[Federal Register Volume 71, Number 156 (Monday, August 14, 2006)]
[Rules and Regulations]
[Pages 46540-46845]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6656]
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Part II
Department of Education
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34 CFR Parts 300 and 301
Assistance to States for the Education of Children With Disabilities
and Preschool Grants for Children With Disabilities; Final Rule
Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules
and Regulations
[[Page 46540]]
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DEPARTMENT OF EDUCATION
34 CFR Parts 300 and 301
RIN 1820-AB57
Assistance to States for the Education of Children With
Disabilities and Preschool Grants for Children With Disabilities
AGENCY: Office of Special Education and Rehabilitative Services,
Department of Education.
ACTION: Final regulations.
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SUMMARY: The Secretary issues final regulations governing the
Assistance to States for Education of Children with Disabilities
Program and the Preschool Grants for Children with Disabilities
Program. These regulations are needed to implement changes made to the
Individuals with Disabilities Education Act, as amended by the
Individuals with Disabilities Education Improvement Act of 2004 (Act or
IDEA).
DATES: These regulations take effect on October 13, 2006.
FOR FURTHER INFORMATION CONTACT: Alexa Posny, U.S. Department of
Education, Potomac Center Plaza, 550 12th Street, SW., Washington, DC
20202-2641. Telephone: (202) 245-7459, ext. 3.
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
alternate format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION: These regulations implement changes in the
regulations governing the Assistance to States for Education of
Children with Disabilities Program and the Preschool Grants for
Children with Disabilities Program necessitated by the reauthorization
of the IDEA. With the issuance of these final regulations, part 301 has
been removed and the regulations implementing the Preschool Grants for
Children with Disabilities Program are included under subpart H of
these final regulations.
On June 21, 2005, the Secretary published a notice of proposed
rulemaking in the Federal Register (70 FR 35782) (NPRM) 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. In the preamble to the NPRM, the Secretary
discussed, on pages 35783 through 35819, the changes proposed to the
regulations for these programs; specifically, the amendments to 34 CFR
part 300, the removal of 34 CFR part 301 and relocation of those
provisions to subpart H of 34 CFR part 300, and the amendments to 34
CFR part 304.
Final regulations for 34 CFR Part 304--Special Education-Personnel
Development to Improve Services and Results for Children with
Disabilities were published in the Federal Register (71 FR 32396) on
June 5, 2006, and became effective July 5, 2006.
Major Changes in the Regulations
The following is a summary of the major substantive changes in
these final regulations from the regulations proposed in the NPRM (the
rationale for each of these changes is discussed in the Analysis of
Comments and Changes section of this preamble):
Subpart A--General
Definitions
The definition of child with a disability in Sec. 300.8
has been revised as follows:
(1) Section 300.8(b) (Children aged three through nine experiencing
developmental delays) has been changed to clarify that the use of the
term ``developmental delay'' is subject to the conditions described in
Sec. 300.111(b).
(2) The definition of other health impairment in Sec.
300.8(c)(9)(i) has been changed to add ``Tourette Syndrome'' to the
list of chronic or acute health problems.
The definition of excess costs in Sec. 300.16 has been
revised to clarify that the computation of excess costs may not include
capital outlay and debt service. In addition, a new ``Appendix A to
Part 300--Excess Cost Calculation'' has been added to provide a
description (and an example) of how to calculate excess costs under the
Act and these regulations.
The definition of highly qualified special education
teacher in Sec. 300.18 has been revised, as follows:
(1) Section 300.18(b), regarding requirements for highly qualified
special education teachers in general, has been modified to clarify
that, when used with respect to any special education teacher teaching
in a charter school, highly qualified means that the teacher meets the
certification or licensing requirements, if any, set forth in the
State's public charter school law.
(2) A new Sec. 300.18(e), regarding separate ``high objective
uniform State standards of evaluation'' (HOUSSE), has been added to
provide that a State may develop a separate HOUSSE for special
education teachers, provided that any adaptations of the State's HOUSSE
would not establish a lower standard for the content knowledge
requirements for special education teachers and meets all the
requirements for a HOUSSE for regular education teachers. This
provision also clarifies that a State may develop a separate HOUSSE for
special education teachers, which may include single HOUSSE evaluations
that cover multiple subjects.
(3) Section 300.18(g) (proposed Sec. 300.18(f)) (``Applicability
of definition to ESEA requirements; and clarification of new special
education teacher'') has been revised as follows: (1) The heading has
been revised, and (2) the language changed to clarify when a special
education teacher is considered ``new'' for some purposes.
(4) Section 300.18(h) (proposed Sec. 300.18(g)) has been modified
to clarify that the highly qualified special education teacher
requirements also do not apply to private school teachers hired or
contracted by LEAs to provide equitable services to parentally-placed
private school children with disabilities under Sec. 300.138.
The definition of Indian and Indian tribe in Sec. 300.21
has been changed to clarify that nothing in the definition is intended
to indicate that the Secretary of the Interior is required to provide
services or funding to a State Indian tribe that is not listed in the
Federal Register list of Indian entities recognized as eligible to
receive services from the United States, published pursuant to Section
104 of the Federally Recognized Indian Tribe List Act of 1994, 25
U.S.C. 479a-1.
The definition of parent in Sec. 300.30 has been revised
to substitute ``biological'' for ``natural'' each time it appears in
the definition, and to add language clarifying that to be considered a
parent under this definition a ``guardian'' must be a person generally
authorized to act as the child's parent, or authorized to make
educational decisions for the child.
The definition of related services in Sec. 300.34 has
been revised as follows:
(1) Section 300.34(a) (General) has been modified to (A) add the
statutory term ``early identification and assessment of disabilities in
children,'' which was inadvertently omitted from the NPRM, (B) combine
``school health services'' and ``school nurse services,'' and (C)
remove the clause relating to a free appropriate public education under
[[Page 46541]]
``school nurse services'' because it duplicates the clause in Sec.
300.34(c)(13).
(2) Section 300.34(b) has been changed to (A) expand the title to
read ``Exception; services that apply to children with surgically
implanted devices, including cochlear implants,'' and (B) clarify, in
new paragraph (b)(1), that related services do not include a medical
device that is surgically implanted, the optimization of that device's
functioning (e.g., mapping), maintenance of that device, or the
replacement of that device.
(3) A new Sec. 300.34(b)(2) has been added to make clear that
nothing in paragraph (b)(1) of Sec. 300.34 (A) limits the right of a
child with a surgically implanted device (e.g., a cochlear implant) to
receive related services, as listed in Sec. 300.34(a), that are
determined by the IEP Team to be necessary for the child to receive
FAPE; (B) limits the responsibility of a public agency to appropriately
monitor and maintain medical devices that are needed to maintain the
health and safety of the child, including breathing, nutrition, or
operation of other bodily functions, while the child is transported to
and from school or is at school; or (C) prevents the routine checking
of an external component of a surgically-implanted device to make sure
it is functioning properly, as required in Sec. 300.113(b).
(4) The definition of interpreting services in Sec. 300.34(c)(4)
has been changed to clarify that the term includes (A) transcription
services, such as communication access real-time translation (CART), C-
Print, and TypeWell for children who are deaf or hard of hearing, and
(B) special interpreting services for children who are deaf-blind.
(5) The definition of orientation and mobility services in Sec.
300.34(c)(7) has been changed to remove the term ``travel training
instruction.'' The term is under the definition of special education,
and is defined in Sec. 300.39(b)(4).
(6) The definition of school nurse services in 300.34(c)(13) has
been expanded and re-named school health services and school nurse
services. The expanded definition clarifies that ``school nurse
services'' are provided by a qualified school nurse, and ``school
health services'' may be provided by a qualified school nurse or other
qualified person.
A definition of scientifically based research has been
added in new Sec. 300.35 that incorporates by reference the definition
of that term from the Elementary and Secondary Education Act of 1965,
as amended, 20 U.S.C. 6301 et seq. (ESEA).
With the addition of the new definition in Sec. 300.35, the
definitions in subpart A, beginning with the definition of secondary
school, have been renumbered.
The definition of special education in Sec. 300.39
(proposed Sec. 300.38) has been revised to remove the definition of
vocational and technical education that was included in proposed Sec.
300.38(b)(6).
The definition of supplementary aids and services in Sec.
300.42 (proposed Sec. 300.41) has been modified to specify that aids,
services, and other supports are also provided to enable children with
disabilities to participate in extracurricular and nonacademic
settings.
Subpart B--State Eligibility
FAPE Requirements
Section 300.101(c) has been revised to clarify that a free
appropriate public education (FAPE) must be available to any individual
child with a disability who needs special education and related
services, even though the child has not failed or been retained in a
course, and is advancing from grade to grade.
Section 300.102(a)(3), regarding exceptions to FAPE, has
been changed to clarify that a regular high school diploma does not
include an alternative degree that is not fully aligned with the
State's academic standards, such as a certificate or a general
educational development credential (GED).
Section 300.105, regarding assistive technology and proper
functioning of hearing aids, has been re-titled ``Assistive
technology,'' and proposed paragraph (b), regarding the proper
functioning of hearing aids, has been moved to new Sec. 300.113(a).
Section 300.107(a), regarding nonacademic services, has
been revised to specify the steps each public agency must take,
including the provision of supplementary aids and services determined
appropriate and necessary by the child's IEP Team, to provide
nonacademic and extracurricular services and activities in the manner
necessary to afford children with disabilities an equal opportunity for
participation in those services and activities.
Proposed Sec. 300.108(a), regarding physical education
services, has been revised to specify that physical education must be
made available to all children with disabilities receiving FAPE, unless
the public agency enrolls children without disabilities and does not
provide physical education to children without disabilities in the same
grades.
A new Sec. 300.113, regarding routine checking of hearing
aids and external components of surgically implanted medical devices,
has been added, as follows:
(1) Paragraph (a) of Sec. 300.113 requires each public agency to
ensure that hearing aids worn in school by children with hearing
impairments, including deafness, are functioning properly.
(2) A new Sec. 300.113(b)(1) requires each public agency to ensure
that the external components of surgically implanted medical devices
are functioning properly. However, new Sec. 300.113(b)(2) has been
added to make it clear that, for a child with a surgically implanted
medical device who is receiving special education and related services,
a public agency is not responsible for the post-surgical maintenance,
programming, or replacement of the medical device that has been
surgically implanted (or of an external component of the surgically
implanted medical device).
Least Restrictive Environment
Section 300.116(b)(3) and (c) regarding placements, has
been revised to remove the qualification ``unless the parent agrees
otherwise'' from the requirements that (1) the child's placement be as
close as possible to the child's home, and (2) the child is educated in
the school he or she would attend if not disabled.
Section 300.117 (Nonacademic settings) has been changed to
clarify that each public agency must ensure that each child with a
disability has the supplementary aids and services determined by the
child's individualized education program (IEP) Team to be appropriate
and necessary for the child to participate with nondisabled children in
the extracurricular services and activities to the maximum extent
appropriate to the needs of that child.
Children With Disabilities Enrolled by Their Parents in Private Schools
Section 300.130 (definition of parentally-placed private
school children with disabilities) has been revised to clarify that the
term means children with disabilities enrolled by their parents in
private, including religious, schools or facilities, that meet the
definition of elementary school in Sec. 300.13 or secondary school in
Sec. 300.36.
A new Sec. 300.131(f), regarding child find for out-of-
State parentally-placed private school children with disabilities, has
been added to clarify that each LEA
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in which private (including religious) elementary schools and secondary
schools are located must include parentally-placed private school
children who reside in a State other than the State in which the
private schools that they attend are located.
Section 300.133, regarding expenditures for parentally-
placed private school children with disabilities, has been revised, as
follows:
(1) A new Sec. 300.133(a)(2)(ii), has been added to clarify that
children aged three through five are considered to be parentally-placed
private school children with disabilities enrolled by their parents in
private, including religious, elementary schools, if they are enrolled
in a private school that meets the definition of elementary school in
Sec. 300.13.
(2) A new Sec. 300.133(a)(3) has been added to specify that, if an
LEA has not expended for equitable services for parentally-placed
private school children with disabilities all of the applicable funds
described in Sec. 300.133(a)(1) and (a)(2) by the end of the fiscal
year for which Congress appropriated the funds, the LEA must obligate
the remaining funds for special education and related services
(including direct services) to parentally-placed private school
children with disabilities during a carry-over period of one additional
year.
Section 300.136, regarding compliance related to
parentally-placed private school children with disabilities, has been
revised to remove the requirement that private school officials must
submit complaints to the SEA using the procedures in Sec. Sec. 300.151
through 300.153.
Section 300.138(a), regarding the requirement that
services 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, has been modified to clarify
that private elementary school and secondary school teachers who are
providing equitable services to parentally-placed private school
children with disabilities do not have to meet the highly qualified
special education teacher requirements in Sec. 300.18.
Section 300.140, regarding due process complaints and
State complaints, has been revised to make the following changes:
(1) Section 300.140(b)(1) (proposed Sec. 300.140(a)(2)), regarding
child find complaints, has been changed to clarify that the procedures
in Sec. Sec. 300.504 through 300.519 apply to complaints that an LEA
has failed to meet the child find requirements in Sec. 300.131,
including the requirements in Sec. Sec. 300.301 through 300.311.
(2) A new paragraph (b)(2) has been added to provide that any due
process complaint regarding the child find requirements (as described
in Sec. 300.140(b)(1)) must be filed with the LEA in which the private
school is located and a copy of the complaint must be forwarded to the
SEA.
(3) A new Sec. 300.140(c), regarding State complaints by private
school officials, has been added to clarify that (A) any complaint that
an SEA or LEA has failed to meet the requirements in Sec. Sec. 300.132
through 300.135 and 300.137 through 300.144 must be filed in accordance
with the procedures described in Sec. Sec. 300.151 through 300.153,
and (B) a complaint filed by a private school official under Sec.
300.136(a) must be filed with the SEA in accordance with the procedures
in Sec. 300.136(b).
Children With Disabilities Enrolled by Their Parents in Private Schools
When FAPE Is at Issue
Section 300.148 Placement of Children by Parents if FAPE Is at Issue
A new Sec. 300.148(b), regarding disagreements about
FAPE, has been added (from current Sec. 300.403(b)) to clarify that
disagreements between a parent and a public agency regarding the
availability of a program appropriate for a child with a disability,
and the question of financial reimbursement, are subject to the due
process procedures in Sec. Sec. 300.504 through 300.520.
State Complaint Procedures
Section 300.152(a)(3)(ii) (proposed paragraph (a)(3)(B))
has been revised to clarify that each SEA's complaint procedures must
provide the public agency with an opportunity to respond to a complaint
filed under Sec. 300.153, including, at a minimum, an opportunity for
a parent who has filed a complaint and the public agency to voluntarily
engage in mediation consistent with Sec. 300.506.
Section 300.152(b)(1)(ii), regarding time extensions for
filing a State complaint, has been revised to clarify that it would be
permissible to extend the 60-day timeline if the parent (or individual
or organization if mediation or other alternative means of dispute
resolution is available to the individual or organization under State
procedures) and the public agency agree to engage in mediation or to
engage in other alternative means of dispute resolution, if available
in the State.
Section 300.152(c), regarding complaints filed under Sec.
300.152 and due process hearings under Sec. 300.507 and Sec. Sec.
300.530 through 300.532, has been revised to clarify that if a written
complaint is received that is also the subject of a due process hearing
under Sec. Sec. 300.507 or 300.530 through 300.532, or contains
multiple issues of which one or more are part of a due process hearing,
the State must set aside any part of the complaint that is being
addressed in the due process hearing until the conclusion of the
hearing. However, any issue in the complaint that is not part of the
due process hearing must be resolved using the time limit and
procedures described elsewhere in the State complaint procedures. A new
paragraph (c)(3) also has been added to require SEAs to resolve
complaints alleging a public agency's failure to implement a due
process hearing. This is the same requirement in current Sec.
300.661(c)(3).
Section 300.153(c), regarding the one year time limit from
the date the alleged violation occurred and the date the complaint is
received in accordance with Sec. 300.151, has been revised by removing
the exception clause related to complaints covered under Sec.
300.507(a)(2).
Methods of Ensuring Services
Section 300.154(d), regarding children with disabilities
who are covered by public benefits or insurance, has been revised to
clarify that the public agency must (1) obtain parental consent each
time that access to the parent's public benefits or insurance is
sought, and (2) notify parents that refusal to allow access to their
public benefits or insurance does not relieve the public agency of its
responsibility to ensure that all required services are provided at no
cost to the parents.
Additional Eligibility Requirements
Section 300.156(e), regarding personnel qualifications,
has been revised (1) to add ``or a class of students,'' to clarify that
a judicial action on behalf of a class of students may not be filed for
failure of a particular SEA or LEA employee to be highly qualified, and
(2) to substitute the word ``employee'' for ``staff person,'' to be
more precise in the rule of construction in new Sec. 300.18(f)
(proposed Sec. 300.18(e)).
Section 300.160 (participation in assessments) has been
removed, and the section has been designated as ``Reserved.''
Participation in assessments is the subject of a new notice of proposed
rulemaking issued on December 15, 2005 (70 FR 74624) to amend the
regulations governing programs under Title I of the ESEA and
[[Page 46543]]
Part B of the IDEA regarding additional flexibility for States to
measure the achievement of children with disabilities based on modified
achievement standards.
Other Provisions Required for State Eligibility
Section 300.172, regarding access to instructional
materials, has been revised: (1) To make clear that States must adopt
the National Instructional Materials Accessibility Standard (NIMAS),
published as Appendix C to these final regulations; (2) to establish a
definition of ``timely manner,'' for purposes of Sec. 300.172(b)(2)
and (b)(3) if the State is not coordinating with the National
Instructional Materials Access Center (NIMAC), or Sec. 300.172(b)(3)
and (c)(2) if the State is coordinating with the NIMAC; (3) to add a
new Sec. 300.172(b)(4) to require SEAs to ensure that all public
agencies take all reasonable steps to provide instructional materials
in accessible formats to children with disabilities who need those
instructional materials at the same time as other children receive
instructional materials; and (4) to add a new Sec. 300.172(e)(2) to
clarify, that all definitions in Sec. 300.172(e)(1) apply to each
State and LEA, whether or not the State or LEA chooses to coordinate
with the NIMAC.
A new Sec. 300.177 has been added to include a provision
regarding ``States' sovereign immunity.'' That provision, which has
been added to incorporate the language in section 604 of the Act, makes
clear that a State that accepts funds under Part B of the Act waives
its immunity under the 11th amendment of the Constitution of the United
States from suit in Federal court for a violation of Part B of the Act.
Subpart D--Evaluations, Eligibility Determinations, Individualized
Education Programs, and Educational Placements
Parental Consent
Section 300.300, regarding parental consent, has been
revised, as follows:
(1) Paragraph (a) of Sec. 300.300, regarding consent for initial
evaluation, has been changed to provide that the public agency
proposing to conduct an initial evaluation to determine if a child
qualifies as a child with a disability must, after providing notice
consistent with Sec. Sec. 300.503 and 300.504, obtain informed
consent, consistent with Sec. 300.9, from the parent of the child
before conducting the evaluation. A new paragraph (a)(1)(iii) has been
added to require a public agency to make reasonable efforts to obtain
the informed consent from the parent for an initial evaluation.
(2) Section 300.300(a)(3), regarding a parent's failure to provide
consent for initial evaluation, has been changed to clarify, in a new
paragraph (a)(3)(ii), that the public agency does not violate its
obligation under Sec. 300.111 and Sec. Sec. 300.301 through 300.311
if it declines to pursue the evaluation.
(3) Section 300.300(b), regarding parental consent for services,
has been modified by a new paragraph (b)(2) that requires a public
agency to make reasonable efforts to obtain informed consent from the
parent for the initial provision of special education and related
services.
(4) Section 300.300(c)(1), regarding parental consent for
reevaluations, has been modified to clarify that if a parent refuses to
consent to a reevaluation, the public agency may, but is not required
to, pursue the reevaluation by using the consent override procedures in
Sec. 300.300(a)(3), and the public agency does not violate its
obligation under Sec. 300.111 and Sec. Sec. 300.301 through 300.311
if it declines to pursue the evaluation or reevaluation.
(5) A new Sec. 300.300(d)(4) has been added to provide that if a
parent of a child who is home schooled or placed in a private school by
the parent at the parent's expense, does not provide consent for an
initial evaluation or a reevaluation, or the parent fails to respond to
a request to provide consent, the public agency (A) may not use the
consent override procedures (described elsewhere in Sec. 300.300), and
(B) is not required to consider the child eligible for services under
the requirements relating to parentally-placed private school children
with disabilities (Sec. Sec. 300.132 through 300.144).
(6) A new Sec. 300.300(d)(5) has been added to clarify that in
order for a public agency to meet the reasonable efforts requirement to
obtain informed parental consent for an initial evaluation, initial
services, or a reevaluation, a public agency must document its attempts
to obtain parental consent using the procedures in Sec. 300.322(d).
Additional Procedures for Evaluating Children With Specific Learning
Disabilities (SLD)
Section 300.307 (Specific learning disabilities) has been
revised, as follows:
(1) Proposed paragraph (a)(1) of Sec. 300.307, which allowed a
State to prohibit the use of a severe discrepancy between intellectual
ability and achievement for determining if a child has an SLD, has been
removed, and proposed paragraph (a)(2) of Sec. 300.307 has been
redesignated as paragraph (a)(1).
(2) Section 300.307(a)(2) (proposed paragraph (a)(3)) has been
changed to clarify that the criteria adopted by the State must permit
the use of a process based on the child's response to scientific,
research-based intervention.
Section 300.308 (Group members) has been changed to
require the eligibility group for children suspected of having SLD to
include the child's parents and a team of qualified professionals,
which must include the child's regular teacher (or if the child does
not have a regular teacher, a regular classroom teacher qualified to
teach a child of his or her age) or for a child of less than school
age, an individual qualified by the SEA to teach a child of his or her
age; and at least one person qualified to conduct individual diagnostic
examinations of children, such as a school psychologist, speech-
language pathologist, or remedial reading teacher. These are the same
requirements in current Sec. 300.540.
Section 300.309 (Determining the existence of a specific
learning disability) has been revised, as follows:
(1) Paragraph (a) of Sec. 300.309 has been changed (A) to clarify
that the group described in 300.306 may determine that a child has a
specific learning disability if the child does not achieve adequately
for the child's age or to meet State-approved grade-level standards in
one or more of eight areas (e.g., oral expression, basic reading skill,
etc.), when provided with learning experiences and instruction
appropriate for the child's age or State-approved grade-level
standards; and (B) to add ``limited English proficiency'' to the other
five conditions that could account for the child's learning problems,
and that the group considers in determining whether the child has an
SLD.
(2) Section 300.309(b) has been changed to clarify (A) that, in
order to ensure that underachievement in a child suspected of having an
SLD is not due to lack of appropriate instruction in reading or math,
the group must consider, as part of the evaluation described in
Sec. Sec. 300.304 through 300.306, data that demonstrate that prior
to, or as a part of, the referral process, the child was provided
appropriate instruction in regular education settings, delivered by
qualified personnel, and (B) to replace (in paragraph (b)(1)) the term
``high quality research-based instruction'' with ``appropriate
instruction.''
(3) Section 300.309(c) has been changed to provide that the public
agency must promptly request parental
[[Page 46544]]
consent to evaluate a child suspected of having an SLD who has not made
adequate progress after an appropriate period of time when provided
appropriate instruction, and whenever a child is referred for an
evaluation.
Section 300.310, regarding Observation, has been revised,
as follows:
(1) Paragraph (a) of proposed Sec. 300.310 has been revised (A) to
remove the phrase ``trained in observation, and (B) to specify that the
public agency must ensure that the child is observed in the child's
learning environment.
(2) A new Sec. 300.310(b) has been added to require the
eligibility group to decide to (A) use information obtained from an
observation in routine classroom instruction and monitoring of the
child's performance that was done before the child was referred for an
evaluation, or (B) have at least one member of the group described in
Sec. 300.306(a)(1) conduct an observation of the child's academic
performance in the regular classroom after the child has been referred
for an evaluation and parental consent is obtained.
Paragraph (b) of proposed Sec. 300.310 has been redesignated as
new Sec. 300.310(c).
Section 300.311 (Written report) has been renamed
``Specific documentation for the eligibility determination,'' and has
been revised, as follows:
(1) Section 300.311(a)(5), regarding whether the child does not
achieve commensurate with the child's age, has been modified and
expanded to add whether the child does not achieve adequately for the
child's age or to meet State-approved grade-level standards consistent
with Sec. 300.309(a)(1), and (A) the child does not make sufficient
progress to meet age or to meet State-approved grade-level standards
consistent with Sec. 300.309(a)(2)(i), or (B) the child exhibits a
pattern of strengths and weaknesses in performance, achievement, or
both, relative to age, State-approved grade level standards or
intellectual development consistent with Sec. 300.309(a)(2)(ii).
(2) Proposed Sec. 300.311(a)(6), regarding whether there are
strengths or weaknesses or both in performance or achievement or both
relative to intellectual development, has been removed.
(3) A new Sec. 300.311(a)(6) has been added to clarify that the
documentation must include a statement of the determination of the
group concerning the effects of visual, hearing, or motor disability,
mental retardation, emotional disturbance, cultural factors,
environmental or economic disadvantage, or limited English proficiency
on the child's achievement level.
(4) A new Sec. 300.311(a)(7) has been added to provide that if the
child has participated in a process that assesses the child's response
to scientific, research-based intervention, the documentation must
include the instructional strategies used and the student-centered data
collected, and documentation that the child's parents were notified
about (A) the State's policies regarding the amount and nature of
student performance data that would be collected and the general
education services that would be provided, (B) strategies for
increasing the child's rate of learning, and (C) the parents' right to
request an evaluation.
Individualized Education Programs
Section 300.320 (Definition of IEP) has been revised in
paragraph (a)(5) to replace ``regular education environment'' with
``regular class,'' in order to be consistent with the language in the
Act.
Section 300.321(e), regarding attendance at IEP Team
meetings, has been revised to clarify that the excusal of IEP Team
members from attending an IEP Team meeting under certain circumstances,
refers to the IEP Team members in Sec. 300.320(a)(2) through (a)(5).
Section 300.322, regarding parent participation, has been
revised to: (1) Include, in Sec. 300.322(d), examples of the records a
public agency must keep of its attempts to involve the parents in IEP
meetings; (2) add a new Sec. 300.322(e), which requires the public
agency to take whatever action is necessary to ensure that the parent
understands the proceedings of the IEP meeting, including arranging for
an interpreter for parents with deafness or whose native language is
other than English; and (3) redesignate paragraph (e) as paragraph (f)
accordingly.
Section 300.323(d) has been revised to require public
agencies to ensure that each regular teacher, special education
teacher, related services provider, and any other service provider who
is responsible for the implementation of a child's IEP, is 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
child's IEP. These are the same requirements in current Sec.
300.342(b)(3)(i) and (b)(3)(ii).
Section 300.323(e), regarding IEPs for children who
transfer public agencies, has been revised to: (1) Divide the provision
into three separate paragraphs (Sec. 300.323(e), (f), and (g)) for
purposes of clarity and improved readability (e.g., transfers within
the same State, transfers from another State, and transmittal of
records); (2) adopt ``school year'' in lieu of ``academic year'' as the
term commonly used by parents and public agencies; and (3) adopt other
modifiers (e.g., ``new'' and ``previous'') to distinguish between
States and public agencies that are involved in transfers by children
with disabilities.
Section 300.324(a)(4), regarding changes to an IEP after
the annual IEP meeting for a school year, has been restructured into
two paragraphs, and a new paragraph (a)(4)(ii) has been added to
require the public agency to ensure that, if changes are made to a
child's IEP without an IEP meeting, that the child's IEP Team is
informed of the changes.
Section 300.324(b), regarding the review and revision of
IEPs, has been changed to include a new paragraph (b)(2), to clarify
that, in conducting a review of a child's IEP, the IEP Team must
consider the same special factors it considered when developing the
child's IEP.
Subpart E--Procedural Safeguards
Section 300.502, regarding independent educational
evaluations, has been revised, as follows:
(1) A new Sec. 300.502(b)(5) has been added to make clear that a
parent is entitled to only one independent educational evaluation at
public expense each time the public agency conducts an evaluation with
which the parent disagrees.
(2) Section 300.502(c) has been changed to clarify that if a parent
obtains an independent evaluation at public expense or shares with the
public agency an evaluation obtained at private expense, the public
agency must consider the evaluation, if it meets agency criteria, in
any decision made with respect to the provision of FAPE to the child.
Section 300.504 (Procedural safeguards notice) has been
revised, as follows:
(1) Paragraph (a)(2) of Sec. 300.504 has been changed to add that
a copy of the procedural safeguards notice must be given upon receipt
of the first due process complaint under Sec. 300.507 in a school
year, as well as upon receipt of the first State complaint under Sec.
300.151 through 300.153.
(2) A new Sec. 300.504(a)(3) has been added to provide that the
notice must be given to the parents of a child with a disability in
accordance with the discipline procedures in Sec. 300.530(h).
[[Page 46545]]
Section 300.506(b), regarding the requirements for
mediation, has been revised by (1) removing the provision about the
``confidentiality pledge,'' in proposed paragraph (b)(9), because it is
no longer required under the Act, and (2) changing paragraph (b)(8),
regarding the prohibition against using discussions that occur in the
mediation process, to clarify that ``civil proceedings'' includes any
Federal court or State court of a State receiving assistance under this
part.
Section 300.509, regarding model forms to assist parents
and public agencies in filing due process complaints and parents and
other parties in filing State complaints, has been revised to add, with
respect to due process complaints, ``public agencies,'' and with
respect to State complaints, ``other parties,'' as well as parents, and
to clarify that (1) while each SEA must develop model forms, the SEA or
LEA may not require the use of the forms, and (2) parents, public
agencies, and other parties may either use the appropriate model form,
or another form or other document, so long as the form or document
meets, as appropriate, the requirements for filing a due process
complaint or a State complaint.
Section 300.510 (Resolution process) has been revised, as
follows:
(1) Section 300.510(b)(1), regarding the resolution period, has
been changed to state that a due process hearing ``may occur'' (in lieu
of ``must occur'') by the end of the resolution period, if the parties
have not resolved the dispute that formed the basis for the due process
complaint.
(2) A new Sec. 300.510(b)(3) has been added to provide that,
except where the parties have jointly agreed to waive the resolution
process or to use mediation (notwithstanding Sec. 300.510(b)(1) and
(2)), 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.
(3) A new Sec. 300.510(b)(4) has been added to provide that if an
LEA is unable to obtain the participation of the parent in the
resolution meeting after reasonable efforts have been made, and
documented using the procedures in Sec. 300.322(d), the LEA may, at
the conclusion of the 30-day resolution period, request that a hearing
officer dismiss the parent's due process complaint.
(4) A new paragraph (b)(5) of Sec. 300.510 has been added to
provide that, if the LEA fails to hold the resolution meeting within 15
days of receiving notice of a parent's due process complaint or fails
to participate in the resolution meeting, the parent may seek the
intervention of a hearing officer to begin the due process hearing
timelines.
(5) A new Sec. 300.510(c) (Adjustments to the 30-day resolution
period) has been added that specifies exceptions to the 30-day
resolution period (e.g., (A) both parties agree in writing to waive the
resolution meeting; (B) after either the mediation or resolution
meeting starts but before the end of the 30-day period, the parties
agree in writing that no agreement is possible; or (C) if both parties
agree in writing to continue the mediation at the end of the 30-day
resolution period, but later, the parent or public agency withdraws
from the mediation process). Subsequent paragraphs have been renumbered
accordingly.
(6) Paragraph (d)(2) of Sec. 300.510 (proposed paragraph(c)(2)),
regarding the enforceability of a written settlement agreement in any
State court of competent jurisdiction or in a district court of the
United States, has been expanded to add the SEA, if the State has other
mechanisms or procedures that permit parties to seek enforcement of
resolution agreements, pursuant to a new Sec. 300.537.
Section 300.513(a) (Decision of hearing officer) has been
revised by (1) changing the paragraph title to read ``Decision of
hearing officer on the provision of FAPE,'' and (2) clarifying that a
hearing officer's determination of whether a child received FAPE must
be based on substantive grounds.
Section 300.515(a), regarding timelines and convenience of
hearings and reviews, has been revised to include a specific reference
to the adjusted time periods described in Sec. 300.510(c).
Section 300.516(b), regarding the 90-day time limitation
from the date of the decision of the hearing to file a civil action,
has been revised to provide that the 90-day period begins from the date
of the decision of the hearing officer or the decision of the State
review official.
Section 300.518 (Child's status during proceedings) has
been revised by adding a new paragraph (c), which provides that if a
complaint involves an application for initial services under this part
from a child who is transitioning from Part C of the Act to Part B and
is no longer eligible for Part C services because the child has turned
3, the public agency is not required to provide the Part C services
that the child had been receiving. If the child is found eligible for
special education and related services under Part B and the parent
consents to the initial provision of special education and related
services under Sec. 300.300(b), then the public agency must provide
those special education and related services that are not in dispute
between the parent and the public agency.
Section 300.520(b), regarding a special rule about the
transfer of parental rights at the age of majority, has been revised to
more clearly state that a State must establish procedures for
appointing the parent of a child with a disability, or if the parent is
not available, another appropriate individual, to represent the
educational interests of the child throughout the child's eligibility
under Part B of the Act if, under State law, a child who has reached
the age of majority, but has not been determined to be incompetent, can
be determined not to have the ability to provide informed consent with
respect to the child's educational program.
Discipline Procedures
Section 300.530(d)(1)(i), regarding services, has been
revised to be consistent with section 615(k)(1)(D)(i) of the Act, by
adding a reference to the FAPE requirements in Sec. 300.101(a).
