parties to mediation may be required to sign a 
confidentiality pledge prior to the commencement of the mediation to 
ensure that all discussions that occur during mediation remain 
confidential.
    (c) Impartiality of mediator. (1) An individual who serves as a 
mediator under this part--
    (i) May not be an employee of the SEA or the LEA that is involved 
in the education or care of the child; and
    (ii) Must not have a personal or professional interest that 
conflicts with the person's objectivity.
    (2) A person who otherwise qualifies as a mediator is not an 
employee of an LEA or State agency described under Sec.  300.228 solely 
because he or she is paid by the agency to serve as a mediator.

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




Sec.  300.507  Filing a due process complaint.

    (a) General. (1) A parent or a public agency may file a due process 
complaint on any of the matters described in Sec.  300.503(a)(1) and 
(2) (relating to the identification, evaluation or educational 
placement of a child with a disability, or the provision of FAPE to the 
child).
    (2) The due process complaint must allege a violation that occurred 
not more than two years before the date the parent or public agency 
knew or should have known about the alleged action that forms the basis 
of the due process complaint, or, if the State has an explicit time 
limitation for filing a due process complaint under this part, in the 
time allowed by that State law, except that the exceptions to the 
timeline described in Sec.  300.511(f) apply to the timeline in this 
section.
    (b) Information for parents. The public agency must inform the 
parent of any free or low-cost legal and other relevant services 
available in the area if--
    (1) The parent requests the information; or
    (2) The parent or the agency requests a hearing under this section.

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

Sec.  300.508  Due process complaint.

    (a) General. (1) The public agency must have procedures that 
require either party, or the attorney representing a party, to provide 
to the other party a due process complaint (which must remain 
confidential).
    (2) The party filing a due process complaint must forward a copy of 
the due process complaint to the SEA.
    (b) Content of complaint. The due process complaint required in 
paragraph (a)(1) of this section must include--
    (1) The name of the child;
    (2) The address of the residence of the child;

[[Page 35871]]

    (3) The name of the school the child is attending;
    (4) In the case of a homeless child or youth (within the meaning of 
section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 
11434a(2)), available contact information for the child, and the name 
of the school the child is attending;
    (5) A description of the nature of the problem of the child 
relating to the proposed or refused initiation or change, including 
facts relating to the problem; and
    (6) A proposed resolution of the problem to the extent known and 
available to the party at the time.
    (c) Notice required before a hearing on a due process complaint. A 
party may not have a hearing on a due process complaint or engage in a 
resolution session until the party, or the attorney representing the 
party, files a due process complaint that meets the requirements of 
paragraph (b) of this section.
    (d) Sufficiency of complaint. (1) The due process complaint 
required by this section must be deemed sufficient unless the party 
receiving the due process complaint notifies the hearing officer and 
the other party in writing, within 15 days of receipt of the due 
process complaint, that the receiving party believes the due process 
complaint does not meet the requirements in paragraph (b) of this 
section.
    (2) Within five days of receipt of notification under paragraph 
(d)(1) of this section, the hearing officer must make a determination 
on the face of the due process complaint of whether the due process 
complaint meets the requirements of paragraph (b) of this section, and 
must immediately notify the parties in writing of that determination.
    (3) A party may amend its due process complaint only if--
    (i) The other party consents in writing to the amendment and is 
given the opportunity to resolve the due process complaint through a 
meeting held pursuant to Sec.  300.510; or
    (ii) The hearing officer grants permission, except that the hearing 
officer may only grant permission to amend at any time not later than 
five days before the due process hearing begins.
    (4) If a party files an amended due process complaint, the 
timelines for the resolution meeting in Sec.  300.510(a) and the time 
period to resolve in Sec.  300.510(b) begin again with the filing of 
the amended due process complaint.
    (e) LEA response to a due process complaint. (1) If the LEA has not 
sent a prior written notice under Sec.  300.503 to the parent regarding 
the subject matter contained in the parent's due process complaint, the 
LEA must, within 10 days of receiving the due process complaint, send 
to the parent a response that includes--
    (i) An explanation of why the agency proposed or refused to take 
the action raised in the due process complaint;
    (ii) A description of other options that the IEP Team considered 
and the reasons why those options were rejected;
    (iii) A description of each evaluation procedure, assessment, 
record, or report the agency used as the basis for the proposed or 
refused action; and
    (iv) A description of the other factors that are relevant to the 
agency's proposed or refused action.
    (2) A response by an LEA under paragraph (1) of this section shall 
not be construed to preclude the LEA from asserting that the parent's 
due process complaint was insufficient, where appropriate.
    (f) Other party response to a due process complaint. Except as 
provided in paragraph (e) of this section, the party receiving a due 
process complaint must, within 10 days of receiving the due process 
complaint, send to the other party a response that specifically 
addresses the issues raised in the due process complaint.

(Authority: 20 U.S.C. 1415(b)(7), 1415(c)(2))

Sec.  300.509  Model forms.

    Each SEA must develop model forms to assist parents in filing a due 
process complaint in accordance with Sec. Sec.  300.507(a) and 
300.508(a) through (c) and in filing a State complaint under Sec. Sec.  
300.151 through 300.153.

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

Sec.  300.510  Resolution process.

    (a) Resolution meeting. (1) Within 15 days of receiving notice of 
the parents' due process complaint, and prior to the initiation of a 
due process hearing under Sec.  300.511, the LEA must convene a meeting 
with the parents and the relevant member or members of the IEP Team who 
have specific knowledge of the facts identified in the due process 
complaint that--
    (i) Includes a representative of the public agency who has 
decision-making authority on behalf of that agency; and
    (ii) May not include an attorney of the LEA unless the parent is 
accompanied by an attorney.
    (2) The purpose of the meeting is for the parents of the child to 
discuss their due process complaint, and the facts that form the basis 
of the due process complaint, so that the LEA has the opportunity to 
resolve the dispute that is the basis for the due process complaint.
    (3) The meeting described in paragraph (a)(1) and (2) of this 
section need not be held if--
    (i) The parents and the LEA agree in writing to waive the meeting; 
or
    (ii) The parents and the LEA agree to use the mediation process 
described in Sec.  300.506.
    (4) The parents and the LEA determine the relevant members of the 
IEP Team to attend the meeting.
    (b) Resolution period. (1) If the LEA has not resolved the due 
process complaint to the satisfaction of the parents within 30 days of 
the receipt of the due process complaint, the due process hearing must 
occur.
    (2) The timeline for issuing a final decision under Sec.  300.515 
begins at the expiration of this 30-day period.
    (3) Except where the parties have jointly agreed to waive the 
resolution process or to use mediation, notwithstanding paragraphs 
(b)(1) and (2) of this section, the failure of a parent filing a due 
process complaint to participate in the resolution meeting will delay 
the timelines for the resolution process and due process hearing until 
the meeting is held.
    (c) Written settlement agreement. If a resolution to the dispute is 
reached at the meeting described in paragraphs (a)(1) and (2) of this 
section, the parties must execute a legally binding agreement that is--
    (1) Signed by both the parent and a representative of the agency 
who has the authority to bind the agency; and
    (2) Enforceable in any State court of competent jurisdiction or in 
a district court of the United States.
    (d) Agreement review period. If the parties execute an agreement 
pursuant to paragraph (c) of this section, a party may void the 
agreement within 3 business days of the agreement's execution.

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

Sec.  300.511  Impartial due process hearing.

    (a) General. Whenever a due process complaint is filed under Sec.  
300.507, the parents or the LEA involved in the dispute must have an 
opportunity for an impartial due process hearing, consistent with the 
procedures in Sec. Sec.  300.507 through 300.508, and Sec.  300.510.
    (b) Agency responsible for conducting the due process hearing. The 
hearing described in paragraph (a) of this section must be conducted by 
the SEA or the public agency directly responsible for the education of 
the

[[Page 35872]]

child, as determined under State statute, State regulation, or a 
written policy of the SEA.
    (c) Impartial hearing officer. (1) At a minimum, a hearing 
officer--
    (i) Must not be--
    (A) An employee of the SEA or the LEA that is involved in the 
education or care of the child; or
    (B) A person having a personal or professional interest that 
conflicts with the person's objectivity in the hearing;
    (ii) Must possess knowledge of, and the ability to understand, the 
provisions of the Act, Federal and State regulations pertaining to the 
Act, and legal interpretations of the Act by Federal and State courts;
    (iii) Must possess the knowledge and ability to conduct hearings in 
accordance with appropriate, standard legal practice; and
    (iv) Must possess the knowledge and ability to render and write 
decisions in accordance with appropriate, standard legal practice.
    (2) A person who otherwise qualifies to conduct a hearing under 
paragraph (c)(1) of this section is not an employee of the agency 
solely because he or she is paid by the agency to serve as a hearing 
officer.
    (3) Each public agency must keep a list of the persons who serve as 
hearing officers. The list must include a statement of the 
qualifications of each of those persons.
    (d) Subject matter of due process hearings. The party requesting 
the due process hearing may not raise issues at the due process hearing 
that were not raised in the due process complaint filed under Sec.  
300.508(b), unless the other party agrees otherwise.
    (e) Timeline for requesting a hearing. A parent or agency must 
request an impartial hearing on their due process complaint within two 
years of the date the parent or agency knew or should have known about 
the alleged action that forms the basis of the due process complaint, 
or if the State has an explicit time limitation for requesting such a 
due process hearing under this part, in the time allowed by that State 
law.
    (f) Exceptions to the timeline. The timeline described in paragraph 
(e) of this section does not apply to a parent if the parent was 
prevented from filing a due process complaint due to--
    (1) Specific misrepresentations by the LEA that it had resolved the 
problem forming the basis of the due process complaint; or
    (2) The LEA's withholding of information from the parent that was 
required under this part to be provided to the parent.

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

Sec.  300.512  Hearing rights.

    (a) General. Any party to a hearing conducted pursuant to 
Sec. Sec.  300.507 through 300.513 or Sec. Sec.  300.530 through 
300.534, or an appeal conducted pursuant to Sec.  300.514, has the 
right to--
    (1) Be accompanied and advised by counsel and by individuals with 
special knowledge or training with respect to the problems of children 
with disabilities;
    (2) Present evidence and confront, cross-examine, and compel the 
attendance of witnesses;
    (3) Prohibit the introduction of any evidence at the hearing that 
has not been disclosed to that party at least five business days before 
the hearing;
    (4) Obtain a written, or, at the option of the parents, electronic, 
verbatim record of the hearing; and
    (5) Obtain written, or, at the option of the parents, electronic 
findings of fact and decisions.
    (b) Additional disclosure of information. (1) At least five 
business days prior to a hearing conducted pursuant to Sec.  
300.511(a), each party must disclose to all other parties all 
evaluations completed by that date and recommendations based on the 
offering party's evaluations that the party intends to use at the 
hearing.
    (2) A hearing officer may bar any party that fails to comply with 
paragraph (b)(1) of this section from introducing the relevant 
evaluation or recommendation at the hearing without the consent of the 
other party.
    (c) Parental rights at hearings. Parents involved in hearings must 
be given the right to--
    (1) Have the child who is the subject of the hearing present;
    (2) Open the hearing to the public; and
    (3) Have the record of the hearing and the findings of fact and 
decisions described in paragraphs (a)(4) and (a)(5) of this section 
provided at no cost to parents.

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

Sec.  300.513  Hearing decisions.

    (a) Decision of hearing officer. (1) Subject to paragraph (a)(2) of 
this section, a hearing officer must make a decision on substantive 
grounds based on a determination of whether the child received a FAPE.
    (2) In matters alleging a procedural violation, a hearing officer 
may find that a child did not receive a FAPE only if the procedural 
inadequacies--
    (i) Impeded the child's right to a FAPE;
    (ii) Significantly impeded the parents' opportunity to participate 
in the decision-making process regarding the provision of a FAPE to the 
parents' child; or
    (iii) Caused a deprivation of educational benefit.
    (3) Nothing in paragraph (a) of this section shall be construed to 
preclude a hearing officer from ordering an LEA to comply with 
procedural requirements under Sec. Sec.  300.500 through 300.536.
    (b) Construction clause. Nothing in Sec. Sec.  300.507 through 
300.513 shall be construed to affect the right of a parent to file an 
appeal of the due process hearing decision with the SEA under Sec.  
300.514(b), if a State level appeal is available.
    (c) Separate request for a due process hearing. Nothing in 
Sec. Sec.  300.500 through 300.536 shall be construed to preclude a 
parent from filing a separate due process complaint on an issue 
separate from a due process complaint already filed.
    (d) Findings and decision to advisory panel and general public. The 
public agency, after deleting any personally identifiable information, 
must--
    (1) Transmit the findings and decisions referred to in Sec.  
300.512(a)(5) to the State advisory panel established under Sec.  
300.167; and
    (2) Make those findings and decisions available to the public.