Section 300.530(d)(4), regarding the removal of a child
with a disability from the child's current placement for 10 school days
in the same school year, has been revised to remove the reference to
school personnel, in consultation with at least one of the child's
teachers, determining the location in which services will be provided.
Section 300.530(d)(5), regarding removals that constitute
a change of placement under Sec. 300.536, has been revised to remove
the reference to the IEP Team determining the location in which
services will be provided.
A new Sec. 300.530(e)(3), has been added to provide that,
if the LEA, the parent, and members of the child's IEP Team determine
that the child's behavior was the direct result of the LEA's failure to
implement the child's IEP, the LEA must take immediate steps to remedy
those deficiencies.
Section 300.530(h), regarding notification, has been
changed to specify that, on the date on which a decision is made to
make a removal that constitutes a change in the placement of a child
with a disability because of a violation of a code of student conduct,
the LEA must notify the parents of that decision, and provide the
parents the procedural safeguards notice described in Sec. 300.504.
Section 300.532 (Appeal) has been revised, as follows:
(1) Paragraph (a) of Sec. 300.532, regarding the conditions in
which the parent of a child with a disability or an LEA may request a
hearing, has been
[[Page 46546]]
modified to clarify that the hearing is requested by filing a complaint
pursuant to Sec. Sec. 300.507 and 300.508(a) and (b).
(2) Section 300.532(b)(3) has been changed to more definitively
provide that if the LEA believes that returning the child to his or her
original placement is substantially likely to result in injury to the
child or others.
(3) Section 300.532(c)(3), regarding an expedited due process
hearing, has been adjusted to provide that unless the parents and an
LEA agree in writing to waive a resolution meeting, or agree to use the
mediation process described in Sec. 300.506, the resolution meeting
must occur within seven days of receiving notice of the due process
complaint, and the hearing may proceed within 15 days of receipt of the
due process complaint unless the matter has been resolved to
satisfaction of both parties.
(4) Proposed Sec. 300.532(c)(4), regarding the two-day timeframe
for disclosing information to the opposing party prior to an expedited
due process hearing, has been removed.
Section 500.536(a)(2)(ii) (proposed Sec. 300.536(b)(2))
has been revised to remove the requirement that a child's behavior must
have been a manifestation of the child's disability before determining
that a series of removals constitutes a change in placement under Sec.
300.536. Paragraph (a)(2)(ii) has also been amended to reference the
child's behavior in ``previous'' incidents that resulted in the series
of removals.
A new Sec. 300.536(b) has been added to clarify that the
public agency (subject to review through the due process and judicial
proceedings) makes the determination, on a case-by-case basis, whether
a pattern of removals constitutes a change in placement and that the
determination is subject to review through due process and judicial
determinations.
A new Sec. 300.537 (State enforcement mechanisms) has
been added to clarify that notwithstanding Sec. 300.506(b)(7) and
Sec. 300.510(c)(2), which provide for judicial enforcement of a
written agreement reached as a result of a mediation or resolution
meeting, nothing in this part would prevent the SEA from using other
mechanisms to seek enforcement of that agreement, provided that use of
those mechanisms is not mandatory and does not delay or deny a party
the right to seek enforcement of the written agreement in a State court
of competent jurisdiction or in a district court of the United States.
Subpart F--Monitoring, Enforcement, Confidentiality, and Program
Information
Monitoring, Technical Assistance, and Enforcement
Section 300.600 (State monitoring and enforcement) has
been revised, as follows:
(1) Section 300.600(a) has been amended to require the State to
enforce Part B of the Act in accordance with Sec. 300.604(a)(1) and
(a)(3), (b)(2)(i) and (b)(2)(v), and (c)(2).
(2) A new paragraph (d) has been added, which provides that the
State must monitor the LEAs located in the State, using quantifiable
indicators in each of the following priority areas, and such
qualitative indicators as are needed to adequately measure performance
in those areas, including: (A) Provision of FAPE in the least
restrictive environment; (B) State exercise of general supervision,
including child find, effective monitoring, the use of resolution
meetings, and a system of transition services as defined in Sec.
300.43 and in 20 U.S.C. 1437(a)(9); and (C) disproportionate
representation of racial and ethnic groups in special education and
related services, to the extent the representation is the result of
inappropriate identification.
A new Sec. 300.601(b)(2), regarding State use of targets
and reporting, has been added to specify that, if permitted by the
Secretary, if a State collects data on an indicator through State
monitoring or sampling, the State must collect data on the indicator at
least once during the period of the State performance plan.
A new Sec. 300.608(b), regarding State enforcement, has
been added to specify that States are not restricted from utilizing any
other authority available to them to monitor and enforce the
requirements of Part B of the Act.
Confidentiality of Information
Section 300.622 (Consent) has been restructured and
revised to more accurately reflect the Department's policy regarding
when parental consent is required for disclosures of personally
identifiable information, as follows:
(1) Paragraph (a) of Sec. 300.622 has been changed to provide that
parental consent must be obtained before personally identifiable
information is disclosed to parties other than officials of
participating agencies, unless the information is contained in
education records, and the disclosure is authorized without parental
consent under the regulations for the Family Educational Rights and
Privacy Act (FERPA, 34 CFR part 99).
(2) A new Sec. 300.622(b)(1) has been added to clarify that
parental consent is not required before personally identifiable
information is released to officials of participating agencies for
purposes of meeting a requirement of Part B of the Act or these
regulations.
(3) A new Sec. 300.622(b)(2) has been added to provide that
parental consent must be obtained before personally identifiable
information is released to officials of participating agencies that
provide or pay for transition services.
(4) A new paragraph (b)(3) has been added to require that, with
respect to parentally-placed private school children with disabilities,
parental consent must be obtained before any personally identifiable
information is released between officials in the LEA where the private
school is located and the LEA of the parent's residence.
(5) Proposed Sec. 300.622(c), regarding the requirement to provide
policies and procedures for use in the event that a parent refuses to
consent, has been removed because it is covered elsewhere in these
regulations.
Subpart G--Authorization, Allotment, Use of Funds, and Authorization of
Appropriations
Allotments, Grants, and Use of Funds
Section 300.701(a)(1)(ii)(A), regarding the applicable
requirements of Part B of the Act that apply to freely associated
States, has been revised by removing the five listed requirements
because those requirements did not include all requirements that apply
to freely associated States. This change clarifies that freely
associated States must meet the applicable requirements that apply to
States under Part B of the Act.
Section 300.704(c)(3)(i), regarding the requirement to
develop, annually review, and revise (if necessary) a State plan for
the high cost fund, has been revised to add a new paragraph (F) that
requires that if the State elects to reserve funds for supporting
innovative and effective ways of cost sharing, it must describe in its
State plan how these funds will be used.
Section 300.706 (Allocation for State in which by-pass is
implemented for parentally-placed private school children with
disabilities) has been removed because it is no longer applicable. The
section has been redesignated as ``Reserved.''
Secretary of the Interior
Section 300.707 (Use of amounts by Secretary of the
Interior) has been changed, as follows:
[[Page 46547]]
(1) The definition of Tribal governing body of a school has been
replaced with the definition of tribal governing body from 25 U.S.C.
2021(19).
(2) Section 300.707(c), regarding an additional requirement under
``Use of amounts by Secretary of the Interior,'' has been revised to
clarify that, with respect to all other children aged 3 to 21,
inclusive, on reservations, the SEA of the State in which the
reservation is located must ensure that all the requirements of Part B
of the Act are met.
Section 300.713 (Plan for coordination of services) has
been revised to require (1) in Sec. 300.713(a), the Secretary of the
Interior to develop and implement a plan for the coordination of
services for all Indian children with disabilities residing on
reservations served by elementary schools and secondary schools for
Indian children operated or funded by the Secretary of the Interior,
and (2) in Sec. 300.713(b), the plan to provide for the coordination
of services benefiting these children from whatever source covered by
the plan, including SEAs, and State, local, and tribal juvenile and
adult correctional facilities.
Analysis of Comments and Changes
Introduction
In response to the invitation in the NPRM, more than 5,500 parties
submitted comments on the proposed regulations. An analysis of the
comments and of the changes in the regulations since publication of the
NPRM immediately follows this introduction.
The perspectives of parents, individuals with disabilities,
teachers, related services providers, State and local officials,
members of Congress, and others were very important in helping us to
identify where changes to the proposed regulations were necessary, and
in formulating many of the changes. In light of the comments received,
a number of significant changes are reflected in these final
regulations.
We discuss substantive issues under the subpart and section to
which they pertain. References to subparts in this analysis are to
those contained in the final regulations. The analysis generally does
not address--
(a) Minor changes, including technical changes made to the language
published in the NPRM;
(b) Suggested changes the Secretary is not legally authorized to
make under applicable statutory authority; and
(c) Comments that express concerns of a general nature about the
Department or other matters that are not directly relevant to these
regulations, such as requests for information about innovative
instructional methods or matters that are within the purview of State
and local decision-makers.
Subpart A--General
Definitions Used in This Part
Applicability of This Part to State and Local Agencies (Sec. 300.2)
Comment: None.
Discussion: Section Sec. 300.2(c)(2) contains an incorrect
reference to Sec. 300.148(b). The correct reference should be to Sec.
300.148.
Changes: We have removed the reference to Sec. 300.148(b) and
replaced it with a reference to Sec. 300.148.
Assistive Technology Device (Sec. 300.5)
Comment: Some commenters opposed the exclusion of surgically
implanted medical devices in the definition of assistive technology
device. Another commenter recommended limiting the definition of
assistive technology device to a device that is needed to achieve
educational outcomes, rather than requiring local educational agencies
(LEAs) to pay for any assistive technology device that increases,
maintains, or improves any functional need of the child.
Discussion: The definition of assistive technology device in Sec.
300.5 incorporates the definition in section 602(1)(B) of the Act. We
do not believe the definition should be changed in the manner suggested
by the commenters because the changes are inconsistent with the
statutory definition. The definition in the Act specifically refers to
any item, piece of equipment, or product system that is used to
increase, maintain, or improve the functional capabilities of the child
and specifically excludes a medical device that is surgically implanted
or the replacement of such device. Accordingly, we continue to believe
it is appropriate to exclude surgically implanted medical devices from
this definition. In response to the second comment, Sec. 300.105(a)
requires each public agency to ensure that assistive technology devices
(or assistive technology services, or both) are made available to a
child with a disability if required as part of the child's special
education, related services, or supplementary aids and services. This
provision ties the definition to a child's educational needs, which
public agencies must meet in order to ensure that a child with a
disability receives a free appropriate public education (FAPE).
Changes: None.
Comment: One commenter requested that the regulations clarify that
an assistive technology device is not synonymous with an augmentative
communication device. A few commenters recommended including recordings
for the blind and dyslexic playback devices in the definition of
assistive technology devices. Some commenters recommended including
language in the regulations clarifying that medical devices used for
breathing, nutrition, and other bodily functions are assistive
technology devices.
Discussion: The definition of assistive technology device does not
list specific devices, nor would it be practical or possible to include
an exhaustive list of assistive technology devices. Whether an
augmentative communication device, playback devices, or other devices
could be considered an assistive technology device for a child depends
on whether the device is used to increase, maintain, or improve the
functional capabilities of a child with a disability, and whether the
child's individualized education program (IEP) Team determines that the
child needs the device in order to receive a free appropriate public
education (FAPE). However, medical devices that are surgically
implanted, including those used for breathing, nutrition, and other
bodily functions, are excluded from the definition of an assistive
technology device in section 602(1)(B) of the Act. The exclusion
applicable to a medical device that is surgically implanted includes
both the implanted component of the device, as well as its external
components.
Changes: None.
Comment: A few commenters asked whether the definition of assistive
technology device includes an internet-based instructional program, and
what the relationship is between internet-based instructional programs
and specially-designed instruction.
Discussion: An instructional program is not a device, and,
therefore, would not meet the definition of an assistive technology
device. Whether an internet-based instructional program is appropriate
for a particular child is determined by the child's IEP Team, which
would determine whether the program is needed in order for the child to
receive FAPE.
Changes: None.
Comment: A few commenters recommended including the proper
functioning of hearing aids in the definition of assistive technology
device.
Discussion: We believe that the provision requiring public agencies
to ensure that hearing aids worn in school are functioning properly is
more appropriately included in new Sec. 300.113
[[Page 46548]]
(proposed Sec. 300.105(b)). As noted in the Analysis of Comments and
Changes section discussing subpart B, we have added a new Sec. 300.113
to address the routine checking (i.e., making sure they are turned on
and working) of hearing aids and external components of surgically
implanted devices.
Changes: None.
Assistive Technology Service (Sec. 300.6)
Comment: One commenter requested clarifying ``any service'' in the
definition of assistive technology service.
Discussion: We believe the definition is clear that an assistive
technology service is any service that helps a child with a disability
select an appropriate assistive technology device, obtain the device,
or train the child to use the device.
Changes: None.
Comment: One commenter stated that services necessary to support
the use of playback devices for recordings for the blind and dyslexic
should be added to the definition of assistive technology service.
Discussion: A service to support the use of recordings for the
blind and dyslexic on playback devices could be considered an assistive
technology service if it assists a child with a disability in the
selection, acquisition, or use of the device. If so, and if the child's
IEP Team determines it is needed for the child to receive FAPE, the
service would be provided. The definition of assistive technology
service does not list specific services. We do not believe it is
practical or possible to include an exhaustive list of assistive
technology services, and therefore, decline to add the specific
assistive technology service recommended by the commenter to the
definition.
Changes: None.
Comment: One commenter recommended evaluating all children with
speech or hearing disabilities to determine if they can benefit from
the Federal Communications Commission's specialized telephone assistive
services for people with disabilities.
Discussion: Evaluations under section 614 of the Act are for the
purpose of determining whether a child has a disability and because of
that disability needs special education and related services, and for
determining the child's special education and related services needs.
It would be inappropriate under the Act to require evaluations for
other purposes or to require an evaluation for telephone assistive
services for all children with speech and hearing disabilities.
However, if it was determined that learning to use telephone assisted
services, was an important skill for a particular child (e.g., as part
of a transition plan), it would be appropriate to conduct an evaluation
of that particular child to determine if the child needed specialized
instruction in order to use such services.
Changes: None.
Comment: One commenter requested that the definition of assistive
technology service specifically exclude a medical device that is
surgically implanted, the optimization of device functioning,
maintenance of the device, and the replacement of the device.
Discussion: The definition of related services in Sec. 300.34(b)
specifically excludes a medical device that is surgically implanted,
the optimization of device functioning, maintenance of the device, or
the replacement of that device. In addition, the definition of
assistive technology device in Sec. 300.5 specifically excludes a
medical device that is surgically implanted and the replacement of that
device. We believe it is unnecessary to repeat these exclusions in the
definition of assistive technology service.
Changes: None.
Charter School (Sec. 300.7)
Comment: Several commenters suggested that we include in the
regulations the definitions of terms that are defined in other
statutes. For example, one commenter requested including the definition
of charter school in the regulations.
Discussion: Including the actual definitions of terms that are
defined in statutes other than the Act is problematic because these
definitions may change over time (i.e., through changes to statutes
that establish the definitions). In order for these regulations to
retain their accuracy over time, the U.S. Department of Education
(Department) would need to amend the regulations each time an included
definition that is defined in another statute changes. The Department
believes that this could result in significant confusion.
However, we are including the current definition of charter school
in section 5210(1) of the ESEA here for reference.
The term charter school means a public school that:
1. In accordance with a specific State statute authorizing the
granting of charters to schools, is exempt from significant State or
local rules that inhibit the flexible operation and management of
public schools, but not from any rules relating to the other
requirements of this paragraph [the paragraph that sets forth the
Federal definition];
2. Is created by a developer as a public school, or is adapted by a
developer from an existing public school, and is operated under public
supervision and direction;
3. Operates in pursuit of a specific set of educational objectives
determined by the school's developer and agreed to by the authorized
public chartering agency;
4. Provides a program of elementary or secondary education, or
both;
5. Is nonsectarian in its programs, admissions policies, employment
practices, and all other operations, and is not affiliated with a
sectarian school or religious institution;
6. Does not charge tuition;
7. Complies with the Age Discrimination Act of 1975, Title VI of
the Civil Rights Act of 1964, Title IX of the Education Amendments of
1972, Section 504 of the Rehabilitation Act of 1973, Title II of the
Americans with Disabilities Act of 1990, and Part B of the Individuals
with Disabilities Education Act;
8. Is a school to which parents choose to send their children, and
that admits students on the basis of a lottery, if more students apply
for admission than can be accommodated;
9. Agrees to comply with the same Federal and State audit
requirements as do other elementary schools and secondary schools in
the State, unless such requirements are specifically waived for the
purpose of this program [the Public Charter School Program];
10. Meets all applicable Federal, State, and local health and
safety requirements;
11. Operates in accordance with State law; and
12. Has a written performance contract with the authorized public
chartering agency in the State that includes a description of how
student performance will be measured in charter schools pursuant to
State assessments that are required of other schools and pursuant to
any other assessments mutually agreeable to the authorized public
chartering agency and the charter school.
Changes: None.
Child With a Disability (Sec. 300.8)
General (Sec. 300.8(a))
Comment: Several commenters stated that many children with fetal
alcohol syndrome (FAS) do not receive special education and related
services and recommended adding a disability category for children with
FAS to help solve this problem.
Discussion: We believe that the existing disability categories in
section
[[Page 46549]]
602(3) of the Act and in these regulations are sufficient to include
children with FAS who need special education and related services.
Special education and related services are based on the identified
needs of the child and not on the disability category in which the
child is classified. We, therefore, do not believe that adding a
separate disability category for children with FAS is necessary to
ensure that children with FAS receive the special education and related
services designed to meet their unique needs resulting from FAS.
Changes: None.
Comment: Some commenters suggested that the definition of child
with a disability be changed to ``student with a disability'' and that
the word ``student,'' rather than ``child,'' be used throughout the
regulations because students over the age of 18 are not children.
Discussion: Section 602(3) of the Act defines child with a
disability, not student with a disability. Therefore, we do not believe
it is appropriate to change the definition as requested by the
commenters. The words ``child'' and ``student'' are used throughout the
Act and we generally have used the word ``child'' or ``children,''
except when referring to services and activities for older students
(e.g., transition services, postsecondary goals).
Changes: None.
Comment: Some commenters supported Sec. 300.8(a)(2), which states
that if a child needs only a related service and not special education,
the child is not a child with a disability under the Act. Another
commenter recommended a single standard for the provision of a related
service as special education, rather than allowing States to determine
whether a related service is special education.
Discussion: Section 300.8(a)(2)(i) states that if a child has one
of the disabilities listed in Sec. 300.8(a)(1), but only needs a
related service, the child is not a child with a disability under the
Act. However, Sec. 300.8(a)(2)(ii) provides that, if a State considers
a particular service that could be encompassed by the definition of
related services also to be special education, then the child would be
determined to be a child with a disability under the Act. We believe it
is important that States have the flexibility to determine whether,
consistent with the definition of the term special education in section
602(29) of the Act and new Sec. 300.39 (proposed Sec. 300.38), such a
service should be regarded as special education and to identify a child
who needs that service as a child with a disability. States are in the
best position to determine whether a service that is included in the
definition of related services should also be considered special
education in that State.
Changes: None.
Comment: None.
Discussion: Section Sec. 300.8(a)(2)(ii) contains an incorrect
reference to Sec. 300.38(a)(2). The correct reference should be to
Sec. 300.39(a)(2).
Changes: We have removed the reference to Sec. 300.38(a)(2) and
replaced it with a reference to Sec. 300.39(a)(2).
Children Aged Three Through Nine Experiencing Developmental Delays
(Sec. 300.8(b))
Comment: Several commenters expressed support for allowing LEAs to
select a subset of the age range from three through nine for their
definition of developmental delay. A few commenters recommended
clarifying that States, not the LEAs, define the age range of children
eligible under this category of developmental delay.
Discussion: Section 300.8(b) states that the use of the
developmental delay category for a child with a disability aged three
through nine, or any subset of that age range, must be made in
accordance with Sec. 300.111(b). Section 300.111(b) gives States the
option of adopting a definition of developmental delay, but does not
require an LEA to adopt and use the term. However, if an LEA uses the
category of developmental delay, the LEA must conform to both the
State's definition of the term and the age range that has been adopted
by the State. If a State does not adopt the category of developmental
delay, an LEA may not use that category as the basis for establishing a
child's eligibility for special education and related services.
Based on the comments, it appears that Sec. 300.8(b) has been
misinterpreted as stating that LEAs are allowed to establish the age
range for defining developmental delay independent of the State. We
believe it is important to avoid such confusion and, therefore, will
modify Sec. 300.8(b) to clarify the provision.
Changes: For clarity, we have removed the phrase, ``at the
discretion of the State and LEA in accordance with Sec. 300.111(b)''
and replaced it with ``subject to the conditions in Sec. 300.111(b).''
Deafness (Sec. 300.8(c)(3))
Comment: One commenter stated that children who are hard of hearing
are often denied special education and related services because the
definition of deafness includes the phrase, ``adversely affects a
child's educational performance,'' which school district personnel
interpret to mean that the child must be failing in school to receive
special education and related services.
Discussion: As noted in the Analysis of Comments and Changes
section discussing subpart B, we have clarified in Sec. 300.101(c)
that a child does not have to fail or be retained in a course or grade
in order to be considered for special education and related services.
However, in order to be a child with a disability under the Act, a
child must have one or more of the impairments identified in section
602(3) of the Act and need special education and related services
because of that impairment. Given the change in Sec. 300.101(c), we do
not believe clarification in Sec. 300.8(c)(3) is necessary.
Changes: None.
Emotional Disturbance (Sec. 300.8(c)(4))
Comment: Numerous commenters requested defining or eliminating the
term ``socially maladjusted'' in the definition of emotional
disturbance stating that there is no accepted definition of the term,
and no valid or reliable instruments or methods to identify children
who are, or are not, ``socially maladjusted.'' Some commenters stated
that children who need special education and related services have been
denied these services, or have been inappropriately identified under
other disability categories and received inappropriate services because
the definition of emotional disturbance excludes children who are
socially maladjusted. One commenter stated that using the term
``socially maladjusted'' contributes to the negative image of children
with mental illness and does a disservice to children with mental
illness and those who seek to understand mental illness.
One commenter stated that emotional disturbance is one of the most
misused and misunderstood disability categories and is often improperly
used to protect dangerous and aggressive children who violate the
rights of others. The commenter stated that the definition of emotional
disturbance is vague and offers few objective criteria to differentiate
an emotional disability from ordinary development, and requires the
exclusion of conditions in which the child has the ability to control
his or her behavior, but chooses to violate social norms.
One commenter recommended adding autism to the list of factors in
Sec. 300.8(c)(4)(i)(A) that must be ruled out before making an
eligibility determination based on emotional disturbance. The commenter
stated that
[[Page 46550]]
many children with autism are inappropriately placed in alternative
educational programs designed for children with serious emotional and
behavioral problems.
Discussion: Historically, it has been very difficult for the field
to come to consensus on the definition of emotional disturbance, which
has remained unchanged since 1977. On February 10, 1993, the Department
published a ``Notice of Inquiry'' in the Federal Register (58 FR 7938)
soliciting comments on the existing definition of serious emotional
disturbance. The comments received in response to the notice of inquiry
expressed a wide range of opinions and no consensus on the definition
was reached. Given the lack of consensus and the fact that Congress did
not make any changes that required changing the definition, the
Department recommended that the definition of emotional disturbance
remain unchanged. We reviewed the Act and the comments received in
response to the NPRM and have come to the same conclusion. Therefore,
we decline to make any changes to the definition of emotional
disturbance.
Changes: None.
Comment: One commenter suggested that the regulations include a
process to identify children who are at risk for having an emotional
disturbance.
Discussion: We decline to include a process to identify children
who are at risk for having an emotional disturbance. A child who is at
risk for having any disability under the Act is not considered a child
with a disability under Sec. 300.8 and section 602(3) of the Act and,
therefore, is not eligible for services under the Act.
Changes: None.
Mental Retardation (Sec. 300.8(c)(6))
Comment: One commenter suggested using the term ``intellectual
disability'' in place of ``mental retardation'' because ``intellectual
disability'' is a more acceptable term. The commenter also stated that
the definition of mental retardation is outdated, and should, instead,
address a child's functional limitations in specific life areas.
Discussion: Section 602(3)(A) of the Act refers to a ``child with
mental retardation,'' not a ``child with intellectual disabilities,''
and we do not see a compelling reason to change the term. However,
States are free to use a different term to refer to a child with mental
retardation, as long as all children who would be eligible for special
education and related services under the Federal definition of mental
retardation receive FAPE.
We do not believe the definition of mental retardation needs to be
changed because it is defined broadly enough in Sec. 300.8(c)(6) to
include a child's functional limitations in specific life areas, as
requested by the commenter. There is nothing in the Act or these
regulations that would prevent a State from including ``functional
limitations in specific life areas'' in a State's definition of mental
retardation, as long as the State's definition is consistent with these
regulations.
Changes: None.
Multiple Disabilities (Sec. 300.8(c)(7))
Comment: One commenter asked why the category of multiple
disabilities is included in the regulations when it is not in the Act.
Discussion: The definition of multiple disabilities has been in the
regulations since 1977 and does not expand eligibility beyond what is
provided for in the Act. The definition helps ensure that children with
more than one disability are not counted more than once for the annual
report of children served because States do not have to decide among
two or more disability categories in which to count a child with
multiple disabilities.
Changes: None.
Orthopedic Impairment (Sec. 300.8(c)(8))
Comment: One commenter requested that the examples of congenital
anomalies in the definition of orthopedic impairment in current Sec.
300.7(c)(8) be retained.
Discussion: The examples of congenital anomalies in current Sec.
300.7(c)(8) are outdated and unnecessary to understand the meaning of
orthopedic impairment. We, therefore, decline to include the examples
in Sec. 300.8(c)(8).
Changes: None.
Other Health Impairment (Sec. 300.8(c)(9))
Comment: We received a significant number of comments requesting
that we include other examples of specific acute or chronic health
conditions in the definition of other health impairment. A few
commenters recommended including children with dysphagia because these
children have a swallowing and feeding disorder that affects a child's
vitality and alertness due to limitations in nutritional intake. Other
commenters recommended including FAS, bipolar disorders, and organic
neurological disorders. Numerous commenters requested including
Tourette syndrome disorders in the definition of other health
impairment because children with Tourette syndrome are frequently
misclassified as emotionally disturbed. A number of commenters stated
that Tourette syndrome is a neurological disorder and not an emotional
disorder, yet children with Tourette syndrome continue to be viewed as
having a behavioral or conduct disorder and, therefore, do not receive
appropriate special education and related services.
Discussion: The list of acute or chronic health conditions in the
definition of other health impairment is not exhaustive, but rather
provides examples of problems that children have that could make them
eligible for special education and related services under the category
of other health impairment. We decline to include dysphagia, FAS,
bipolar disorders, and other organic neurological disorders in the
definition of other health impairment because these conditions are
commonly understood to be health impairments. However, we do believe
that Tourette syndrome is commonly misunderstood to be a behavioral or
emotional condition, rather than a neurological condition. Therefore,
including Tourette syndrome in the definition of other health
impairment may help correct the misperception of Tourette syndrome as a
behavioral or conduct disorder and prevent the misdiagnosis of their
needs.
Changes: We have added Tourette syndrome as an example of an acute
or chronic health problem in Sec. 300.8(c)(9)(i).
Comment: A few commenters expressed concern about determining a
child's eligibility for special education services under the category
of other health impairment based on conditions that are not medically
determined health problems, such as ``central auditory processing
disorders'' or ``sensory integration disorders.'' One commenter
recommended that the regulations clarify that ``chronic or acute health
problems'' refer to health problems that are universally recognized by
the medical profession.
Discussion: We cannot make the change requested by the commenters.
The determination of whether a child is eligible to receive special
education and related services is made by a team of qualified
professionals and the parent of the child, consistent with Sec.
300.306(a)(1) and section 614(b)(4) of the Act. The team of qualified
professionals and the parent of the child must base their decision on
careful consideration of information from a variety of sources,
consistent with Sec. 300.306(c). There is nothing in the Act that
requires the team of qualified professionals and the parent to consider
only health problems that are
[[Page 46551]]
universally recognized by the medical profession, as requested by the
commenters. Likewise, there is nothing in the Act that would prevent a
State from requiring a medical evaluation for eligibility under other
health impairment, provided the medical evaluation is conducted at no
cost to the parent.
Changes: None.
Comment: One commenter stated that the category of other health
impairment is one of the most rapidly expanding eligibility categories
because the definition is vague, confusing, and redundant. The
commenter noted that the definition of other health impairment includes
terms such as ``alertness'' and ``vitality,'' which are difficult to
measure objectively.
Discussion: We believe that the definition of other health
impairment is generally understood and that the group of qualified
professionals and the parent responsible for determining whether a
child is a child with a disability are able to use the criteria in the
definition and appropriately identify children who need special
education and related services. Therefore, we decline to change the
definition.
Changes: None.
Specific Learning Disability (Sec. 300.8(c)(10))
Comment: One commenter recommended changing the definition of
specific learning disability to refer to a child's response to
scientific, research-based intervention as part of the procedures for
evaluating children with disabilities, consistent with Sec.
300.307(a). A few commenters recommended aligning the definition of
specific learning disability with the requirements for determining
eligibility in Sec. 300.309.
One commenter recommended using the word ``disability,'' instead of
``disorder,'' and referring to specific learning disabilities as a
``disability in one or more of the basic psychological processes.'' A
few commenters stated that the terms ``developmental aphasia'' and
``minimal brain dysfunction'' are antiquated and should be removed from
the definition. A few commenters questioned using ``imperfect ability''
in the definition because it implies that a child with minor problems
in listening, thinking, speaking, reading, writing, spelling, or
calculating math could be determined to have a specific learning
disability.
Discussion: The definition of specific learning disability is
consistent with the procedures for evaluating and determining the
eligibility of children suspected of having a specific learning
disability in Sec. Sec. 300.307 through 300.311. We do not believe it
is necessary to repeat these procedures in the definition of specific
learning disability.
Section 602(30) of the Act refers to a ``disorder'' in one or more
of the basic psychological processes and not to a ``disability'' in one
or more of the basic psychological processes. We believe it would be
inconsistent with the Act to change ``disorder'' to ``disability,'' as
recommended by one commenter. We do not believe that the terms
``developmental aphasia'' and ``minimal brain dysfunction'' should be
removed from the definition. Although the terms may not be as commonly
used as ``specific learning disability,'' the terms continue to be used
and we see no harm in retaining them in the definition. We do not agree
that the phrase ``imperfect ability'' implies that a child has a minor
problem and, therefore, decline to change this phrase in the definition
of specific learning disability.
Changes: None.
Comment: We received several requests to revise the definition of
specific learning disability to include specific disabilities or
disorders that are often associated with specific learning
disabilities, including Aspergers syndrome, FAS, auditory processing
disorders, and nonverbal learning disabilities.
Discussion: Children with many types of disabilities or disorders
may also have a specific learning disability. It is not practical or
feasible to include all the different disabilities that are often
associated with a specific learning disability. Therefore, we decline
to add these specific disorders or disabilities to the definition of
specific learning disability.
Changes: None.
Comment: A few commenters suggested clarifying the word
``cultural'' in Sec. 300.8(c)(10)(ii) to clarify that cultural
disadvantage or language cannot be the basis for determining that a
child has a disability.
Discussion: We believe the term ``cultural'' is generally
understood and do not see a need for further clarification. We also do
not believe that it is necessary to clarify that language cannot be the
basis for determining whether a child has a specific learning
disability. Section 300.306(b)(1)(iii), consistent with section
614(b)(5)(C) of the Act, clearly states that limited English
proficiency cannot be the basis for determining a child to be a child
with a disability under any of the disability categories in Sec.
300.8.
Changes: None.
Consent (Sec. 300.9)
Comment: Numerous commenters noted that the regulations include the
terms ``consent,'' ``informed consent,'' ``agree,'' and ``agree in
writing'' and asked whether all the terms have the same meaning.
Discussion: These terms are used throughout the regulations and are
consistent with their use in the Act. The definition of consent
requires a parent to be fully informed of all information relevant to
the activity for which consent is sought. The definition also requires
a parent to agree in writing to an activity for which consent is
sought. Therefore, whenever consent is used in these regulations, it
means that the consent is both informed and in writing.
The meaning of the terms ``agree'' or ``agreement'' is not the same
as consent. ``Agree'' or ``agreement'' refers to an understanding
between the parent and the public agency about a particular question or
issue, which may be in writing, depending on the context.
Changes: None.
Comment: A few commenters recommended adding a requirement to the
definition of consent that a parent be fully informed of the reasons
why a public agency selected one activity over another.
Discussion: We do not believe it is necessary to include the
additional requirement recommended by the commenter. The definition of
consent already requires that the parent be fully informed of all the
information relevant to the activity for which consent is sought.
Changes: None.
Comment: A few commenters requested that the Department address
situations in which a child is receiving special education services and
the child's parent wants to discontinue services because they believe
the child no longer needs special education services. A few commenters
stated that public agencies should not be allowed to use the procedural
safeguards to continue to provide special education and related
services to a child whose parent withdraws consent for the continued
provision of special education and related services.
Discussion: The Department intends to propose regulations to permit
parents who previously consented to the initiation of special education
services, to withdraw their consent for their child to receive, or
continue to receive, special education services. Because this is a
change from the Department's longstanding policies and was not proposed
in the NPRM, we will provide the public the opportunity to comment
[[Page 46552]]
on this proposed change in a separate notice of proposed rulemaking.
Changes: None.
Core Academic Subjects (Sec. 300.10)
Comment: A few commenters suggested adding the definition of core
academic subjects from the ESEA to the regulations and including any
additional subjects that are considered core academic subjects for
children in the State in which the child resides.