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

Sec.  300.514  Finality of decision; appeal; impartial review.

    (a) Finality of hearing decision. A decision made in a hearing 
conducted pursuant to Sec. Sec.  300.507 through 300.513 or Sec. Sec.  
300.530 through 300.534 is final, except that any party involved in the 
hearing may appeal the decision under the provisions of paragraph (b) 
of this section and Sec.  300.516.
    (b) Appeal of decisions; impartial review. (1) If the hearing 
required by Sec.  300.511 is conducted by a public agency other than 
the SEA, any party aggrieved by the findings and decision in the 
hearing may appeal to the SEA.
    (2) If there is an appeal, the SEA must conduct an impartial review 
of the findings and decision appealed. The official conducting the 
review must--
    (i) Examine the entire hearing record;
    (ii) Ensure that the procedures at the hearing were consistent with 
the requirements of due process;
    (iii) Seek additional evidence if necessary. If a hearing is held 
to receive additional evidence, the rights in Sec.  300.512 apply;

[[Page 35873]]

    (iv) Afford the parties an opportunity for oral or written 
argument, or both, at the discretion of the reviewing official;
    (v) Make an independent decision on completion of the review; and
    (vi) Give a copy of the written, or, at the option of the parents, 
electronic findings of fact and decisions to the parties.
    (c) Findings and decision to advisory panel and general public. The 
SEA, after deleting any personally identifiable information, must--
    (1) Transmit the findings and decisions referred to in paragraph 
(b)(2)(vi) of this section to the State advisory panel established 
under Sec.  300.167; and
    (2) Make those findings and decisions available to the public.
    (d) Finality of review decision. The decision made by the reviewing 
official is final unless a party brings a civil action under Sec.  
300.516.

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

Sec.  300.515  Timelines and convenience of hearings and reviews.

    (a) The public agency must ensure that not later than 45 days after 
the expiration of the 30 day period under Sec.  300.510(b)--
    (1) A final decision is reached in the hearing; and
    (2) A copy of the decision is mailed to each of the parties.
    (b) The SEA must ensure that not later than 30 days after the 
receipt of a request for a review--
    (1) A final decision is reached in the review; and
    (2) A copy of the decision is mailed to each of the parties.
    (c) A hearing or reviewing officer may grant specific extensions of 
time beyond the periods set out in paragraphs (a) and (b) of this 
section at the request of either party.
    (d) Each hearing and each review involving oral arguments must be 
conducted at a time and place that is reasonably convenient to the 
parents and child involved.

(Authority: 20 U.S.C. 1415(f)(1)(B)(ii), 1415(g), 1415(i)(1))

Sec.  300.516  Civil action.

    (a) General. Any party aggrieved by the findings and decision made 
under Sec. Sec.  300.507 through 300.513 or Sec. Sec.  300.530 through 
300.534 who does not have the right to an appeal under Sec.  
300.514(b), and any party aggrieved by the findings and decision under 
Sec.  300.514(b), has the right to bring a civil action with respect to 
the request for a due process hearing under Sec.  300.507 or Sec. Sec.  
300.530 through 300.532. The action may be brought in any State court 
of competent jurisdiction or in a district court of the United States 
without regard to the amount in controversy.
    (b) Time limitation. The party bringing the action shall have 90 
days from the date of the decision of the hearing officer to file a 
civil action, or, if the State has an explicit time limitation for 
bringing civil actions under Part B of the Act, in the time allowed by 
that State law.
    (c) Additional requirements. In any action brought under paragraph 
(a) of this section, the court--
    (1) Receives the records of the administrative proceedings;
    (2) Hears additional evidence at the request of a party; and
    (3) Basing its decision on the preponderance of the evidence, 
grants the relief that the court determines to be appropriate.
    (d) Jurisdiction of district courts. The district courts of the 
United States have jurisdiction of actions brought under section 615 of 
the Act without regard to the amount in controversy.
    (e) Rule of construction. Nothing in this part restricts or limits 
the rights, procedures, and remedies available under the Constitution, 
the Americans with Disabilities Act of 1990, title V of the 
Rehabilitation Act of 1973, or other Federal laws protecting the rights 
of children with disabilities, except that before the filing of a civil 
action under these laws seeking relief that is also available under 
section 615 of the Act, the procedures under Sec. Sec.  300.507 and 
300.514 must be exhausted to the same extent as would be required had 
the action been brought under section 615 of the Act.

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

Sec.  300.517  Attorneys' fees.

    (a) In general. (1) In any action or proceeding brought under 
section 615 of the Act, the court, in its discretion, may award 
reasonable attorneys' fees as part of the costs to--
    (i) The prevailing party who is the parent of a child with a 
disability;
    (ii) To a prevailing party who is an SEA or LEA against the 
attorney of a parent who files a complaint or subsequent cause of 
action that is frivolous, unreasonable, or without foundation, or 
against the attorney of a parent who continued to litigate after the 
litigation clearly became frivolous, unreasonable, or without 
foundation; or
    (iii) To a prevailing SEA or LEA against the attorney of a parent, 
or against the parent, if the parent's request for a due process 
hearing or subsequent cause of action was presented for any improper 
purpose, such as to harass, to cause unnecessary delay, or to 
needlessly increase the cost of litigation.
    (2) Nothing in this subsection shall be construed to affect section 
327 of the District of Columbia Appropriations Act, 2005.
    (b) Prohibition on use of funds. (1) Funds under Part B of the Act 
may not be used to pay attorneys' fees or costs of a party related to 
any action or proceeding under section 615 of the Act and subpart E of 
this part.
    (2) Paragraph (b)(1) of this section does not preclude a public 
agency from using funds under Part B of the Act for conducting an 
action or proceeding under section 615 of the Act.
    (c) Award of fees. A court awards reasonable attorneys' fees under 
section 615(i)(3) of the Act consistent with the following:
    (1) Fees awarded under section 615(i)(3) of the Act must be based 
on rates prevailing in the community in which the action or proceeding 
arose for the kind and quality of services furnished. No bonus or 
multiplier may be used in calculating the fees awarded under this 
paragraph.
    (2)(i) Attorneys' fees may not be awarded and related costs may not 
be reimbursed in any action or proceeding under section 615 of the Act 
for services performed subsequent to the time of a written offer of 
settlement to a parent if--
    (A) The offer is made within the time prescribed by Rule 68 of the 
Federal Rules of Civil Procedure or, in the case of an administrative 
proceeding, at any time more than 10 days before the proceeding begins;
    (B) The offer is not accepted within 10 days; and
    (C) The court or administrative hearing officer finds that the 
relief finally obtained by the parents is not more favorable to the 
parents than the offer of settlement.
    (ii) Attorneys' fees may not be awarded relating to any meeting of 
the IEP Team unless the meeting is convened as a result of an 
administrative proceeding or judicial action, or at the discretion of 
the State, for a mediation described in Sec.  300.506 that is conducted 
prior to the filing of a request for due process under Sec. Sec.  
300.507 through 300.513 or Sec. Sec.  300.530 through 300.534.
    (iii) A meeting conducted pursuant to Sec.  300.510 shall not be 
considered--
    (A) A meeting convened as a result of an administrative hearing or 
judicial action; or

[[Page 35874]]

    (B) An administrative hearing or judicial action for purposes of 
this section.
    (3) Notwithstanding paragraph (c)(2) of this section, an award of 
attorneys' fees and related costs may be made to a parent who is the 
prevailing party and who was substantially justified in rejecting the 
settlement offer.
    (4) Except as provided in paragraph (c)(5) of this section, the 
court reduces, accordingly, the amount of the attorneys' fees awarded 
under section 615 of the Act, if the court finds that--
    (i) The parent, or the parent's attorney, during the course of the 
action or proceeding, unreasonably protracted the final resolution of 
the controversy;
    (ii) The amount of the attorneys' fees otherwise authorized to be 
awarded unreasonably exceeds the hourly rate prevailing in the 
community for similar services by attorneys of reasonably comparable 
skill, reputation, and experience;
    (iii) The time spent and legal services furnished were excessive 
considering the nature of the action or proceeding; or
    (iv) The attorney representing the parent did not provide to the 
LEA the appropriate information in the due process request notice in 
accordance with Sec.  300.508.
    (5) The provisions of paragraph (c)(4) of this section do not apply 
in any action or proceeding if the court finds that the State or local 
agency unreasonably protracted the final resolution of the action or 
proceeding or there was a violation of section 615 of the Act.

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

Sec.  300.518  Child's status during proceedings.

    (a) Except as provided in Sec.  300.533, during the pendency of any 
administrative or judicial proceeding regarding a request for a due 
process hearing under Sec.  300.507, unless the State or local agency 
and the parents of the child agree otherwise, the child involved in the 
complaint must remain in his or her current educational placement.
    (b) If the complaint involves an application for initial admission 
to public school, the child, with the consent of the parents, must be 
placed in the public school until the completion of all the 
proceedings.
    (c) If the 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.  300.519  Surrogate parents.

    (a) General. Each public agency must ensure that the rights of a 
child are protected when--
    (1) No parent (as defined in Sec.  300.30) can be identified;
    (2) The public agency, after reasonable efforts, cannot locate a 
parent;
    (3) The child is a ward of the State under the laws of that State; 
or
    (4) The child is an unaccompanied homeless youth as defined in 
section 725(6) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 
11434a(6)).
    (b) Duties of public agency. The duties of a public agency under 
paragraph (a) of this section include the assignment of an individual 
to act as a surrogate for the parents. This must include a method--
    (1) For determining whether a child needs a surrogate parent; and
    (2) For assigning a surrogate parent to the child.
    (c) Wards of the State. In the case of a child who is a ward of the 
State, the surrogate parent alternatively may be appointed by the judge 
overseeing the child's case, provided that the surrogate meets the 
requirements in paragraphs (d)(2)(i) and (e) of this section.
    (d) Criteria for selection of surrogate parents. (1) The public 
agency may select a surrogate parent in any way permitted under State 
law.
    (2) Public agencies must ensure that a person selected as a 
surrogate parent--
    (i) Is not an employee of the SEA, the LEA, or any other agency 
that is involved in the education or care of the child;
    (ii) Has no personal or professional interest that conflicts with 
the interest of the child he or she represents; and
    (iii) Has knowledge and skills that ensure adequate representation 
of the child.
    (e) Non-employee requirement; compensation. A person otherwise 
qualified to be a surrogate parent under paragraph (d) of this section 
is not an employee of the agency solely because he or she is paid by 
the agency to serve as a surrogate parent.
    (f) Unaccompanied homeless youth. In the case of a child who is an 
unaccompanied homeless youth, appropriate staff of emergency shelters, 
transitional shelters, independent living programs, and street outreach 
programs may be appointed as temporary surrogates without regard to 
paragraph (d)(2)(i) of this section, until a surrogate can be appointed 
that meets all of the requirements of paragraph (d) of this section.
    (g) Surrogate parent responsibilities. The surrogate parent may 
represent the child in all matters relating to--
    (1) The identification, evaluation, and educational placement of 
the child; and
    (2) The provision of FAPE to the child.
    (h) SEA responsibility. The SEA must make reasonable efforts to 
ensure the assignment of a surrogate parent not more than 30 days after 
a public agency determines that the child needs a surrogate.

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

Sec.  300.520  Transfer of parental rights at age of majority.

    (a) General. A State may provide that, when a child with a 
disability reaches the age of majority under State law that applies to 
all children (except for a child with a disability who has been 
determined to be incompetent under State law)--
    (1)(i) The public agency must provide any notice required by this 
part to both the individual and the parents; and
    (ii) All other rights accorded to parents under Part B of the Act 
transfer to the child;
    (2) All rights accorded to parents under Part B of the Act transfer 
to children who are incarcerated in an adult or juvenile, State or 
local correctional institution; and
    (3) Whenever a State transfers rights under this part pursuant to 
paragraph (a)(1) or (a)(2) of this section, the agency must 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 child 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 must 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))

Sec. Sec.  300.521-300.529  [Reserved]

Discipline Procedures


Sec.  300.530  Authority of school personnel.