Discussion: The definition of core academic subjects in Sec.
300.10, consistent with section 602(4) of the Act, is the same as the
definition in section 9101 of the ESEA. We believe it is unnecessary to
change the definition to include additional subjects that particular
States consider to be core academic subjects. However, there is nothing
in the Act or these regulations that would prevent a State from
including additional subjects in its definition of ``core academic
subjects.''
Changes: None.
Comment: A few commenters requested clarifying the definition of
core academic subjects for a secondary school student when the student
is functioning significantly below the secondary level.
Discussion: The definition of core academic subjects does not vary
for secondary students who are functioning significantly below grade
level. The Act focuses on high academic standards and clear performance
goals for children with disabilities that are consistent with the
standards and expectations for all children. As required in Sec.
300.320(a), each child's IEP must include annual goals to enable the
child to be involved in and make progress in the general education
curriculum, and a statement of the special education and related
services and supplementary aids and services to enable the child to be
involved and make progress in the general education curriculum. It
would, therefore, be inconsistent and contrary to the purposes of the
Act for the definition of core academic subjects to be different for
students who are functioning below grade level.
Changes: None.
Comment: One commenter asked that the core content area of
``science'' apply to social sciences, as well as natural sciences.
Discussion: We cannot change the regulations in the manner
recommended by the commenter because the ESEA does not identify
``social sciences'' as a core academic subject. Neither does it
identify ``social studies'' as a core academic subject. Instead, it
identifies specific core academic areas: History, geography, economics,
and civics and government. The Department's nonregulatory guidance on
``Highly Qualified Teachers, Improving Teacher Quality State Grants''
(August 3, 2005) explains that if a State issues a composite social
studies license, the State must determine in which of the four areas
(history, geography, economics, and civics and government), if any, a
teacher is qualified. (see question A-20 in the Department's
nonregulatory guidance available at http://www.ed.gov/programs/teacherqual/legislation.html#guidance).
Changes: None.
Day; Business Day; School Day (Sec. 300.11)
Comment: A few commenters stated that a partial day should be
considered a school day only if there is a safety reason for a
shortened day, such as a two hour delay due to snow, and that regularly
scheduled half days should not be considered a school day for funding
purposes. One commenter stated that many schools count the time on the
bus, recess, lunch period, and passing periods as part of a school day
for children with disabilities, and recommended that the regulations
clarify that non-instructional time does not count against a child's
instructional day unless such times are counted against the
instructional day of all children. One commenter recommended the
definition of school day include days on which extended school year
(ESY) services are provided to children with disabilities.
Discussion: The length of the school day and the number of school
days do not affect the formula used to allocate Part B funds to States.
School day, as defined in Sec. 300.11(c)(1), is any day or partial day
that children are in attendance at school for instructional purposes.
If children attend school for only part of a school day and are
released early (e.g., on the last day before summer vacation), that day
would be considered to be a school day.
Section 300.11(c)(2) already defines school day as having the same
meaning for all children, including children with and without
disabilities. Therefore, it is unnecessary for the regulations to
clarify that non-instructional time (e.g., recess, lunch) is not
counted as instructional time for a child with a disability unless such
times are counted as instructional time for all children. Consistent
with this requirement, days on which ESY services are provided cannot
be counted as a school day because ESY services are provided only to
children with disabilities.
Changes: None.
Educational Service Agency (Sec. 300.12)
Comment: One commenter questioned the accuracy of the citation, 20
U.S.C. 1401(5), as the basis for including ``intermediate educational
unit'' in the definition of educational service agency.
Discussion: The definition of educational service agency is based
on the provisions in section 602(5) of the Act. The definition was
added by the Amendments to the Individuals with Disabilities Education
Act in 1997, Pub. L. 105-17, to replace the definition of
``intermediate educational unit'' (IEU) in section 602(23) of the Act,
as in effect prior to June 4, 1997. Educational service agency does not
exclude entities that were considered IEUs under prior law. To avoid
any confusion about the use of this term, the definition clarifies that
educational service agency includes entities that meet the definition
of IEU in section 602(23) of the Act as in effect prior to June 4,
1997. We believe the citation for IEU is consistent with the Act.
Changes: None.
Comment: One commenter requested that the regulations clarify that
the reference to the definition of educational service agency in the
definition of local educational agency or LEA in Sec. 300.28 means
that educational service agencies (ESAs) and Bureau of Indian Affairs
(BIA) schools have full responsibility and rights as LEAs under all
provisions of the Act, including Sec. 300.226 (early intervening
services).
Discussion: With respect to ESAs, we believe that the provisions in
Sec. 300.12 and Sec. 300.28 clarify that ESAs have full
responsibility and rights as LEAs, including the provisions in Sec.
300.226 related to early intervening services. However, the commenter's
request regarding BIA schools is inconsistent with the Act. The
definition of local educational agency in Sec. 300.28 and section
602(19) of the Act, including the provision on BIA funded schools in
section 602(19)(C) of the Act and in Sec. 300.28(c), states that the
term ``LEA'' includes an elementary school or secondary school funded
by the BIA, ``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.'' Therefore, BIA schools do not have full
responsibility and rights as LEAs under all provisions of the Act.
Changes: None.
[[Page 46553]]
Excess Costs (Sec. 300.16)
Comment: One commenter stated that an example on calculating excess
costs would be a helpful addition to the regulations.
Discussion: We agree with the commenter and will include an example
of calculating excess costs in Appendix A to Part 300--Excess Costs
Calculation. In developing the example, we noted that while the
requirements in Sec. 300.202 exclude debt service and capital outlay
in the calculation of excess costs, the definition of excess costs in
Sec. 300.16 does not mention this exclusion. We believe it is
important to include this exclusion in the definition of excess costs
and will add language in Sec. 300.16 to make this clear and consistent
with the requirements in Sec. 300.202.
Changes: We have revised Sec. 300.16(b) to clarify that the
calculation of excess costs may not include capital outlay or debt
service. We have also added Appendix A to Part 300--Excess Costs
Calculation that provides an example and an explanation of how to
calculate excess costs under the Act. A reference to Appendix A has
been added in Sec. 300.16(b).
Free Appropriate Public Education or FAPE (Sec. 300.17)
Comment: One commenter stated that the requirements in Sec. Sec.
300.103 through 300.112 (Other FAPE Requirements) should be included in
the definition of FAPE.
Discussion: The other FAPE requirements in Sec. Sec. 300.103
through 300.112 are included in subpart B of these regulations, rather
than in the definition of FAPE in subpart A, to be consistent with the
order and structure of section 612 of the Act, which includes all the
statutory requirements related to State eligibility. The order and
structure of these regulations follow the general order and structure
of the provisions in the Act in order to be helpful to parents, State
and LEA 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.
Changes: None.
Comment: Some commenters stated that the definition of FAPE should
include special education services that are provided in conformity with
a child's IEP in the least restrictive environment (LRE), consistent
with the standards of the State educational agency (SEA).
Discussion: The definition of FAPE in Sec. 300.17 accurately
reflects the specific language in section 602(9) of the Act. We believe
it is unnecessary to change the definition of FAPE in the manner
recommended by the commenters because providing services in conformity
with a child's IEP in the LRE is implicit in the definition of FAPE.
Consistent with Sec. 300.17(b), FAPE means that special education and
related services must meet the standards of the SEA and the
requirements in Part B of the Act, which include the LRE requirements
in Sec. Sec. 300.114 through 300.118. Additionally, Sec. 300.17(d)
provides that FAPE means that special education and related services
are provided in conformity with an IEP that meets the requirements in
section 614(d) of the Act. Consistent with section 614(d)(1)(i)(V) of
the Act, the IEP must include a statement of the extent, if any, to
which the child will not participate with nondisabled children in the
regular education class.
Changes: None.
Comment: One commenter recommended removing ``including the
requirements of this part'' in Sec. 300.17(b) because this phrase is
not included in the Act, and makes every provision in Part B of the Act
a component of FAPE.
Discussion: Section 300.17 is the same as current Sec. 300.13,
which has been in the regulations since 1977. We do not believe that
Sec. 300.17 makes every provision of this part applicable to FAPE.
Changes: None.
Highly Qualified Special Education Teachers (Sec. 300.18)
Comment: One commenter requested including the definition of
``highly qualified teacher,'' as defined in the ESEA, in the
regulations.
Discussion: The ESEA defines ``highly qualified'' with regard to
any public elementary or secondary school teacher. For the reasons set
forth earlier in this notice, we are not adding definitions from other
statutes to these regulations. However, we will include the current
definition here for reference.
The term ``highly qualified''--
(A) When used with respect to any public elementary school or
secondary school teacher teaching in a State, means that--
(i) The teacher has obtained full State certification as a teacher
(including certification obtained through alternative routes to
certification) or passed the State teacher licensing examination, and
holds a license to teach in such State, except that when used with
respect to any teacher teaching in a public charter school, the term
means that the teacher meets the requirements set forth in the State's
public charter school law; and
(ii) The teacher has not had certification or licensure
requirements waived on an emergency, temporary, or provisional basis;
(B) When used with respect to--
(i) An elementary school teacher who is new to the profession,
means that the teacher--
(I) Holds at least a bachelor's degree; and
(II) Has demonstrated, by passing a rigorous State test, subject
knowledge and teaching skills in reading, writing, mathematics, and
other areas of the basic elementary school curriculum (which may
consist of passing a State-required certification or licensing test or
tests in reading, writing, mathematics, and other areas of the basic
elementary school curriculum); or
(ii) A middle or secondary school teacher who is new to the
profession, means that the teacher holds at least a bachelor's degree
and has demonstrated a high level of competency in each of the academic
subjects in which the teacher teaches by--
(I) Passing a rigorous State academic subject test in each of the
academic subjects in which the teacher teaches (which may consist of a
passing level of performance on a State-required certification or
licensing test or tests in each of the academic subjects in which the
teacher teaches); or
(II) Successful completion, in each of the academic subjects in
which the teacher teaches, of an academic major, a graduate degree,
coursework equivalent to an undergraduate academic major, or advanced
certification or credentialing; and
(C) When used with respect to an elementary, middle, or secondary
school teacher who is not new to the profession, means that the teacher
holds at least a bachelor's degree and--
(i) Has met the applicable standard in clause (i) or (ii) of
subparagraph (B), which includes an option for a test; or
(ii) Demonstrates competence in all the academic subjects in which
the teacher teaches based on a high objective uniform State standard of
evaluation that--
(I) Is set by the State for both grade appropriate academic subject
matter knowledge and teaching skills;
(II) Is aligned with challenging State academic content and student
academic achievement standards and developed in consultation with core
content specialists, teachers, principals, and school administrators;
(III) Provides objective, coherent information about the teacher's
attainment of core content knowledge in
[[Page 46554]]
the academic subjects in which a teacher teaches;
(IV) Is applied uniformly to all teachers in the same academic
subject and the same grade level throughout the State;
(V) Takes into consideration, but not be based primarily on, the
time the teacher has been teaching in the academic subject;
(VI) Is made available to the public upon request; and
(VII) May involve multiple, objective measures of teacher
competency.
Changes: None.
Comment: A few commenters recommended defining the term ``special
education teacher.'' Other commenters recommended that States define
highly qualified special education teachers and providers. One
commenter stated that the regulations should define the role of the
special education teacher as supplementing and supporting the regular
education teacher who is responsible for teaching course content.
One commenter requested that the regulations clarify that a special
education teacher who is certified as a regular education teacher with
an endorsement in special education meets the requirements for a highly
qualified special education teacher. Another commenter recommended
changing the definition of a highly qualified special education teacher
so that States cannot provide a single certification for all areas of
special education. One commenter requested clarification regarding the
highly qualified special education teacher standards for special
education teachers with single State endorsements in the area of
special education. A few commenters recommended clarifying that when a
State determines that a teacher is fully certified in special
education, this means that the teacher is knowledgeable and skilled in
the special education area in which certification is received. One
commenter recommended that teacher qualifications and standards be
consistent from State to State.
Discussion: Section 300.18(b), consistent with section 602(10)(B)
of the Act, provides that a highly qualified special education teacher
must have full State special education certification (including
certification obtained through alternative routes to certification) or
have passed the State special education teacher licensing examination
and hold a license to teach in the State; have not had special
education certification or licensure requirements waived on an
emergency, temporary, or provisional basis; and hold at least a
bachelor's degree. Except to the extent addressed in Sec. 300.18(c)
and (d), special education teachers who teach core academic subjects
must, in addition to meeting these requirements, demonstrate subject-
matter competency in each of the core academic subjects in which the
teacher teaches.
States are responsible for establishing certification and licensing
standards for special education teachers. Each State uses its own
standards and procedures to determine whether teachers who teach within
that State meet its certification and licensing requirements. Teacher
qualifications and standards are consistent from State to State to the
extent that States work together to establish consistent criteria and
reciprocity agreements. It is not the role of the Federal government to
regulate teacher certification and licensure.
Changes: None.
Comment: One commenter stated that LEAs must train special
education teachers because most special education teachers are not
highly qualified upon graduation from a college program. A few
commenters recommended that the regulations encourage SEAs to require
coursework for both special education and general education teachers in
the areas of behavior management and classroom management. One
commenter recommended that the requirements for special education
teachers include competencies in reading instruction and in properly
modifying and accommodating instruction. Another commenter supported
training in special education and related services for general
education teachers. One commenter expressed support for collaboration
between special education and regular education teachers. Some
commenters recommended requiring a highly qualified general education
teacher teaching in a self-contained special education classroom to
work in close collaboration with the special education teacher assigned
to those children. Another commenter stated that the definition of a
highly qualified special education teacher will be meaningless if the
training for teachers is not consistent across States.
Discussion: Personnel training needs vary across States and it
would be inappropriate for the regulations to require training on
specific topics. Consistent with Sec. 300.156 and section 612(a)(14)
of the Act, each State is responsible for ensuring that teachers,
related services personnel, paraprofessionals, and other personnel
serving children with disabilities under Part B of the Act are
appropriately and adequately prepared and trained and have the content
knowledge and skills required to serve children with disabilities.
Changes: None.
Comment: One commenter recommended that the regulations include
standards for highly qualified special education paraprofessionals,
similar to the requirements under the ESEA.
Discussion: Section Sec. 300.156(b) specifically requires the
qualifications for paraprofessionals to be 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.
In addition, the ESEA requires that paraprofessionals, including
special education paraprofessionals who assist in instruction in title
I-funded programs, have at least an associate's degree, have completed
at least two years of college, or meet a rigorous standard of quality
and demonstrate, through a formal State or local assessment, knowledge
of, and the ability to assist in instruction in reading, writing, and
mathematics, reading readiness, writing readiness, or mathematics
readiness, as appropriate. Paraprofessionals in title I schools do not
need to meet these requirements if their role does not involve
instructional support, such as special education paraprofessionals who
solely provide personal care services. For more information on the ESEA
requirements for paraprofessionals, see 34 CFR 200.58 and section 1119
of the ESEA, and the Department's nonregulatory guidance, Title I
Paraprofessionals (March 1, 2004), which can be found on the
Department's Web site at: http://www.ed.gov/policy/elsec/guid/paraguidance.pdf.
We believe these requirements are sufficient to ensure that
children with disabilities receive services from paraprofessionals who
are appropriately and adequately trained. Therefore, we decline to
include additional standards for paraprofessionals.
Changes: None.
Comment: Numerous commenters requested clarification as to whether
early childhood and preschool special education teachers must meet the
highly qualified special education teacher standards. Several
commenters stated that requiring early childhood and preschool special
education teachers to meet the highly qualified special education
teacher standards would exceed statutory authority and exacerbate the
shortage of special education teachers. A few commenters supported
allowing States to decide
[[Page 46555]]
whether the highly qualified special education teacher requirements
apply to preschool teachers.
Discussion: The highly qualified special education teacher
requirements apply to all public elementary school and secondary school
special education teachers, including early childhood or preschool
teachers if a State includes the early childhood or preschool programs
as part of its elementary school and secondary school system. If the
early childhood or preschool program is not a part of a State's public
elementary school and secondary school system, the highly qualified
special education teacher requirements do not apply.
Changes: None.
Comment: One commenter requested clarification regarding the scope
of the highly qualified special education teacher requirements for
instructors who teach core academic subjects in specialized schools,
such as schools for the blind, and recommended that there be different
qualifications for instructors who provide orientation and mobility
instruction or travel training for children who are blind or visually
impaired.
One commenter requested adding travel instructors to the list of
special educators who need to be highly qualified. Some commenters
recommended adding language to include certified and licensed special
education teachers of children with low incidence disabilities as
highly qualified special education teachers. A few commenters requested
that the requirements for teachers who teach children with visual
impairments include competencies in teaching Braille, using assistive
technology devices, and conducting assessments, rather than
competencies in core subject areas. Some commenters requested more
flexibility in setting the standards for teachers of children with
visual impairments and teachers of children with other low incidence
disabilities. One commenter requested clarification regarding the
requirements for teachers of children with low incidence disabilities.
Discussion: Consistent with Sec. 300.156 and section 612(a)(14) of
the Act, it is the responsibility of each State to ensure that teachers
and other personnel serving children with disabilities under Part B of
the Act are appropriately and adequately prepared and trained and have
the content knowledge and skills to serve children with disabilities,
including teachers of children with visual impairments and teachers of
children with other low incidence disabilities.
The highly qualified special education teacher requirements apply
to all public school special education teachers. There are no separate
or special provisions for special education teachers who teach in
specialized schools, for teachers of children who are blind and
visually impaired, or for teachers of children with other low incidence
disabilities and we do not believe there should be because these
children should receive the same high quality instruction from teachers
who meet the same high standards as all other teachers and who have the
subject matter knowledge and teaching skills necessary to assist these
children to achieve to high academic standards.
Changes: None.
Comment: One commenter requested clarification on how the highly
qualified special education teacher requirements impact teachers who
teach children of different ages. A few commenters recommended adding a
provision for special education teachers who teach at multiple age
levels, similar to the special education teacher who teaches multiple
subjects.
Discussion: The Act does not include any special requirements for
special education teachers who teach at multiple age levels. Teachers
who teach at multiple age levels must meet the same requirements as all
other special education teachers to be considered highly qualified. The
clear intent of the Act is to ensure that all children with
disabilities have teachers with the subject matter knowledge and
teaching skills necessary to assist children with disabilities achieve
to high academic standards. Therefore, we do not believe there should
be different requirements for teachers who teach at multiple age
levels.
Changes: None.
Comment: One commenter recommended including specific criteria
defining a highly qualified special education literacy teacher.
Discussion: Under Sec. 300.18(a), a special education literacy
teacher who is responsible for teaching reading must meet the ESEA
highly qualified teacher requirements including competency in reading,
as well as the highly qualified special education teacher requirements.
We do not believe that further regulation is needed as the Act leaves
teacher certification and licensing requirements to States.
Changes: None.
Comment: Many commenters expressed concern that the highly
qualified special education teacher standards will make it more
difficult to recruit and retain special education teachers. Some
commenters stated that most special education teachers will need to
hold more than one license or certification to meet the highly
qualified special education teacher requirements and that the time and
expense needed to obtain the additional licenses or certifications is
unreasonable. One commenter stated that schools will have to hire two
or three teachers for every one special education teacher, thereby
increasing education costs.
One commenter expressed concern about losing special education
teachers who teach multiple subjects in alternative education and
homebound programs because they will not meet the highly qualified
special education teacher requirements. One commenter expressed concern
that the requirements set a higher standard for teachers in self-
contained classrooms. Another commenter stated that requiring special
education teachers in secondary schools to be experts in all subjects
is a burden that elementary teachers do not have.
Discussion: The Department understands the concerns of the
commenters. However, the clear intention of the Act is to ensure that
all children with disabilities have teachers with the subject-matter
knowledge and teaching skills necessary to assist children with
disabilities achieve to high academic standards.
To help States and districts meet these standards, section 651 of
the Act authorizes State Personnel Development grants to help States
reform and improve their systems for personnel preparation and
professional development in early intervention, educational, and
transition services in order to improve results for children with
disabilities. In addition, section 662 of the Act authorizes funding
for institutions of higher education, LEAs, and other eligible local
entities to improve or develop new training programs for teachers and
other personnel serving children with disabilities.
Changes: None.
Comment: One commenter requested further clarification regarding
the requirements for secondary special education teachers to be highly
qualified in the core subjects they teach, as well as certified in
special education.
Discussion: Consistent with Sec. 300.18(a) and (b) and section
602(10)(A) and (B) of the Act, secondary special education teachers who
teach core academic subjects must meet the highly qualified teacher
standards established in the ESEA (which includes competency in each
core academic subject the teacher teaches) and the highly qualified
special education teacher requirements in
[[Page 46556]]
Sec. 300.18(b) and section 602(10)(B) of the Act.
Consistent with Sec. 300.18(c) and section 602(10)(C) of the Act,
a secondary special education teacher who teaches core academic
subjects exclusively to children assessed against alternate achievement
standards can satisfy the highly qualified special education teacher
requirements by meeting the requirements for a highly qualified
elementary teacher under the ESEA, or in the case of instruction above
the elementary level, have subject matter knowledge appropriate to the
level of instruction being provided, as determined by the State, to
effectively teach to those standards.
Changes: None.
Comment: One commenter expressed concern that the highly qualified
teacher requirements will drive secondary teachers who teach children
with emotional and behavioral disorders out of the field and requested
that the requirements be changed to require special education
certification in one core area, plus a reasonable amount of training in
other areas. Another commenter recommended permitting special education
teachers of core academic subjects at the elementary level to be highly
qualified if they major in elementary education and have coursework in
math, language arts, and science. One commenter recommended that any
special education teacher certified in a State prior to 2004 be exempt
from having to meet the highly qualified special education teacher
requirements.
Discussion: The definition of a highly qualified special education
teacher in Sec. 300.18 accurately reflects the requirements in section
602(10) of the Act. To change the regulations in the manner recommended
by the commenters would be inconsistent with the Act and the Act's
clear intent of ensuring that all children with disabilities have
teachers with the subject matter knowledge and teaching skills
necessary to assist children with disabilities achieve to high academic
standards. Therefore, we decline to change the requirements in Sec.
300.18.
Changes: None.
Comment: One commenter stated that there is a double standard in
the highly qualified teacher requirements because general education
teachers are not required to be certified in special education even
though they teach children with disabilities. Another commenter
recommended requiring general education teachers who teach children
with disabilities to meet the highly qualified special education
teacher requirements.
Discussion: We cannot make the changes suggested by the commenter
because the Act does not require general education teachers who teach
children with disabilities to be certified in special education.
Further, the legislative history of the Act would not support these
changes. Note 21 in the U.S. House of Representatives Conference Report
No. 108-779 (Conf. Rpt.), p. 169, clarifies that general education
teachers who are highly qualified in particular subjects and who teach
children with disabilities in those subjects are not required to have
full State certification as a special education teacher. 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.
The Act focuses on ensuring that children with disabilities achieve
to high academic standards and have access to the same curriculum as
other children. In order to achieve this goal, teachers who teach core
academic subjects to children with disabilities must be competent in
the core academic areas in which they teach. This is true for general
education teachers, as well as special education teachers.
Changes: None.
Comment: Some commenters expressed concern that LEAs may reduce
placement options for children with disabilities because of the
shortage of highly qualified teachers. A few commenters recommended
requiring each State to develop and implement policies to ensure that
teachers meet the highly qualified special education teacher
requirements, while maintaining a full continuum of services and
alternative placements to respond to the needs of children with
disabilities.
Discussion: It would be inconsistent with the LRE requirements in
section 612(a)(5) of the Act for a public agency to restrict the
placement options for children with disabilities. Section 300.115,
consistent with section 612(a)(5) of the Act, requires each public
agency to ensure that a continuum of alternative placements is
available to meet the needs of children with disabilities.
The additional requirements requested by the commenter are not
necessary because States already must develop and implement policies to
ensure that the State meets the LRE and personnel standards
requirements in sections 612(a)(5) and (a)(14) of the Act,
respectively.
Changes: None.
Comment: One commenter stated that personnel working in charter
schools should meet the same requirements as all other public school
personnel. Several commenters expressed concern regarding the exemption
of charter school teachers from the highly qualified special education
teacher requirements. One commenter stated that while a special
education teacher in a charter school does not have to be licensed or
certified by the State if the State's charter school law does not
require such licensure or certification, all other elements of the
highly qualified special education teacher requirements should apply to
charter school teachers, including demonstrated competency in core
academic subject areas.
Discussion: The certification requirements for charter school
teachers are established in a State's public charter school law, and
may differ from the requirements for full State certification for
teachers in other public schools. The Department does not have the
authority to change State charter school laws to require charter school
teachers to meet the same requirements as all other public school
teachers.
In addition to the certification requirements established in a
State's public charter school law, if any, section 602(10) of the Act
requires charter school special education teachers to hold at least a
bachelor's degree and, if they are teaching core academic subjects,
demonstrate competency in the core academic areas they teach. We will
add language in Sec. 300.18(b) to clarify that special education
teachers in public charter schools must meet the certification or
licensing requirements, if any, established by a State's public charter
school law.
Changes: We have added the words ``if any'' in Sec.
300.18(b)(1)(i) to clarify that special education teachers in public
charter schools must meet any certification or licensing requirements
established by a State's public charter school law.
Comment: One commenter stated that the regulations use the terms
``highly qualified'' and ``fully certified'' in a manner that implies
they are synonymous, and recommended that the regulations maintain the
distinction between the two terms.
Discussion: Full State certification is determined under State law
and policy and means that a teacher has fully met State requirements,
including any requirements related to a teacher's years of teaching
experience. For example, State requirements may vary for first-year
teachers versus teachers who are not new to the profession. Full State
[[Page 46557]]
certification also means that the teacher has not had certification or
licensure requirements waived on an emergency, temporary, or
provisional basis.
The terms ``highly qualified'' and ``fully certified'' are
synonymous when used to refer to special education teachers who are not
teaching core academic subjects. For special education teachers
teaching core academic subjects, however, both full special education
certification or licensure and subject matter competency are required.
Changes: We have changed the heading to Sec. 300.18(a) and the
introductory material in Sec. 300.18(a) and (b)(1) for clarity.
Comment: A few commenters recommended prohibiting States from
creating new categories to replace emergency, temporary, or provisional
licenses that lower the standards for full certification in special
education.
Discussion: We do not believe it is necessary to add the additional
language recommended by the commenters. Section 300.18(b)(1)(ii) and
section 602(10)(B)(ii) of the Act are clear that a teacher cannot be
considered a highly qualified special education teacher if the teacher
has had special education certification or licensure waived on an
emergency, temporary, or provisional basis. This would include any new
certification category that effectively allows special education
certification or licensure to be waived on an emergency, temporary, or
provisional basis.
Changes: None.
Comment: Some commenters supported alternative route to
certification programs for special education teachers. One commenter
stated that these programs are necessary to increase the number of
highly qualified teachers and will help schools on isolated tribal
reservations recruit, train, and retain highly qualified teachers.
However, numerous commenters expressed concerns and objections to
alternative route to certification programs for special education
teachers. Several commenters stated that allowing individuals making
progress in an alternative route to certification program to be
considered highly qualified and fully certified creates a lower
standard, short-changes children, is not supported by any provision in
the Act, and undermines the requirement for special education teachers
to be fully certified. One commenter stated that this provision is
illogical and punitive to higher education teacher training programs
because it allows individuals in an alternative route to certification
program to be considered highly qualified and fully certified during
their training program, while at the same time individuals in regular
teacher training programs that meet the same requirements as
alternative route to certification programs are not considered highly
qualified or fully certified. One commenter argued that an individual
participating in an alternative route to certification program would
need certification waived on an emergency, temporary, or provisional
basis, which means the individual has not met the requirements in Sec.
300.18(b)(1)(ii). Another commenter stated that three years is not
enough time for a teacher enrolled in an alternative route to
certification program to assume the functions of a teacher.
Discussion: While we understand the general objections to
alternative route to certification programs expressed by the
commenters, the Department believes that alternative route to
certification programs provide an important option for individuals
seeking to enter the teaching profession. The requirements in Sec.
300.18(b)(2) were included in these regulations to provide consistency
with the requirements in 34 CFR 200.56(a)(2)(ii)(A) and the ESEA,
regarding alternative route to certification programs. To help ensure
that individuals participating in alternative route to certification
programs are well trained, there are certain requirements that must be
met as well as restrictions on who can be considered to have obtained
full State certification as a special education teacher while enrolled
in an alternative route to certification program. An individual
participating in an alternative route to certification program must (1)
hold at least a bachelor's degree and have demonstrated subject-matter
competency in the core academic subject(s) the individual will be
teaching; (2) assume the functions of a teacher for not more than three
years; and (3) demonstrate satisfactory progress toward full
certification, as prescribed by the State. The individual also must
receive, before and while teaching, high-quality professional
development that is sustained, intensive, and classroom-focused and
have intensive supervision that consists of structured guidance and
regular ongoing support.
It was the Department's intent to allow an individual who wants to
become a special education teacher, but does not plan to teach a core
academic subject, to enroll in an alternative route to certification
program and be considered highly qualified, provided that the
individual holds at least a bachelor's degree. This requirement,
however, was inadvertently omitted in the NPRM. Therefore, we will add
appropriate references in Sec. 300.18(b)(3) to clarify that an
individual participating in an alternative route to certification
program in special education who does not intend to teach a core
academic subject, may be considered a highly qualified special
education teacher if the individual holds at least a bachelor's degree
and participates in an alternative route to certification program that
meets the requirements in Sec. 300.18(b)(2).
Changes: Appropriate citations have been added in Sec.
300.18(b)(3) to clarify the requirements for individuals enrolled in
alternative route to special education teacher certification programs.
Comment: A few commenters recommended more specificity in the
requirements for teachers participating in alternative route to
certification programs, rather than giving too much discretion to
States to develop programs that do not lead to highly qualified
personnel. However, one commenter recommended allowing States the
flexibility to create their own guidelines for alternative route to
certification programs.
Several commenters recommended clarifying the requirements for the
teacher supervising an individual who is participating in an
alternative route to certification program. One commenter recommended
requiring supervision, guidance, and support by a professional with
expertise in the area of special education in which the teacher desires
to become certified.
Discussion: Consistent with Sec. 300.18(b)(2)(ii), States are
responsible for ensuring that the standards for alternative route to
certification programs in Sec. 300.18(b)(2)(i) are met. It is,
therefore, up to each State to determine whether to require specific
qualifications for the teachers responsible for supervising teachers
participating in an alternative route to certification program.
Changes: None.
Comment: One commenter requested clarification regarding the roles
and responsibilities of special education teachers who do not teach
core academic subjects.
Discussion: Special education teachers who do not directly instruct
children in any core academic subject or who provide only consultation
to highly qualified teachers of core academic subjects do not need to
demonstrate subject-matter competency in those subjects. These special
educators could provide consultation services to other teachers, such
as adapting curricula,
[[Page 46558]]
using behavioral supports and interventions, or selecting appropriate
accommodations for children with disabilities. They could also assist
children with study skills or organizational skills and reinforce
instruction that the child has already received from a highly qualified
teacher in that core academic subject.
Changes: None.
Comment: Many commenters recommended including language in the
regulations to clarify that special education teachers who do not teach
core academic subjects and provide only consultative services must
restrict their services to areas that supplement, not replace, the
direct instruction provided by a highly qualified general education
teacher. One commenter recommended that States develop criteria for
teachers who provide consultation services. Another commenter stated
that special education teachers should not work on a consultative
basis.
Discussion: The definition of consultation services and whether a
special education teacher provides consultation services are matters
best left to the discretion of each State. While States may develop
criteria to distinguish consultation versus instructional services, the
Act and the ESEA are clear that teachers who provide direct instruction
in a core academic subject, including special education teachers, must
meet the highly qualified teacher requirements, which include
demonstrated competency in each of the core academic subjects the
teacher teaches.
Changes: None.
Requirements for Highly Qualified Special Education Teachers Teaching
to Alternate Achievement Standards (Sec. 300.18(c))
Comment: One commenter recommended replacing ``alternate
achievement standards'' with ``alternate standards.'' A few commenters
requested including a definition of alternate achievement standards in
the regulations.
Discussion: ``Alternate achievement standards'' is statutory
language and, therefore, it would be inappropriate to change
``alternate achievement standards'' to ``alternate standards.''
For the reasons set forth earlier in this notice, we are not adding
definitions from other statutes to these regulations. However, we will
include the current description of alternate achievement standards in
34 CFR 200.1(d) of the ESEA regulations here for reference.
For children under section 602(3) of the Individuals with
Disabilities Education Act with the most significant cognitive
disabilities who take an alternate assessment, a State may, through a
documented and validated standards-setting process, define alternate
academic achievement standards, provided those standards--
(1) Are aligned with the State's academic content standards;
(2) Promote access to the general curriculum; and
(3) Reflect professional judgment of the highest achievement
standards possible.
Changes: None.
Comment: Several commenters expressed concern with allowing high
school students with significant cognitive disabilities to be taught by
a certified elementary school teacher. One commenter stated that high
school students with disabilities should be prepared to lead productive
adult lives, and not be treated as young children. Another commenter
stated that these requirements foster low expectations for children
with the most significant cognitive disabilities and will be used to
justify providing children with instruction that is not age appropriate
or that denies access to the general education curriculum. A few
commenters stated that the requirements for special education teachers
teaching to alternate achievement standards should be the same as the
requirements for all special education teachers.
Some commenters recommended requiring teachers who teach to
alternate achievement standards to have subject matter knowledge to
provide instruction aligned to the academic content standards for the
grade level in which the student is enrolled. One commenter recommended
requiring any special education teacher teaching to alternate
achievement standards to demonstrate knowledge of age-appropriate core
curriculum content to ensure children with disabilities are taught a
curriculum that is closely tied to the general education curriculum
taught to other children of the same age.
Discussion: The regulations promulgated under section 1111(b)(1) of
the ESEA permit States to use alternate achievement standards to
evaluate the performance of a small group of children with the most
significant cognitive disabilities who are not expected to meet grade-
level standards even with the best instruction. An alternate
achievement standard sets an expectation of performance that differs in
complexity from a grade-level achievement standard. Section
602(10)(C)(ii) of the Act, therefore, allows special education teachers
teaching exclusively children who are assessed against alternate
achievement standards to meet the highly qualified teacher standards
that apply to elementary school teachers. In the case of instruction
above the elementary level, the teacher must have subject matter
knowledge appropriate to the level of instruction being provided, as
determined by the State, in order to effectively teach to those
standards.
We do not agree that allowing middle and high school students with
the most significant cognitive disabilities to be taught by teachers
who meet the qualifications of a highly qualified elementary teacher
fosters low expectations, encourages students to be treated like
children, promotes instruction that is not age appropriate, or denies
students access to the general curriculum. Although alternate
achievement standards differ in complexity from grade-level standards,
34 CFR 200.1(d) requires that alternate achievement standards be
aligned with the State's content standards, promote access to the
general curriculum, and reflect professional judgment of the highest
achievement standards possible. In short, we believe that the
requirements in Sec. 300.18(c) will ensure that teachers teaching
exclusively children who are assessed against alternate achievement
standards will have the knowledge to provide instruction aligned to
grade-level content standards so that students with the most
significant cognitive disabilities are taught a curriculum that is
closely tied to the general curriculum.
Changes: None.
Comment: A few commenters requested clarification regarding the
meaning of ``subject matter knowledge appropriate to the level of
instruction provided'' in Sec. 300.18(c)(2).
Discussion: Section 300.18(c)(2) requires that if a teacher (who is
teaching exclusively to alternate achievement standards) is teaching
students who need instruction above the elementary school level, the
teacher must have subject matter knowledge appropriate to the level of
instruction needed to effectively teach to those standards. The purpose
of this requirement is to ensure that teachers exclusively teaching
children who are assessed based on alternate academic achievement
standards above the elementary level have sufficient subject matter
knowledge to effectively instruct in each of the core academic subjects
being taught, at the level of difficulty being taught. For example, if
a high school student (determined by the IEP Team to be assessed
against alternate achievement standards) has knowledge and skills in
math at the 7th grade level,
[[Page 46559]]
but in all other areas functions at the elementary level, the teacher
would need to have knowledge in 7th grade math in order to effectively
teach the student to meet the 7th grade math standards. No further
clarification is necessary.
Changes: None.
Comment: A few commenters recommended that the regulations include
requirements for teachers who provide instruction to children assessed
against modified achievement standards. Several commenters stated that
the requirements for teachers teaching children assessed against
modified achievement standards should be the same for teachers teaching
children assessed against alternate achievement standards.
Discussion: The Department has not issued final regulations
addressing modified achievement standards and the specific criteria for
determining which children with disabilities should be assessed based
on modified achievement standards. As proposed, the modified
achievement standards must be aligned with the State's academic content
standards for the grade in which the student is enrolled and provide
access to the grade-level curriculum. For this reason, we see no need
for a further exception to the ``highly qualified teacher'' provisions
at this time.
Changes: None.
Requirements for Highly Qualified Special Education Teachers Teaching
Multiple Subjects (Sec. 300.18(d))
Comment: A few commenters stated that the requirements for teachers
who teach two or more core academic subjects exclusively to children
with disabilities are confusing. Some commenters requested additional
guidance and flexibility for special education teachers teaching two or
more core academic subjects. Other commenters recommended allowing
special education teachers more time to become highly qualified in all
the core academic subjects they teach.
Discussion: The requirements in Sec. 300.18(d), consistent with
section 602(10)(C) of the Act, provide flexibility for teachers who
teach multiple core academic subjects exclusively to children with
disabilities. Section 300.18(d)(2) and (3) allows teachers who are new
and not new in the profession to demonstrate competence in all the core
academic subjects in which the teacher teaches using a single, high
objective uniform State standard of evaluation (HOUSSE) covering
multiple subjects. In addition, Sec. 300.18(d)(3) gives a new special
education teacher who teaches multiple subjects, and who is highly
qualified in mathematics, language arts, or science at the time of
hire, two years after the date of employment to demonstrate competence
in the other core academic subjects in which the teacher teaches. We do
not believe that further clarification is necessary.
Changes: None.
Comment: One commenter requested clarification regarding the
meaning of the following phrases in Sec. 300.18(d): ``multiple
subjects,'' ``in the same manner,'' and ``all the core academic
subjects.''
Discussion: ``Multiple subjects'' refers to two or more core
academic subjects. Section 300.18(d) allows teachers who are new or not
new to the profession to demonstrate competence in ``all the core
subjects'' in which the teacher teaches ``in the same manner'' as is
required for an elementary, middle, or secondary school teacher under
the ESEA. As used in this context, ``in the same manner'' means that
special education teachers teaching multiple subjects can demonstrate
competence in the core academic subjects they teach in the same way
that is required for elementary, middle, or secondary school teachers
in 34 CFR 200.56 of the ESEA regulations. ``All the core subjects''
refers to the core academic subjects, which include English, reading or
language arts, mathematics, science, foreign languages, civics and
government, economics, arts, history, and geography, consistent with
Sec. 300.10.
Changes: None.
Comment: One commenter recommended ensuring that the requirements
in Sec. 300.18(d) apply to special education teachers who teach
children with severe disabilities in more than one core subject area.
Discussion: The requirements in Sec. 300.18(d) do not exclude
teachers who teach children with severe disabilities in more than one
core subject area. Consistent with Sec. 300.18(d) and section
602(10)(D) of the Act, the requirements apply to special education
teachers who teach two or more core academic subjects exclusively to
children with disabilities, including, but not limited to, children
with severe disabilities. We do not believe that further clarification
is necessary.
Changes: None.
Comment: A significant number of commenters recommended adding
language to the regulations to permit a separate HOUSSE for special
education teachers, including a single HOUSSE that covers multiple
subjects. Some commenters supported a single HOUSSE covering multiple
subjects for special education teachers, as long as those adaptations
of a State's HOUSSE for use with special education teachers do not
establish lower standards for the content knowledge requirements for
special education teachers.
Discussion: States have the option of developing a method by which
teachers can demonstrate competency in each subject they teach on the
basis of a HOUSSE. Likewise, we believe States should have the option
of developing a separate HOUSSE for special education teachers.
States have flexibility in developing their HOUSSE evaluation as
long as it meets each of the following criteria established in section
9101(23)(C)(ii) of the ESEA:
Be set by the State for both grade-appropriate academic
subject-matter knowledge and teaching skills;
Be aligned with challenging State academic content and
student academic achievement standards and developed in consultation
with core content specialists, teachers, principals, and school
administrators;
Provide objective, coherent information about the
teacher's attainment of core content knowledge in the academic subjects
in which a teacher teaches;
Be applied uniformly to all teachers in the same academic
subject and teaching in the same grade level throughout the State;
Take into consideration, but not be based primarily on,
the time the teacher has been teaching in the academic subject; and
Be made available to the public upon request.
The ESEA also permits States, when developing their HOUSSE
procedures, to involve multiple, objective measures of teacher
competency. Each evaluation should have a high, objective, uniform
standard that the candidate is expected to meet or to exceed. These
standards for evaluation must be applied to each candidate in the same
way.
We believe it is appropriate and consistent with the Act to permit
States to develop a separate HOUSSE for special education teachers to
demonstrate subject matter competency and to use a single HOUSSE
covering multiple subjects, provided that any adaptations to the HOUSSE
do not establish a lower standard for the content knowledge
requirements for special education teachers and meet all the
requirements for a HOUSSE for regular education teachers established in
section 9101(23)(C)(ii) of the ESEA.
Changes: We have added a new paragraph (e) to Sec. 300.18 to allow
States to develop a separate HOUSSE for
[[Page 46560]]
special education teachers and to permit the use of a single HOUSSE
covering multiple subjects. Subsequent paragraphs have been renumbered.
Comment: A few commenters stated that the HOUSSE should only be
used to address the content requirements, not primary certification as
a special educator.
Discussion: A HOUSSE is a method by which teachers can demonstrate
competency in each subject they teach. A HOUSSE does not address the
requirement for full State certification as a special education
teacher.
Changes: None.
Comment: Several commenters recommended clarifying the requirements
for a HOUSSE, particularly at the high school level. One commenter
recommended clarifying the use of a separate HOUSSE for teachers of
children with visual impairments.
Discussion: The requirements for a HOUSSE apply to public school
elementary, middle, and high school special education teachers. Neither
the Act nor the ESEA provides for different HOUSSE procedures at the
high school level. Similarly, there are no requirements for separate
HOUSSE procedures for teachers who teach children with visual
impairments or any other specific type of disability. We do not believe
it is necessary or appropriate to establish separate requirements for
separate HOUSSE procedures for teachers who teach children with visual
impairments or any other specific type of disability. All children with
disabilities, regardless of their specific disability, should have
teachers with the subject matter knowledge to assist them to achieve to
high academic standards.
Changes: None.
Comment: One commenter recommended that States work collaboratively
to ensure there is State reciprocity of content area standards for
special education teachers, including HOUSSE provisions.
Discussion: It is up to each State to determine when and on what
basis to accept another State's determination that a particular teacher
is highly qualified. Additionally, each State determines whether to
consider a teacher from another State to be both fully certified and
competent in each subject area.
Changes: None.
Comment: One commenter requested specific guidance on how to design
a multi-subject HOUSSE for special education teachers.
Discussion: The Department's non-regulatory guidance on Improving
Teacher Quality State Grants issued on August 3, 2005 (available at
http://www.ed.gov/programs/teacherqual/guidance.doc.) provides the
following guidance to States when developing their HOUSSE procedures
(see question A-10):
Do the HOUSSE procedures provide an ``objective'' way of
determining whether teachers have adequate subject-matter knowledge in
each core academic subject they teach?
Is there a strong and compelling rationale for each part
of the HOUSSE procedures?
Do the procedures take into account, but not primarily
rely on, previous teaching experience?
Does the plan provide solid evidence that teachers have
mastered the subject-matter content of each of the core academic
subjects they are teaching? (Note: experience and association with
content-focused groups or organizations do not necessarily translate
into an objective measure of content knowledge.)
Has the State consulted with core content specialists,
teachers, principals, and school administrators?
Does the State plan to widely distribute its HOUSSE
procedures, and are they presented in a format understandable to all
teachers?
Changes: None.
Comment: A few commenters asked whether the additional time allowed
for teachers living in rural areas who teach multiple subjects applies
to special education teachers. One commenter requested that teachers in
rural areas have three extra years after the date of employment to meet
the standards. Another commenter stated it will be difficult for these
teachers to meet the highly qualified special education teacher
requirements even with an extended deadline.
Discussion: The Department's policy on flexibility for middle and
high school teachers in rural schools applies to special education
teachers. Under this policy, announced on March 15, 2004, States may
permit LEAs eligible to participate in the Small Rural School
Achievement (SRSA) program that employ teachers who teach multiple
subjects and are highly qualified in at least one core academic
subject, to have until the end of the 2006-07 school year for these
teachers to be highly qualified in each subject that they teach. Newly-
hired teachers in these covered LEAs have three years from the date of
hire to become highly qualified in each core academic subject that they
teach. More information about this policy is available in the
Department's nonregulatory guidance, Improving Teacher Quality State
Grants (August 3, 2005), which can be found on the Department's Web
site at: http://www.ed.gov/programs/teacherqual/guidance.doc.
Changes: None.
Comment: Some commenters requested a definition of ``new'' special
education teacher and asked whether it applies to teachers hired after
the date of enactment of the Act, December 3, 2004, or after the 2005-
06 school year. One commenter asked whether a fully certified regular
education teacher who enrolls in a special education teacher training
program would be considered ``new'' to the profession when he or she
completes the training program.
Discussion: Under the Act, mere completion of a special education
teacher training program is not a sufficient predicate for being
considered a highly qualified special education teacher. Section
602(10)(B) of the Act requires full State certification or licensure as
a special education teacher, and this would apply to teachers who are
already certified or licensed as a regular education teacher, as well
as to other individuals.
On the question of when a person is ``new to the profession,'' the
Department's non-regulatory guidance on Improving Teacher Quality State
Grants issued on August 3, 2005, clarifies that States have the
authority to define which teachers are new and not new to the
profession; however, those definitions must be reasonable. The guidance
further states that the Department strongly believes that a teacher
with less than one year of teaching experience is ``new'' to the
profession (see Question A-6). (The guidance is available at http://www.ed.gov/programs/teacherqual/guidance.doc). This guidance is
applicable to determinations of when a person is new or not new to the
profession under section 602(10)(C) and (D)(ii) of the Act and Sec.
300.18(c) and (d)(2).
Under section 602(10)(D)(iii) of the Act, and reflected in Sec.
300.18(d)(3), there is additional flexibility for ``a new special
education teacher'' who is teaching multiple subjects and is highly
qualified in mathematics, language arts, or science, to demonstrate
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 who is not new to the profession, which may
include a single, high objective uniform State standard of evaluation
covering multiple subjects, not later than 2 years after the date of
employment. The phrase ``2 years after the date of employment'' in
section
[[Page 46561]]
602(10)(D)(iii) of the Act is interpreted to mean 2 years after
employment as a special education teacher.
For purposes of this provision, we consider it appropriate to
consider a fully certified regular education teacher who subsequently
becomes fully certified or licensed as a special education teacher to
be considered a ``new special education teacher'' when they are first
hired as a special education teacher. We will add language to new Sec.
300.18(g) (proposed Sec. 300.18(f)) to make this clear.
Changes: We have restructured Sec. 300.18(g) (proposed Sec.
300.18(f)) and added a new paragraph (g)(2) to permit a fully certified
regular education teacher who subsequently becomes fully certified or
licensed as a special education teacher to be considered a new special
education teacher when first hired as a special education teacher.
Comment: Some commenters recommended that the regulations clarify
how co-teaching fits with the highly qualified special education
teacher requirements. A few commenters stated that a special education
teacher should be considered a highly qualified teacher if co-teaching
with a highly qualified general education teacher. One commenter stated
that co-teaching will encourage districts to work toward more inclusive
settings for children with disabilities while also ensuring that
teachers with appropriate qualifications are in the classroom. One
commenter supported co-teaching as a method for special education
teachers to learn core content knowledge and be supported by the
general education teacher. One teacher recommended that a highly
qualified general education teacher supervise teachers who do not meet
the highly qualified special education teacher requirements.
Discussion: The term ``co-teaching'' has many different meanings
depending on the context in which it is used. Whether and how co-
teaching is implemented is a matter that is best left to State and
local officials' discretion. Therefore, we decline to include language
regarding co-teaching in these regulations. Regardless of whether co-
teaching models are used, States and LEAs must ensure that teachers
meet the highly qualified teacher requirements in 34 CFR 200.56 and
section 9101(23) of the ESEA and the highly qualified special education
teacher requirements in Sec. 300.18 and section 602(10) of the Act, as
well as the personnel requirements in Sec. 300.156 and section
612(a)(14) of the Act.
Changes: None.
Comment: One commenter recommended requiring schools to post the
credentials of educational personnel in a place with public access, and
to include in the procedural safeguards notice a parent's right to
request the credentials of any teacher who supports the child in an
educational environment. Another commenter stated that parents should
have access to records documenting the type of supervision that is
being provided when a teacher or other service provider is under the
supervision of a highly qualified teacher. One commenter stated that
the ESEA requires districts to provide parents with information about
the personnel qualifications of their child's classroom teachers and
asked whether this requirement applies to special education teachers.
Discussion: There is nothing in the Act that authorizes the
Department to require schools to publicly post the credentials of
educational personnel or to provide parents with information about the
qualification of their child's teachers and other service providers.
Section 615 of the Act describes the guaranteed procedural safeguards
afforded to children with disabilities and their parents under the Act
but does not address whether parents can request information about the
qualifications of teachers and other service providers.
However, section 1111(h)(6) of the ESEA requires LEAs to inform
parents about the quality of a school's teachers in title I schools.
The ESEA requires that at the beginning of each school year, an LEA
that accepts title I, part A funding must notify parents of children in
title I schools that they can request information regarding their
child's classroom teachers, including, at a minimum: (1) Whether the
teacher has met the State requirements for licensure and certification
for the grade levels and subject matters in which the teacher provides
instruction; (2) whether the teacher is teaching under emergency or
other provisional status through which State qualification or licensing
criteria have been waived; (3) the college major and any other graduate
certification or degree held by the teacher, and the field of
discipline of the certification or degree; and (4) whether the child is
provided services by paraprofessionals, and if so, their
qualifications. In addition, each title I school must provide parents
with timely notice that the parent's child has been assigned, or has
been taught for four or more consecutive weeks by, a teacher who is not
highly qualified. These requirements apply only to those special
education teachers who teach core academic subjects in title I schools.
Changes: None.
Rule of Construction (New Sec. 300.18(f)) (Proposed Sec. 300.18(e))
Comment: A number of commenters stated that the rule of
construction in new Sec. 300.18(f) (proposed Sec. 300.18(e)) and
Sec. 300.156(e) should use the same language. One commenter stated
that in order to prevent confusion, the right of action limitations
regarding highly qualified teachers in new Sec. 300.18(f) (proposed
Sec. 300.18(e)) and personnel qualifications in Sec. 300.156(e)
should use consistent language regarding individual and class actions,
and clearly underscore that the limitations are applicable to both
administrative and judicial actions. One commenter recommended
reiterating the language from section 612(a)(14)(D) of the Act that
nothing prevents a parent from filing a State complaint about staff
qualifications. Another commenter expressed concern because new Sec.
300.18(f) (proposed Sec. 300.18(e)) and Sec. 300.156(e) may be
construed to prevent due process hearings when an LEA or SEA fails to
provide a highly qualified teacher.
Discussion: We agree that the rule of construction in new Sec.
300.18(f) (proposed Sec. 300.18(e)) and Sec. 300.156(e) should be the
same. We will change the regulations to clarify that a parent or
student may not file a due process complaint on behalf of a student, or
file a judicial action on behalf of a class of students for the failure
of a particular SEA or LEA employee to be highly qualified; however, a
parent may file a complaint about staff qualifications with the SEA. In
addition to permitting a parent to file a complaint with the SEA, an
organization or an individual may also file a complaint about staff
qualifications with the SEA, consistent with the State complaint
procedures in Sec. Sec. 300.151 through 300.153.
Changes: We have added ``or to prevent a parent from filing a
complaint about staff qualifications with the SEA as provided for under
this part'' in new Sec. 300.18(f) (proposed Sec. 300.18(e)).
Comment: Several commenters recommended that the regulations
specify that the failure of an SEA or LEA to provide a child with a
disability a highly qualified teacher can be a consideration in the
determination of whether a child received FAPE, if the child is not
learning the core content standards or not meeting IEP goals. However,
a few commenters recommended that the regulations clarify that it is
not a denial of FAPE if a special education teacher is not highly
qualified.
[[Page 46562]]
Discussion: If the only reason a parent believes their child was
denied FAPE is that the child did not have a highly qualified teacher,
the parent would have no right of action under the Act on that basis.
The rules of construction in new Sec. 300.18(f) (proposed Sec.
300.18(e)) and Sec. 300.156(e) do not allow a parent or student to
file a due process complaint for failure of an LEA or SEA to provide a
highly qualified teacher.
Changes: None.
Comment: One commenter expressed concern with the rule of
construction in new Sec. 300.18(f) (proposed Sec. 300.18(e)) because
there are no requirements to develop a specific enforcement system to
ensure that teachers meet the highly qualified standard. A few
commenters recommended changing the rule of construction so that States
meet their supervisory responsibilities under the Act if LEAs in the
State are sanctioned under the ESEA for not having highly qualified
teachers.
Some commenters recommended clarifying that when the SEA or LEA
employs an individual who is not highly qualified, States meet their
responsibilities for general supervision under the Act through the
notice and other sanction procedures identified under the ESEA.
One commenter stated that the regulations are silent with regard to
SEA actions when meeting the general supervision requirements under the
Act, and noted that unless the regulations are expanded to clarify that
SEA enforcement procedures under compliance monitoring are limited to
ESEA enforcement procedures, the highly qualified teacher requirements
of an individual teacher may inappropriately become the target for a
finding of noncompliance. This commenter further stated that the ESEA
contains specific procedures for failure of a district to comply with
the highly qualified teacher provisions, and if the SEA also exercises
sanctioning authority under the Act, schools could be punished twice
under two separate provisions of Federal law for the same infraction.
The commenter recommended that to avoid double jeopardy the regulations
should clarify that the ESEA enforcement procedures for a district's
failure to hire a highly qualified teacher follow the provisions of the
ESEA, not the Act.
Discussion: The implementation and enforcement of the highly
qualified teacher standards under the ESEA and the Act complement each
other. The Office of Elementary and Secondary Education (OESE)
currently monitors the implementation of the highly qualified teacher
standards for teachers of core academic subjects under the ESEA. This
includes special education teachers who teach core academic subjects.
The Office of Special Education programs (OSEP) collects data about
special education personnel qualifications and requires that SEAs
establish and maintain qualifications to ensure that personnel
essential to carrying out the purposes of Part B of the Act are
appropriately and adequately prepared and trained. Those personnel must
also have the content knowledge and skills to serve children with
disabilities, consistent with Sec. 300.156.
OESE and OSEP will share their data to ensure that the highly
qualified teacher requirements under the ESEA and the Act are met. This
sharing of information will also prevent schools from being punished
twice for the same infraction.
Changes: None.
Teachers Hired by Private Elementary and Secondary Schools (New Sec.
300.18(h)) (Proposed Sec. 300.18(g))
Comment: Some commenters agreed with new Sec. 300.18(h) (proposed
Sec. 300.18(g)), which states that the highly qualified special
education teacher requirements do not apply to teachers hired by
private elementary schools and secondary schools. However, many
commenters disagreed, stating that children placed by an LEA in a
private school are entitled to receive the same high quality
instruction as special education children in public schools. A few
commenters stated that LEAs will place children in private schools to
avoid hiring highly qualified teachers. Some commenters stated that
public funds should not be used for any school that is not held to the
same high standards as public schools. Other commenters stated that
children with the most significant disabilities who are placed in
private schools are children with the most need for highly qualified
teachers. A few commenters stated that this provision is contrary to
the intent of the ESEA and the Act to support the educational
achievement of children with disabilities. Other commenters stated that
if instruction by a highly qualified teacher is a hallmark of FAPE, it
should be an element of FAPE in any educational setting in which the
child is enrolled by a public agency.
A few commenters recommended that States have the discretion to
determine whether and to what extent the highly qualified teacher
requirements apply to teachers who teach publicly-placed and
parentally-placed children with disabilities. The commenters stated
that the SEA is in the best position to weigh the needs of private
school children for highly qualified teachers and to assess what effect
these requirements would have on the shortage of special education
teachers in the State. One commenter asked whether the highly qualified
teacher requirements apply to providers in private residential
treatment centers where children with disabilities are placed to
receive FAPE.
Discussion: New Sec. 300.18(h) (proposed Sec. 300.18(g))
accurately reflects the Department's position that the highly qualified
special education teacher requirements do not apply to teachers hired
by private elementary schools and secondary schools. This includes
teachers hired by private elementary schools and secondary schools who
teach children with disabilities. Consistent with this position and in
light of comments received regarding the requirements for private
school teachers providing equitable services for parentally-placed
private school children with disabilities under Sec. 300.138, we will
add language to new Sec. 300.18(h) (proposed Sec. 300.18(g)) to
clarify that the highly qualified special education teacher
requirements also do not apply to private school teachers who provide
equitable services to parentally-placed private school children with
disabilities under Sec. 300.138.
Changes: We have added language in new Sec. 300.18(h) (proposed
Sec. 300.18(g)) to clarify that the highly qualified special education
teacher requirements also do not apply to private school teachers who
provide equitable services to parentally-placed private school children
with disabilities under Sec. 300.138.
Homeless Children (Sec. 300.19)
Comment: Several commenters requested adding the definition of
homeless children in the regulations so that it is readily accessible
to parents, advocates, and educators.
Discussion: The term homeless children is defined in the McKinney-
Vento Homeless Assistance Act. For the reasons set forth earlier in
this notice, we are not adding the definitions of other statutes to
these regulations. However, we will include the current definition of
homeless children in section 725 (42 U.S.C. 11434a) of the McKinney-
Vento Homeless Assistance Act, as amended, 42 U.S.C. 11431 et seq.
(McKinney-Vento Act) here for reference.
The term homeless children and youths--
(A) means individuals who lack a fixed, regular, and adequate
nighttime
[[Page 46563]]
residence (within the meaning of section 103(a)(1)); and
(B) includes--
(i) children and youths who are sharing the housing of other
persons due to loss of housing, economic hardship, or a similar reason;
are living in motels, hotels, trailer parks, or camping grounds due to
the lack of alternative adequate accommodations; are living in
emergency or transitional shelters; are abandoned in hospitals; or are
awaiting foster care placement;
(ii) children and youths who have a primary nighttime residence
that is a public or private place not designed for or ordinarily used
as a regular sleeping accommodation for human beings (within the
meaning of section 103(a)(2)(C));
(iii) children and youths who are living in cars, parks, public
spaces, abandoned buildings, substandard housing, bus or train
stations, or similar settings; and
(iv) migratory children (as such term is defined in section 1309 of
the Elementary and Secondary Education Act of 1965) who qualify as
homeless for the purposes of this subtitle because the children are
living in circumstances described in clauses (i) through (iii).
Changes: None.
Comment: One commenter stated that regulations are needed to
address school selection and enrollment provisions under the McKinney-
Vento Act. Another commenter recommended that the regulations include
the McKinney-Vento Act's requirement that school stability for homeless
children be maintained during periods of residential mobility and that
homeless children enrolled in new schools have the ability to
immediately attend classes and participate in school activities.
Discussion: We appreciate the commenters' concerns, but do not
believe it is necessary to duplicate the requirements of the McKinney-
Vento Act in these regulations. We believe that these issues, as well
as other issues regarding children with disabilities who are homeless,
would be more appropriately addressed in non-regulatory guidance, in
which more detailed information and guidance can be provided on how to
implement the requirements of the Act and the McKinney-Vento Act to
best meet the needs of homeless children with disabilities. We will
work with the Office of Elementary and Secondary Education to provide
guidance and disseminate information to special education teachers and
administrators regarding their responsibilities for serving children
with disabilities who are homeless.
Changes: None.
Indian and Indian Tribe (Sec. 300.21)
Comment: One commenter expressed support for combining and moving
the definition of Indian and Indian tribe from current Sec. 300.264 to
the definitions section of these regulations because the term is
applicable in instances not related to BIA schools. However, another
commenter stated that the definition was unnecessary because the
purpose of the Act is to ensure that every child has FAPE.
Discussion: The definitions of Indian and Indian tribe are included
in sections 602(12) and (13) of the Act, respectively, and are,
therefore, included in subpart A of these regulations. Subpart A
includes definitions for those terms and phrases about which we are
frequently asked and which we believe will assist SEAs and LEAs in
implementing the requirements of the Act. Including the definitions of
Indian and Indian tribe in the definitions section does not in any way
affect the provision of FAPE to all eligible children under the Act.
Changes: None.
Comment: One commenter requested omitting ``State Indian tribes''
that are not also federally-recognized tribes from the definition of
Indian and Indian tribe stating that Federal recognition of an Indian
tribe should be a predicate for the tribe's eligibility for Federal
programs and services. One commenter expressed concern that including
``State Indian tribes'' in the definition could imply that the
Secretary of the Interior is responsible for providing special
education and related services or funding to all State Indian tribes.
Discussion: Section 602(13) of the Act and Sec. 300.21(b) define
Indian tribe as ``any Federal or State Indian tribe'' and do not
exclude State Indian tribes that are not federally-recognized tribes.
We will add a new paragraph (c) to Sec. 300.21 clarifying that the
definition of Indian and Indian tribe is not intended to indicate that
the Secretary of Interior is required to provide services or funding to
a State Indian tribe that is not listed in the Federal Register list of
Indian entities recognized as eligible to receive services from the
United States, published pursuant to Section 104 of the Federally
Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a-1.
Changes: A new paragraph (c) has been added to Sec. 300.21 to
provide this clarification.
Comment: One commenter stated that it was unclear how many States
have defined Indian tribes that are not defined by the Federal
government and asked what the effect would be on the provision of
services by including State Indian tribes in the definition. Another
commenter stated that including State Indian tribes in the definition
of Indian and Indian tribe implies that children of State-recognized
tribes are considered differently than other children.
Discussion: As noted in the discussion responding to the previous
comment, the list of Indian entities recognized as eligible to receive
services from the United States is published in the Federal Register,
pursuant to Section 104 of the Federally Recognized Indian Tribe List
Act of 1994, 25 U.S.C. 479a-1. The Federal government does not maintain
a list of other State Indian tribes. Including State Indian tribes that
are not federally recognized in the definition does not affect who is
responsible under the Act for the provision of services to children
with disabilities who are members of State Indian tribes. Under section
611(h)(1) of the Act, the Secretary of the Interior is responsible for
providing special education and related services to children age 5
through 21 with disabilities on reservations who are enrolled in
elementary schools and secondary schools for Indian children operated
or funded by the Secretary of the Interior. With respect to all other
children aged 3 through 21 on reservations, the SEA of the State in
which the reservation is located is responsible for ensuring that all
the requirements of Part B of the Act are implemented.
Changes: None.
Individualized Family Service Plan (Sec. 300.24)
Comment: A few commenters recommended including the entire
definition of individualized family service plan in the regulations so
that parents and school personnel do not have to shift back and forth
between documents.
Discussion: Adding the entire definition of individualized family
service plan in section 636 of the Act, which includes information
related to assessment and program development; periodic review;
promptness after assessment; content of the plan; and parental consent,
would unnecessarily add to the length of the regulations. However, the
required content of the IFSP in section 636(d) of the Act is added here
for reference.
The individualized family service plan shall be in writing and
contain--
(1) A statement of the infant's or toddler's present levels of
physical development, cognitive development, communication development,
social or emotional development, and adaptive
[[Page 46564]]
development, based on objective criteria;
(2) a statement of the family's resources, priorities, and concerns
relating to enhancing the development of the family's infant or toddler
with a disability;
(3) a statement of the measurable results or outcomes expected to
be achieved for the infant or toddler and the family, including pre-
literacy and language skills, as developmentally appropriate for the
child, and the criteria, procedures, and timelines used to determine
the degree to which progress toward achieving the results or outcomes
is being made and whether modifications or revisions of the results or
outcomes or services are necessary;
(4) a statement of specific early intervention services based on
peer-reviewed research, to the extent practicable, necessary to meet
the unique needs of the infant or toddler and the family, including the
frequency, intensity, and method of delivering services;
(5) a statement of the natural environments in which early
intervention services will appropriately be provided, including a
justification of the extent, if any, to which the services will not be
provided in a natural environment;
(6) the projected dates for initiation of services and the
anticipated length, duration, and frequency of the services;
(7) the identification of the service coordinator from the
profession most immediately relevant to the infant's or toddler's or
family's needs (or who is otherwise qualified to carry out all
applicable responsibilities under this part) who will be responsible
for the implementation of the plan and coordination with other agencies
and persons, including transition services; and
(8) the steps to be taken to support the transition of the toddler
with a disability to preschool or other appropriate services.
Changes: None.
Infant or Toddler With a Disability (Sec. 300.25)
Comment: A few commenters recommended including the entire
definition of infant or toddler with a disability in the regulations so
that parents and school personnel do not have to shift back and forth
between documents.
Discussion: We agree with the commenters and, therefore, will
include the definition of infant or toddler with a disability from
section 632(5) of the Act in these regulations for reference.
Changes: Section 300.25 has been revised to include the entire
definition of infant or toddler with a disability from section 632(5)
of the Act.
Institution of Higher Education (Sec. 300.26)
Comment: One commenter recommended including the definition of
institution of higher education in these regulations.
Discussion: The term institution of higher education is defined in
section 101 of the Higher Education Act of 1965, as amended, 20 U.S.C.
1021 et seq. (HEA). For the reasons set forth earlier in this notice,
we are not adding definitions from other statutes to these regulations.
However, we are including the current definition here for reference.
(a) Institution of higher education--For purposes of this Act,
other than title IV, the term institution of higher education means an
educational institution in any State that--
(1) Admits as regular students only persons having a certificate of
graduation from a school providing secondary education, or the
recognized equivalent of such a certificate;
(2) is legally authorized within such State to provide a program of
education beyond secondary education;
(3) provides an educational program for which the institution
awards a bachelor's degree or provides not less than a 2-year program
that is acceptable for full credit toward such a degree;
(4) is a public or other nonprofit institution; and
(5) is accredited by a nationally recognized accrediting agency or
association, or if not so accredited, is an institution that has been
granted preaccreditation status by such an agency or association that
has been recognized by the Secretary for the granting of
preaccreditation status, and the Secretary has determined that there is
satisfactory assurance that the institution will meet the accreditation
standards of such an agency or association within a reasonable time.
(b) Additional Institutions Included--For purposes of this Act,
other than title IV, the term institution of higher education also
includes--
(1) Any school that provides not less than a 1-year program of
training to prepare students for gainful employment in a recognized
occupation and that meets the provision of paragraphs (1), (2), (4),
and (5) of subsection (a); and
(2) a public or nonprofit private educational institution in any
State that, in lieu of the requirement in subsection (a)(1), admits as
regular students persons who are beyond the age of compulsory school
attendance in the State in which the institution is located.
Changes: None.