    (a) Case-by-case determination. School personnel may consider any 
unique circumstances on a case-by-case

[[Page 35875]]

basis when determining whether a change in placement, consistent with 
the requirements of this section, is appropriate for a child with a 
disability who violates a code of student conduct.
    (b) General. (1) School personnel under this section may remove a 
child with a disability who violates a code of student conduct from 
their current placement to an appropriate interim alternative 
educational setting, another setting, or suspension, for not more than 
10 consecutive school days (to the extent those alternatives are 
applied to children without disabilities), and for additional removals 
of not more than 10 consecutive school days in that same school year 
for separate incidents of misconduct (as long as those removals do not 
constitute a change of placement under Sec.  300.536).
    (2) After a child with a disability has been removed from his or 
her current placement for 10 school days in the same school year, 
during any subsequent days of removal the public agency must provide 
services to the extent required under paragraph (d) of this section.
    (c) Additional authority. For disciplinary changes in placement 
that would exceed 10 consecutive school days, if the behavior that gave 
rise to the violation of the school code is determined not to be a 
manifestation of the child's disability pursuant to paragraph (e) of 
this section, school personnel may apply the relevant disciplinary 
procedures to children with disabilities in the same manner and for the 
same duration as the procedures would be applied to children without 
disabilities, except as provided in paragraph (d) of this section.
    (d) Services. (1) Except as provided in paragraphs (d)(3) and 
(d)(4) of this section, a child with a disability who is removed from 
the child's current placement pursuant to paragraphs (b), (c), or (g) 
of this section must--
    (i) Continue to receive educational services, so as to enable the 
child to continue to participate in the general education curriculum, 
although in another setting, and to progress toward meeting the goals 
set out in the child's IEP; and
    (ii) Receive, as appropriate, a functional behavioral assessment, 
and behavioral intervention services and modifications, that are 
designed to address the behavior violation so that it does not recur.
    (2) The services required by paragraph (d)(1) of this section may 
be provided in an interim alternative educational setting.
    (3) A public agency need not provide services during periods of 
removal under paragraph (b) of this section 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.
    (4) After a child with a disability has been removed from his or 
her current placement for 10 school days in the same school year, if 
the current removal is for not more than 10 consecutive school days and 
is not a change of placement under Sec.  300.536, school personnel, in 
consultation with at least one of the child's teachers, determine the 
extent to which services are needed under paragraph (d)(1) of this 
section, if any, and the location in which services, if any, will be 
provided.
    (5) If the removal is for more than 10 consecutive school days or 
is a change of placement under Sec.  300.536, the child's IEP Team 
determines appropriate services under paragraph (d)(1) of this section 
and the location in which services will be provided.
    (e) Manifestation determination. (1) Except for removals that will 
be for not more than 10 consecutive school days and will not constitute 
a change of placement under Sec.  300.536, within 10 school days of any 
decision to change the placement of a child with a disability because 
of a violation of a code of student conduct, the LEA, the parent, and 
relevant members of the child's IEP Team (as determined by the parent 
and the LEA) must review all relevant information in the student's 
file, including the child's IEP, any teacher observations, and any 
relevant information provided by the parents to determine--
    (i) If the conduct in question was caused by, or had a direct and 
substantial relationship to, the child's disability; or
    (ii) If the conduct in question was the direct result of the LEA's 
failure to implement the IEP.
    (2) The conduct must be determined to be a manifestation of the 
child's disability if the LEA, the parent, and relevant members of the 
child's IEP Team determine that a condition in either paragraph 
(e)(1)(i) or (1)(ii) of this section was met.
    (f) Determination that behavior was a manifestation. If the LEA, 
the parent, and relevant members of the IEP Team make the determination 
that the conduct was a manifestation of the child's disability, the IEP 
Team must--
    (1) Either--
    (i) Conduct a functional behavioral assessment, unless the LEA had 
conducted a functional behavioral assessment before the behavior that 
resulted in the change of placement occurred, and implement a 
behavioral intervention plan for the child; or
    (ii) If a behavioral intervention plan already has been developed, 
review the behavioral intervention plan, and modify it, as necessary, 
to address the behavior; and
    (2) Except as provided in paragraph (g) of this section, return the 
child to the placement from which the child was removed, unless the 
parent and the LEA agree to a change of placement as part of the 
modification of the behavioral intervention plan.
    (g) Special circumstances. School personnel may remove a student to 
an interim alternative educational setting for not more than 45 school 
days without regard to whether the behavior is determined to be a 
manifestation of the child's disability, if the child--
    (1) Carries a weapon to or possesses a weapon at school, on school 
premises, or to or at a school function under the jurisdiction of an 
SEA or an LEA;
    (2) Knowingly possesses or uses illegal drugs, or sells or solicits 
the sale of a controlled substance, while at school, on school 
premises, or at a school function under the jurisdiction of an SEA or 
an LEA; or
    (3) Has inflicted serious bodily injury upon another person while 
at school, on school premises, or at a school function under the 
jurisdiction of an SEA or an LEA.
    (h) Notification. Not later than the date on which the decision to 
take disciplinary action is made, the LEA must notify the parents of 
that decision, and provide the parents the procedural safeguards notice 
described in Sec.  300.504.
    (i) Definitions. For purposes of this section, the following 
definitions apply:
    (1) Controlled substance means a drug or other substance identified 
under schedules I, II, III, IV, or V in section 202(c) of the 
Controlled Substances Act (21 U.S.C. 812(c)).
    (2) Illegal drug means a controlled substance; but does not include 
a controlled substance that is legally possessed or used under the 
supervision of a licensed health-care professional or that is legally 
possessed or used under any other authority under that Act or under any 
other provision of Federal law.
    (3) Serious bodily injury has the meaning given the term ``serious 
bodily injury'' under paragraph (3) of subsection (h) of section 1365 
of title 18, United States Code.
    (4) Weapon has the meaning given the term ``dangerous weapon'' 
under paragraph (2) of the first subsection (g)

[[Page 35876]]

of section 930 of title 18, United States Code.

(Authority: 20 U.S.C. 1415(k)(1) and (7))

Sec.  300.531  Determination of setting.

    The interim alternative educational setting referred to in Sec.  
300.530(c) and (g) is determined by the IEP Team.

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

Sec.  300.532  Appeal.

    (a) General. The parent of a child with a disability who disagrees 
with any decision regarding placement under Sec. Sec.  300.530 and 
300.531, or the manifestation determination under Sec.  300.530(e), or 
an LEA that believes that maintaining the current placement of the 
child is substantially likely to result in injury to the child or 
others, may request a hearing.
    (b) Authority of hearing officer. (1) A hearing officer under Sec.  
300.511 hears, and makes a determination regarding, an appeal requested 
under paragraph (a) of this section.
    (2) In making the determination under paragraph (b)(1) of this 
section, the hearing officer may--
    (i) Return the child with a disability to the placement from which 
the child was removed if the hearing officer determines that the 
removal was a violation of Sec.  300.530 or that the child's behavior 
was a manifestation of the child's disability; or
    (ii) Order a change of placement of the child with a disability to 
an appropriate interim alternative educational setting for not more 
than 45 school days if the hearing officer determines that maintaining 
the current placement of the child is substantially likely to result in 
injury to the child or to others.
    (3) The procedures under paragraphs (a) and (b)(1) and (2) of this 
section may be repeated, if the LEA believes the child would be 
dangerous if returned to the original placement.
    (c) Expedited hearing. (1) Whenever a hearing is requested under 
paragraph (a) of this section, the parents or the LEA involved in the 
dispute must have an opportunity for an impartial due process hearing 
consistent with the requirements of Sec. Sec.  300.510 through 300.514, 
except as provided in paragraph (c)(2) through (5) of this section.
    (2) The SEA or LEA must arrange for an expedited hearing, which 
must occur within 20 school days of the date the hearing is requested 
and must result in a determination within 10 school days after the 
hearing.
    (3) Except as provided in Sec.  300.510(a)(3)--
    (i) A resolution session meeting must occur within seven days of 
the date the hearing is requested, and
    (ii) The hearing may proceed unless the matter has been resolved to 
the satisfaction of both parties within 15 days of receipt of the 
hearing request.
    (4) For an expedited hearing, a State may provide that the time 
periods identified in Sec.  300.512(a)(3) and (b) are not less than two 
business days.
    (5) A State may establish different procedural rules for expedited 
hearings under this section than it has established for due process 
hearings under Sec. Sec.  300.511 through 300.513.
    (6) The decisions on expedited due process hearings are appealable 
consistent with Sec.  300.514.

(Authority: 20 U.S.C. 1415(k)(3) and (4)(B), 1415(f)(1)(A))

Sec.  300.533  Placement during appeals.

    When an appeal under Sec.  300.532 has been requested by either the 
parent or the LEA, the child must remain in the interim alternative 
educational setting pending the decision of the hearing officer or 
until the expiration of the time period provided for in Sec.  
300.530(c) or (g), whichever occurs first, unless the parent and the 
SEA or LEA agree otherwise.

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

Sec.  300.534  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 a code of student conduct, 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 before the behavior that 
precipitated the disciplinary action occurred--
    (1) The parent of the child expressed concern in writing to 
supervisory or administrative personnel of the appropriate educational 
agency, or a teacher of the child, that the child is in need of special 
education and related services;
    (2) The parent of the child requested an evaluation of the child 
pursuant to Sec. Sec.  300.300 through 300.311; or
    (3) The teacher of the child, or other personnel of the LEA, 
expressed specific concerns about a pattern of behavior demonstrated by 
the child directly to the director of special education of the agency 
or to other supervisory personnel of the agency 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--
    (1) The parent of the child--
    (i) Has not allowed an evaluation of the child pursuant to 
Sec. Sec.  300.300 through 300.311; or
    (ii) Has refused services under this part; or
    (2) The child has been evaluated and determined to not be a child 
with a disability under this part.
    (d) Conditions that apply if no basis of knowledge. (1) 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 disciplinary measures applied to children without disabilities who 
engaged in comparable behaviors consistent with paragraph (d)(2) of 
this section.
    (2)(i) If a request is made for an evaluation of a child during the 
time period in which the child is subjected to disciplinary measures 
under Sec.  300.530, the evaluation must be conducted in an expedited 
manner.
    (ii) Until the evaluation is completed, the child remains in the 
educational placement determined by school authorities, which can 
include suspension or expulsion without educational services.
    (iii) If the child is determined to be a child with a disability, 
taking into consideration information from the evaluation conducted by 
the agency and information provided by the parents, the agency must 
provide special education and related services in accordance with this 
part, including the requirements of Sec. Sec.  300.530 through 300.536 
and section 612(a)(1)(A) of the Act.

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

Sec.  300.535  Referral to and action by law enforcement and judicial 
authorities.

    (a) Rule of construction. Nothing in this part prohibits an agency 
from reporting a crime committed by a child with a disability to 
appropriate authorities or prevents State law enforcement and judicial 
authorities from exercising their responsibilities with regard to the 
application of Federal and State law to crimes committed by a child 
with a disability.
    (b) Transmittal of records. (1) An agency reporting a crime 
committed by a child with a disability must ensure

[[Page 35877]]

that copies of the special education and disciplinary records of the 
child are transmitted for consideration by the appropriate authorities 
to whom the agency reports the crime.
    (2) An agency reporting a crime under this section may transmit 
copies of the child's special education and disciplinary records only 
to the extent that the transmission is permitted by the Family 
Educational Rights and Privacy Act.

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

Sec.  300.536  Change of placement because of disciplinary removals.

    For purposes of removals of a child with a disability from the 
child's current educational placement under Sec. Sec.  300.530 through 
300.535, a change of placement occurs if--
    (a) The removal is for more than 10 consecutive school days; or
    (b) The child has been subjected to a series of removals that 
constitute a pattern--
    (1) Because the series of removals total more than 10 school days 
in a school year;
    (2) Because the child's behavior is substantially similar to the 
child's behavior in the incidents that resulted in the series of 
removals, taken cumulatively, is determined, under Sec.  300.530(f), to 
have been a manifestation of the child's disability; and
    (3) Because of such additional factors as the length of each 
removal, the total amount of time the child has been removed, and the 
proximity of the removals to one another.