Comment: One commenter requested that we add language to the
regulations that would allow Haskell and Sipi, postsecondary programs
under the Haskell Indian Nations University and Southwestern Indian
Polytechnic Institute Administrative Act of 1988, 25 U.S.C. 3731 et
seq., to be included in the definition of institution of higher
education.
Discussion: The Haskell and Sipi postsecondary programs under the
Haskell Indian Nations University and Southwestern Indian Polytechnic
Institute Administrative Act of 1988, 25 U.S.C. 3731 et seq. meet the
statutory definition of institution of higher education in section
602(17) of the Act because they meet the definition of the term in
section 101 of the HEA. The Act does not include specific institutions
in the definition of institution of higher education, nor do we believe
it is necessary to add specific institutions to the definition in Sec.
300.26.
Changes: None.
Limited English Proficient (Sec. 300.27)
Comment: One commenter requested specific information about
bilingual qualified personnel and qualified interpreters. Some
commenters recommended including the definition of ``limited English
proficient'' in the regulations.
Discussion: Each State is responsible for determining the
qualifications of bilingual personnel and interpreters for children
with limited English proficiency.
The term limited English proficient is defined in the ESEA. For the
reasons set forth earlier in this notice, we are not adding the
definitions from other statutes to these regulations. However, we will
include the current definition in section 9101(25) of the ESEA here for
reference.
The term limited English proficient when used with respect to an
individual, means an individual--
(A) Who is aged 3 through 21;
(B) Who is enrolled or preparing to enroll in an elementary school
or secondary school;
(C)(i) who was not born in the United States or whose native
language is a language other than English;
(ii)(I) who is a Native American or Alaska Native, or a native
resident of the outlying areas; and
(II) who comes from an environment where a language other than
English has had a significant impact on the individual's level of
English language proficiency; or
[[Page 46565]]
(iii) who is migratory, whose native language is a language other
than English, and who comes from an environment where a language other
than English is dominant; and
(D) whose difficulties in speaking, reading, writing, or
understanding the English language may be sufficient to deny the
individual--
(i) the ability to meet the State's proficient level of achievement
on State assessments described in section 1111(b)(3);
(ii) the ability to successfully achieve in classrooms where the
language of instruction is English; or
(iii) the opportunity to participate fully in society.
Changes: None.
Local Educational Agency (Sec. 300.28)
Comment: One commenter suggested revising Sec. 300.28 to ensure
that all responsibilities and rights attributed to an LEA apply to an
ESA.
Discussion: We believe that the provisions in Sec. 300.12 and
Sec. 300.28 are clear that ESAs have full responsibilities and rights
as LEAs. We, therefore, decline to revise Sec. 300.28.
Changes: None.
Comment: None.
Discussion: Through its review of charter schools' access to
Federal funding, it has come to the Department's attention that
additional guidance is needed regarding whether charter schools that
are established as their own LEAs must be nonprofit entities in order
to meet the definition of LEA in Sec. 300.28. The definition of LEA in
Sec. 300.28(b)(2) specifically includes a public charter school that
is established as an LEA under State law and that exercises
administrative control or direction of, or performs a service function
for, itself. For purposes of the Act, the definitions of charter
school, elementary school, and secondary school in Sec. Sec. 300.7,
300.13, and 300.36, respectively, require that a public elementary or
secondary charter school be a nonprofit entity. Therefore, a public
elementary or secondary charter school established as its own LEA under
State law, also must be a nonprofit entity. Although these regulations
do not specifically define nonprofit, the definition in 34 CFR Sec.
77.1 applies to these regulations. In order to eliminate any confusion
on this issue, we will revise the definition of LEA to reflect that a
public elementary or secondary charter school that is established as
its own LEA under State law must be a nonprofit entity.
Changes: For clarity, we have revised Sec. 300.28(b)(2) by
inserting the term ``nonprofit'' before ``charter school that is
established as an LEA under State law.''
Comment: One commenter stated that Sec. 300.28(c) is in error from
a technical drafting perspective because it does not follow the
statutory language in section 602(19)(C) of the Act. The commenter also
suggested adding a definition of ``BIA funded school,'' rather than
adding a new definition of LEA related to BIA funded schools.
Discussion: We agree that Sec. 300.28(c) does not accurately
reflect the statutory language in section 602(19)(C) of the Act and, as
written, could be interpreted as defining BIA funded schools. This was
not our intent. Rather, the intent was to include ``BIA funded
schools'' in the definition of LEA, consistent with section 602(19)(C)
of the Act.
In order to correct the technical drafting error, we will change
Sec. 300.28(c) to accurately reflect section 602(19)(C) of the Act. We
decline to add a definition of ``BIA funded schools.'' The Act does not
define this term and the Department does not believe that it is
necessary to define the term.
Changes: In order to correct a technical drafting error, Sec.
300.28(c) has been revised to be consistent with statutory language.
Native Language (Sec. 300.29)
Comment: A few commenters expressed support for retaining the
definition of native language, stating that it is important to clarify
that sign language is the native language of many children who are
deaf. One commenter stated it is important to clarify that the language
normally used by the child may be different than the language normally
used by the parents. Another commenter stated that the definition of
native language does not adequately cover individuals with unique
language and communication techniques such as deafness or blindness or
children with no written language.
Discussion: The definition of native language was expanded in the
1999 regulations to ensure that the full range of needs of children
with disabilities whose native language is other than English is
appropriately addressed. The definition clarifies that in all direct
contact with the child (including an evaluation of the child), native
language means the language normally used by the child and not that of
the parents, if there is a difference between the two. The definition
also clarifies that for individuals with deafness or blindness, or for
individuals with no written language, the native language is the mode
of communication that is normally used by the individual (such as sign
language, Braille, or oral communication). We believe this language
adequately addresses the commenters' concerns.
Changes: None.
Parent (Sec. 300.30)
Comment: Several commenters objected to the term ``natural parent''
in the definition of parent because ``natural parent'' presumes there
are ``unnatural parents.'' The commenters recommended using ``birth
parent'' or ``biological parent'' throughout the regulations.
Discussion: We understand that many people find the term ``natural
parent'' offensive. We will, therefore, use the term ``biological
parent'' to refer to a non-adoptive parent.
Changes: We have replaced the term ``natural parent'' with
``biological parent'' in the definition of parent and throughout these
regulations.
Comment: A significant number of commenters recommended retaining
the language in current Sec. 300.20(b), which states that a foster
parent can act as a parent if the biological parent's authority to make
educational decisions on the child's behalf have been extinguished
under State law, and the foster parent has an ongoing, long-term
parental relationship with the child; is willing to make the
educational decisions required of parents under the Act; and has no
interest that would conflict with the interest of the child.
A few commenters stated that current Sec. 300.20(b) better
protects children's interests and should not be removed. Another
commenter stated that removing current Sec. 300.20 will have
unintended consequences for the many foster children who move
frequently to new homes because there will be confusion as to who has
parental rights under the Act. A few commenters stated that short-term
foster parents may not have the knowledge of the child or the
willingness to actively participate in the special education process,
which will effectively leave the child without a parent.
One commenter stated that Sec. 300.30 needs to be changed to
protect biological and adoptive parents from arbitrary decisions by
educational officials who lack the legal authority to make educational
decisions for the child and to ensure that when no biological or
adoptive parent is available, a person with a long-term relationship
with, and commitment to, the child has decision-making authority.
Discussion: Congress changed the definition of parent in the Act.
The definition of parent in these regulations reflects the revised
statutory definition of parent in section 602(23) of the Act.
[[Page 46566]]
The Department understands the concerns expressed by the commenters,
but believes that the changes requested would not be consistent with
the intent of the statutory changes. In changing the definition of
parent in the Act, Congress incorporated some of the wording from the
current regulations and did not incorporate in the new definition of
parent, the current foster parent language referenced by the
commenters.
Changes: None.
Comment: One commenter recommended allowing a foster parent who
does not have a long-term relationship to be the parent, if a court,
after notifying all interested parties, determines that it is in the
best interest of the child.
Discussion: Section 300.30(b)(2) clearly states that if a person is
specified in a judicial order or decree to act as the parent for
purposes of Sec. 300.30, that person would be considered the parent
under Part B of the Act.
Changes: None.
Comment: One commenter stated that Sec. 300.30(a)(2) withdraws the
rights of biological parents under the Act without due process of law.
Discussion: We do not agree with the commenter. If more than one
person is attempting to act as a parent, Sec. 300.30(b)(1) provides
that the biological or adoptive parent is presumed to be the parent if
that person is attempting to act as the parent under Sec. 300.30,
unless the biological or adoptive parent 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 a parent under
Part B of the Act. We do not believe that provisions regarding lack of
legal authority or judicial orders or decrees would apply unless there
has already been a determination, through appropriate legal processes,
that the biological parent should not make educational decisions for
the child or that another person has been ordered to serve as the
parent.
Changes: None.
Comment: One commenter stated that Sec. 300.30(a)(2) is unwieldy
and difficult to implement because it requires extensive fact finding
by the LEA to determine whether any contractual obligations would
prohibit the foster parent from acting as a parent.
Discussion: The statutory language concerning the definition of
parent was changed to permit foster parents to be considered a child's
parent, unless State law prohibits a foster parent from serving as a
parent. The language in the regulations also recognizes that similar
restrictions may exist in State regulations or in contractual
agreements between a State or local entity and a foster parent, and
should be accorded similar deference. We believe it is essential for
LEAs to have knowledge of State laws, regulations, and any contractual
agreements between a State or local entity and a foster parent to
ensure that the requirements in Sec. 300.30(a)(2) are properly
implemented. States and LEAs should develop procedures to make this
information more readily and easily available so that LEAs do not have
to engage in extensive fact finding each time a child with a foster
parent enrolls in a school.
Changes: None.
Comment: One commenter stated that the regulations need to clarify
that guardians ad litem do not meet the definition of a parent except
for wards of the State where consent for the initial evaluation has
been given by an individual appointed by the judge to represent the
child in the educational decisions concerning the child.
Discussion: We agree that guardians with limited appointments that
do not qualify them to act as a parent of the child generally, or do
not authorize them to make educational decisions for the child, should
not be considered to be a parent within the meaning of these
regulations. What is important is the legal authority granted to
individuals appointed by a court, and not the term used to identify
them. Whether a person appointed as a guardian ad litem has the
requisite authority to be considered a parent under this section
depends on State law and the nature of the person's appointment. We
will revise Sec. 300.30(a)(3) to clarify that a guardian must be
authorized to act as the child's parent generally or must be authorized
to make educational decisions for the child in order to fall within the
definition of parent.
Changes: We have added language in Sec. 300.30(a)(3) to clarify
when a guardian can be considered a parent under the Act.
Comment: One commenter requested adding a ``temporary parent''
appointed in accordance with sections 615(b)(2) or 639(a)(5) of the Act
to the definition of parent.
Discussion: There is nothing in the Act that would prevent a
temporary surrogate parent from having all the rights of a parent. Note
89 of the Conf. Rpt., p. 35810, provides that appropriate staff members
of emergency shelters, transitional shelters, independent living
programs, and street outreach programs would not be considered to be
employees of agencies involved in the education or care of
unaccompanied youth (and thus prohibited from serving as a surrogate
parent), provided that such a role is temporary until a surrogate
parent can be appointed who meets the requirements for a surrogate
parent in Sec. 300.519(d). This provision is included in Sec.
300.519(f), regarding surrogate parents. Therefore, we do not believe
it is necessary to add ``temporary parent'' to the definition of parent
in Sec. 300.30.
Changes: None.
Comment: A few commenters stated that the definition of parent is
confusing, especially in light of the definition of ward of the State
in new Sec. 300.45 (proposed Sec. 300.44) and the LEA's obligation to
appoint a surrogate parent. These commenters stated that Sec. 300.30
should cross-reference the definition of ward of the State in new Sec.
300.45 (proposed Sec. 300.44) and state that the appointed surrogate
parent for a child who is a ward of the State is the parent.
Discussion: Section 615(b)(2) of the Act does not require the
automatic appointment of a surrogate parent for every child with a
disability who is a ward of the State. States and LEAs must ensure that
the rights of these children are protected and that a surrogate parent
is appointed, if necessary, as provided in Sec. 300.519(b)(1). If a
child who is a ward of the State already has a person who meets the
definition of parent in Sec. 300.30, and that person is willing and
able to assume the responsibilities of a parent under the Act, a
surrogate parent might not be needed. Accordingly, we do not believe it
is necessary to make the changes suggested by the commenters.
Changes: None.
Comment: One commenter expressed concern that public agencies will
require biological or adoptive parents to affirmatively assert their
rights or to take action in order to be presumed to be the parent. The
commenter requested clarifying in Sec. 300.30(b)(1) that biological or
adoptive parents do not have to take affirmative steps in order for the
presumption to apply.
Discussion: The biological or adoptive parent would be presumed to
be the parent under these regulations, unless a question was raised
about their legal authority. There is nothing in the Act that requires
the biological or adoptive parent to affirmatively assert their rights
to be presumed to be the parent. We continue to believe that Sec.
300.30(b)(1) is clear and, therefore, will not make the changes
requested by the commenters.
Changes: None.
Comment: Some commenters recommended removing ``when attempting to
act as a parent under this
[[Page 46567]]
part'' in Sec. 300.30(b)(1). A few commenters stated that there is no
explanation of what it means for a biological parent to ``attempt to
act as a parent.'' Another commenter stated that the regulations do not
set any guidelines for determining how a public agency decides if a
biological or adoptive parent is attempting to act as a parent.
One commenter stated ``attempting to act'' would require LEAs to
make determinations about a biological parent's decision-making
authority and this should be left up to courts to determine. One
commenter stated that the regulations permit multiple persons to act as
a child's parent and do not adequately set forth a process to determine
who should be identified as the actual parent for decision-making
purposes. The commenter further stated that the regulations do not set
out a procedure or a timeframe by which public agency officials should
determine if a biological parent has retained the right to make
educational decisions for his or her child.
One commenter stated that the definition of parent gives school
districts excessive power; for example a school could appoint a
surrogate parent if the foster parent was excessively demanding. The
commenter further stated that a clearer order of priority and selection
mechanism with judicial oversight needs to be in place so that school
districts cannot ``parent shop'' for the least assertive individual,
and so that relatives, foster parents, social workers, and others
involved with the child will know who has educational decision making
authority.
One commenter questioned whether Sec. 300.30(b) helps identify
parents or confuses situations in which the person to be designated the
parent is in dispute. Another commenter stated that the requirements in
Sec. 300.30(b) place the responsibility of determining who serves as
the parent of a child in foster care directly on the shoulders of
school administrators who are not child welfare experts. The commenter
recommended that a foster parent automatically qualify as a parent when
the rights of the child's biological parents have been extinguished and
the foster parent has a long-term relationship with the child, no
conflict of interest, and is willing to make educational decisions.
Discussion: Section 300.30(b) was added to assist schools and
public agencies in determining the appropriate person to serve as the
parent under Part B of the Act in those difficult situations in which
more than one individual is ``attempting to act as a parent'' and make
educational decisions for a child. It recognizes the priority of the
biological or adoptive parent and the authority of the courts to make
decisions, and does not leave these decisions to school administrators.
The phrase ``attempting to act as a parent'' is generally meant to
refer to situations in which an individual attempts to assume the
responsibilities of a parent under the Act. An individual may ``attempt
to act as a parent'' under the Act in many situations; for example, if
an individual provides consent for an evaluation or reevaluation, or
attends an IEP Team meeting as the child's parent. We do not believe it
is necessary or possible to include in these regulations the numerous
situations in which an individual may ``attempt to act as a parent.''
Section 300.30(b)(1) provides that the biological or adoptive
parent is presumed to be the parent if that person is attempting to act
as the parent under Sec. 300.30, unless the biological or adoptive
parent 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 a parent under Part B of the Act. Section 300.30(b)(2)
provides 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. We do not believe
that it is necessary for these regulations to establish procedures or a
timeline for a public agency to determine whether a biological parent
has retained the right to make educational decisions for a child. Such
procedures and timelines will vary depending on how judicial orders or
decrees are routinely handled in a State or locality, and are best left
to State and local officials to determine.
Changes: None.
Comment: A few commenters recommended modifying Sec. 300.30(b)(2)
to clarify that a court has the discretion to decide who has the right
to make educational decisions for a child. One commenter recommended
clarifying that the judicial decree referred to in Sec. 300.30(b)(2)
relates specifically to divorce situations, rather than situations
involving children who are wards of the State. Another commenter stated
that Sec. 300.30(b)(2) appears to be aimed at situations where the
court has designated a parent, such as in a custody decree, and that it
is not clear what the provision adds.
Discussion: Section 300.30(b)(2) specifically states that if a
judicial decree or order identifies a person or persons to act as the
parent of a child or to make educational decisions on behalf of a
child, then that person would be determined to be the parent. It was
intended to add clarity about who would be designated a parent when
there are competing individuals under Sec. 300.30(a)(1) through (4)
who could be considered a parent for purposes of this part. It is not
necessary to specify or limit this language to provide that the
judicial decree or order applies to specific situations, such as
divorce or custody cases. However, it should not authorize courts to
appoint individuals other than those identified in Sec. 300.30(a)(1)
through (4) to act as parents under this part. Specific authority for
court appointment of individuals to provide consent for initial
evaluations in limited circumstances is in Sec. 300.300(a)(2)(c).
Authority for court appointment of a surrogate parent in certain
situations is in Sec. 300.519(c).
Changes: We have revised Sec. 300.30(b)(2) to limit its
application to individuals identified under Sec. 300.30(a)(1) through
(4) and have deleted the phrase ``except that a public agency that
provides education or care for the child may not act as the parent'' as
unnecessary.
Comment: One commenter recommended allowing foster parents to act
as parents only when the birth parent's rights have been extinguished
or terminated. A few commenters requested that the regulations clarify
the circumstances under which a foster parent can take over educational
decision making. One commenter stated that allowing a foster parent to
act as a parent would disrupt the special education process.
Discussion: Under Sec. 300.30(a)(2), a foster parent can be
considered a parent, unless State law, regulations, or contractual
obligations with a State or local entity prohibit a foster parent from
acting as a parent. However, in cases where a foster parent and a
biological or adoptive parent attempt to act as the parent, Sec.
300.30(b)(1) clarifies that the biological or adoptive parent is
presumed to be the parent, unless the biological or adoptive parent
does not have legal authority to make educational decisions for the
child. Section 300.30(b)(2) further clarifies that if a person or
persons such as a foster parent or foster parents 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. We do
not believe that further clarification is necessary.
Changes: None.
Comment: A few commenters recommended that ``extinguished under
State law'' be defined to mean both temporary and permanent termination
[[Page 46568]]
of parental rights to make educational decisions because this would
allow courts to make more timely decisions regarding the role of a
parent and not feel bound to wait for a full termination of parental
rights.
Discussion: The phrase ``extinguished under State law'' is not used
in the Act or these regulations. The phrase was used in the definition
of parent in current Sec. 300.20(b)(1). The comparable provision in
these regulations is in Sec. 300.30(b)(1), which refers to situations
in which the ``biological or adoptive parent does not have legal
authority to make educational decisions for the child.'' We do not
believe that either of these phrases affects the timeliness of decision
making by courts regarding parental rights.
Changes: None.
Comment: Some commenters stated that ``consistent with State law''
should be included in Sec. 300.30(b)(2) in order to honor local laws
already in place to protect these children.
Discussion: We do not believe the change recommended by the
commenters is necessary. Courts issue decrees and orders consistent
with applicable laws.
Changes: None.
Comment: One commenter stated that it would not be wise to
completely exclude an agency involved in the education or care of the
child from serving as a parent because situations in which an LEA acts
as a parent are very rare and only occur under very unusual
circumstances.
Discussion: The exclusion of an agency involved in the education or
care of the child from serving as a parent is consistent with the
statutory prohibition that applies to surrogate parents in sections
615(b)(2) and 639(a)(5) of the Act.
Changes: None.
Comment: One commenter recommended that the regulations clarify the
responsibilities of the LEA when a biological or adoptive parent and a
foster parent attempt to act as the parent. Although the regulations
state that the biological or adoptive parent must be presumed to be the
parent unless the biological or adoptive parent has been divested of
this authority by a court, the commenter stated that the regulations
are not clear as to whether the LEA has the duty to notify the
biological or adoptive parent, accommodate his or her schedule, or
otherwise take steps to facilitate the biological or adoptive parent's
participation.
One commenter recommended clarifying the relative rights of a
biological or adoptive parent and a foster parent when a child is in
foster care and the foster parent is not prohibited by the State from
acting as a parent.
Discussion: Section 300.30(b)(1) states that when more than one
party is qualified under Sec. 300.30(a) to act as the parent, the
biological or adoptive parent is presumed to be the parent (unless a
judicial decree or order identifies a specific person or persons to act
as the parent of a child). The biological or adoptive parent has all
the rights and responsibilities of a parent under the Act, and the LEA
must provide notice to the parent, accommodate his or her schedule when
arranging meetings, and involve the biological or adoptive parent in
the education of the child with a disability. Thus, if a child is in
foster care (and the foster parent is not prohibited by the State from
acting as a parent) and the biological or adoptive parent is attempting
to act as a parent, the biological or adoptive parent is presumed to be
the parent unless the biological or adoptive parent does not have legal
authority to make educational decisions for the child or a judicial
decree or order identifies a specific person or persons to act as the
parent of a child.
Changes: None.
Comment: A few commenters stated that it is unclear when or under
what circumstances a biological or adoptive parent ceases or surrenders
their rights to a foster parent to make educational decisions for a
child. One commenter stated that the regulations should define clearly
the situations when this would occur and the level of proof that must
be shown by the party seeking to make educational decisions on behalf
of a child. The commenter stated that only under the most extreme and
compelling circumstances should a court be able to appoint another
individual to take the place of a biological or adoptive parent.
Discussion: It would be inappropriate and beyond the authority of
the Department to regulate on the termination of parental rights to
make educational decisions. It is the responsibility of a court to
decide whether to appoint another person or persons to act as a parent
of a child or to make educational decisions on behalf of a child.
Changes: None.
Comment: One commenter requested clarifying to whom LEAs must
provide notice, or obtain consent in situations where there are
disputes between biological or adoptive parents (e.g., when parents
separate or divorce).
Discussion: In situations where the parents of a child are
divorced, the parental rights established by the Act apply to both
parents, unless a court order or State law specifies otherwise.
Changes: None.
Comment: A few commenters recommended clarifying in the regulations
that a private agency that contracts with a public agency for the
education or care of the child may not act as a parent.
Discussion: A private agency that contracts with a public agency
for the education or care of the child, in essence, works for the
public agency, and therefore, could not act as a parent under the Act.
We do not believe it is necessary to regulate on this matter.
Changes: None.
Parent Training and Information Center (Sec. 300.31)
Comment: One commenter requested describing a parent training and
information center (PTI) and a community parent resource center (CPRC)
in the regulations, rather than referencing section 671 or 672 of the
Act.
Discussion: We do not believe it is necessary to include these
descriptions in the regulations. Section 671 of the Act describes the
program requirements for a PTI and section 672 of the Act describes the
program requirements for a CPRC. These sections describe the activities
required of PTIs and CPRCs, as well as the application process for
discretionary funding under Part D of the Act, and would unnecessarily
add to the length of the regulations.
Changes: None.
Comment: One commenter stated that, in order for a State or LEA to
be considered for funding under the Act, the regulations should require
partnerships with the PTIs and the CPRCs, as well as input from PTIs
and CPRCs on assessing State and local needs, and developing and
implementing a plan to address State and local needs.
Discussion: We disagree with the commenter. There is nothing in the
Act that requires States or LEAs, as a condition of funding, to obtain
input from PTIs and CPRCs in assessing needs or developing and
implementing a plan to address State or local needs. States and LEAs
are free to do so, but it is not a requirement for funding.
Changes: None.
Public Agency (Sec. 300.33)
Comment: One commenter stated that the term public agency is not in
the Act and noted that no State has created a new type of public
education agency beyond LEAs and SEAs. The commenter stated that
including the definition of public agency in the regulations,
[[Page 46569]]
therefore, raises concerns regarding the responsibility and authority
for future special education services.
Discussion: The definition of public agency refers to all agencies
responsible for various activities under the Act. The terms ``LEA'' or
``SEA'' are used when referring to a subset of public agencies. We
disagree that the definition raises concerns about the responsibility
and authority for future educational services because the term public
agency is used only for those situations in which a particular
regulation does not apply only to SEAs and LEAs.
During our internal review of the NPRM, we found several errors in
the definition of public agency. Our intent was to use the same
language in current Sec. 300.22. We will, therefore, correct these
errors to be consistent with current Sec. 300.22. Additionally, we
will clarify that a charter school must be a nonprofit charter school.
As noted in the discussion regarding Sec. 300.28(b)(2), we clarified
that a charter school established as its own LEA under State law, must
be a nonprofit charter school.
Changes: We have removed the phrase ``otherwise included as'' the
second time it appears, and replaced it with ``a school of an'' in
Sec. 300.33. We have also changed ``LEAs'' to ``LEA'' and ``ESAs'' to
``ESA'' the third time these abbreviations appear in Sec. 300.33.
Related Services (Sec. 300.34)
Related Services, General (Sec. 300.34(a))
Comment: One commenter requested defining related services as
enabling a child with a disability to receive FAPE in the LRE.
Discussion: The definition of related services is consistent with
section 601(26) of the Act, which does not refer to LRE. The Department
believes that revising the regulations as requested would
inappropriately expand the definition in the Act. Furthermore, the
regulations in Sec. 300.114(a)(2)(ii) already prevent placement of a
child outside the regular education environment unless the child cannot
be satisfactorily educated in the regular education environment with
the use of supplementary aids and services. Therefore, we see no need
to make the change suggested by the commenter.
Changes: None.
Comment: We received numerous requests to revise Sec. 300.34 to
add specific services in the definition of related services. A few
commenters recommended including marriage and family therapy. One
commenter recommended adding nutrition therapy and another commenter
recommended adding recreation therapy. A significant number of
commenters recommended adding art, music, and dance therapy. One
commenter recommended adding services to ensure that medical devices,
such as those used for breathing, nutrition, and other bodily
functions, are working properly. One commenter requested adding
programming and training for parents and staff as a related service.
A few commenters requested clarification on whether auditory
training and aural habilitation are related services. One commenter
asked whether hippotherapy should be included as a related service.
Other commenters recommended adding language in the regulations stating
that the list of related services is not exhaustive. A few commenters
asked whether a service is prohibited if it is not listed in the
definition of related services.
Discussion: Section 300.34(a) and section 602(26) of the Act state
that related services include other supportive services that are
required to assist a child with a disability to benefit from special
education. We believe this clearly conveys that the list of services in
Sec. 300.34 is not exhaustive and may include other developmental,
corrective, or supportive services if they are required to assist a
child with a disability to benefit from special education. It would be
impractical to list every service that could be a related service, and
therefore, no additional language will be added to the regulations.
Consistent with Sec. Sec. 300.320 through 300.328, each child's
IEP Team, which includes the child's parent along with school
officials, determines the instruction and services that are needed for
an individual child to receive FAPE. 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 related service is
required in order for the child to benefit from special education and
has included that service in the child's IEP.
Changes: None.
Comment: One commenter recommended adding behavior interventions to
the list of related services, stating that while positive behavioral
interventions and supports are often provided by one of the
professionals listed in Sec. 300.34(c), other types of specialists
also often provide them.
Discussion: The list of related services in Sec. 300.34 is
consistent with section 602(26) of the Act and, as noted above, we do
not believe it is necessary to add additional related services to this
list. We agree with the commenter that there may be many professionals
in a school district who are involved in the development of positive
behavioral interventions. Including the development of positive
behavioral interventions in the description of activities under
psychological services (Sec. 300.34(b)(10)) and social work services
in schools (Sec. 300.34(b)(14)) is not intended to imply that school
psychologists and social workers are automatically qualified to perform
these services or to prohibit other qualified personnel from providing
these services, consistent with State requirements.
Changes: None.
Exception; Services That Apply to Children With Cochlear Implants
(Sec. 300.34(b))
Comment: Many commenters opposed the exclusion of surgically
implanted devices from the definition of related services. Many
commenters stated that the Act does not exclude the maintenance or
programming of surgically implanted devices from the definition of
related services, and that the regulations should specifically state
that related services includes the provision of mapping services for a
child with a cochlear implant. A few commenters stated that the issue
of mapping cochlear implants needs to be clarified so that schools and
parents understand who is responsible for providing this service. One
commenter requested that the regulations clearly specify that
optimization of a cochlear implant is a medical service and define
mapping as an audiological service.
Discussion: The term ``mapping'' refers to the optimization of a
cochlear implant and is not included in the definition of related
services. Specifically, ``mapping'' and ``optimization'' refer to
adjusting the electrical stimulation levels provided by the cochlear
implant that is necessary for long-term post-surgical follow-up of a
cochlear implant. Although the cochlear implant must be properly mapped
in order for the child to hear well in school, the mapping does not
have to be done in school or during the school day in order for it to
be effective. The exclusion of mapping from the definition of related
services reflects the language in Senate Report (S. Rpt.) No. 108-185,
p. 8, which states that the Senate committee did not intend that
[[Page 46570]]
mapping a cochlear implant, or even the costs associated with mapping,
such as transportation costs and insurance co-payments, be the
responsibility of a school district. These services and costs are
incidental to a particular course of treatment chosen by the child's
parents to maximize the child's functioning, and are not necessary to
ensure that the child is provided access to education, regardless of
the child's disability, including maintaining health and safety while
in school. We will add language in Sec. 300.34(b) to clarify that
mapping a cochlear implant is an example of device optimization and is
not a related service under the Act.
Changes: We have added ``(e.g., mapping)'' following
``functioning'' in Sec. 300.34(b) to clarify that mapping a surgically
implanted device is not a related service under the Act.
Comment: A significant number of commenters stated that children
with cochlear implants need instruction in listening and language
skills to process spoken language, just as children with hearing loss
who use hearing aids, and requested that the regulations clarify that
excluding the optimization of device functioning from the definition of
related services does not impact a child's access to related services
such as speech and language therapy, assistive listening devices,
appropriate classroom acoustics, auditory training, educational
interpreters, cued speech transliterators, and specialized instruction.
One commenter requested that the regulations explicitly state
whether a public agency is required to provide more speech and language
services or audiology services to a child with a cochlear implant.
Another commenter requested that the regulations clarify that
optimization only refers to access to assistive technology, such as
assistive listening devices (e.g., personal frequency modulation (FM)
systems) and monitoring and troubleshooting of the device function that
is required under proper functioning of hearing aids.
Discussion: Optimization generally refers to the mapping necessary
to make the cochlear implant work properly and involves adjusting the
electrical stimulation levels provided by the cochlear implant. The
exclusion of mapping as a related service is not intended to deny a
child with a disability assistive technology (e.g., FM system); proper
classroom acoustical modifications; educational support services (e.g.,
educational interpreters); or routine checking to determine if the
external component of a surgically implanted device is turned on and
working. Neither does the exclusion of mapping as a related service
preclude a child with a cochlear implant from receiving the related
services (e.g., speech and language services) that are necessary for
the child to benefit from special education services. As the commenters
point out, a child with a cochlear implant may still require related
services, such as speech and language therapy, to process spoken
language just as other children with hearing loss who use hearing aids
may need those services and are entitled to them under the Act if they
are required for the child to benefit from special education. Each
child's IEP Team, which includes the child's parent along with school
officials, determines the related services, and the amount of services,
that are required for the child to benefit from special education. It
is important that the regulations clearly state that a child with a
cochlear implant or other surgically implanted medical device is
entitled to related services that are determined by the child's IEP
Team to be necessary for the child to benefit from special education.
Therefore, we will add language in Sec. 300.34(b) to clarify that a
child with a cochlear implant or other surgically implanted medical
device is entitled to those related services that are required for the
child to benefit from special education, as determined by the child's
IEP Team.
Changes: We have reformatted Sec. 300.34(b) and added a new
paragraph (2) to clarify that a child with a cochlear implant or other
surgically implanted device is entitled to the related services that
are determined by the child's IEP Team to be required for the child to
benefit from special education. We have also added the phrase
``services that apply to children with surgically implanted devices,
including cochlear implants' to the heading in Sec. 300.34(b).
Comment: One commenter expressed concern that excluding the
optimization of device functioning and maintenance of the device as
related services will establish different standards for serving
children with cochlear implants versus children who use hearing aids
and other external amplification devices, and recommended clarifying
that routine monitoring of cochlear implants and other surgically
implanted devices to ensure that they are functioning in a safe and
effective manner is permitted under the Act.
A few commenters stated that some schools are interpreting the
exclusion of device optimization, functioning, and maintenance to mean
that they do not have to help the child change a battery in the
externally worn speech processor connected with the surgically
implanted device, make certain that it is turned on, or help the child
to learn to listen with the cochlear implant. One commenter stated that
children with cochlear implants should have the same services as
children who use a hearing aid when the battery needs changing or
equipment breaks down.
One commenter stated that Sec. 300.34(b) is confusing and should
explicitly state that the exception of the optimization of device
functioning, maintenance of the device, or replacement of the device is
limited to surgically implanted devices. The commenter stated that the
language could erroneously lead to an interpretation that this
exception is applicable to all medical devices. One commenter expressed
concern that this misinterpretation could put insulin pumps and other
medical devices that are required for the health of the child in the
same category as cochlear implants.
A few commenters stated that it is important to clarify that
excluding the optimization of device functioning and the maintenance of
the device should not be construed to exclude medical devices and
services that children need to assist with breathing, nutrition, and
other bodily functions while the child is involved with education and
other school-related activities.
One commenter stated that a school nurse, aide, teacher's aide, or
any other person who is qualified and trained should be allowed to
monitor and maintain, as necessary, a surgically implanted device.
Discussion: A cochlear implant is an electronic device surgically
implanted to stimulate nerve endings in the inner ear (cochlea) in
order to receive and process sound and speech. The device has two
parts, one that is surgically implanted and attached to the skull and,
the second, an externally worn speech processor that attaches to a port
in the implant. The internal device is intended to be permanent.
Optimization or ``mapping'' adjusts or fine tunes the electrical
stimulation levels provided by the cochlear implant and is changed as a
child learns to discriminate signals to a finer degree. Optimization
services are generally provided at a specialized clinic. As we
discussed previously regarding Sec. 300.34, optimization services are
not a covered service under the Act. However, a public agency still has
a role in providing services and supports to help children with
cochlear implants.
Particularly with younger children or children who have recently
obtained implants, teachers and related services personnel frequently
are the first to notice changes in the child's perception
[[Page 46571]]
of sounds that the child may be missing. This may manifest as a lack of
attention or understanding on the part of the child or frustration in
communicating. The changes may indicate a need for remapping, and we
would expect that school personnel would communicate with the child's
parents about these issues. To the extent that adjustments to the
devices are required, a specially trained professional would provide
the remapping, which is not considered the responsibility of the public
agency.
In many ways, there is no substantive difference between serving a
child with a cochlear implant in a school setting and serving a child
with a hearing aid. The externally worn speech processor connected with
the surgically implanted device is similar to a hearing aid in that it
must be turned on and properly functioning in order for the child to
benefit from his or her education. Parents of children with cochlear
implants and parents of children with hearing aids both frequently
bring to school extra batteries, cords, and other parts for the hearing
aids and externally worn speech processors connected with the
surgically-implanted devices, especially for younger children. The
child also may need to be positioned so that he or she can directly see
the teacher at all times, or may need an FM amplification system such
as an audio loop.
For services that are not necessary to provide access to education
by maintaining the health or safety of the child while in school, the
distinguishing factor between those services that are not covered under
the Act, such as mapping, and those that are covered, such as verifying
that a cochlear implant is functioning properly, in large measure, is
the level of expertise required. The maintenance and monitoring of
surgically implanted devices require the expertise of a licensed
physician or an individual with specialized technical expertise beyond
that typically available from school personnel. On the other hand,
trained lay persons or nurses can routinely check an externally worn
processor connected with a surgically implanted device to determine if
the batteries are charged and the external processor is operating. (As
discussed below, the Act does require public agencies to provide those
services that are otherwise related services and are necessary to
maintain a child's health or safety in school even if those services
require specialized training.) Teachers and related services providers
can be taught to first check the externally worn speech processor to
make sure it is turned on, the volume and sensitivity settings are
correct, and the cable is connected, in much the same manner as they
are taught to make sure a hearing aid is properly functioning. To allow
a child to sit in a classroom when the child's hearing aid or cochlear
implant is not functioning is to effectively exclude the child from
receiving an appropriate education. Therefore, we believe it is
important to clarify that a public agency is responsible for the
routine checking of the external components of a surgically implanted
device in much the same manner as a public agency is responsible for
the proper functioning of hearing aids.
The public agency also is responsible for providing services
necessary to maintain the health and safety of a child while the child
is in school, with breathing, nutrition, and other bodily functions
(e.g., nursing services, suctioning a tracheotomy, urinary
catheterization) if these services can be provided by someone who has
been trained to provide the service and are not the type of services
that can only be provided by a licensed physician. (Cedar Rapids
Community School District v. Garret F., 526 U.S. 66 (1999)).
Changes: We have added new Sec. 300.113 to cover the routine
checking of hearing aids and external components of surgically
implanted devices. The requirement for the routine checking of hearing
aids has been removed from proposed Sec. 300.105 and included in new
Sec. 300.113(a). The requirement for routine checking of an external
component of a surgically implanted medical device has been added as
new Sec. 300.113(b). The requirements for assistive technology devices
and services remain in Sec. 300.105 and the heading has been changed
to reflect this change. We have also included a reference to new Sec.
300.113(b) in new Sec. 300.34(b)(2).
Comment: A few commenters stated that specialized cochlear implant
audiologists who are at implant centers or closely associated with them
should program cochlear implants. One commenter stated that, typically,
school audiologists and school personnel do not have the specialized
experience to program cochlear implants.
Discussion: The personnel with the specific expertise or licensure
required for the optimization (e.g., mapping) of surgically implanted
devices are decisions to be made within each State based on applicable
State statutes and licensing requirements. Since mapping is not covered
under the Act, personnel standards for individuals who provide mapping
services are beyond the scope of these regulations.
Changes: None.
Audiology (Sec. 300.34(c)(1))
Comment: One commenter stated that the definition of audiology does
not reflect current audiology practice in schools and recommended new
language to include services for children with auditory-related
disorders, provision of comprehensive audiologic habilitation and
rehabilitation services; consultation and training of teachers and
other school staff; and involvement in classroom acoustics.
Discussion: The definition of audiology is sufficiently broad to
enable audiologists to be involved in the activities described by the
commenter. We do not believe it is necessary to change the definition
to add the specific functions recommended by the commenter.
Changes: None.
Comment: A few commenters requested adding mapping services for a
child with a cochlear implant to the definition of audiology.
Discussion: For the reasons discussed previously in this section,
Sec. 300.34(b) specifically excludes the optimization of a surgically
implanted device from the definition of related services. This includes
mapping of a cochlear implant.
Changes: None.
Comment: One commenter stated that the definition of audiology
appears to be limited to children who are deaf or hard of hearing, and
recommended adding language to allow children without expressive speech
to receive such services.
Discussion: The term audiology, as defined in Sec. 300.34(c)(1),
focuses on identifying and serving children who are deaf or hard of
hearing. It is not necessary to add language in the regulations
regarding children without expressive speech because the determining
factor of whether audiology services are appropriate for a child is
whether the child may be deaf or hard of hearing, not whether a child
has expressive speech.
Changes: None.
Early Identification and Assessment of Disabilities (Sec.
300.34(c)(3))
Comment: Some commenters noted that ``early identification and
assessment of disabilities'' was removed from the list of related
services in Sec. 300.34(a).
Discussion: ``Early identification and assessment of disabilities''
was inadvertently omitted from the list of related services in Sec.
300.34(a).
Changes: ``Early identification and assessment'' will be added to
the list of related services in Sec. 300.34(a).
[[Page 46572]]
Interpreting Services (Sec. 300.34(c)(4))
Comment: One commenter recommended that the definition of
interpreting services requires that such services be provided by a
qualified interpreter who is able to effectively, accurately, and
impartially use any specialized vocabulary, both receptively and
expressively. A few commenters strongly recommended requiring
interpreting services to be provided by qualified interpreters to
ensure equivalent communication access and effective communication
with, and for, children who are deaf or hard of hearing. The commenter
stated that personnel standards for interpreters vary greatly across
SEAs and LEAs, and requiring qualified interpreters would be consistent
with the definition of other related services included in these
regulations such as physical therapy and occupational therapy.
One commenter recommended defining the function of an interpreter
as a person who facilitates communication between children who are deaf
or hard of hearing, staff, and children, regardless of the job title.
Discussion: Section 300.156, consistent with section 612(a)(14) of
the Act, clarifies that it is the responsibility of each State to
establish personnel qualifications to ensure that personnel necessary
to carry out the purposes of the Act are appropriately and adequately
prepared and trained and have the content knowledge and skills to serve
children with disabilities. It is not necessary to add more specific
functions of individuals providing interpreting services, as
recommended by the commenters. States are appropriately given the
flexibility to determine the qualifications and responsibilities of
personnel, based on the needs of children with disabilities in the
State.
Changes: None.
Comment: A few commenters recommended including American sign
language and sign language systems in the definition of interpreting
services.
Discussion: The definition of interpreting services is sufficiently
broad to include American sign language and sign language systems, and
therefore, will not be changed. We believe it is important to include
sign language transliteration (e.g., translation systems such as Signed
Exact English and Contact Signing), in addition to sign language
interpretation of another language (e.g., American sign language) in
the definition of interpreting services, and will add this language to
Sec. 300.34(c)(4)(i).
Changes: We have added language to Sec. 300.34(c)(4)(i) to include
sign language transliteration.
Comment: A few commenters recommended changing the definition of
interpreting services to clarify that the need for interpreting
services must be based on a child's disability and not degree of
English proficiency.
Discussion: The definition of interpreting services clearly states
that interpreting services are used with children who are deaf or hard
of hearing. The nature and type of interpreting services required for
children who are deaf or hard of hearing and also limited in English
proficiency are to be determined by reference to the Department's
regulations and policies regarding students with limited English
proficiency. For example, the Department's regulations in 34 CFR part
100, implementing Title VI of the Civil Rights Act of 1964, 42 U.S.C.
2000d, require that recipients of Federal financial assistance ensure
meaningful access to their programs and activities by students who are
limited English proficient, including those who are deaf or hard of
hearing. The requirement to provide services to students who are
limited English proficient and others is also governed by various
Department policy memoranda including the September 27, 1991
memorandum, ``Department of Education Policy Update on Schools'
Obligations Toward National Origin Minority Students With Limited
English Proficiency''; the December 3, 1985 guidance document, ``The
Office for Civil Rights' Title VI Language Minority Compliance
Procedures''; and the May 1970 memorandum to school districts,
``Identification of discrimination and Denial of Services on the Basis
of National Origin,'' 35 FR 11595. These documents are available at
http://www.lep.gov. We do not believe additional clarification is
necessary.
Changes: None.
Comment: One commenter stated that the definition of interpreting
services appears to be limited to children who are deaf or hard of
hearing, and recommended adding language to allow children without
expressive speech to receive such services.
Discussion: Interpreting services, as defined in Sec.
300.34(c)(4), clearly states that interpreting services are used with
children who are deaf and hard of hearing. Therefore, a child who is
not deaf or hard of hearing, but who is without expressive speech,
would not be considered eligible to receive interpreting services as
defined in Sec. 300.34(c)(4). However, such a child could be
considered eligible for speech-language pathology services, consistent
with Sec. 300.34(c)(15).
Changes: None.
Comment: Some commenters recommended including communication access
real-time transcription (CART) services in the definition of
interpreting services because these services are being used with
increasing frequency in postsecondary education and employment
settings, and familiarity and experience with CART services may better
prepare children who are deaf or hard of hearing to transition to
higher education and employment environments. A few commenters stated
that the definition of interpreting services appears to limit
interpreting services to the methods listed in Sec. 300.34(c)(4),
which exclude tactile and close vision interpreting for children who
are deaf-blind.
Discussion: Although the definition of interpreting services is
written broadly to include other types of interpreting services, we
believe that it is important to include in the definition services in
which oral communications are transcribed into real-time text.
Therefore, we are adding language to Sec. 300.34(c)(4) to refer to
transcription services and include several examples of transcription
systems used to provide such services.
We also believe that it is important that the definition of
interpreting services include services for children who are deaf-blind.
However, because there are many types of interpreting services for
children who are deaf-blind, in addition to tactile and close vision
interpreting services, we will add a more general statement to include
interpreting services for children who are deaf-blind, rather than
listing all the different methods that might be used for children who
are deaf-blind.
Changes: We have restructured Sec. 300.34(c)(4) and added ``and
transcription services such as communication real-time translation
(CART), C-Print, and TypeWell'' to the definition of interpreting
services in paragraph (c)(4)(i). We have also added a new paragraph
(c)(4)(ii) to include interpreting services for children who are deaf-
blind.
Medical Services (Sec. 300.34(c)(5))
Comment: One commenter stated that the definition of medical
services is not in the Act and recommended that the definition be
broader than the decision in Cedar Rapids Community School Dist. v.
Garrett F., 526 U.S. 66 (1999), which the definition appears to follow.
Discussion: The list of related services in Sec. 300.34(a)
includes medical services
[[Page 46573]]
for diagnostic and evaluation purposes, consistent with section 602(26)
of the Act. The Department continues to believe that using language
from the Act to define medical services is essential. Defining medical
services more broadly, as recommended by the commenter, would not be
consistent with the Act.
Changes: None.
Orientation and Mobility Services (Sec. 300.34(c)(7))
Comment: Several commenters supported including travel training in
the definition of orientation and mobility services and recommended
adding a reference to the definition of travel training in new Sec.
300.39(b)(4) (proposed Sec. 300.38(b)(4)). However, other commenters
stated that travel training should appear as a distinct related service
and should not be included in the definition of orientation and
mobility services because children who are blind and visually impaired
receive this type of instruction from certified orientation and
mobility specialists. One commenter stated that the regulations should
specify that travel training is for children with cognitive or other
disabilities.
Discussion: We believe that including travel training in the
definition of orientation and mobility services may be misinterpreted
to mean that travel training is available only for children who are
blind or visually impaired or that travel training is the same as
orientation and mobility services. We will, therefore, remove travel
training from Sec. 300.34(c)(7). This change, however, does not
diminish the services that are available to children who are blind or
visually impaired.
Travel training is defined in new Sec. 300.39(b)(4) (proposed
Sec. 300.38(b)(4)) for children with significant cognitive
disabilities and any other children with disabilities who require this
instruction, and, therefore, would be available for children who are
blind or visually impaired, as determined by the child's IEP Team.
Travel training is not the same as orientation and mobility services
and is not intended to take the place of appropriate orientation and
mobility services.
Changes: We have removed ``travel training instruction'' from Sec.
300.34(c)(7)(ii) to avoid confusion with the definition of travel
training in new Sec. 300.39(b)(4) (proposed Sec. 300.38(b)(4)), and
to clarify that travel training is not the same as orientation and
mobility services and cannot take the place of appropriate orientation
and mobility services.
Comment: One commenter recommended that the regulations specify who
is qualified to provide travel training instruction and stated that it
is critical that skills such as street crossing be taught correctly.
Discussion: Section 300.156, consistent with section 612(a)(14) of
the Act, requires each State to establish personnel qualifications to
ensure that personnel necessary to carry out the purposes of the Act
are appropriately and adequately prepared and trained and have the
content knowledge and skills to serve children with disabilities. It
is, therefore, the State's responsibility to determine the
qualifications that are necessary to provide travel training
instruction.
Changes: None.
Parent Counseling and Training (Sec. 300.34(c)(8))
Comment: A few commenters stated that the definition of parent
counseling and training in Sec. 300.34(c)(8) is not included in the
definition of related services in section 602(26)(A) of the Act and,
therefore, should not be included in the regulations.
Discussion: Paragraphs (i) and (ii) of Sec. 300.34(c)(8),
regarding assisting parents in understanding the special needs of their
child, and providing parents with information about child development,
respectively, are protected by section 607(b) of the Act, and cannot be
removed. Section 300.34(c)(8)(iii), regarding helping parents acquire
the skills to allow them to support the implementation of their child's
IEP or IFSP, was added in the 1999 regulations to recognize the more
active role of parents as participants in the education of their
children. Although not included in the Act, we believe it is important
to retain this provision in these regulations so that there is no
question that parent counseling and training includes helping parents
acquire skills that will help them support the implementation of their
child's IEP or IFSP.
Changes: None.
Comment: One commenter recommended that the regulations describe
the responsibility of LEAs to provide parent counseling and training.
Discussion: As with other related services, an LEA only is
responsible for providing parent counseling and training if a child's
IEP Team determines that it is necessary for the child to receive FAPE.
To include this language in the definition of parent counseling and
training, moreover, would be unnecessarily duplicative of Sec.
300.17(d), which states that FAPE means special education and related
services that are provided in conformity with an IEP that meets the
requirements in Sec. Sec. 300.320 through 300.324.
Changes: None.
Physical Therapy (Sec. 300.34(c)(9))
Comment: One commenter recommended the definition of physical
therapy include related therapeutic services for children with
degenerative diseases.
Discussion: We do not believe the suggested change is necessary
because the definition of physical therapy is broadly defined and could
include therapeutic services for children with degenerative diseases.
It is the responsibility of the child's IEP Team to determine the
special education and related services that are necessary for a child
to receive FAPE. There is nothing in the Act that prohibits the
provision of therapeutic services for children with degenerative
diseases, if the IEP Team determines they are needed for an individual
child and, thereby, includes the services in the child's IEP.
Changes: None.
Comment: One commenter stated that the definition of physical
therapy in Sec. 300.34(c)(9) is circular and requested that a
functional definition be provided.
Discussion: The definition of physical therapy has been in the
regulations since 1977 and is commonly accepted by SEAs, LEAs, and
other public agencies. We do not believe it is necessary to change the
definition.
Changes: None.
Psychological Services (Sec. 300.34(c)(10))
Comment: One commenter recommended that the definition of
psychological services include strategies to facilitate social-
emotional learning.
Discussion: We do not believe the definition should be revised to
add a specific reference to the strategies recommended by the
commenter. The definition of psychological services is sufficiently
broad to enable psychologists to be involved in strategies to
facilitate social-emotional learning.
Changes: None.
Comment: One commenter stated that unless the definition of
psychological services includes research-based counseling, schools will
argue that they are required to provide counseling services delivered
by social workers because counseling is included in the definition of
social work services in schools.
Discussion: We do not believe including research-based counseling
in the definition of psychological services is necessary. Including
counseling in the definition of social work services in schools in
Sec. 300.34(c)(14) is intended to indicate the types of personnel who
assist in this activity and is not intended
[[Page 46574]]
either to imply that school social workers are automatically qualified
to perform counseling or to prohibit other qualified personnel from
providing counseling, consistent with State requirements.
Changes: None.
Comment: One commenter stated that other related services
personnel, in addition to school psychologists, should be permitted to
develop and deliver positive behavioral intervention strategies.
Discussion: There are many professionals who might also play a role
in developing and delivering positive behavioral intervention
strategies. The standards for personnel who assist in developing and
delivering positive behavioral intervention strategies will vary
depending on the requirements of the State. Including the development
and delivery of positive behavioral intervention strategies in the
definition of psychological services is not intended to imply that
school psychologists are automatically qualified to perform these
duties or to prohibit other qualified personnel from providing these
services, consistent with State requirements.
Changes: None.
Recreation (Sec. 300.34(c)(11))
Comment: A few commenters requested modifying the definition of
recreation to include therapeutic recreation services provided by a
qualified recreational therapist, which include services that restore,
remediate, or rehabilitate to improve functioning and independence, and
reduce or eliminate the effects of illness or disability.
Discussion: We do not believe it is necessary to change the
definition of recreation as recommended by the commenters because the
definition is sufficiently broad to include the services mentioned by
the commenters.
Changes: None.
School Health Services and School Nurse Services (Proposed School Nurse
Services) (Sec. 300.34(c)(13))
Comment: Some commenters noted that while ``school health
services'' is included in the list of related services in Sec.
300.34(a), it is not defined, which will result in confusion about the
relationship between ``school health services'' and ``school nurse
services.''
Some commenters stated that adding the definition of school nurse
services and eliminating the definition of school health services must
not narrow the range of related services available to children. One
commenter recommended that the definition of school nurse services
allow school nurse services to be provided by other qualified persons,
as well as a qualified school nurse, because the majority of schools do
not have a school nurse on staff. One commenter requested that the
regulations clarify that schools can continue to use registered nurses
or other personnel to provide school nurse services, consistent with
State law. Another commenter stated that there is well-established case
law upholding the obligation of an SEA and LEA to provide health-
related services necessary for a child to benefit from special
education.
Discussion: School health services was retained in the definition
of related services in Sec. 300.34(a). However, the definition of
school health services was inadvertently removed in the NPRM. To
correct this error, we will add school health services to the
definition of school nurse services and clarify that school health
services and school nurse services means health services that are
designed to enable a child with a disability to receive FAPE. We will
also add language to clarify that school nurse services are provided by
a qualified school nurse and that school health services are provided
by either a qualified school nurse or other qualified person. We
recognize that most schools do not have a qualified school nurse on a
full-time basis (i.e., a nurse that meets the State standards for a
qualified school nurse), and that many schools rely on other qualified
school personnel to provide school health services under the direction
of a school nurse. Therefore, we believe it is important to retain the
definition of school health services and school nurse services in these
regulations.
With the changes made in Sec. 300.34(c), it is not necessary for
the reference to ``school nurse services'' in Sec. 300.34(a) to
include the phrase, ``designed to enable a child with a disability to
receive a free appropriate public education as described in the IEP of
the child.'' We will, therefore, remove this phrase in Sec. 300.34(a).
Changes: Section 300.34(c)(13) has been revised to include a
definition of school health services and school nurse services.
Additional language has been added to clarify who provides school
health services and school nurse services. We have also modified Sec.
300.34(a) by deleting the redundant phrase, ``designed to enable a
child with a disability to receive a free appropriate public education
as described in the IEP of the child.''
Comment: One commenter stated that adding school nurse services to
the definition of related services makes it more burdensome for the
delivery of services to children who are medically-fragile.
Discussion: It is unclear how adding school nurse services to the
definition of related services affects services to children who are
medically fragile. As defined in Sec. 300.34(c)(13), school health
services and school nurse services are designed to enable a child with
a disability to receive FAPE as described in the child's IEP. A child
who is medically fragile and needs school health services or school
nurse services in order to receive FAPE must be provided such services,
as indicated in the child's IEP.
Changes: None.
Comment: One commenter stated that the definition of school nurse
services should include services that enable a child with a disability
to receive FAPE in the LRE. Another commenter stated that school nurses
can be extremely supportive of children with disabilities receiving
FAPE in the LRE and recommended changing the regulations to ensure that
parents understand that the definition of related services includes
school nurse services.
Discussion: The LRE requirements in Sec. Sec. 300.114 through
300.120 provide, that to the maximum extent appropriate, children with
disabilities are to be educated with children who are not disabled. It
is not necessary to repeat this requirement in the definition of school
health services and school nurse services.
We agree that school health services and school nurse services are
important related services. Section 300.34(a) and section 602(26)(A) of
the Act are clear that the definition of related services includes
school health services and school nurse services. The IEP Team, of
which the parent is an integral member, is responsible for determining
the services that are necessary for the child to receive FAPE. We,
therefore, do not believe that it is necessary to add a regulation
requiring public agencies to ensure that parents understand that
related services include school health services and school nurse
services.
Changes: None.
Comment: One commenter stated that including the phrase, ``designed
to enable a child with a disability to receive a free appropriate
public education'' in Sec. 300.34(c)(13) in relation to school nurse
services, is unnecessary and confusing.
Discussion: As stated in Sec. 300.34(a), the purpose of related
services is to assist a child with a disability to benefit from special
education. We believe it is necessary to specify that school health
services and school nurse services are related services only to the
extent that
[[Page 46575]]
the services allow a child to benefit from special education and enable
a child with a disability to receive FAPE.
Changes: None.
Social Work Services in Schools (Sec. 300.34(c)(14))
Comment: One commenter recommended including strategies to
facilitate social-emotional learning in the definition of social work
services in schools. A few commenters stated that the role of the
school social worker is evolving and recommended that the definition
include the role of social workers as integral members of pre-referral
teams that deliver interventions to decrease the number of referrals to
special education. One commenter recommended that the definition
include a reference to the social worker's role in addressing the
relevant history and current functioning of an individual within his or
her environmental context, rather than referring to social-
developmental histories. Another commenter stated that social workers
are trained to find resources in the home, school, and community and
recommended including such language in the definition.
Discussion: The definition of social work services in schools is
sufficiently broad to include the services described by the commenters
and we do not believe the definition should be revised to add these
more specific functions.
Changes: None.
Comment: One commenter stated that the definition of social work
services in schools removes language from the 1983 regulations that
states that social work services allow children with disabilities to
maximize benefit from the learning program. The commenter stated that
this is a higher standard than what is required in Sec. 300.34(c)(14),
which only requires that services enable a child to learn as
effectively as possible, and, therefore, the 1983 definition should be
retained, consistent with section 607(b) of the Act.
Discussion: We disagree with the commenter. The definition of
social work services in schools in the 1977 regulations included
``mobilizing school and community resources to enable the child to
receive maximum benefit from his or her educational program.'' As
explained in the preamble to the final 1992 regulations, the phrase
``to receive maximum benefit'' was intended only to provide that the
purpose of activities carried out by personnel qualified to provide
social work services in schools is to mobilize resources so that a
child can learn as effectively as possible in his or her educational
program. The language in the preamble to the final 1992 regulations
also clarified that this provision did not set a legal standard for
that program or entitle the child to a particular educational benefit.
The preamble further explained that, during the public comment period
for the 1992 regulations, commenters raised concerns that the term
``maximum benefit'' appeared to be inconsistent with the decision by
the United States Supreme Court in Board of Education v. Rowley, 458
U.S. 176 (1982). Therefore, the phrase was revised to read ``to learn
as effectively as possible in his or her educational program.'' This is
the same phrase used in the 1999 regulations and in these regulations
in Sec. 300.34(c)(14)(iv). Because the language in the 1977 final
regulations did not entitle a child to any particular benefit, the
change made in 1992 did not lessen protections for a child, and,
therefore, is not subject to section 607(b) of the Act.
Changes: None.
Comment: One commenter recommended adding a reference to
``functional behavioral assessments'' in Sec. 300.34(c)(14)(v) because
functional behavioral assessments should always precede the development
of behavioral intervention strategies. Another commenter expressed
concern that Sec. 300.34(c)(14)(iv), regarding social work services to
mobilize school and community resources to enable the child to learn as
effectively as possible, creates a potential for litigation. The
commenter asked whether a school district could face a due process
hearing for failure to mobilize community resources if there are no
community resources to address the needs of the child or family.
Discussion: The definition of social work services in schools
includes examples of the types of social work services that may be
provided. It is not a prescriptive or exhaustive list. The child's IEP
Team is responsible for determining whether a child needs social work
services, and what specific social work services are needed in order
for the child to receive FAPE. Therefore, while conducting a functional
behavioral assessment typically precedes developing positive behavioral
intervention strategies, we do not believe it is necessary to include
functional behavioral assessments in the definition of social work
services in schools because providing positive behavioral intervention
strategies is just an example of a social work service that might be
provided to a child if the child's IEP Team determines that such
services are needed for the child to receive FAPE. Similarly, if a
child's IEP Team determines that mobilizing community resources would
not be an effective means of enabling the child to learn as effectively
as possible because there are no community resources to address the
needs of the child, the IEP Team would need to consider other ways to
meet the child's needs. While there is the possibility that a due
process hearing might be filed based on a failure to mobilize community
resources that do not exist, we do not believe that such a claim could
ever be successful, as the regulation does not require the creation of
community resources that do not exist.
Changes: None.
Speech-language Pathology Services (Sec. 300.34(c)(15))
Comment: One commenter stated that children who need speech therapy
should have it for a full classroom period, five days a week, and not
be removed from other classes to receive this related service.
Discussion: It would be inconsistent with the Act to dictate the
amount and location of services for all children receiving speech-
language pathology services, as recommended by the commenter. As with
all related services, section 614(d)(1)(A)(i)(IV) of the Act provides
that the child's IEP Team is responsible for determining the services
that are needed for the child to receive FAPE. This includes
determining the type of related service, as well as the amount and
location of services.
Changes: None.
Comment: One commenter stated that the definition of speech-
language pathology services appears to be limited to children who are
deaf or hard of hearing, and recommended adding language to the
regulations to allow children without expressive speech to receive such
services.
Discussion: There is nothing in the Act or the regulations that
would limit speech-language pathology services to children who are deaf
or hard of hearing or to children without expressive speech. The
definition of speech-language pathology services specifically includes
services for children who have language impairments, as well as speech
impairments.
Changes: None.
Comment: One commenter requested the definition of speech-language
pathology services specify the qualifications and standards for speech-
language professionals. Another commenter requested that the definition
require a highly qualified provider to deliver speech-language
services. One commenter requested that the definition require a speech-
language pathologist to provide speech-language services.
[[Page 46576]]
Discussion: Consistent with Sec. 300.156 and section 612(a)(14) of
the Act, it is up to each State to establish personnel qualifications
to ensure that personnel necessary to carry out the purposes of the Act
are appropriately and adequately prepared and trained and have the
content knowledge and skills to serve children with disabilities.
Section 300.156(b), consistent with section 614(a)(14)(B) of the Act,
specifically requires that these personnel qualifications must include
qualifications for related services personnel. Establishing
qualifications for individuals providing speech-language services in
these regulations would be inconsistent with these statutory and
regulatory requrements.
Changes: None.
Comment: One commenter stated that the roles and responsibilities
for speech-language pathologists in schools have been expanded to help
all children gain language and literacy skills and recommended that the
definition of speech-language pathology services be revised to include
consultation and collaboration with other staff members to plan and
implement special intervention monitoring programs and modify classroom
instruction to assist children in achieving academic success. The
commenter also recommended including services for other health
impairments, such as dysphagia, in the definition of speech-language
pathology services.
Discussion: The Act provides for speech-language pathology services
for children with disabilities. It does not include speech-language
pathology services to enable all children to gain language and literacy
skills, as suggested by the commenter. It would, therefore, be
inconsistent with the Act to change the definition of speech-language
pathology services in the manner recommended by the commenter. We
believe that the definition is sufficiently broad to include services
for other health impairments, such as dysphagia, and therefore, decline
to revise the definition to include this specific service.
Changes: None.
Transportation (Sec. 300.34(c)(16))
Comment: A few commenters stated that the definition of
transportation should require transportation to be provided between
school and other locations in which IEP services are provided. Other
commenters requested that the definition explicitly define
transportation as door-to-door services, including provisions for an
aide to escort the child to and from the bus each day.
Discussion: A child's IEP Team is responsible for determining
whether transportation between school and other locations is necessary
in order for the child to receive FAPE. Likewise, if a child's IEP Team
determines that supports or modifications are needed in order for the
child to be transported so that the child can receive FAPE, the child
must receive the necessary transportation and supports at no cost to
the parents. We believe the definition of transportation is
sufficiently broad to address the commenters' concerns. Therefore, we
decline to make the requested changes to the definition.
Changes: None.
Comment: Some commenters recommended removing the term ``special
transportation'' from the definition of transportation because the term
gives the impression that adapted buses are used for a separate and
different transportation system, when, in fact, adapted buses are part
of the regular transportation fleet and system. These commenters stated
that adapted buses should only be used as a separate, special
transportation service if the child's IEP indicates that the
transportation needs of the child can be met only with transportation
services that are separate from the transportation services for all
children.
Discussion: We do not believe it is necessary to make the change
requested by the commenters. It is assumed that most children with
disabilities will receive the same transportation provided to
nondisabled children, consistent with the LRE requirements in
Sec. Sec. 300.114 through 300.120, unless the IEP Team determines
otherwise. While we understand the commenter's concern, adapted buses
may or may not be part of the regular transportation system in a
particular school system. In any case, if the IEP Team determines that
a child with a disability requires transportation as a related service
in order to receive FAPE, or requires supports to participate in
integrated transportation with nondisabled children, the child must
receive the necessary transportation or supports at no cost to the
parents.
Changes: None.
Scientifically Based Research (new Sec. 300.35)
Comment: A number of commenters requested that the regulations
include a definition of scientifically based research.
Discussion: The definition of scientifically based research is
important to the implementation of Part B of the Act and, therefore, we
will include a reference to the definition of that term in section
9101(37) of the ESEA.
For the reasons set forth earlier in this notice, we are not
including definitions from other statutes in these regulations.
However, we will include the current definition of scientifically based
research in section 9101(37) of the ESEA here for reference.
Scientifically based research--
(a) Means research that involves the application of rigorous,
systematic, and objective procedures to obtain reliable and valid
knowledge relevant to education activities and programs; and
(b) Includes research that--
(1) Employs systematic, empirical methods that draw on observation
or experiment;
(2) Involves rigorous data analyses that are adequate to test the
stated hypotheses and justify the general conclusions drawn;
(3) Relies on measurements or observational methods that provide
reliable and valid data across evaluators and observers, across
multiple measurements and observations, and across studies by the same
or different investigators;
(4) Is evaluated using experimental or quasi-experimental designs
in which individuals, entities, programs, or activities are assigned to
different conditions and with appropriate controls to evaluate the
effects of the condition of interest, with a preference for random-
assignment experiments, or other designs to the extent that those
designs contain within-condition or across-condition controls;
(5) Ensures that experimental studies are presented in sufficient
detail and clarity to allow for replication or, at a minimum, offer the
opportunity to build systematically on their findings; and
(6) Has been accepted by a peer-reviewed journal or approved by a
panel of independent experts through a comparably rigorous, objective,
and scientific review.
Changes: A cross-reference to the definition of scientifically
based research in section 9101(37) of the ESEA has been added as new
Sec. 300.35. Subsequent definitions have been renumbered accordingly.
Secondary School (New Sec. 300.36) (Proposed Sec. 300.35)
Comment: One commenter requested clarification regarding the
definition of secondary school and whether ``grade 12'' refers to the
regular grade 12 curriculum aligned to State academic achievement
standards under the ESEA or a limit on the number of years
[[Page 46577]]
children with a disabilities can spend in school.
Discussion: The term ``grade 12'' in the definition of secondary
school has the meaning given it under State law. It is not intended to
impose a Federal limit on the number of years a child with a disability
is allowed to complete his or her secondary education, as some children
with disabilities may need more than 12 school years to complete their
education.
Changes: None.
Services Plan (New Sec. 300.37) (Proposed Sec. 300.36)
Comment: One commenter stated that the term services plan is not in
the Act and, therefore, should be removed. However, the commenter
stated that if the definition of services plan remained in the
regulations, it should reflect the fact that parentally-placed private
school children are not entitled to FAPE.
Discussion: The definition of services plan was included to
describe the content, development, and implementation of plans for
parentally-placed private school children with disabilities who have
been designated to receive equitable services. The definition cross-
references the specific requirements for the provision of services to
parentally-placed private school children with disabilities in Sec.
300.132 and Sec. Sec. 300.137 through 300.139, which provide that
parentally-placed private school children have no individual right to
special education and related services and thus are not entitled to
FAPE. We do not believe further clarification is necessary.