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

Sec. Sec.  300.537-300.599  [Reserved]

Subpart F--Monitoring-Enforcement, Confidentiality, and Program 
Information

Monitoring, Technical Assistance, and Enforcement


Sec.  300.600  State monitoring and enforcement.

    (a) The State must monitor the implementation of this part, enforce 
this part in accordance with section 616(e) of the Act, and annually 
report on performance under this part.
    (b) The primary focus of the State's monitoring activities must be 
on--
    (1) Improving educational results and functional outcomes for all 
children with disabilities; and
    (2) Ensuring that public agencies meet the program requirements 
under Part B of the Act, with a particular emphasis on those 
requirements that are most closely related to improving educational 
results for children with disabilities.
    (c) As a part of its responsibilities under paragraph (a) of this 
section, the State must use quantifiable indicators and such 
qualitative indicators as are needed to adequately measure performance 
in the priority areas identified in section 616(a)(3) of the Act, and 
the indicators established by the Secretary pursuant to State 
performance plans.

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

Sec.  300.601  State performance plans and data collection.

    (a) General. Not later than December 3, 2005, each State must have 
in place a performance plan that evaluates the State's efforts to 
implement the requirements and purposes of Part B of the Act, and 
describes how the State will improve such implementation.
    (1) Each State must submit the State's performance plan to the 
Secretary for approval in accordance with the approval process 
described in section 616(c) of the Act.
    (2) Each State must review its State performance plan at least once 
every six years, and submit any amendments to the Secretary.
    (3) As part of the State performance plan, each State must 
establish measurable and rigorous targets for the indicators 
established by the Secretary under the priority areas described in 
section 616(a)(3) of the Act.
    (b) Data collection. (1) Each State must collect valid and reliable 
information as needed to report annually to the Secretary on the 
indicators established by the Secretary for the State performance 
plans.
    (2) Nothing in Part B of the Act shall be construed to authorize 
the development of a nationwide database of personally identifiable 
information on individuals involved in studies or other collections of 
data under Part B of the Act.

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

Sec.  300.602  State use of targets and reporting.

    (a) General. Each State must use the targets established in the 
State's performance plan under Sec.  300.601 and the priority areas 
described in section 616(a)(3) of the Act to analyze the performance of 
each LEA.
    (b) Public reporting and privacy.
    (1) Public report. (i) Subject to paragraph (b)(1)(ii) of this 
section, the State must--
    (A) Report annually to the public on the performance of each LEA 
located in the State on the targets in the State's performance plan; 
and
    (B) Make the State's performance plan available through public 
means, including by posting on the Web site of the SEA, distribution to 
the media, and distribution through public agencies.
    (ii) If the State, in meeting the requirements of paragraph 
(b)(1)(i) of this section, collects performance data through State 
monitoring or sampling, the State must include in its report the most 
recently available performance data on each LEA, and the date the data 
were obtained.
    (2) State performance report. The State must report annually to the 
Secretary on the performance of the State under the State's performance 
plan.
    (3) Privacy. The State must not report to the public or the 
Secretary any information on performance that would result in the 
disclosure of personally identifiable information about individual 
children, or where the available data are insufficient to yield 
statistically reliable information.

(Authority: 20 U.S.C. 1416(b)(2)(C))

Sec.  300.603  Secretary's review and determination regarding State 
performance.

    (a) Review. The Secretary annually reviews the State's performance 
report submitted pursuant to Sec.  300.602(b)(2).
    (b) Determination. (1) General. Based on the information provided 
by the State in the State's annual performance report, information 
obtained through monitoring visits, and any other public information 
made available, the Secretary determines if the State--
    (i) Meets the requirements and purposes of Part B of the Act;
    (ii) Needs assistance in implementing the requirements of Part B of 
the Act;
    (iii) Needs intervention in implementing the requirements of Part B 
of the Act; or
    (iv) Needs substantial intervention in implementing the 
requirements of Part B of the Act.
    (2) Notice and opportunity for a hearing. (i) For determinations 
made under paragraphs (b)(1)(iii) and (b)(1)(iv) of this section, the 
Secretary provides reasonable notice and an opportunity for a hearing 
on those determinations.
    (ii) The hearing described in paragraph (b)(2) of this section 
consists of an opportunity to meet with the Assistant Secretary for the 
Office of Special Education and Rehabilitative Services to demonstrate 
why the Department should not make the determination described in 
paragraph (b)(1) of this section.

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


[[Page 35878]]




Sec.  300.604  Enforcement.

    (a) Needs assistance. If the Secretary determines, for two 
consecutive years, that a State needs assistance under Sec.  
300.603(b)(1)(ii) in implementing the requirements of Part B of the 
Act, the Secretary takes one or more of the following actions:
    (1) Advise the State of available sources of technical assistance 
that may help the State address the areas in which the State needs 
assistance, which may include assistance from the Office of Special 
Education Programs, other offices of the Department of Education, other 
Federal agencies, technical assistance providers approved by the 
Secretary, and other federally funded nonprofit agencies, and require 
the State to work with appropriate entities. Such technical assistance 
may include--
    (i) The provision of advice by experts to address the areas in 
which the State needs assistance, including explicit plans for 
addressing the area for concern within a specified period of time;
    (ii) Assistance in identifying and implementing professional 
development, instructional strategies, and methods of instruction that 
are based on scientifically based research;
    (iii) Designating and using distinguished superintendents, 
principals, special education administrators, special education 
teachers, and other teachers to provide advice, technical assistance, 
and support; and
    (iv) Devising additional approaches to providing technical 
assistance, such as collaborating with institutions of higher 
education, educational service agencies, national centers of technical 
assistance supported under part D of the Act, and private providers of 
scientifically based technical assistance.
    (2) Direct the use of State-level funds under section 611(e) of the 
Act on the area or areas in which the State needs assistance.
    (3) Identify the State as a high-risk grantee and impose special 
conditions on the State's grant under Part B of the Act.
    (b) Needs intervention. If the Secretary determines, for three or 
more consecutive years, that a State needs intervention under Sec.  
300.603(b)(1)(iii) in implementing the requirements of Part B of the 
Act, the following shall apply:
    (1) The Secretary may take any of the actions described in 
paragraph (a) of this section.
    (2) The Secretary takes one or more of the following actions:
    (i) Requires the State to prepare a corrective action plan or 
improvement plan if the Secretary determines that the State should be 
able to correct the problem within one year.
    (ii) Requires the State to enter into a compliance agreement under 
section 457 of the General Education Provisions Act as amended, 20 
U.S.C. 1221 et seq. (GEPA), if the Secretary has reason to believe that 
the State cannot correct the problem within one year.
    (iii) For each year of the determination, withhold not less than 20 
percent and not more than 50 percent of the State's funds under section 
611(e) of the Act, until the Secretary determines the State has 
sufficiently addressed the areas in which the State needs intervention.
    (iv) Seeks to recover funds under section 452 of GEPA.
    (v) Withholds, in whole or in part, any further payments to the 
State under Part B of the Act pursuant to paragraph (d) of this 
section.
    (vi) Refers the matter for appropriate enforcement action, which 
may include referral to the Department of Justice.
    (c) Needs substantial intervention. Notwithstanding paragraph (a) 
or (b) of this section, at any time that the Secretary determines that 
a State needs substantial intervention in implementing the requirements 
of Part B of the Act or that there is a substantial failure to comply 
with any condition of an SEA's or LEA's eligibility under Part B of the 
Act, the Secretary shall take one or more of the following actions:
    (1) Recover funds under section 452 of GEPA.
    (2) Withhold, in whole or in part, any further payments to the 
State under Part B of the Act.
    (3) Refer the case to the Office of the Inspector General at the 
Department of Education.
    (4) Refer the matter for appropriate enforcement action, which may 
include referral to the Department of Justice.
    (d) Report to Congress. The Secretary reports to the Committee on 
Education and the Workforce of the House of Representatives and the 
Committee on Health, Education, Labor, and Pensions of the Senate 
within 30 days of taking enforcement action pursuant to paragraph (a), 
(b), or (c) of this section, on the specific action taken and the 
reasons why enforcement action was taken.

(Authority: 20 U.S.C. 1416(e)(1)-(e)(3), (e)(5))

Sec.  300.605  Withholding funds.

    (a) Opportunity for hearing. Prior to withholding any funds under 
Part B of the Act, the Secretary provides reasonable notice and an 
opportunity for a hearing to the SEA involved, pursuant to the 
procedures in Sec. Sec.  300.180 through 300.183.
    (b) Suspension. Pending the outcome of any hearing to withhold 
payments under paragraph (a) of this section, the Secretary may suspend 
payments to a recipient, suspend the authority of the recipient to 
obligate funds under Part B of the Act, or both, after the recipient 
has been given reasonable notice and an opportunity to show cause why 
future payments or authority to obligate funds under Part B of the Act 
should not be suspended.
    (c) Nature of withholding. (1) If the Secretary determines that it 
is appropriate to withhold further payments under section 616(e)(2) or 
(e)(3) of the Act, the Secretary may determine--
    (i) That the withholding will be limited to programs or projects, 
or portions of programs or projects that affected the Secretary's 
determination under Sec.  300.603(b)(1); or
    (ii) That the SEA must not make further payments under Part B of 
the Act to specified State agencies or LEAs that caused or were 
involved in the Secretary's determination under Sec.  300.603(b)(1).
    (2) Withholding until rectified. Until the Secretary is satisfied 
that the condition that caused the initial withholding has been 
substantially rectified--
    (i) Payments to the State under Part B of the Act must be withheld 
in whole or in part; and
    (ii) Payments by the SEA under Part B of the Act must be limited to 
State agencies and LEAs whose actions did not cause or were not 
involved in the Secretary's determination under Sec.  300.603(b)(1), as 
the case may be.

(Authority: 20 U.S.C. 1416(e)(4), (e)(6))

Sec.  300.606  Public attention.

    Any State that has received notice under Sec. Sec.  
300.603(b)(1)(ii) through (iv) must, by means of a public notice, take 
such measures as may be necessary to bring the pendency of an action 
pursuant to section 616(e) of the Act to the attention of the public 
within the State.

(Authority: 20 U.S.C. 1416(e)(7))

Sec.  300.607  Divided State agency responsibility.

    For purposes of this subpart, if responsibility for ensuring that 
the requirements of Part B of the Act are met with respect to children 
with disabilities who are convicted as adults under State law and 
incarcerated in adult prisons is assigned to a public agency other than 
the SEA pursuant to section 612(a)(11)(C) of the Act, and if the 
Secretary finds that the failure to comply substantially with the

[[Page 35879]]

provisions of Part B of the Act are related to a failure by the public 
agency, the Secretary takes appropriate corrective action to ensure 
compliance with Part B of the Act, except that--
    (a) Any reduction or withholding of payments to the State under 
Sec.  300.604 must be proportionate to the total funds allotted under 
section 611 of the Act to the State as the number of eligible children 
with disabilities in adult prisons under the supervision of the other 
public agency is proportionate to the number of eligible individuals 
with disabilities in the State under the supervision of the SEA; and
    (b) Any withholding of funds under Sec.  300.604 must be limited to 
the specific agency responsible for the failure to comply with Part B 
of the Act.

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

Sec.  300.608  State enforcement.

    If an SEA determines that an LEA is not meeting the requirements of 
Part B of the Act, including the targets in the State's performance 
plan, the SEA must prohibit the LEA from reducing the LEA's maintenance 
of effort under section 613(a)(2)(C) of the Act for any fiscal year.

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

Sec.  300.609  Rule of construction.

    Nothing in this subpart shall be construed to restrict the 
Secretary from utilizing any authority under GEPA to monitor and 
enforce the requirements of the Act.

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

Confidentiality of Information


Sec.  300.610  Confidentiality.

    The Secretary takes appropriate action, in accordance with section 
444 of GEPA, to ensure the protection of the confidentiality of any 
personally identifiable data, information, and records collected or 
maintained by the Secretary and by SEAs and LEAs pursuant to Part B of 
the Act, and consistent with Sec. Sec.  300.611 through 300.628.