Changes: None.
Special Education (New Sec. 300.39) (Proposed Sec. 300.38)
Comment: One commenter requested modifying the definition of
special education to distinguish special education from other forms of
education, such as remedial programming, flexible grouping, and
alternative education programming. The commenter stated that flexible
grouping, diagnostic and prescriptive teaching, and remedial
programming have expanded in the general curriculum in regular
classrooms and the expansion of such instruction will only be
encouraged with the implementation of early intervening services under
the Act.
Discussion: We believe the definition of special education is clear
and consistent with the definition in section 602(29) of the Act. We do
not believe it is necessary to change the definition to distinguish
special education from the other forms of education mentioned by the
commenter.
Changes: None.
Individual Special Education Terms Defined (New Sec. 300.39(b))
(Proposed Sec. 300.38(b))
Comment: A few commenters provided definitions of
``accommodations'' and ``modifications'' and recommended including them
in new Sec. 300.39(b) (proposed Sec. 300.38(b)).
Discussion: The terms ``accommodations'' and ``modifications'' are
terms of art referring to adaptations of the educational environment,
the presentation of educational material, the method of response, or
the educational content. They are not, however, examples of different
types of ``education'' and therefore we do not believe it is
appropriate to define these terms of art or to include them in new
Sec. 300.39(b) (proposed Sec. 300.38(b)).
Changes: None.
Physical Education (New Sec. 300.39(b)(2)) (Proposed Sec.
300.38(b)(2))
Comment: One commenter requested that adaptive physical education
be subject to the LRE requirements of the Act.
Discussion: The requirements in Sec. Sec. 300.114 through 300.120
require that, to the maximum extent appropriate, children with
disabilities are educated with children who are nondisabled. This
requirement applies to all special education services, including
adaptive physical education. We see no need to repeat this requirement
specifically for the provision of adaptive physical education.
Changes: None.
Specially Designed Instruction (New Sec. 300.39(b)(3)) (Proposed Sec.
300.38(b)(3))
Comment: One commenter stated that the regulations should
strengthen the requirements ensuring children access to the general
curriculum, because many children with disabilities still do not have
the tools they need or the teachers with expertise to access the
general curriculum.
Discussion: We believe the regulations place great emphasis on
ensuring that children with disabilities have access to the general
education curriculum. New Sec. 300.39(b)(3) (proposed Sec.
300.38(b)(3)) defines specially designed instruction as adapting the
content, methodology, or delivery of instruction to address the unique
needs of the child and to ensure access to the general curriculum so
that the child can meet the educational standards within the
jurisdiction of the public agency that apply to all children. In
addition, ensuring that children with disabilities have access to the
general curriculum is a major focus of the requirements for developing
a child's IEP. For example, Sec. 300.320(a)(1) requires a child's IEP
to include a statement of how the child's disability affects the
child's involvement and progress in the general education curriculum;
Sec. 300.320(a)(2)(i) requires annual IEP goals to be designed to
enable the child to be involved in and make progress in the general
education curriculum; and Sec. 300.320(a)(4) requires the IEP to
include a statement of the special education and related services the
child will receive, as well as the program modifications or supports
for school personnel that will be provided, to enable the child to be
involved in and make progress in the general education curriculum. We
do not believe additional language is necessary.
Changes: None.
Travel Training (New Sec. 300.39(b)(4)) (Proposed Sec. 300.38(b)(4))
Comment: A few commenters recommended strengthening the definition
of travel training in new Sec. 300.39(b)(4) (proposed Sec.
300.38(b)(4)) and adding travel training to new Sec. 300.43 (proposed
Sec. 300.42) (transition services) to acknowledge that transportation
is vitally important for children with disabilities to have full
participation in the community. The commenters recommended that the
definition of travel training include providing instruction to children
with disabilities, other than blindness, to enable them to learn the
skills and behaviors necessary to move effectively and safely in
various environments, including use of public transportation.
Discussion: We believe the definition of travel training already
acknowledges the importance of transportation in supporting children
with disabilities to fully participate in their communities. New Sec.
300.43(a)(4) (proposed Sec. 300.42(a)(4)) defines travel training to
include providing instruction that enables children to learn the skills
necessary to move effectively and safely from place to place in school,
home, at work and in the community. Therefore, we do not believe that
further clarification is necessary. We also do not believe that it is
necessary to add travel training to the definition of transition
services, as recommended by the commenters. We believe that IEP Teams
already consider the importance of transportation and travel training
services in the course of planning for a student's postsecondary
transition needs. It is unnecessary to state that travel training
includes instructing children with disabilities other than
[[Page 46578]]
blindness, as requested by the commenters, because the definition of
travel training already states that travel training is appropriate for
any child with a disability who requires this instruction.
Changes: None.
Comment: A few commenters strongly recommended clarifying that the
definition of travel training does not include training for children
with visual impairments, regardless of whether they have additional
disabilities.
Discussion: Any child with a disability, including a child with a
visual impairment, who needs travel training instruction to receive
FAPE, as determined by the child's IEP Team, can receive travel
training instruction. New Sec. 300.39(b)(4) (proposed Sec.
300.38(b)(4)) specifically states that travel training means providing
instruction to children with significant cognitive disabilities and any
other children with disabilities who require this instruction. We,
therefore, decline to change the definition, as recommended by the
commenters.
Changes: None.
Vocational Education (New Sec. 300.39(b)(5)) (Proposed Sec.
300.38(b)(5))
Comment: A few commenters recommended revising the definition of
vocational education to include specially designed 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.
Discussion: We believe that the more general reference to
``organized education programs'' in the definition of vocational
education is accurate and should not be changed to refer to ``specially
designed educational programs,'' as recommended by the commenter,
because some children with disabilities will benefit from educational
programs that are available for all children and will not need
specially designed programs.
Changes: None.
Comment: Some commenters stated that Congress did not intend that
the definition of vocational education would include vocational and
technical education. The commenters stated that the addition of
vocational and technical education to the definition of vocational
education creates a right under the Act to educational services that
would be extremely costly for States and LEAs to implement.
Other commenters stated that including the definition of vocational
and technical education from the Carl D. Perkins Act expands FAPE
beyond secondary education, which is an unwarranted responsibility for
school districts. One commenter stated that the definition could be
interpreted to require public agencies to provide two years of
postsecondary education for students with disabilities. A few
commenters strongly recommended removing the definition of vocational
and technical education.
Some commenters recommended removing the reference to the
postsecondary level for a 1-year certificate, an associate degree, and
industry-recognized credential in the definition of vocational and
technical education. One commenter suggested that proposed Sec.
300.38(b)(6)(i)(A) conclude with the word ``or'' to clarify that the
sequence of courses is discretionary.
Discussion: The definition of vocational education was revised to
include 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). However, based on the comments we
received, it is apparent that including the definition of vocational
and technical education has raised concerns and confusion regarding the
responsibilities of SEAs and LEAs to provide vocational education.
Therefore, we will remove the definition of vocational and technical
education in proposed Sec. 300.38(b)(6) and the reference to
vocational and technical education in proposed Sec. 300.38(b)(5)(ii).
Changes: The definition of vocational and technical education in
proposed Sec. 300.38(b)(6) has been removed. Accordingly, the
reference to vocational and technical education in proposed Sec.
300.38(b)(5)(ii)) has also been removed.
Supplementary Aids and Services (New Sec. 300.42) (Proposed Sec.
300.41)
Comment: A few commenters stated that the definition of
supplementary aids and services should be changed to mean aids,
services, and other supports provided in general education classes or
other settings to children with disabilities, as well as to educators,
other support staff, and nondisabled peers, if necessary, to support
the inclusion of children with disabilities.
Discussion: The definition of supplementary aids and services in
new Sec. 300.42 (proposed Sec. 300.41) is consistent with the
specific language in section 602(33) of the Act, and refers to aids,
services, and other supports for children with disabilities. We do not
believe it is necessary to change the definition to include providing
aids, services, and supports to other individuals because Sec.
300.320(a)(4) requires each child's IEP to include a statement of the
program modifications or supports for school personnel that will be
provided to enable the child to be involved in and make progress in the
general education curriculum, and to participate in extracurricular and
other nonacademic activities.
As noted in the Analysis of Comments and Changes section for
subpart B, we have clarified in Sec. 300.107(a) that States must
ensure that public agencies take steps to provide nonacademic and
extracurricular services and activities, including providing
supplementary aids and services determined appropriate and necessary by
the child's IEP Team to afford children with disabilities an equal
opportunity for participation in those services and activities. We
have, therefore, revised the definition of supplementary aids and
services in new Sec. 300.42 (proposed Sec. 300.41) to be consistent
with this change.
Changes: We have added language in new Sec. 300.42 (proposed Sec.
300.41) to clarify that supplementary aids and services can be provided
in extracurricular and nonacademic settings to enable children with
disabilities to be educated with nondisabled children to the maximum
extent appropriate.
Comment: None.
Discussion: New Sec. 300.42 (proposed Sec. 300.41) contains an
incorrect reference to Sec. 300.112. The correct reference should be
to Sec. 300.114.
Changes: We have removed the reference to Sec. 300.112 and
replaced it with a reference to Sec. 300.114.
Transition Services (New Sec. 300.43) (Proposed Sec. 300.42)
Comment: One commenter recommended replacing the word ``child''
with ``student'' in the definition of transition services.
Discussion: The definition of transition services follows the
language in section 602(34) of the Act. The words ``child'' and
``student'' are used throughout the Act and we have used the statutory
language in these regulations whenever possible.
Changes: None.
Comment: One commenter recommended that the regulations include
vocational and career training through work-study as a type of
transition service. A few commenters stated that the definition of
transition services must specify that a student's need for transition
services cannot be based on the category or severity of a student's
disability, but rather on the student's individual needs.
[[Page 46579]]
Discussion: We do not believe it is necessary to change the
definition of transition services because the definition is written
broadly to include a range of services, including vocational and career
training that are needed to meet the individual needs of a child with a
disability. The definition clearly states that decisions regarding
transition services must be made on the basis of the child's individual
needs, taking into account the child's strengths, preferences, and
interests. As with all special education and related services, the
student's IEP Team determines the transition services that are needed
to provide FAPE to a child with a disability based on the needs of the
child, not on the disability category or severity of the disability. We
do not believe further clarification is necessary.
Changes: None.
Comment: A few commenters stated that the regulations do not define
``functional'' or explain how a student's functional performance
relates to the student's unique needs or affects the student's
education. The commenters noted that the word ``functional'' is used
throughout the regulations in various forms, including ``functional
assessment,'' ``functional goals,'' ``functional abilities,''
``functional needs,'' ``functional achievement,'' and ``functional
performance,'' and should be defined to avoid confusion. One commenter
recommended either defining the term or explicitly authorizing States
to define the term.
One commenter recommended clarifying that ``functional
performance'' must be a consideration for any child with a disability
who may need services related to functional life skills and not just
for students with significant cognitive disabilities. A few commenters
stated that the definition of transition services must specify that
``functional achievement'' includes achievement in all major life
functions, including behavior, social-emotional development, and daily
living skills.
Discussion: We do not believe it is necessary to include a
definition of ``functional'' in these regulations because the word is
generally used to refer to activities and skills that are not
considered academic or related to a child's academic achievement as
measured on Statewide achievement tests. There is nothing in the Act
that would prohibit a State from defining ``functional,'' as long as
the definition and its use are consistent with the Act.
We also do not believe it is necessary for the definition of
transition services to refer to all the major life functions or to
clarify that functional performance must be a consideration for any
child with a disability, and not just for students with significant
cognitive disabilities. As with all special education and related
services, the student's IEP Team determines the services that are
needed to provide FAPE to a child with a disability based on the needs
of the child.
Changes: None.
Comment: One commenter requested a definition of ``results-oriented
process.''
Discussion: The term ``results-oriented process,'' which appears in
the statutory definition of transition services, is generally used to
refer to a process that focuses on results. Because we are using the
plain meaning of the term (i.e., a process that focuses on results), we
do not believe it is necessary to define the term in these regulations.
Changes: None.
Comment: A few commenters stated that ``acquisition of daily living
skills and functional vocational evaluation'' is unclear as a child
does not typically ``acquire'' an evaluation. The commenters stated
that the phrase should be changed to ``functional vocational skills.''
Discussion: We agree that the phrase is unclear and will clarify
the language in the regulation to refer to the ``provision of a
functional vocational evaluation.''
Changes: We have added ``provision of a'' before ``functional
vocational evaluation'' in new Sec. 300.43(a)(2)(v) for clarity.
Universal Design (New Sec. 300.44) (Proposed Sec. 300.43)
Comment: Many commenters requested including the full definition of
universal design in the regulations, rather than providing a reference
to the definition of the term.
Discussion: The term universal design is defined in the Assistive
Technology Act of 1998, as amended. For the reasons set forth earlier
in this notice, we are not including in these regulations full
definitions of terms that are defined in other statutes. However, we
will include the definition of this term from section 3 of the
Assistive Technology Act of 1998, as amended, 29 U.S.C. 3002, here for
reference.
The term universal design means a concept or philosophy for
designing and delivering products and services that are usable by
people with the widest possible range of functional capabilities, which
include products and services that are directly accessible (without
requiring assistive technologies) and products and services that are
interoperable with assistive technologies.
Changes: None.
Comment: Several commenters stated that the definition of universal
design should be changed to include the universal design of academic
content standards, curricula, instructional materials, and assessments.
Discussion: The definition of universal design is statutory.
Congress clearly intended that we use this specific definition when it
used this term in the Act. We do not believe we can change this
definition as suggested by the commenters.
Changes: None.
Subpart B--State Eligibility
FAPE Requirements
Free Appropriate Public Education (FAPE) (Sec. 300.101)
Comment: One commenter recommended revising Sec. 300.101 to ensure
that children with disabilities who are suspended or expelled from
their current placement are provided educational services consistent
with State academic achievement standards. One commenter asked whether
children with disabilities who are suspended or expelled from their
current placement must continue to be taught by highly qualified
teachers.
Discussion: We believe the concern raised by the commenter is
already addressed by this regulation and elsewhere in the regulations
and that no changes to Sec. 300.101 are necessary. Section 300.530(d),
consistent with section 615(k)(1)(D) of the Act, clarifies that a child
with a disability who is removed from his or her current placement for
disciplinary reasons, irrespective of whether the behavior is
determined to be a manifestation of the child's disability, must be
allowed to participate in the general education curriculum, although in
another setting, and to progress toward meeting his or her IEP goals.
As the term ``general education curriculum'' is used throughout the Act
and in these regulations, the clear implication is that there is an
education curriculum that is applicable to all children and that this
curriculum is based on the State's academic content standards.
Children with disabilities who are suspended or expelled from their
current placement in public schools must continue to be taught by
highly qualified teachers, consistent with the requirements in
Sec. Sec. 300.156 and 300.18. Private school teachers are not subject
to the highly qualified teacher requirements under this part.
Changes: None.
[[Page 46580]]
Comment: One commenter suggested clarifying in Sec. 300.101 that
FAPE must be available to children with disabilities in the least
restrictive environment.
Discussion: We do not believe further clarification is needed in
Sec. 300.101, as the matter is adequately covered elsewhere in the
regulations. Section 300.101 clarifies that, in order to be eligible to
receive funds under Part B of the Act, States must, among other
conditions, ensure that FAPE is made available to all children with
specified disabilities in mandated age ranges. The term FAPE is defined
in Sec. 300.17 and section 602(9)(D) of the Act as including, among
other elements, special education and related services, provided at no
cost to parents, in conformity with an individualized education program
(IEP). Sections 300.114 through 300.118, consistent with section
612(a)(5) of the Act, implement the Act's strong preference for
educating children with disabilities in regular classes with
appropriate aids and supports. Specifically, Sec. 300.114 provides
that States must have in effect policies and procedures ensuring that,
to the maximum extent appropriate, children with disabilities,
including children in public or private institutions or other care
facilities, are educated with children who are nondisabled, and that
special classes, separate schooling, or other removal of children with
disabilities from the regular educational environment occurs only if
the nature or severity of the disability is such that education in
regular classes with the use of supplementary aids and services cannot
be achieved satisfactorily.
Changes: None.
Comment: A few commenters recommended including language in Sec.
300.101(a) specifying that children with disabilities expelled or
suspended from the general education classroom must be provided FAPE in
the least restrictive environment.
Discussion: The Department believes it would not be appropriate to
include the requested language in this section because services in
these circumstances are provided under somewhat different criteria than
is normally the case. Section 300.530 clarifies the procedures school
personnel must follow when removing a child with a disability who
violates a code of student conduct from their current placement (e.g.,
suspension and expulsion). This includes how decisions are made
regarding the educational services the child receives and the location
in which they will be provided. School officials need some reasonable
amount of flexibility in providing services to children with
disabilities who have violated school conduct rules, and should not
necessarily have to provide exactly the same services, in the same
settings, to these children. Therefore, we decline to regulate further
in this regard.
Changes: None.
Comment: Some commenters expressed concern that children with
disabilities have to fail or be retained in a grade or course in order
to be considered eligible for special education and related services.
Discussion: Section 300.101(c) provides that a child is eligible to
receive special education and related services even though the child is
advancing from grade to grade. Further, it is implicit from paragraph
(c) of this section that a child should not have to fail a course or be
retained in a grade in order to be considered for special education and
related services. A public agency must provide a child with a
disability special education and related services to enable him or her
to progress in the general curriculum, thus making clear that a child
is not ineligible to receive special education and related services
just because the child is, with the support of those individually
designed services, progressing in the general curriculum from grade-to-
grade or failing a course or grade. The group determining the
eligibility of a child for special education and related services must
make an individual determination as to whether, notwithstanding the
child's progress in a course or grade, he or she needs or continues to
need special education and related services. However, to provide
additional clarity we will revise paragraph (c)(1) of this section to
explicitly state that children do not have to fail or be retained in a
course or grade in order to be considered eligible for special
education and related services.
Changes: Section 300.101(c)(1) has been revised to provide that
children do not have to fail or be retained in a course or grade in
order to be considered eligible for special education and related
services.
Limitation--Exception to FAPE for Certain Ages (Sec. 300.102)
Comment: One commenter requested that the regulations clarify that
children with disabilities who do not receive a regular high school
diploma continue to be eligible for special education and related
services. One commenter expressed concern that the provision in Sec.
300.102(a)(3)(ii) regarding children with disabilities who have not
been awarded a regular high school diploma could result in the delay of
transition services in the context of the child's secondary school
experience and postsecondary goals.
Discussion: We believe that Sec. 300.102(a)(3) is sufficiently
clear that public agencies need not make FAPE available to children
with disabilities who have graduated with a regular high school diploma
and that no change is needed to the regulations. Children with
disabilities who have not graduated with a regular high school diploma
still have an entitlement to FAPE until the child reaches the age at
which eligibility ceases under the age requirements within the State.
However, we have reviewed the regulations and believe that it is
important for these regulations to define ``regular diploma''
consistent with the ESEA regulations in 34 CFR Sec. 200.19(a)(1)(i).
Therefore, we will add language to clarify that a regular high school
diploma does not include an alternative degree that is not fully
aligned with the State's academic standards, such as a certificate or
general educational development (GED) credential.
We do not believe Sec. 300.102 could be interpreted to permit
public agencies to delay implementation of transition services, as
stated by one commenter because transition services must be provided
based on a child's age, not the number of years the child has remaining
in the child's high school career. Section 300.320(b), consistent with
section 614(d)(1)(A)(i)(VIII) of the Act, requires each child's IEP to
include, 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, appropriate measurable postsecondary goals and the transition
services needed to assist the child in reaching those goals.
Changes: A new paragraph (iv) has been added in Sec. 300.102(a)(3)
stating that a regular high school diploma does not include an
alternative degree that is not fully aligned with the State's academic
standards, such as a certificate or GED.
Comment: One commenter requested clarification as to how States
should include children with disabilities who require special education
services through age 21 in calculating, for adequate yearly progress
(AYP) purposes, the percentage of children who graduate with a regular
high school diploma in the standard number of years. The commenter
expressed concern that States, in order to comply with their high
school graduation rate academic outcome requirements under the ESEA,
will change the grade status from 12th grade to 11th grade for those
children with disabilities who will typically age out of the public
education
[[Page 46581]]
system under the Act. The commenter further stated that this will
affect the exception to FAPE provisions in Sec. 300.102 for children
with disabilities who require special education services through age
21.
Discussion: The calculation of graduation rates under the ESEA for
AYP purposes (34 CFR 200.19(a)(1)(i)) does not alter the exception to
FAPE provisions in Sec. 300.102(a)(3) for children with disabilities
who graduate from high school with a regular high school diploma, but
not in the standard number of years. The public agency must make FAPE
available until age 21 or the age limit established by State law, even
though the child would not be included as graduating for AYP purposes
under the ESEA. In practice, though, there is no conflict between the
Act and the ESEA, as the Department interprets the ESEA title I
regulations to permit States to propose a method for accurately
accounting for students who legitimately take longer than the standard
number of years to graduate.
Changes: None.
Residential Placement: (Sec. 300.104)
Comment: A few commenters requested that the regulations clarify
that parents cannot be held liable for any costs if their child with a
disability is placed in a residential setting by a public agency in
order to provide FAPE to the child.
Discussion: Section 300.104, consistent with section 612(a)(1) and
(a)(10)(B) of the Act, is a longstanding provision that applies to
placements that are made by public agencies in public and private
institutions for educational purposes and clarifies that parents are
not required to bear the costs of a public or private residential
placement if such placement is determined necessary to provide FAPE. If
a public agency determines in an individual situation that a child with
a disability cannot receive FAPE from the programs that the public
agency conducts and, therefore, placement in a public or private
residential program is necessary to provide special education and
related services to the child, the program, including non-medical care
and room and board, must be at no cost to the parents of the child.
In situations where a child's educational needs are inseparable
from the child's emotional needs and an individual determination is
made that the child requires the therapeutic and habilitation services
of a residential program in order to ``benefit from special
education,'' these therapeutic and habilitation services may be
``related services'' under the Act. In such a case, the SEA is
responsible for ensuring that the entire cost of that child's
placement, including the therapeutic care as well as room and board, is
without cost to the parents. However, the SEA is not responsible for
providing medical care. Thus, visits to a doctor for treatment of
medical conditions are not covered services under Part B of the Act and
parents may be responsible for the cost of the medical care.
Changes: None.
Assistive Technology (Sec. 300.105)
Comment: One commenter recommended removing Sec. 300.105 and
including the requirements in this section in the definition of
assistive technology device in Sec. 300.5 and assistive technology
service in Sec. 300.6.
Discussion: Section 300.5 and Sec. 300.6 define the terms
assistive technology device and assistive technology service,
respectively. Section 300.105 is not part of the definition of these
terms, but rather is necessary to specify the circumstances under which
public agencies are responsible for making available assistive
technology devices and assistive technology services to children with
disabilities.
Changes: None.
Comment: A few commenters requested clarifying in Sec. 300.105(b)
whether hearing aids are included in the definition of an assistive
technology device.
Discussion: An assistive technology device, as defined in Sec.
300.5, means any item, piece of equipment, or product system that is
used to increase, maintain, or improve the functional capabilities of a
child with a disability. The decision of whether a hearing aid is an
assistive technology device is a determination that is made on an
individual basis by the child's IEP Team. However, even if the IEP Team
determines that a hearing aid is an assistive technology device, within
the meaning of Sec. 300.5, for a particular child, the public agency
is responsible for the provision of the assistive technology device as
part of FAPE, only if, as specified in Sec. 300.105, the device is
required as part of the child's special education defined in Sec.
300.39, related services defined in Sec. 300.34, or supplementary aids
and services defined in Sec. 300.42.
As a general matter, public agencies are not responsible for
providing personal devices, such as eyeglasses or hearing aids that a
child with a disability requires, regardless of whether the child is
attending school. However, if it is not a surgically implanted device
and a child's IEP Team determines that the child requires a personal
device (e.g., eyeglasses) in order to receive FAPE, the public agency
must ensure that the device is provided at no cost to the child's
parents.
Changes: None.
Comment: One commenter recommended adding language to Sec.
300.105(b) to include, in addition to hearing aids, other hearing
enhancement devices, such as a cochlear implant.
Discussion: Section 300.105(b), as proposed, requires a public
agency to ensure that hearing aids worn in school by children with
hearing impairments, including deafness, are functioning properly. This
is a longstanding requirement and was included pursuant to a House
Committee Report on the 1978 appropriations bill (H. Rpt. No. 95-381,
p. 67 (1977)) directing the Department to ensure that children with
hearing impairments are receiving adequate professional assessment,
follow-up, and services. The Department believes that, given the
increase in the number of children with disabilities with surgically
implanted devices (e.g., cochlear implants, vagus nerve stimulators,
electronic muscle stimulators), and rapid advances in new technologies
to help children with disabilities, it is important that these
regulations clearly address any obligation public agencies have to
provide follow-up and services to ensure that such devices are
functioning properly.
Section 602(1) of the Act clarifies that the definition of
assistive technology device does not include a medical device that is
surgically implanted or the replacement of such device. Section 602(26)
of the Act also stipulates that only medical services that are for
diagnostic and evaluative purposes and required to assist a child with
a disability to benefit from special education are considered a related
service. We believe Congress was clear in its intent in S. Rpt. 108-
185, p. 8, which states:
[T]he definitions of ``assistive technology device'' and
``related services'' do not include a medical device that is
surgically implanted, or the post-surgical maintenance, programming,
or replacement of such device, or an external device connected with
the use of a surgically implanted medical device (other than the
costs of performing routine maintenance and monitoring of such
external device at the same time the child is receiving other
services under the act).
The Department believes, however, that public agencies have an
obligation to change a battery or routinely check an external component
of a surgically
[[Page 46582]]
implanted medical device to make sure it is turned on and operating.
However, mapping a cochlear implant (or paying the costs associated
with mapping) is not routine checking as described above and should not
be the responsibility of a public agency. We will add language to the
regulations to clarify a public agency's responsibility regarding the
routine checking of external components of surgically implanted medical
devices.
Changes: A new Sec. 300.113 has been added with the heading,
``Routine checking of hearing aids and external components of
surgically implanted medical devices.'' Section 300.105(b), regarding
the proper functioning of hearing aids, has been removed and
redesignated as new Sec. 300.113(a). We have added a new paragraph (b)
in new Sec. 300.113 clarifying that, for a child with a surgically
implanted medical device who is receiving special education and related
services under this part, a public agency is responsible for routine
checking of external components of surgically implanted medical
devices, but is not responsible for the post-surgical maintenance,
programming, or replacement of a medical device that has been
surgically implanted (or of an external component of a surgically
implanted medical device).
The provisions in Sec. 300.105 have been changed to conform with
the other changes to this section and the phrase ``proper functioning
of hearing aids'' has been removed from the heading.
Extended School Year Services (Sec. 300.106)
Comment: Several commenters recommended removing Sec. 300.106
because the requirement to provide extended school year (ESY) services
to children with disabilities is not required in the Act.
Discussion: The requirement to provide ESY services to children
with disabilities who require such services in order to receive FAPE
reflects a longstanding interpretation of the Act by the courts and the
Department. The right of an individual child with a disability to
receive ESY services is based on that child's entitlement to FAPE under
section 612(a)(1) of the Act. Some children with disabilities may not
receive FAPE unless they receive necessary services during times when
other children, both disabled and nondisabled, normally would not be
served. We believe it is important to retain the provisions in Sec.
300.106 because it is necessary that public agencies understand their
obligation to ensure that children with disabilities who require ESY
services in order to receive FAPE have the necessary services available
to them, and that individualized determinations about each disabled
child's need for ESY services are made through the IEP process.
Changes: None.
Comment: One commenter stated that the ESY requirements in Sec.
300.106 should not be included as part of the State eligibility
requirements and would be more appropriately included in the definition
of FAPE in Sec. 300.17.
Discussion: The definition of FAPE in Sec. 300.17 is taken
directly from section 602(9) of the Act. We believe the ESY
requirements are appropriately included under the FAPE requirements as
a part of a State's eligibility for assistance under Part B of the Act
because the right of an individual child with a disability to ESY
services is based on a child's entitlement to FAPE. As a part of the
State's eligibility for assistance under Part B of the Act, the State
must make FAPE available to all children with disabilities residing in
the State in mandated age ranges.
Changes: None.
Comment: One commenter recommended removing the word ``only'' in
Sec. 300.106(a)(2) because it is unduly limiting.
Discussion: The inclusion of the word ``only'' is intended to be
limiting. ESY 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. We do not think this language is overly
restrictive; instead, we think it is necessary for providing
appropriate parameters to the responsibility of the IEP Team.
Changes: None.
Comment: A few commenters suggested revising Sec. 300.106(a)(3)(i)
to specifically state that, in addition to particular categories of
disabilities, public agencies may not limit ESY services to particular
age ranges. Other commenters proposed adding ``preschooler with a
disability'' to the definition of ESY services in Sec. 300.106(b)(1).
Discussion: The revisions recommended by the commenters are not
necessary. Section 300.106(a) clarifies that each public agency must
ensure that ESY services are available for children with disabilities
if those services are necessary for the children to receive FAPE.
Section 300.101(a) clearly states that FAPE must be available to all
children aged 3 through 21, inclusive, residing in the State, except
for children ages 3, 4, 5, 18, 19, 20, or 21 to the extent that its
application to those children would be inconsistent with State law or
practice, or the order of any court, regarding the provision of public
education to children of those ages. We do not believe any further
clarification is necessary.
Changes: None.
Comment: One commenter requested that language be added to Sec.
300.106(b)(1)(i) to clarify that providing ESY services to a child with
a disability beyond the normal school year includes, but is not limited
to, before and after regular school hours, on weekends, and during
regular school vacations.
Discussion: Typically, ESY services are provided during the summer
months. However, there is nothing in Sec. 300.106 that would limit a
public agency from providing ESY services to a child with a disability
during times other than the summer, such as before and after regular
school hours or during school vacations, if the IEP Team determines
that the child requires ESY services during those time periods in order
to receive FAPE. The regulations give the IEP Team the flexibility to
determine when ESY services are appropriate, depending on the
circumstances of the individual child.
Changes: None.
Comment: One commenter suggested adding language to Sec. 300.106
clarifying that ``recoupment and retention'' should not be used as the
sole criteria for determining the child's eligibility for ESY services.
Discussion: We do not believe the commenter's suggested change
should be made. The concepts of ``recoupment'' and ``likelihood of
regression or retention'' have formed the basis for many standards that
States use in making ESY eligibility determinations and are derived
from well-established judicial precedents. (See, for example, Johnson
v. Bixby Independent School District 4, 921 F.2d 1022 (10th Cir. 1990);
Crawford v. Pittman, 708 F.2d 1028 (5th Cir. 1983); GARC v. McDaniel,
716 F.2d 1565 (11th Cir. 1983)). States may use recoupment and
retention as their sole criteria but they are not limited to these
standards and have considerable flexibility in determining eligibility
for ESY services and establishing State standards for making ESY
determinations. However, whatever standard a State uses must be
consistent with the individually-oriented requirements of the Act and
may not limit eligibility for ESY services to children with a
particular disability category or be applied in a manner that denies
children with disabilities who
[[Page 46583]]
require ESY services in order to receive FAPE access to necessary ESY
services.
Changes: None.
Nonacademic Services (Sec. 300.107)
Comment: One commenter recommended adding more specific language in
Sec. 300.107 regarding services and accommodations available for
nonacademic activities to ensure that children with disabilities are
fully included in nonacademic activities.
Discussion: We agree with the commenter. Section 300.107(a), as
proposed, requires public agencies to take steps to provide nonacademic
and extracurricular services and activities in a manner necessary to
afford children with disabilities an equal opportunity to participate
in those services and activities. In addition, Sec. 300.320(a)(4)(ii),
consistent with section 614(d)(1)(i)(IV)(bb) of the Act, clarifies that
an IEP must include a statement of the special education and related
services and supplementary aids and services to be provided to the
child to participate in extracurricular and other nonacademic
activities. We will add language in Sec. 300.107(a) to clarify that
the steps taken by public agencies to provide access to nonacademic and
extracurricular services and activities include the provision of
supplementary aids and services determined appropriate and necessary by
the child's IEP Team.
Changes: Additional language has been added in Sec. 300.107(a) to
clarify that the steps taken by public agencies to provide access to
nonacademic and extracurricular services and activities include the
provision of supplementary aids and services determined appropriate and
necessary by the child's IEP Team.
Comment: One commenter expressed concern about including
``nonacademic services'' in Sec. 300.107, because it is not in the
Act. The commenter stated that services such as athletics, recreational
activities and clubs, counseling, transportation and health services
should not be included in the regulations because they may be costly
and are usually available on a limited basis. One commenter stated that
it is confusing to include related services in the examples of
nonacademic services and recommended that they be removed.
Discussion: The list of nonacademic and extracurricular services
and activities in Sec. 300.107(b) is not exhaustive. The list provides
public agencies with examples of services and activities that may
afford children with disabilities an equal opportunity for
participation in the services offered to other children of the public
agency. We disagree that the list of activities causes confusion with
related services, as we think that the public can easily recognize the
difference between academic counseling services, for example, that are
offered to all children, and the type of counseling services that might
be included in a child's IEP as a related service. For these reasons,
we believe it is appropriate to maintain the list of nonacademic and
extracurricular services and activities in Sec. 300.107, including
those services that are also related services in Sec. 300.34.
Changes: None.
Physical Education (Sec. 300.108)
Comment: A few commenters stated that, in some States, physical
education is not required for every nondisabled child every year and
this creates situations in which children with disabilities are in
segregated physical education classes. The commenters recommended that
the regulations clarify the requirements for public agencies to make
physical education available to children with disabilities when
physical education is not available to children without disabilities.