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

Sec.  300.611  Definitions.

    As used in Sec. Sec.  300.610 through 300.628--
    (a) Destruction means physical destruction or removal of personal 
identifiers from information so that the information is no longer 
personally identifiable.
    (b) Education records means the type of records covered under the 
definition of ``education records'' in 34 CFR part 99 (the regulations 
implementing the Family Educational Rights and Privacy Act of 1974, 20 
U.S.C. 1232g (FERPA)).
    (c) Participating agency means any agency or institution that 
collects, maintains, or uses personally identifiable information, or 
from which information is obtained, under Part B of the Act.

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

Sec.  300.612  Notice to parents.

    (a) The SEA must give notice that is adequate to fully inform 
parents about the requirements of Sec.  300.121, including--
    (1) A description of the extent that the notice is given in the 
native languages of the various population groups in the State;
    (2) A description of the children on whom personally identifiable 
information is maintained, the types of information sought, the methods 
the State intends to use in gathering the information (including the 
sources from whom information is gathered), and the uses to be made of 
the information;
    (3) A summary of the policies and procedures that participating 
agencies must follow regarding storage, disclosure to third parties, 
retention, and destruction of personally identifiable information; and
    (4) A description of all of the rights of parents and children 
regarding this information, including the rights under FERPA and 
implementing regulations in 34 CFR part 99.
    (b) Before any major identification, location, or evaluation 
activity, the notice must be published or announced in newspapers or 
other media, or both, with circulation adequate to notify parents 
throughout the State of the activity.

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

Sec.  300.613  Access rights.

    (a) Each participating agency must permit parents to inspect and 
review any education records relating to their children that are 
collected, maintained, or used by the agency under this part. The 
agency must comply with a request without unnecessary delay and before 
any meeting regarding an IEP, or any hearing pursuant to Sec.  300.507 
or Sec. Sec.  300.530 through 300.532, or resolution session pursuant 
to Sec.  300.510, and in no case more than 45 days after the request 
has been made.
    (b) The right to inspect and review education records under this 
section includes--
    (1) The right to a response from the participating agency to 
reasonable requests for explanations and interpretations of the 
records;
    (2) The right to request that the agency provide copies of the 
records containing the information if failure to provide those copies 
would effectively prevent the parent from exercising the right to 
inspect and review the records; and
    (3) The right to have a representative of the parent inspect and 
review the records.
    (c) An agency may presume that the parent has authority to inspect 
and review records relating to his or her child unless the agency has 
been advised that the parent does not have the authority under 
applicable State law governing such matters as guardianship, 
separation, and divorce.

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

Sec.  300.614  Record of access.

    Each participating agency must keep a record of parties obtaining 
access to education records collected, maintained, or used under Part B 
of the Act (except access by parents and authorized employees of the 
participating agency), including the name of the party, the date access 
was given, and the purpose for which the party is authorized to use the 
records.

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

Sec.  300.615  Records on more than one child.

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

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

Sec.  300.616  List of types and locations of information.

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

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

Sec.  300.617  Fees.

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

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

Sec.  300.618  Amendment of records at parent's request.

    (a) A parent who believes that information in the education records 
collected, maintained, or used under

[[Page 35880]]

this part is inaccurate or misleading or violates the privacy or other 
rights of the child may request the participating agency that maintains 
the information to amend the information.
    (b) The agency must decide whether to amend the information in 
accordance with the request within a reasonable period of time of 
receipt of the request.
    (c) If the agency decides to refuse to amend the information in 
accordance with the request, it must inform the parent of the refusal 
and advise the parent of the right to a hearing under Sec.  300.619.

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

Sec.  300.619  Opportunity for a hearing.

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

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

Sec.  300.620  Result of hearing.

    (a) If, as a result of the hearing, the agency decides that the 
information is inaccurate, misleading or otherwise in violation of the 
privacy or other rights of the child, it must amend the information 
accordingly and so inform the parent in writing.
    (b) If, as a result of the hearing, the agency decides that the 
information is not inaccurate, misleading, or otherwise in violation of 
the privacy or other rights of the child, it must inform the parent of 
the 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.  300.621  Hearing procedures.

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

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

Sec.  300.622  Consent.

    (a) Except as to disclosures addressed in Sec.  300.535(b) for 
which parental consent is not required by 34 CFR 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 34 
CFR part 99.
    (c) The SEA must 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.  300.623  Safeguards.

    (a) Each participating agency must protect the confidentiality of 
personally identifiable information at collection, storage, disclosure, 
and destruction stages.
    (b) One official at each participating agency must assume 
responsibility for ensuring the confidentiality of any personally 
identifiable information.
    (c) All persons collecting or using personally identifiable 
information must receive training or instruction regarding the State's 
policies and procedures under Sec.  300.121 and 34 CFR part 99.
    (d) Each participating agency must maintain, for public inspection, 
a current listing of the names and positions of those employees within 
the agency who may have access to personally identifiable information.

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

Sec.  300.624  Destruction of information.

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

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

Sec.  300.625  Children's rights.

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

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

Sec.  300.626  Enforcement.

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

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

Sec.  300.627  Department use of personally identifiable information.

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

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

Reports--Program Information


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

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

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

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

    (a) For purposes of the annual report required by section 618 of 
the Act, the State and the Secretary of the Interior must count and 
report the number of children with disabilities receiving special 
education and related services on any date between October 1 and 
December 1 of each year.

[[Page 35881]]

    (b) For the purpose of this reporting provision, a child's age is 
the child's actual age on the date of the child count.
    (c) The SEA may not report a child under more than one disability 
category.
    (d) If a child with a disability has more than one disability, the 
SEA must report that child in accordance with the following procedure:
    (1) If a child has only two disabilities and those disabilities are 
deafness and blindness, and the child is not reported as having a 
developmental delay, that child must be reported under the category 
``deaf-blindness.''
    (2) A child who has more than one disability and is not reported as 
having deaf-blindness or as having a developmental delay must be 
reported under the category ``multiple disabilities.''

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

Sec.  300.642  Data reporting.

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

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

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

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

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

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

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

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

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

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

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

Sec.  300.646  Disproportionality.

    (a) General. Each State that receives assistance under Part B of 
the Act, and the Secretary of the Interior, must provide for the 
collection and examination of data to determine if significant 
disproportionality based on race and ethnicity is occurring in the 
State and the LEAs of the State with respect to--
    (1) The identification of children as children with disabilities, 
including the identification of children as children with disabilities 
in accordance with a particular impairment described in section 602(3) 
of the Act;
    (2) The placement in particular educational settings of these 
children; and
    (3) The incidence, duration, and type of disciplinary actions, 
including suspensions and expulsions.
    (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 must--
    (1) 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 the Act.
    (2) Require any LEA identified under paragraph (a) of this section 
to reserve the maximum amount of funds under section 613(f) of the Act 
to provide comprehensive coordinated early intervening services to 
serve children in the LEA, particularly, but not exclusively, children 
in those groups that were significantly overidentified under paragraph 
(a) of this section; and
    (3) Require the LEA to publicly report on the revision of policies, 
practices, and procedures described under paragraph (b)(1) of this 
section.

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

Subpart G--Authorization; Allotment; Use of Funds; and 
Authorization of Appropriations


Sec.  300.700  Grants to States.

    (a) Purpose of grants. The Secretary makes grants to States, 
outlying areas, and freely associated States (as defined in Sec.  
300.717), and provides funds to the Secretary of the Interior, to 
assist them to provide special education and related services to 
children with disabilities in accordance with Part B of the Act.
    (b) Maximum amount. The maximum amount of the grant a State may 
receive under section 611 of the Act is--
    (1) For fiscal years 2005 and 2006--
    (i) The number of children with disabilities in the State who are 
receiving special education and related services--
    (A) Aged three through five, if the State is eligible for a grant 
under section 619 of the Act; and
    (B) Aged 6 through 21; multiplied by--
    (ii) Forty (40) percent of the average per-pupil expenditure in 
public elementary schools and secondary schools in the United States 
(as defined in Sec.  300.717); and
    (2) For fiscal year 2007 and subsequent fiscal years--(i) The 
number of children with disabilities in the 2004-2005 school year in 
the State who received special education and related services--
    (A) Aged three through five if the State is eligible for a grant 
under section 619 of the Act; and
    (B) Aged 6 through 21; multiplied by
    (ii) Forty (40) percent of the average per-pupil expenditure in 
public elementary schools and secondary schools in the United States 
(as defined in Sec.  300.717);
    (iii) Adjusted by the rate of annual change in the sum of--
    (A) Eighty-five (85) percent of the State's population of children 
aged 3 through 21 who are of the same age as children with disabilities 
for whom the

[[Page 35882]]

State ensures the availability of FAPE under Part B of the Act; and
    (B) Fifteen (15) percent of the State's population of children 
described in paragraph (b)(2)(iii)(A) of this section who are living in 
poverty.

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

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

    (a) Outlying areas and freely associated States. (1) Funds 
reserved. From the amount appropriated for any fiscal year under 
section 611(i) of the Act, the Secretary reserves not more than one 
percent, which must be used--
    (i) To provide assistance to the outlying areas in accordance with 
their respective populations of individuals aged 3 through 21; and
    (ii) To provide each freely associated State a grant in the amount 
that the freely associated State received for fiscal year 2003 under 
Part B of the Act, but only if the freely associated State--
    (A) Meets the applicable requirements of Part B of the Act, 
including--
    (1) The requirements in section 612(a)(1), (3) through (9), (10)(B) 
through (C), (11) through (12), (14) through (16), (19), and (21) 
through (25) of the Act (including monitoring and evaluation 
activities);
    (2) The requirements in section 612(b) and (e) of the Act;
    (3) The requirements in section 613(a)(1), (2)(A)(i), (7) through 
(9), and section 613(i) of the Act;
    (4) The requirements in section 616 of the Act that apply to 
States; and
    (5) The requirements of this part that implement the sections of 
the Act listed in paragraphs (a)(1)(ii)(A)(1) through (A)(4) of this 
section; and
    (B) Meets the requirements in paragraph (a)(1)(iii) of this 
section.
    (iii) Any freely associated State that wishes to receive funds 
under Part B of the Act must include, in its application for 
assistance--
    (A) Information demonstrating that it will meet all conditions that 
apply to States under Part B of the Act, including the requirements 
described in paragraph (a)(1)(ii)(A) of this section;
    (B) 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;
    (C) 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
    (D) Such other information and assurances as the Secretary may 
require.
    (2) Special rule. The provisions of Public Law 95-134, permitting 
the consolidation of grants by the outlying areas, do not apply to 
funds provided to the outlying areas or to the freely associated States 
under Part B of the Act.
    (b) Secretary of the Interior. From the amount appropriated for any 
fiscal year under section 611(i) of the Act, the Secretary reserves 
1.226 percent to provide assistance to the Secretary of the Interior in 
accordance with Sec. Sec.  300.707 through 300.716.

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

Sec.  300.702  Technical assistance.

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

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

Sec.  300.703  Allocations to States.

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

[[Page 35883]]

amount appropriated for section 611 of the Act from the preceding 
fiscal year.
    (iii) Maximum. Notwithstanding paragraph (c)(2)(ii) of this 
section, no State's allocation under paragraph (a) of this section may 
exceed the sum of--
    (A) The amount the State received under section 611 of the Act for 
the preceding fiscal year; and
    (B) That amount multiplied by the sum of 1.5 percent and the 
percentage increase in the amount appropriated under section 611 of the 
Act from the preceding fiscal year.
    (3) Ratable reduction. If the amount available for allocations to 
States under paragraph (c) of this section is insufficient to pay those 
allocations in full, those allocations are ratably reduced, subject to 
paragraph (c)(2)(i) of this section.
    (d) Decrease in funds. If the amount available for allocations to 
States under paragraph (a) of this section for a fiscal year is less 
than the amount allocated to the States under section 611 of the Act 
for the preceding fiscal year, those allocations are calculated as 
follows:
    (1) Amounts greater than fiscal year 1999 allocations. If the 
amount available for allocations under paragraph (a) of this section is 
greater than the amount allocated to the States for fiscal year 1999, 
each State is allocated the sum of--
    (i) The amount the State received under section 611 of the Act for 
fiscal year 1999; and
    (ii) An amount that bears the same relation to any remaining funds 
as the increase the State received under section 611 of the Act for the 
preceding fiscal year over fiscal year 1999 bears to the total of all 
such increases for all States.
    (2) Amounts equal to or less than fiscal year 1999 allocations. (i) 
General. If the amount available for allocations under paragraph (a) of 
this section is equal to or less than the amount allocated to the 
States for fiscal year 1999, each State is allocated the amount it 
received for fiscal year 1999.
    (ii) Ratable reduction. If the amount available for allocations 
under paragraph (d) of this section is insufficient to make the 
allocations described in paragraph (d)(2)(i) of this section, those 
allocations are ratably reduced.

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

Sec.  300.704  State-level activities.

    (a) State administration. (1) For the purpose of administering Part 
B of the Act, including paragraph (c) of this section, section 619 of 
the Act, and the coordination of activities under Part B of the Act 
with, and providing technical assistance to, other programs that 
provide services to children with disabilities--
    (i) Each State may reserve for each fiscal year not more than the 
maximum amount the State was eligible to reserve for State 
administration under section 611 of the Act for fiscal year 2004 or 
$800,000 (adjusted in accordance with paragraph (a)(2) of this 
section), whichever is greater; and
    (ii) Each outlying area may reserve for each fiscal year not more 
than five percent of the amount the outlying area receives under Sec.  
300.701(a) for the fiscal year or $35,000, whichever is greater.
    (2) For each fiscal year, beginning with fiscal year 2005, the 
Secretary cumulatively adjusts--
    (i) The maximum amount the State was eligible to reserve for State 
administration under section 611 of the Act for fiscal year 2004; and
    (ii) $800,000, by the rate of inflation as measured by the 
percentage increase, if any, from the preceding fiscal year in the 
Consumer Price Index For All Urban Consumers, published by the Bureau 
of Labor Statistics of the Department of Labor.
    (3) Prior to expenditure of funds under paragraph (a) of this 
section, the State must certify to the Secretary that the arrangements 
to establish responsibility for services pursuant to section 
612(a)(12)(A) of the Act are current.
    (4) Funds reserved under paragraph (a)(1) of this section may be 
used for the administration of Part C of the Act, if the SEA is the 
lead agency for the State under that Part.
    (b) Other State-level activities. (1) States may reserve a portion 
of their allocations for other State-level activities. The maximum 
amount that a State may reserve for other State-level activities is as 
follows:
    (i) If the amount that the State sets aside for State 
administration under paragraph (a) of this section is greater than 
$850,000 and the State opts to finance a high cost fund under paragraph 
(c) of this section:
    (A) For fiscal years 2005 and 2006, 10 percent of the State's 
allocation under Sec.  300.703.
    (B) For fiscal year 2007 and subsequent fiscal years, an amount 
equal to 10 percent of the State's allocation for fiscal year 2006 
under Sec.  300.703 adjusted cumulatively for inflation.
    (ii) If the amount that the State sets aside for State 
administration under paragraph (a) of this section is greater than 
$850,000 and the State opts not to finance a high cost fund under 
paragraph (c) of this section--
    (A) For fiscal years 2005 and 2006, nine percent of the State's 
allocation under Sec.  300.703.
    (B) For fiscal year 2007 and subsequent fiscal years, an amount 
equal to nine percent of the State's allocation for fiscal year 2006 
adjusted cumulatively for inflation.
    (iii) If the amount that the State sets aside for State 
administration under paragraph (a) of this section is less than or 
equal to $850,000 and the State opts to finance a high cost fund under 
paragraph (c) of this section:
    (A) For fiscal years 2005 and 2006, 10.5 percent of the State's 
allocation under Sec.  300.703.
    (B) For fiscal year 2007 and subsequent fiscal years, an amount 
equal to 10.5 percent of the State's allocation for fiscal year 2006 
under Sec.  300.703 adjusted cumulatively for inflation.
    (iv) If the amount that the State sets aside for State 
administration under paragraph (a) of this section is equal to or less 
than $850,000 and the State opts not to finance a high cost fund under 
paragraph (c) of this section:
    (A) For fiscal years 2005 and 2006, nine and one-half percent of 
the State's allocation under Sec.  300.703.
    (B) For fiscal year 2007 and subsequent fiscal years, an amount 
equal to nine and one-half percent of the State's allocation for fiscal 
year 2006 under Sec.  300.703 adjusted cumulatively for inflation.
    (2) The adjustment for inflation is the rate of inflation as 
measured by the percentage of increase, if any, from the preceding 
fiscal year in the Consumer Price Index for All Urban Consumers, 
published by the Bureau of Labor Statistics of the Department of Labor.
    (3) Some portion of the funds reserved under paragraph (b)(1) of 
this section must be used to carry out the following activities:
    (i) For monitoring, enforcement, and complaint investigation; and
    (ii) To establish and implement the mediation process required by 
section 615(e) of the Act, including providing for the costs of 
mediators and support personnel;
    (4) Funds reserved under paragraph (b)(1) of this section may be 
used to carry out the following activities:
    (i) For support and direct services, including technical 
assistance, personnel preparation, and professional development and 
training;
    (ii) To support paperwork reduction activities, including expanding 
the use of technology in the IEP process;
    (iii) To assist LEAs in providing positive behavioral interventions 
and

[[Page 35884]]

supports and mental health services for children with disabilities;
    (iv) To improve the use of technology in the classroom by children 
with disabilities to enhance learning;
    (v) To support the use of technology, including technology with 
universal design principles and assistive technology devices, to 
maximize accessibility to the general education curriculum for children 
with disabilities;
    (vi) Development and implementation of transition programs, 
including coordination of services with agencies involved in supporting 
the transition of students with disabilities to postsecondary 
activities;
    (vii) To assist LEAs in meeting personnel shortages;
    (viii) To support capacity building activities and improve the 
delivery of services by LEAs to improve results for children with 
disabilities;
    (ix) Alternative programming for children with disabilities who 
have been expelled from school, and services for children with 
disabilities in correctional facilities, children enrolled in State-
operated or State-supported schools, and children with disabilities in 
charter schools;
    (x) To support the development and provision of appropriate 
accommodations for children with disabilities, or the development and 
provision of alternate assessments that are valid and reliable for 
assessing the performance of children with disabilities, in accordance 
with sections 1111(b) and 6111 of the ESEA; and
    (xi) To provide technical assistance to schools and LEAs, and 
direct services, including supplemental educational services as defined 
in section 1116(e) of the ESEA to children with disabilities, in 
schools or LEAs identified for improvement under section 1116 of the 
ESEA on the sole basis of the assessment results of the disaggregated 
subgroup of children with disabilities, including providing 
professional development to special and regular education teachers, who 
teach children with disabilities, based on scientifically based 
research to improve educational instruction, in order to improve 
academic achievement to meet or exceed the objectives established by 
the State under section 1111(b)(2)(G) of the ESEA.
    (c) Local educational agency high cost fund. (1) In general--
    (i) For the purpose of assisting LEAs (including a charter school 
that is an LEA or a consortium of LEAs) in addressing the needs of high 
need children with disabilities, each State has the option to reserve 
for each fiscal year 10 percent of the amount of funds the State 
reserves for other State-level activities under paragraph (b)(1) of 
this section--
    (A) To finance and make disbursements from the high cost fund to 
LEAs in accordance with paragraph (c) of this section during the first 
and succeeding fiscal years of the high cost fund; and
    (B) To support innovative and effective ways of cost sharing by the 
State, by an LEA, or among a consortium of LEAs, as determined by the 
State in coordination with representatives from LEAs, subject to 
paragraph (c)(2)(ii) of this section.
    (ii) For purposes of paragraph (c) of this section, local 
educational agency includes a charter school that is an LEA, or a 
consortium of LEAs.
    (2) (i) A State must not use any of the funds the State reserves 
pursuant to paragraph (c)(1)(i) of this section, which are solely for 
disbursement to LEAs, for costs associated with establishing, 
supporting, and otherwise administering the fund. The State may use 
funds the State reserves under paragraph (a) of this section for those 
administrative costs.
    (ii) A State must not use more than 5 percent of the funds the 
State reserves pursuant to paragraph (c)(1)(i) of this section for each 
fiscal year to support innovative and effective ways of cost sharing 
among consortia of LEAs.
    (3) (i) The SEA must develop, not later than 90 days after the 
State reserves funds under paragraph (c)(1)(i) of this section, 
annually review, and amend as necessary, a State plan for the high cost 
fund. Such State plan must--
    (A) Establish, in consultation and coordination with 
representatives from LEAs, a definition of a high need child with a 
disability that, at a minimum--
    (1) Addresses the financial impact a high need child with a 
disability has on the budget of the child's LEA; and
    (2) Ensures that the cost of the high need child with a disability 
is greater than 3 times the average per pupil expenditure (as defined 
in section 9101 of the ESEA) in that State;
    (B) Establish eligibility criteria for the participation of an LEA 
that, at a minimum, take into account the number and percentage of high 
need children with disabilities served by an LEA;
    (C) Establish criteria to ensure that placements supported by the 
fund are consistent with the requirements of Sec. Sec.  300.114 through 
300.118;
    (D) Develop a funding mechanism that provides distributions each 
fiscal year to LEAs that meet the criteria developed by the State under 
paragraph (c)(3)(i)(B) of this section; and
    (E) Establish an annual schedule by which the SEA must make its 
distributions from the high cost fund each fiscal year.
    (ii) The State must make its final State plan available to the 
public not less than 30 days before the beginning of the school year, 
including dissemination of such information on the State Web site.
    (4)(i) Each SEA must make all annual disbursements from the high 
cost fund established under paragraph (c)(1)(i) of this section in 
accordance with the State plan published pursuant to paragraph (c)(3) 
of this section.
    (ii) The costs associated with educating a high need child with a 
disability, as defined under paragraph (c)(3)(i)(A) of this section, 
are only those costs associated with providing direct special education 
and related services to the child that are identified in that child's 
IEP, including the cost of room and board for a residential placement 
determined necessary, consistent with Sec.  300.114, to implement a 
child's IEP.
    (iii) The funds in the high cost fund remain under the control of 
the State until disbursed to an LEA to support a specific child who 
qualifies under the State plan for the high cost funds or distributed 
to LEAs, consistent with paragraph (c)(9) of this section.
    (5) The disbursements under paragraph (c)(4) of this section must 
not be used to support legal fees, court costs, or other costs 
associated with a cause of action brought on behalf of a child with a 
disability to ensure FAPE for such child.
    (6) Nothing in paragraph (c) of this section --
    (i) Limits or conditions the right of a child with a disability who 
is assisted under Part B of the Act to receive FAPE pursuant to section 
612(a)(1) of the Act in the least restrictive environment pursuant to 
section 612(a)(5) of the Act; or
    (ii) Authorizes an SEA or LEA to establish a limit on what may be 
spent on the education of a child with a disability.
    (7) Notwithstanding the provisions of paragraphs (c)(1) through (6) 
of this section, a State may use funds reserved pursuant to paragraph 
(c)(1)(i) of this section for implementing a placement neutral cost 
sharing and reimbursement program of high need, low incidence, 
catastrophic, or extraordinary aid to LEAs that provides services to 
high need students based on eligibility criteria for such programs that 
were created not later than January 1, 2004, and are currently in 
operation, if such program serves children that meet the requirement of 
the definition of a high

[[Page 35885]]

need child with a disability as described in paragraph (c)(3)(i)(A) of 
this section.
    (8) Disbursements provided under paragraph (c) of this section must 
not be used to pay costs that otherwise would be reimbursed as medical 
assistance for a child with a disability under the State Medicaid 
program under Title XIX of the Social Security Act.
    (9) Funds reserved under paragraph (c)(1)(i) of this section from 
the appropriation for any fiscal year, but not expended pursuant to 
paragraph (c)(4) of this section before the beginning of their last 
year of availability for obligation, must be allocated to LEAs in the 
same manner as other funds from the appropriation for that fiscal year 
are allocated to LEAs under Sec.  300.705 during their final year of 
availability.
    (d) Inapplicability of certain prohibitions. A State may use funds 
the State reserves under paragraphs (a) and (b) of this section without 
regard to--
    (1) The prohibition on commingling of funds in Sec.  300.162(b).
    (2) The prohibition on supplanting other funds in Sec.  300.162(c).
    (e) Special rule for increasing funds. A State may use funds the 
State reserves under paragraph (a)(1) of this section as a result of 
inflationary increases under paragraph (a)(2) of this section to carry 
out activities authorized under paragraph (b)(4)(i), (iii), (vii), or 
(viii) of this section.
    (f) Flexibility in using funds for Part C. Any State eligible to 
receive a grant under section 619 of the Act may use funds made 
available under paragraph (a)(1) of this section, Sec.  300.705(c), or 
Sec.  300.814(e) to develop and implement a State policy jointly with 
the lead agency under Part C of the Act and the SEA to provide early 
intervention services (which must include an educational component that 
promotes school readiness and incorporates preliteracy, language, and 
numeracy skills) in accordance with Part C of the Act to children with 
disabilities who are eligible for services under section 619 of the Act 
and who previously received services under Part C of the Act until the 
children enter, or are eligible under State law to enter, kindergarten, 
or elementary school as appropriate.

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

Sec.  300.705  Subgrants to local educational agencies.

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

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

Sec.  300.706  Allocation for State in which by-pass is implemented for 
parentally-placed private school children with disabilities.

    In determining the allocation under Sec. Sec.  300.700 through 
300.703 for a State, outlying area, or freely associated State in which 
the Secretary will implement a by-pass for parentally-placed private 
school children with disabilities under Sec. Sec.  300.190 through 
300.198, 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 Sec. Sec.  
300.8(a) and 300.130) 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.  300.707  Use of Amounts by Secretary of the Interior.

    (a) Definitions. For purposes of Sec. Sec.  300.707 through 
300.716, the following definitions apply:
    (1) Reservation means Indian Country as defined in 18 U.S.C. 1151.
    (2) Tribal governing body of a school means the body or bodies that 
are recognized governing bodies of the Indian tribe involved and that 
represent at least 90 percent of the students served by the school. 25 
U.S.C. 2021(19) and 25 U.S.C. 2511(7).
    (b) Provision of amounts for assistance. The Secretary provides 
amounts to the Secretary of the Interior to meet the need for 
assistance for the education of children with disabilities on 
reservations aged 5 to 21, inclusive, enrolled in elementary schools 
and secondary schools for Indian children operated or funded by the 
Secretary of the Interior. The amount of the payment for any fiscal 
year is equal to 80 percent of the amount allotted under section 
611(b)(2) of the Act for that fiscal year. Of the amount described in 
the preceding sentence, after the Secretary of the Interior reserves 
funds for administration under Sec.  300.710, 80 percent must be 
allocated to such schools by July 1 of that fiscal year and

[[Page 35886]]

20 percent must be allocated to such schools by September 30 of that 
fiscal year.
    (c) Additional requirement. With respect to all other children aged 
3 to 21, inclusive, on reservations, the SEA must ensure that all of 
the requirements of Part B of the Act are implemented.

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

Sec.  300.708  Submission of information.

    The Secretary may provide the Secretary of the Interior amounts 
under Sec.  300.707 for a fiscal year only if the Secretary of the 
Interior submits to the Secretary information that--
    (a) Meets the requirements of section 612(a)(1), (3) through (9), 
(10)(B) through (C), (11) through (12), (14) through (16), (19), and 
(21) through (25) of the Act (including monitoring and evaluation 
activities);
    (b) Meets the requirements of section 612(b) and (e) of the Act;
    (c) Meets the requirements of section 613(a)(1), (2)(A)(i), (7) 
through (9) and section 613(i) of the Act (references to LEAs in these 
sections must be read as references to elementary schools and secondary 
schools for Indian children operated or funded by the Secretary of the 
Interior);
    (d) Meets the requirements of section 616 of the Act that apply to 
States (references to LEAs in section 616 of the Act must be read as 
references to elementary schools and secondary schools for Indian 
children operated or funded by the Secretary of the Interior).
    (e) Meets the requirements of this part that implement the sections 
of the Act listed in paragraphs (a) through (d) of this section;
    (f) Includes a description of how the Secretary of the Interior 
will coordinate the provision of services under Part B of the Act with 
LEAs, tribes and tribal organizations, and other private and Federal 
service providers;
    (g) Includes an assurance that there are public hearings, adequate 
notice of the hearings, and an opportunity for comment afforded to 
members of tribes, tribal governing bodies, and affected local school 
boards before the adoption of the policies, programs, and procedures 
related to the requirements described in paragraphs (a) through (d) of 
this section;
    (h) Includes an assurance that the Secretary of the Interior 
provides the information that the Secretary may require to comply with 
section 618 of the Act;
    (i)(1) Includes an assurance that the Secretary of the Interior and 
the Secretary of Health and Human Services have entered into a 
memorandum of agreement, to be provided to the Secretary, for the 
coordination of services, resources, and personnel between their 
respective Federal, State, and local offices and with the SEAs and LEAs 
and other entities to facilitate the provision of services to Indian 
children with disabilities residing on or near reservations.
    (2) The agreement must provide for the apportionment of 
responsibilities and costs, including child find, evaluation, 
diagnosis, remediation or therapeutic measures, and (where appropriate) 
equipment and medical or personal supplies, as needed for a child with 
a disability to remain in a school or program; and
    (j) Includes an assurance that the Department of the Interior will 
cooperate with the Department in its exercise of monitoring and 
oversight of the requirements in this section and Sec. Sec.  300.709 
through 300.711 and Sec. Sec.  300.713 through 300.716, and any 
agreements entered into between the Secretary of the Interior and other 
entities under Part B of the Act, and will fulfill its duties under 
Part B of the Act. The Secretary withholds payments under Sec.  300.707 
with respect to the requirements described in this section in the same 
manner as the Secretary withholds payments under section 616(e)(6) of 
the Act.

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

Sec.  300.709  Public participation.

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

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

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

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

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

Sec.  300.711  Early intervening services.

    (a) The Secretary of the Interior may allow each elementary school 
and secondary school for Indian children operated or funded by the 
Secretary of the Interior to use not more than 15 percent of the amount 
the school receives under 34 CFR 300.707(a) for any fiscal year, in 
combination with other amounts (which may include amounts other than 
education funds), to develop and implement coordinated, early 
intervening services, which may include interagency financing 
structures, for students in kindergarten through grade 12 (with a 
particular emphasis on students in kindergarten through grade three) 
who have not been identified as needing special education or related 
services but who need additional academic and behavioral support to 
succeed in a general education environment, in accordance with section 
613(f) of the Act.
    (b) Each elementary school and secondary school for Indian children 
operated or funded by the Secretary of the Interior that develops and 
maintains coordinated early intervening services in accordance with 
section 613(f) of the Act and Sec.  300.226 must annually report to the 
Secretary of the Interior in accordance with section 613(f) of the Act.

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

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

    (a) General. With funds appropriated under section 611(i) of the 
Act, the Secretary makes payments to the Secretary of the Interior to 
be distributed to tribes or tribal organizations (as defined under 
section 4 of the Indian Self-Determination and Education Assistance 
Act) or consortia of tribes or tribal organizations to provide for the 
coordination of assistance for special education and related services 
for children with disabilities aged three through five on reservations 
served by elementary schools and secondary schools for Indian children 
operated or funded by the Department of the Interior. The amount of the 
payments under paragraph (b) of this section for any fiscal year is 
equal to 20 percent of the amount allotted under Sec.  300.701(b).
    (b) Distribution of funds. The Secretary of the Interior must 
distribute the total amount of the payment under paragraph (a) of this 
section by allocating to each tribe, tribal organization, or consortium 
an amount based on the number of children with disabilities aged three 
through five residing on reservations as reported annually, divided by 
the total of those children served by all tribes or tribal 
organizations.
    (c) Submission of information. To receive a payment under this 
section, the tribe or tribal organization must submit the figures to 
the Secretary of the Interior as required to determine the amounts to 
be allocated under paragraph (b) of this section. This

[[Page 35887]]

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

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

Sec.  300.713  Plan for coordination of services.

    (a) The Secretary of the Interior must develop and implement a plan 
for the coordination of services for all Indian children with 
disabilities residing on reservations covered under Part B of the Act.
    (b) The plan must provide for the coordination of services 
benefiting those children from whatever source, including tribes, the 
Indian Health Service, other BIA divisions, and other Federal agencies.
    (c) In developing the plan, the Secretary of the Interior must 
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; to 
SEAs, LEAs, and other agencies providing services to infants, toddlers, 
and children with disabilities; to tribes; and to other interested 
parties.

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

Sec.  300.714  Establishment of advisory board.

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

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

Sec.  300.715  Annual reports.

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

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

Sec.  300.716  Applicable regulations.

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

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

Sec.  300.717  Definitions.

    As used in this subpart:
    (a) Freely associated States means the Republic of the Marshall 
Islands, the Federated States of Micronesia, and the Republic of Palau;
    (b) Outlying areas means the United States Virgin Islands, Guam, 
American Samoa, and the Commonwealth of the Northern Mariana Islands;
    (c) State means each of the 50 States, the District of Columbia, 
and the Commonwealth of Puerto Rico; and
    (d) Average per-pupil expenditure in public elementary schools and 
secondary schools in the United States means--
    (1) Without regard to the source of funds--
    (i) The aggregate current expenditures, during the second fiscal 
year preceding the fiscal year for which the determination is made (or, 
if satisfactory data for that year are not available, during the most 
recent preceding fiscal year for which satisfactory data are available) 
of all LEAs in the 50 States and the District of Columbia); plus
    (ii) Any direct expenditures by the State for the operation of 
those agencies; divided by
    (2) The aggregate number of children in average daily attendance to 
whom those agencies provided free public education during that 
preceding year.

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

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

    (a) General. If the Secretary determines that a program authorized

[[Page 35888]]

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

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

Subpart H--Preschool Grants for Children With Disabilities


Sec.  300.800  In general.

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

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

Sec. Sec.  300.801-300.802  [Reserved]


Sec.  300.803  Definition of State.

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

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

Sec.  300.804  Eligibility.

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


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

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

Sec.  300.805  [Reserved]


Sec.  300.806  Eligibility for financial assistance.

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

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

Sec.  300.807  Allocations to States.

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

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

Sec.  300.808  Increase in funds.

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

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

Sec.  300.809  Limitations.

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

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

Sec.  300.810  Decrease in funds.

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

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


[[Page 35889]]




Sec.  300.811  Allocation for State in which by-pass is implemented for 
parentally-placed private school children with disabilities.

    In determining the allocation under Sec. Sec.  300.808 through 
300.810 for a State in which the Secretary will implement a by-pass for 
parentally-placed private school children with disabilities under 
Sec. Sec.  300.190 through 300.198, 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 aged three through five years, with 
disabilities (as defined in Sec. Sec.  300.8(a) and 300.130) 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 aged three through five years, who received 
special education and related services under the by-pass in the 
preceding year.

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

Sec.  300.812  Reservation for State activities.

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

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

Sec.  300.813  State administration.

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

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

Sec.  300.814  Other State-level activities.

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

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

Sec.  300.815  Subgrants to local educational agencies.

    Each State that receives a grant under section 619 of the Act for 
any fiscal year must distribute all of the grant funds that the State 
does not reserve under Sec.  300.812 to LEAs in the State that have 
established their eligibility under section 613 of the Act.

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

Sec.  300.816  Allocations to local educational agencies.

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

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

Sec.  300.817  Reallocation of local educational agency funds.

    If an SEA determines that an LEA is adequately providing FAPE to 
all children with disabilities aged three through five residing in the 
area served by the LEA with State and local funds, the SEA may 
reallocate any portion of the funds under section 619 of the Act that 
are not needed by that LEA to provide FAPE to other LEAs in the State 
that are not adequately providing

[[Page 35890]]

special education and related services to all children with 
disabilities aged three through five residing in the areas the other 
LEAs serve.

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

Sec.  300.818  Part C of the Act inapplicable.

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

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

PART 301 [REMOVED]

    2. Remove part 301.
    3. Revise part 304 to read as follows:

PART 304-SERVICE OBLIGATIONS UNDER SPECIAL EDUCATION-PERSONNEL 
DEVELOPMENT TO IMPROVE SERVICES AND RESULTS FOR CHILDREN WITH 
DISABILITIES

Subpart A--General
Sec.
304.1 Purpose.
304.3 Definitions.
Subpart B--Conditions That Must Be Met by Grantee
304.21 Allowable costs.
304.22 Requirements for grantees in disbursing scholarships.
304.23 Assurances that must be provided by grantee.
Subpart C--Conditions That Must Be Met by Scholar
304.30 Requirements for scholar.
304.31 Requirements for obtaining an exception or deferral to 
performance or repayment under an agreement.

    Authority: 20 U.S.C. 1462(h), unless otherwise noted.

Subpart A--General


Sec.  304.1  Purpose.

    Individuals who receive scholarship assistance from projects funded 
under the Special Education--Personnel Development to Improve Services 
and Results for Children with Disabilities program are required to 
complete a service obligation, or repay all or part of the costs of 
such assistance, in accordance with section 662(h) of the Act and the 
regulations of this part.

(Authority: 20 U.S.C. 1462(h))

Sec.  304.3  Definitions.

    The following definitions apply to this program:
    (a) Academic year means--
    (1) A full-time course of study--
    (i) Taken for a period totaling at least nine months; or
    (ii) Taken for the equivalent of at least two semesters, two 
trimesters, or three quarters; or
    (2) For a part-time student, the accumulation of periods of part-
time courses of study that is equivalent to an ``academic year'' under 
paragraph (a)(1) of this definition.
    (b) Act means the Individuals with Disabilities Education Act, as 
amended, 20 U.S.C. 1400 et seq.
    (c) Early intervention services means early intervention services 
as defined in section 632(4) of the Act and includes early intervention 
services to infants and toddlers with disabilities, and as applicable, 
to infants and toddlers at risk for disabilities under sections 632(1) 
and 632(5)(b) of the Act.
    (d) Full-time, for purposes of determining whether an individual is 
employed full-time in accordance with Sec.  304.30 means a full-time 
position as defined by the individual's employer or by the agencies 
served by the individual.
    (e) Related services means related services as defined in section 
602(26) of the Act.
    (f) Repayment means monetary reimbursement of scholarship 
assistance in lieu of completion of a service obligation.
    (g) Scholar means an individual who is pursuing a degree, license, 
endorsement, or certification related to special education, related 
services, or early intervention services and who receives scholarship 
assistance under section 662 of the Act.
    (h) Scholarship means financial assistance to a scholar for 
training under the program and includes all disbursements or credits 
for tuition, fees, student stipends, books, and travel in conjunction 
with training assignments.
    (i) Service obligation means a scholar's employment obligation, as 
described in section 662(h) of the Act and Sec.  304.30.
    (j) Special education means special education as defined in section 
602(29) of the Act.

(Authority: 20 U.S.C. 1462(h))

Subpart B--Conditions That Must be Met by Grantee


Sec.  304.21  Allowable costs.

    In addition to the allowable costs established in the Education 
Department General Administrative Regulations in 34 CFR 75.530 through 
75.562, the following items are allowable expenditures by projects 
funded under the program:
    (a) Cost of attendance, as defined in Title IV of the Higher 
Education Act of 1965, as amended, 20 U.S.C. 108711 (HEA), including 
the following:
    (1) Tuition and fees.
    (2) An allowance for books, supplies, transportation, and 
miscellaneous personal expenses.
    (3) An allowance for room and board.
    (b) Student stipends.
    (c) Travel in conjunction with training assignments.

(Authority: 20 U.S.C. 1462(h))

Sec.  304.22  Requirements for grantees in disbursing scholarships.

    Before disbursement of scholarship assistance to an individual, a 
grantee must--
    (a) Ensure that the scholar--
    (1) Is a citizen or national of the United States;
    (2) Is a permanent resident of--
    (i) Puerto Rico, the United States Virgin Islands, Guam, American 
Samoa, or the Commonwealth of the Northern Mariana Islands; or
    (ii) The Republic of the Marshall Islands, the Federated States of 
Micronesia, or the Republic of Palau (during the period in which these 
entities are eligible to receive an award under the program); or
    (3) Provides evidence from the U.S. Department of Homeland Security 
that the individual is--
    (i) A lawful permanent resident of the United States; or
    (ii) In the United States for other than a temporary purpose with 
the intention of becoming a citizen or permanent resident;
    (b) Limit the cost of attendance portion of the scholarship 
assistance (as discussed in Sec.  304.21(a)) to the amount by which the 
individual's cost of attendance at the institution exceeds the amount 
of grant assistance the scholar is to receive for the same academic 
year under title IV of the HEA; and
    (c) Obtain a Certification of Eligibility for Federal Assistance 
from each scholar, as prescribed in 34 CFR 75.60, 75.61, and 75.62.

(Authority: 20 U.S.C. 1462(h))

Sec.  304.23  Assurances that must be provided by grantee.

    Before receiving an award, a grantee that intends to grant 
scholarships under the program must include in its application an 
assurance that the following requirements will be satisfied:
    (a) Requirement for agreement. Prior to granting a scholarship, the 
grantee will require each scholar to enter into a written agreement in 
which the scholar agrees to the terms and conditions set forth in Sec.  
304.30. This agreement must explain the Secretary's authority to grant 
deferrals and exceptions to the service obligation pursuant to Sec.  
304.31 and include the current Department address for purposes of the 
scholar's compliance with Sec.  304.30(i).

[[Page 35891]]

    (b) Standards for satisfactory progress. The grantee must 
establish, notify students of, and apply reasonable standards for 
measuring whether a scholar is maintaining satisfactory progress in the 
scholar's course of study.
    (c) Exit certification. The grantee must establish policies and 
procedures for receiving and maintaining records of written 
certification from scholars at the time of exit from the program that 
identifies--
    (1) The number of years the scholar needs to work to satisfy the 
work requirements in Sec.  304.30(d);
    (2) The total amount of scholarship assistance received subject to 
Sec.  304.30;
    (3) The time period, consistent with Sec.  304.30(f)(1), during 
which the scholar must satisfy the work requirements; and
    (4) As applicable, all other obligations of the scholar under Sec.  
304.30.
    (d) Information. The grantee must provide the Secretary 
information, including records maintained under paragraph (c) of this 
section, that is necessary to carry out the Secretary's functions under 
section 662 of the Act and this part.
    (e) Notification to the Secretary. If the grantee is aware that the 
scholar has chosen not to fulfill or will be unable to fulfill the 
obligation under Sec.  304.30(d), the grantee must notify the Secretary 
when the scholar exits the program.

(Authority: 20 U.S.C. 1462(h))

Subpart C--Conditions That Must Be Met by Scholar


Sec.  304.30  Requirements for scholar.

    Individuals who receive scholarship assistance from grantees funded 
under section 662 of the Act must--
    (a) Training. Receive the training at the educational institution 
or agency designated in the scholarship;
    (b) Educational allowances. Not accept payment of educational 
allowances from any other entity if that allowance conflicts with the 
scholar's obligation under section 662 of the Act and this part;
    (c) Satisfactory progress. Maintain satisfactory progress toward 
the degree, certificate, endorsement, or license as determined by the 
grantee;
    (d) Service obligation. Upon exiting the training program under 
paragraph (a) of this section, subsequently maintain employment--
    (1) On a full-time or full-time equivalent basis; and
    (2) For a period of at least two years for every academic year for 
which assistance was received;
    (e) Eligible employment. In order to meet the requirements of 
paragraph (d) of this section for any project funded under section 662 
of the Act, be employed in a position in which--
    (1) A majority of the children to whom the individual provides 
services are receiving special education, related services, or early 
intervention services from the individual;
    (2) The individual spends a majority of his or her time providing 
special education, related services, or early intervention services;
    (3) If the position is supervisory, including in the capacity of a 
principal, the individual spends a majority of his or her time 
performing work related to the individual's preparation under section 
662 of the Act by providing one or both of the following:
    (i) Special education, related services, or early intervention 
services.
    (ii) Supervision to others on issues directly related to special 
education, related services, or early intervention services.
    (4) If the position is postsecondary faculty, the individual spends 
a majority of his or her time performing work related to the 
individual's preparation under section 662 of the Act by preparing 
special education teachers, related services personnel, or early 
intervention services personnel to provide services; or
    (5) If the position is in research, the individual spends a 
majority of his or her time performing research related to the 
individual's preparation under section 662 of the Act that focuses on 
special education, related services, or early intervention services;
    (f) Time period. Meet the service obligation under paragraph (d) of 
this section as follows:
    (1) A scholar must complete the service obligation within the 
period ending not more than the sum of the number of years required in 
paragraph (d)(2) of this section, as appropriate, plus three additional 
years, from the date the scholar completes the training for which the 
scholarship assistance was awarded.
    (2) A scholar may begin eligible employment subsequent to the 
completion of one academic year of the training for which the 
scholarship assistance was received that otherwise meets the 
requirements of paragraph (1);
    (g) Part-time scholars. If the scholar is a part-time student, meet 
the service obligation in this section based on the accumulated 
academic years of training for which the scholarship is received;
    (h) Information upon exit. Provide the grantee all requested 
information necessary for the grantee to meet the exit certification 
requirements under Sec.  304.23(c);
    (i) Information after exit. Within 60 days after exiting the 
program, and as necessary thereafter for any changes, provide the 
Department, via U.S. mail, all information that the Secretary needs to 
monitor the scholar's service obligation under this section, including 
social security number, address, employment setting, and employment 
status;
    (j) Repayment. If not fulfilling the requirements in this section, 
subject to the provisions in Sec.  304.31 regarding an exception or 
deferral, repay any scholarship received, plus interest, in an amount 
proportional to the service obligation not completed as follows:
    (1) The Secretary charges the scholar interest on the unpaid 
balance owed in accordance with the Debt Collection Act of 1982, as 
amended, 31 U.S.C. 3717.
    (2)(i) Interest on the unpaid balance accrues from the date the 
scholar is determined to have entered repayment status under paragraph 
(4) of this section.
    (ii) Any accrued interest is capitalized at the time the scholar's 
repayment schedule is established.
    (iii) No interest is charged for the period of time during which 
repayment has been deferred under Sec.  304.31.
    (3) Under the authority of the Debt Collection Act of 1982, as 
amended, the Secretary may impose reasonable collection costs.
    (4) A scholar enters repayment status on the first day of the first 
calendar month after the earliest of the following dates, as 
applicable:
    (i) The date the scholar informs the grantee or the Secretary that 
the scholar does not plan to fulfill the service obligation under the 
agreement.
    (ii) Any date when the scholar's failure to begin or maintain 
employment makes it impossible for that individual to complete the 
service obligation within the number of years required in Sec.  
304.30(f).
    (iii) Any date on which the scholar discontinues enrollment in the 
course of study under Sec.  304.30(a).
    (5) The scholar must make payments to the Secretary that cover 
principal, interest, and collection costs according to a schedule 
established by the Secretary.
    (6) Any amount of the scholarship that has not been repaid pursuant 
to paragraphs (j)(1) through (j)(5) of this section will constitute a 
debt owed to the United States that may be collected by the Secretary 
in accordance with 34 CFR part 30.

(Authority: 20 U.S.C. 1462(h))


[[Page 35892]]




Sec.  304.31  Requirements for obtaining an exception or deferral to 
performance or repayment under an agreement.

    (a) Based upon sufficient evidence to substantiate the grounds, the 
Secretary may grant an exception to the repayment requirement in Sec.  
304.30(j), in whole or part, if the scholar--
    (1) Is unable to continue the course of study in Sec.  304.30(j) or 
perform the service obligation because of a permanent disability; or
    (2) Has died.
    (b) Based upon sufficient evidence to substantiate the grounds, the 
Secretary may grant a deferral of the repayment requirement in Sec.  
304.30(j) during the time the scholar--
    (1) Is engaging in a full-time course of study at an institution of 
higher education;
    (2) Is serving on active duty as a member of the armed services of 
the United States;
    (3) Is serving as a volunteer under the Peace Corps Act; or
    (4) Is serving as a full-time volunteer under title I of the 
Domestic Volunteer Service Act of 1973.

(Authority: 20 U.S.C. 1462(h))


[FR Doc. 05-11804 Filed 6-14-05; 8:45 am]
BILLING CODE 4001-01-P