Discussion: Section 300.108 describes two considerations that a
public agency must take into account to meet the physical education
requirements in this section. First, physical education must be made
available equally to children with disabilities and children without
disabilities. If physical education is not available to all children
(i.e., children with and without disabilities), the public agency is
not required to make physical education available for children with
disabilities (e.g., a district may provide physical education to all
children through grade 10, but not to any children in their junior and
senior years). Second, if physical education is specially designed to
meet the unique needs of a child with a disability and is set out in
that child's IEP, those services must be provided whether or not they
are provided to other children in the agency.
This is the Department's longstanding interpretation of the
requirements in Sec. 300.108 and is based on legislative history that
the intent of Congress was to ensure equal rights for children with
disabilities. The regulation as promulgated in 1977 was based on an
understanding that physical education was available to all children
without disabilities and, therefore, must be made available to all
children with disabilities. As stated in H. Rpt. No. 94-332, p. 9,
(1975):
Special education as set forth in the Committee bill includes
instruction in physical education, which is provided as a matter of
course to all non-handicapped children enrolled in public elementary
and secondary schools. The Committee is concerned that although
these services are available to and required of all children in our
school systems, they are often viewed as a luxury for handicapped
children.
We agree that Sec. 300.108(a) could be interpreted to mean that
physical education must be made available to all children with
disabilities, regardless of whether physical education is provided to
children without disabilities. We will, therefore, revise paragraph (a)
to clarify that the public agency has no obligation to provide physical
education for children with disabilities if it does not provide
physical education to nondisabled children attending their schools.
Changes: Section 300.108(a) has been revised as described in the
preceding paragraph.
Full Education Opportunity Goal (FEOG) (Sec. 300.109)
Comment: One commenter requested that the regulations clarify how a
State communicates and monitors the progress of the State's FEOG.
Discussion: We do not believe it is appropriate to regulate how a
State communicates and monitors its progress toward the State's FEOG.
We believe the State should have the flexibility needed to implement
the provisions of this section and the State is in the best position to
make this determination.
Changes: None.
Program Options (Sec. 300.110)
Comment: A few commenters recommended revising Sec. 300.110 to
require States to ensure that each public agency have in effect
policies, procedures, and programs to provide children with
disabilities the variety of educational programs and services available
to nondisabled children. The commenters stated that Sec. 300.110 does
not provide any guidance to educators. A few commenters stated that
``vocational education is an outdated term'' and proposed replacing it
with ``career-technical and adult education'' or ``career and technical
education.''
Discussion: We do not believe it is necessary to change Sec.
300.110. Under this provision, States must ensure that public agencies
take steps to ensure that children with disabilities have access to the
same program options that are available to nondisabled children in the
area served by the agency, whatever those options are, and we are not
aware of any implementation problems with
[[Page 46584]]
this requirement. We believe that it is important that educators
understand that children with disabilities must have access to the same
range of programs and services that a public agency provides to
nondisabled children and that the regulation conveys this point. We
also do not believe it is necessary to replace the term ``vocational
education'' with the language recommended by the commenter. The term is
broad in its meaning and generally accepted and understood in the field
and, therefore, would encompass such areas as ``career-technical'' and
``technical education.''
Changes: None.
Comment: Several commenters requested that the regulations
explicitly state that a child with a disability who has not yet
received a regular high school diploma or ``aged out'' of special
education may participate in dual enrollment programs and receive
services in a postsecondary or community-based setting if the IEP Team
decides it is appropriate.
Discussion: Section 300.110, consistent with section 612(a)(2) of
the Act, requires States to ensure that public agencies take steps to
ensure that children with disabilities have access to the same program
options that are available to nondisabled children in the area served
by the agency. This would apply to dual enrollment programs in post-
secondary or community-based settings. Therefore, a State would be
responsible for ensuring that a public agency that offered dual
enrollment programs in post-secondary or community-based settings to a
nondisabled student would have that option available to a student with
disabilities whose IEP Team determined that such a program would best
meet the student's needs. However, we do not believe that the Act
requires public agencies to provide dual enrollment programs in post-
secondary or community-based settings for students with disabilities,
if such programs are not available to nondisabled secondary school
students. Therefore, we are not modifying the regulations.
Changes: None.
Child Find (Sec. 300.111)
Comment: Several commenters expressed confusion about the child
find requirements in Sec. 300.111 and the parental consent
requirements in Sec. 300.300, and requested clarification on whether
child find applies to private school children and whether LEAs may use
the consent override procedures for children with disabilities enrolled
in private schools. Two commenters requested that Sec.
300.111(a)(1)(i) specify that child find does not apply to private
school children whose parents refuse consent.
Discussion: This issue is addressed in the Analysis of Comments and
Changes section for subpart D in response to comments on Sec. 300.300.
Changes: None.
Comment: One commenter recommended retaining current Sec.
300.125(b) to ensure that the child find requirements are retained for
parentally-placed private school children.
Discussion: Current Sec. 300.125(b) was removed from these
regulations because, under the Act, States are no longer required to
have State policies and procedures on file with the Secretary.
Furthermore, the Department believes the requirements in Sec. Sec.
300.111 and 300.131 adequately ensure that parentally-placed private
school children are considered in the child find process.
Changes: None.
Comment: One commenter requested a definition of the term ``private
school,'' as used in Sec. 300.111.
Discussion: The term ``private school'' as used in Sec. 300.111
means a private elementary school or secondary school, including a
religious school. The terms elementary school and secondary school are
defined in subpart A of these regulations. The term private is defined
in 34 CFR Part 77, which applies to this program, and we see no need to
include those definitions here.
Changes: None.
Comment: One commenter requested that the child find requirements
in Sec. 300.111(c)(2) include homeless children.
Discussion: Homeless children are already included in the child
find requirements. Section 300.111(a)(1)(i) clarifies that the State
must have policies and procedures to ensure that children with
disabilities who are homeless and who are in need of special education
and related services, are identified, located, and evaluated. No
further clarification is needed.
Changes: None.
Comment: A few commenters recommended including in Sec. 300.111
the requirements in current Sec. 300.125(c), regarding child find for
children from birth through age two when the SEA and lead agency for
the Part C program are different. The commenters stated that this will
ensure that children with disabilities from birth through age two are
eligible to participate in child find activities when the Part C lead
agency is not the SEA.
Discussion: The Department does not believe it is necessary to
retain the language in current Sec. 300.125(c). The child find
requirements in Sec. 300.111 have traditionally been interpreted to
mean identifying and evaluating children beginning at birth. While
child find under Part C of the Act overlaps, in part, with child find
under Part B of the Act, the coordination of child find activities
under Part B and Part C is an implementation matter that is best left
to each State. Nothing in the Act or these regulations prohibits a 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.
Changes: None.
Comment: One commenter recommended removing Sec. 300.111(c)
because child find for children with developmental delays, older
children progressing from grade to grade, and highly mobile children is
not specifically required by the Act.
Discussion: The changes requested by the commenter cannot be made
because they are inconsistent with the Act. Section 300.111(a)(1)(i),
consistent with section 612(a)(3)(A) of the Act, explicitly requires
that all children with disabilities residing in the State are
identified, located, and evaluated. This includes children suspected of
having developmental delays, as defined in section 602(3)(B) of the
Act. We recognize that it is difficult to locate, identify, and
evaluate highly mobile and migrant children with disabilities. However,
we strongly believe it is important to stress in these regulations that
the States' child find responsibilities in Sec. 300.111 apply equally
to such children. We also believe it is important to clarify that a
child suspected of having a disability but who has not failed, is
making academic progress, and is passing from grade to grade must be
considered in the child find process as any other child suspected of
having a disability. As noted earlier in the discussion regarding Sec.
300.101, paragraph (c)(1) of Sec. 300.111 has been revised to clarify
that children do not have to fail or be retained in a course or grade
in order to be considered for special education and related services.
Changes: None.
Comment: One commenter requested that Sec. 300.111 explicitly
require that children in residential facilities be included in the
public agency's child find process.
Discussion: We believe Sec. 300.111(a), consistent with section
612(a)(3)(A) of the Act, clarifies that the State must ensure that all
children with disabilities residing in the State are identified,
located, and evaluated. This would
[[Page 46585]]
include children in residential facilities. No further clarification is
necessary.
Changes: None.
Individualized Education Programs (IEP) (Sec. 300.112)
Comment: One commenter objected to including the reference to Sec.
300.300(b)(3)(ii) in Sec. 300.112, stating that it is not necessary to
ensure compliance with the requirement for an IEP or IFSP to be
developed, reviewed, and revised for each child with a disability.
Discussion: Section 300.300(b)(3)(ii) states that if a parent
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 or develop an IEP for the child. It is necessary to include
this reference in Sec. 300.112 to clarify the circumstances under
which a public agency is not required to develop an IEP for an eligible
child with a disability.
Changes: None.
Routine Checking of Hearing Aids and External Components of Surgically
Implanted Medical Devices (Sec. 300.113)
Comment: None.
Discussion: New Sec. 300.113 is addressed in the Analysis of
Comments and Changes section for subpart A in response to comments on
Sec. 300.34(b).
Changes: We have added new Sec. 300.113 to cover the routine
checking of hearing aids and external components of surgically
implanted medical devices. The requirement for the routine checking of
hearing aids has been removed from proposed Sec. 300.105 and included
in new Sec. 300.113(a). The requirement for routine checking of an
external component of a surgically implanted medical device has been
added as new Sec. 300.113(b). The requirements for assistive
technology devices and services remain in Sec. 300.105 and the heading
has been changed to reflect this change. We have also included a
reference to new Sec. 300.113(b) in new Sec. 300.34(b)(2).
Least Restrictive Environment (LRE)
LRE Requirements (Sec. 300.114)
Comment: One commenter recommended including language in the
regulations that respects and safeguards parental involvement and
protects the rights of children with disabilities to be educated in the
least restrictive environment (LRE).
Discussion: We believe that the LRE requirements in Sec. Sec.
300.114 through 300.120 address the rights of children with
disabilities to be educated in the LRE, as well as safeguard parental
rights. Section 300.114, consistent with section 612(a)(5) of the Act,
requires each public agency to ensure that, to the maximum extent
appropriate, children with disabilities are educated with children who
are not disabled. Further, Sec. 300.116 ensures that a child's parent
is included in the group of persons making the decision about the
child's placement.
Changes: None.
Comment: A number of comments were received regarding Sec.
300.114(a)(2)(ii), which requires each public agency to ensure that the
removal of children with disabilities from the regular educational
environment occurs only when the nature or severity of the disability
is such that the education in regular classes with the use of
supplementary aids and services cannot be achieved satisfactorily. Many
commenters recommended replacing ``regular educational environment''
with ``regular classroom'' because ``regular classroom'' is less likely
to be misinterpreted to mean any kind of contact with children without
disabilities. A few commenters expressed concern that using the phrase
``regular educational environment'' weakens the LRE protections.
Another commenter recommended the regulations clarify that the
``regular educational environment'' means the participation of children
with disabilities with their nondisabled peers in regular classrooms
and other educational settings including nonacademic settings.
Discussion: Section 300.114(a)(2)(ii) follows the specific language
in section 612(a)(5)(A) of the Act and reflects previous regulatory
language. This requirement is longstanding. We do not believe the
language should be revised, as recommended by the commenters, because
``regular educational environment'' encompasses regular classrooms and
other settings in schools such as lunchrooms and playgrounds in which
children without disabilities participate.
Changes: None.
Comment: One commenter requested revising Sec. 300.114(a)(2) to
require a public agency to document and justify placements of children
with disabilities in environments outside the general education
classroom.
Discussion: The additional language requested by the commenter is
not necessary and would impose unwarranted paperwork burdens on
schools. Section 300.320(a)(5), consistent with section
614(d)(1)(A)(i)(V) of the Act, already requires a child's IEP to
include an explanation of the extent, if any, to which the child will
not participate with nondisabled children in the regular class. As
noted previously, parents are a part of the group making placement
decisions. We believe these provisions provide sufficient safeguards on
the placement process.
Changes: None.
Comment: One commenter stated that the LRE requirements are often
misinterpreted to be a mandate to include all children who are deaf or
hard of hearing in their local schools. The commenter stated that the
placement decision for a child who is deaf or hard of hearing should be
based on the child's communication needs and must be the environment
that presents the fewest language and communication barriers to the
child's cognitive, social, and emotional development. Some commenters
cautioned that inclusive settings might be inappropriate for a child
who is deaf and who requires communication support and stated that the
LRE should be the place where a child can be educated successfully. A
few commenters requested the regulations clarify that all placement
options must remain available for children who are deaf.
One commenter recommended strengthening the requirement for a
continuum of alternative placements and stated that a full range of
placement options is necessary to meet the needs of all children with
visual impairments. Another commenter urged the Department to ensure
that children with low-incidence disabilities (including children who
are deaf, hard of hearing, or deaf-blind) have access to appropriate
educational programming and services at all times, including center-
based schools, which may be the most appropriate setting for children
with low-incidence disabilities.
Discussion: The LRE requirements in Sec. Sec. 300.114 through
300.117 express a strong preference, not a mandate, for educating
children with disabilities in regular classes alongside their peers
without disabilities. Section 300.114(a)(2), consistent with section
612(a)(5)(A) of the Act, requires that, to the maximum extent
appropriate, children with disabilities are educated with children who
are not disabled, and that special classes, separate schooling, or
other removal of children with disabilities from the regular
educational environment occurs only when the nature or severity of the
disability is such that education in regular classes with the use of
supplementary aids and
[[Page 46586]]
services cannot be achieved satisfactorily.
With respect to the recommendation that the placement for children
who are deaf or hard of hearing be based on the child's communication
needs, Sec. 300.324(a)(2)(iv), consistent with section
614(d)(3)(B)(iv) of the Act, clarifies that the IEP Team, in developing
the IEP for a child who is deaf or hard of hearing, must consider the
child's language and communication needs, opportunities for direct
communication with peers and professional personnel in the child's
language and communication mode, and the child's academic level and
full range of needs, including opportunities for direct instruction in
the child's language and communication mode.
With respect to strengthening the continuum of alternative
placement requirements, nothing in the LRE requirements would prevent
an IEP Team from making a determination that placement in the local
school is not appropriate for a particular child. Section 300.115
already requires each public agency to ensure that a continuum of
alternative placements is available to meet the needs of children with
disabilities for special education and related services. We believe
this adequately addresses the commenter's concern.
The process for determining the educational placement for children
with low-incidence disabilities (including children who are deaf, hard
of hearing, or deaf-blind) is the same process used for determining the
educational placement for all children with disabilities. That is, each
child's educational placement must be determined on an individual case-
by-case basis depending on each child's unique educational needs and
circumstances, rather than by the child's category of disability, and
must be based on the child's IEP. We believe the LRE provisions are
sufficient to ensure that public agencies provide low-incidence
children with disabilities access to appropriate educational
programming and services in the educational setting appropriate to meet
the needs of the child in the LRE.
Changes: None.
Comment: One commenter requested that the regulations clarify that
children with disabilities who are suspended or expelled from school
are entitled to be educated with children who are not disabled. The
commenter stated that this clarification is necessary to reduce the use
of home instruction as a placement option for these children.
Discussion: The Act does not require that children with
disabilities suspended or expelled for disciplinary reasons continue to
be educated with children who are not disabled during the period of
their removal. We believe it is important to ensure that children with
disabilities who are suspended or expelled from school receive
appropriate services, while preserving the flexibility of school
personnel to remove a child from school, when necessary, and to
determine how best to address the child's needs during periods of
removal and where services are to be provided to the child during such
periods of removals, including, if appropriate, home instruction.
Sections 300.530 through 300.536 address the options available to
school authorities in disciplining children with disabilities and set
forth procedures that must be followed when taking disciplinary actions
and in making decisions regarding the educational services that a child
will receive and the location in which services will be provided. We
believe including the language recommended by the commenter would
adversely restrict the options available to school personnel for
disciplining children with disabilities and inadvertently tie the hands
of school personnel in responding quickly and effectively to serious
child behaviors and in creating safe classrooms for all children.
Changes: None.
Additional Requirement--State Funding Mechanism (Sec. 300.114(b))
Comment: One commenter stated that Sec. 300.114(b) does not
adequately address the requirements for funding mechanisms relative to
the LRE requirements and requested that note 89 of the Conf. Rpt. be
included in the regulations.
Discussion: Section 300.114(b) incorporates the language from
section 612(a)(5)(B) of the Act and prohibits States from maintaining
funding mechanisms that violate the LRE provisions. We do not believe
it is necessary to provide additional clarification in the regulations.
While we agree with the commenter that note 89 of the Conf. Rpt. makes
clear Congress' intent that State funding mechanisms support the LRE
requirements and do not provide an incentive or disincentive for
certain placement decisions, we believe the requirements in Sec.
300.114(b) accurately capture the essence of the Conf. Rpt. and
including additional language in this paragraph is not needed.
Changes: None.
Comment: One commenter urged the Department to impose financial
sanctions on States that continue to base their funding on certain
placement decisions. A few commenters suggested changing the
requirement in Sec. 300.114(b)(2) for States to provide an assurance
that the State will revise its funding mechanism ``as soon as
feasible'' to ``no later than the start of the 2006-2007 school year.''
Discussion: Section 300.114(b)(2) incorporates the language in
section 612(a)(5)(B)(ii) of the Act, and requires that if a State does
not have policies and procedures to ensure that the State's funding
mechanism does not violate the LRE requirements, the State must provide
the Secretary an assurance that the State will revise its funding
mechanism as soon as feasible. We do not believe it is necessary to
include in these regulations a specific timeline for a State to revise
its funding mechanism, if required to do so pursuant to 300.114(b)(2).
We believe the statutory language ``as soon as feasible,'' while
providing flexibility as to how each State meets the requirement, is
sufficient to ensure States' compliance with this requirement.
Further, we believe the enforcement options in Sec. 300.604 give
the Secretary sufficient means to address a State's noncompliance with
the requirements in Sec. 300.114(b)(2). Section 300.604 describes the
enforcement options available to the Secretary if the Secretary
determines that a State needs assistance or intervention 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. Enforcement options available to the Secretary
include, among others, recovery of funds or withholding, in whole or in
part, any further payments to the State under Part B of the Act.
Changes: None.
Continuum of Alternative Placements (Sec. 300.115)
Comment: One commenter recommended revising Sec. 300.115 so that
only the specific allowable alternative settings listed in the
definition of special education in new Sec. 300.39 (proposed Sec.
300.38) (i.e., classroom, home, hospitals, institutions) are permitted.
Discussion: Section 300.115 requires each public agency to ensure
that a continuum of alternative placements (including 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 list of placement options in this section only expands
the settings
[[Page 46587]]
mentioned in new Sec. 300.39 (proposed Sec. 300.38) by recognizing
the various types of classrooms and settings for classrooms in which
special education is provided. This continuum of alternative placements
is intended to ensure that a child with a disability is served in a
setting where the child can be educated successfully in the LRE.
Changes: None.
Comment: One commenter suggested adding language to the regulations
to clarify that difficulty recruiting and hiring qualified special
education teachers does not relieve an LEA of its obligation to ensure
a continuum of alternative placements and to offer a full range of
services to meet the needs of children with disabilities.
Discussion: We do not believe it is necessary to include the
language suggested by the commenter, because Sec. 300.116 is
sufficiently clear that placement decisions must be based on the
individual needs of each child with a disability. Public agencies,
therefore, must not make placement decisions based on a public agency's
needs or available resources, including budgetary considerations and
the ability of the public agency to hire and recruit qualified staff.
Changes: None.
Comment: A few commenters recommended revising Sec. 300.115(a) to
clarify that the continuum of alternative placements must be available
to eligible preschool children with disabilities.
Discussion: It is not necessary to revise Sec. 300.115(a) in the
manner suggested by the commenters. Section 300.116 clearly states that
the requirements for determining the educational placement of a child
with a disability include preschool children with disabilities and that
such decisions must be made in conformity with the LRE provisions in
Sec. Sec. 300.114 through 300.118. This includes ensuring that a
continuum of services is available to meet the needs of children with
disabilities for special education and related services.
Changes: None.
Placements (Sec. 300.116)
Comment: One commenter recommended the regulations clarify that the
regular class must always be considered the first placement option.
Discussion: We do not believe it is necessary to include the
clarification recommended by the commenter. Section 300.116 clarifies
that placement decisions must be made in conformity with the LRE
provisions, and Sec. 300.114(a)(2) already requires that special
classes, separate schooling or other removal of children with
disabilities from the regular education environment only occurs if the
nature or severity of the disability is such that education in regular
classes with the use of supplementary aids and services cannot be
achieved satisfactorily.
Changes: None.
Comment: A few commenters recommended revising Sec. 300.116 to
require that children with disabilities have access to, and make
progress in, the general curriculum, and that children receive the
special education and related services included in their IEPs.
Discussion: The issues raised by the commenters are already
addressed elsewhere in the regulations. The IEP requirements in Sec.
300.320(a), consistent with section 614(d) of the Act, clarify that
children with disabilities must be provided special education and
related services and needed supplementary aids and services to enable
them to be involved in and make progress in the general curriculum. In
addition, Sec. 300.323(c)(2) requires that, as soon as possible
following the development of an IEP, special education and related
services are made available to the child in accordance with the child's
IEP. We believe that these regulations adequately address the
commenters' concerns, and that no further clarification is necessary.
Changes: None.
Comment: One commenter stated that the placement requirements in
Sec. 300.116 encourage school districts to assign a child with a
disability to a particular place or setting, rather than providing a
continuum of increasingly individualized and intensive services. The
commenter suggested requiring that the continuum of alternative
placements include a progressively more intensive level of
individualized, scientifically based instruction and related services,
both with increased time and lower pupil-teacher ratio, in addition to
regular instruction with supplementary aids and services.
Discussion: The overriding rule in Sec. 300.116 is that placement
decisions for all children with disabilities must be made on an
individual basis and ensure that each child with a disability is
educated in the school the child would attend if not disabled unless
the child's IEP requires some other arrangement. However, the Act does
not require that every child with a disability be placed in the regular
classroom regardless of individual abilities and needs. This
recognition that regular class placement may not be appropriate for
every child with a disability is reflected in the requirement that LEAs
make available a range of placement options, known as a continuum of
alternative placements, to meet the unique educational needs of
children with disabilities. This requirement for the continuum
reinforces the importance of the individualized inquiry, not a ``one
size fits all'' approach, in determining what placement is the LRE for
each child with a disability. The options on this continuum must
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). These options must be available to the
extent necessary to implement the IEP of each child with a disability.
The group determining the placement must select the placement option on
the continuum in which it determines that the child's IEP can be
implemented in the LRE. Any alternative placement selected for the
child outside of the regular educational environment must include
appropriate opportunities for the child to interact with nondisabled
peers, to the extent appropriate to the needs of the children,
consistent with Sec. 300.114(a)(2)(i).
Because placement decisions must be determined on an individual
case-by-case basis depending on each child's unique educational needs
and circumstances and based on the child's IEP, we do not believe it is
appropriate to require in the regulations that the continuum of
alternative placements include a progressively more intensive level of
individualized scientifically based instruction and related services as
suggested by the commenter.
Changes: None.
Comment: We received a number of comments regarding the phrase,
``unless the parent agrees otherwise'' in proposed Sec. 300.116(b)(3)
and (c). As proposed, Sec. 300.116(b)(3) requires the child's
placement to be as close as possible to the child's home, ``unless the
parent agrees otherwise;'' and Sec. 300.116(c) requires that, unless
the child's IEP requires some other arrangement, the child must be
educated in the school that he or she would attend if nondisabled,
``unless the parent agrees otherwise.'' Many commenters requested
removing the phrase ``unless the parent agrees otherwise,'' because it
is not included in section 612(a)(5) of the Act and is not necessary to
clarify that a parent may place his or her child in a charter, magnet,
or other specialized school without violating the LRE requirements.
Other commenters suggested removing the phrase and clarifying that a
decision by the child's parent to send the child to a charter, magnet,
or other specialized
[[Page 46588]]
school is not a violation of the LRE requirements.
Several commenters stated that including the phrase undermines the
statutory requirement for children with disabilities to be placed in
the LRE based on their IEPs and allows more restrictive placements
based on parental choice. Many commenters interpreted this phrase to
mean that placement is a matter of parental choice even in public
school settings and stated that a child's LRE rights should not be
overridden by parental choice. One commenter stated that the phrase
might intimidate parents into accepting inappropriate placements.
A few commenters stated that this phrase is unnecessary because the
Act already requires parents to be involved in placement decisions, and
expressed concern that including this phrase in the regulations could
lead to confusion and litigation. One commenter stated that the phrase
suggests that additional consent is required if the parent chooses to
send the child to a charter, magnet, or other specialized school.
Discussion: The phrase ``unless the parent agrees otherwise'' in
proposed Sec. 300.116(b)(3) and (c) was added to clarify that a parent
may send the child to a charter, magnet, or other specialized school
without violating the LRE mandate. A parent has always had this option;
a parent who chooses this option for the child does not violate the LRE
mandate as long as the child is educated with his or her peers without
disabilities to the maximum extent appropriate. However, we agree that
this phrase is unnecessary, confusing, and may be misunderstood to mean
that parents have a right to veto the placement decision made by the
group of individuals in Sec. 300.116(a)(1). We will, therefore, remove
the phrase.
Changes: We have removed the phrase ``unless the parent agrees
otherwise'' in Sec. 300.116(b)(3) and (c).
Comment: One commenter disagreed with the requirement in Sec.
300.116(b)(3) that placements be as close as possible to the child's
home, stating that the requirement is administratively prohibitive and
beyond the scope of the Act. The commenter stated that it is not
possible for school districts to provide classes for children with all
types and degrees of disabilities in each school building. The
commenter stated that ``placement'' should be understood as the set of
services outlined in a child's IEP, and recommended that school
districts be permitted to provide these services in the school building
that is most administratively feasible.
Discussion: We do not believe the requirement imposes unduly
restrictive administrative requirements. The Department has
consistently maintained that a child with a disability should be
educated in a school as close to the child's home as possible, unless
the services identified in the child's IEP require a different
location. Even though the Act does not mandate that a child with a
disability be educated in the school he or she would normally attend if
not disabled, section 612(a)(5)(A) of the Act presumes that the first
placement option considered for each child with a disability is the
regular classroom in the school that the child would attend if not
disabled, with appropriate supplementary aids and services to
facilitate such placement. Thus, before a child with a disability can
be placed outside of the regular educational environment, the full
range of supplementary aids and services that could be provided to
facilitate the child's placement in the regular classroom setting must
be considered. Following that consideration, if a determination is made
that a particular child with a disability cannot be educated
satisfactorily in the regular educational environment, even with the
provision of appropriate supplementary aids and services, that child
could be placed in a setting other than the regular classroom.
Although the Act does not require that each school building in an
LEA be able to provide all the special education and related services
for all types and severities of disabilities, the LEA has an obligation
to make available a full continuum of alternative placement options
that maximize opportunities for its children with disabilities to be
educated with nondisabled peers to the extent appropriate. In all
cases, placement decisions must be individually determined on the basis
of each child's abilities and needs and each child's IEP, and not
solely on factors such as category of disability, severity of
disability, availability of special education and related services,
configuration of the service delivery system, availability of space, or
administrative convenience.
Changes: None.
Comment: One commenter requested clarifying the difference, if any,
between ``placement'' and ``location.'' One commenter recommended
requiring the child's IEP to include a detailed explanation of why a
child's educational needs cannot be met in the location requested by
the parent when the school district opposes the parent's request for
services to be provided to the child in the school that the child would
attend if the child did not have a disability.
Discussion: Historically, we have referred to ``placement'' as
points along the continuum of placement options available for a child
with a disability, and ``location'' as the physical surrounding, such
as the classroom, in which a child with a disability receives special
education and related services. Public agencies are strongly encouraged
to place a child with a disability in the school and classroom the
child would attend if the child did not have a disability. However, a
public agency may have two or more equally appropriate locations that
meet the child's special education and related services needs and
school administrators should have the flexibility to assign the child
to a particular school or classroom, provided that determination is
consistent with the decision of the group determining placement. It
also should be noted that, under section 615(b)(3) of the Act, a parent
must be given written prior notice that meets the requirements of Sec.
300.503 a reasonable time before a public agency implements a proposal
or refusal to initiate or change the identification, evaluation, or
educational placement of the child, or the provision of FAPE to the
child. Consistent with this notice requirement, parents of children
with disabilities must be informed that the public agency is required
to have a full continuum of placement options, as well as about the
placement options that were actually considered and the reasons why
those options were rejected. While public agencies have an obligation
under the Act to notify parents regarding placement decisions, there is
nothing in the Act that requires a detailed explanation in children's
IEPs of why their educational needs or educational placements cannot be
met in the location the parents' request. We believe including such a
provision would be overly burdensome for school administrators and
diminish their flexibility to appropriately assign a child to a
particular school or classroom, provided that the assignment is made
consistent with the child's IEP and the decision of the group
determining placement.
Changes: None.
Comment: One commenter recommended including in the regulations the
Department's policy that a child's placement in an educational program
that is substantially and materially similar to the former placement is
not a change in placement.
Discussion: As stated by the commenter, it is the Department's
longstanding position that maintaining a child's placement in an
educational
[[Page 46589]]
program that is substantially and materially similar to the former
placement is not a change in placement. We do not believe further
clarification is necessary in the regulations, however, as the
distinction seems to be commonly accepted and understood.
Changes: None.
Comment: Many commenters suggested requiring a public agency to pay
all costs associated with providing FAPE for a child in a private
preschool, including paying for tuition, transportation and such
special education, related services and supplementary aids and services
as the child needs, if an inclusive preschool is the appropriate
placement for a child, and there is no inclusive public preschool that
can provide all the appropriate services and supports.
Discussion: The LRE requirements in Sec. Sec. 300.114 through
300.118 apply to all children with disabilities, including preschool
children who are entitled to FAPE. Public agencies that do not operate
programs for preschool children without disabilities are not required
to initiate those programs solely to satisfy the LRE requirements of
the Act. Public agencies that do not have an inclusive public preschool
that can provide all the appropriate services and supports must explore
alternative methods to ensure that the LRE requirements are met.
Examples of such alternative methods might include placement options in
private preschool programs or other community-based settings. Paying
for the placement of qualified preschool children with disabilities in
a private preschool with children without disabilities is one, but not
the only, option available to public agencies to meet the LRE
requirements. We believe the regulations should allow public agencies
to choose an appropriate option to meet the LRE requirements. However,
if a public agency determines that placement in a private preschool
program is necessary as a means of providing special education and
related services to a child with a disability, the program must be at
no cost to the parent of the child.
Changes: None.
Comment: One commenter suggested clarifying that if a child's
behavior in the regular classroom significantly impairs the learning of
the child or others, that placement would not meet the child's needs
and would not be appropriate for that child.
Discussion: Although the Act places a strong preference in favor of
educating children with disabilities in the regular classroom with
appropriate aids and supports, a regular classroom placement is not
appropriate for every child with a disability. Placement decisions are
made on a case-by-case basis and must be appropriate for the needs of
the child. The courts have generally concluded that, if a child with a
disability has behavioral problems that are so disruptive in a regular
classroom that the education of other children is significantly
impaired, the needs of the child with a disability generally cannot be
met in that environment. However, before making such a determination,
LEAs must ensure that consideration has been given to the full range of
supplementary aids and services that could be provided to the child in
the regular educational environment to accommodate the unique needs of
the child with a disability. If the group making the placement decision
determines, that even with the provision of supplementary aids and
services, the child's IEP could not be implemented satisfactorily in
the regular educational environment, that placement would not be the
LRE placement for that child at that particular time, because her or
his unique educational needs could not be met in that setting. (See
Roncker v. Walter, 700 F. 2d 1058 (6th Cir. 1983); Devries v. Fairfax
County School Bd., 882 F. 2d 876, 879 (4th Cir. 1989); Daniel R.R. v.
State Bd. of Educ., 874 F. 2d 1036 (5th Cir. 1989); and A.W. v.
Northwest R-1 School Dist., 813 F.2d 158, 163 (8th Cir. 1987).)
Changes: None.
Nonacademic Settings (Sec. 300.117)
Comment: One commenter requested that the regulations clarify that
children with disabilities should receive the supplementary aids and
services necessary to ensure their participation in nonacademic and
extracurricular services and activities.
Discussion: Section 300.117, consistent with section 612(a)(5) of
the Act, requires that children with disabilities participate in
nonacademic and extracurricular services and activities with their
nondisabled peers to the maximum extent appropriate to the needs of the
child. The Act places great emphasis on ensuring that children with
disabilities are educated, to the maximum extent appropriate, with
children who are nondisabled and are included in nonacademic and
extracurricular services and activities as appropriate to the needs of
the child. We believe the public agency has an obligation to provide a
child with a disability with appropriate aids, services, and other
supports, as determined by the IEP Team, if necessary to ensure the
child's participation in nonacademic and extracurricular services and
activities. Therefore, we will clarify in Sec. 300.117 that each
public agency must ensure that children with disabilities have the
supplementary aids and services determined necessary by the child's IEP
Team for the child to participate in nonacademic and extracurricular
services and activities to the maximum extent appropriate to the needs
of that child.
Changes: We have added language to Sec. 300.117 to ensure that
children with disabilities receive the supplementary aids and services
needed to participate in nonacademic and extracurricular services and
activities.
Technical Assistance and Training Activities (Sec. 300.119)
Comment: One commenter requested that the regulations define
``training.''
Discussion: The Department intends the term ``training,'' as used
in Sec. 300.119, to have its generally accepted meaning. Training is
generally agreed to be any activity used to enhance one's skill or
knowledge to acquire, maintain, and advance knowledge, skills, and
abilities. Given the general understanding of the term ``training,'' we
do not believe it is necessary to regulate on this matter.
Changes: None.
Children in Private Schools
Children With Disabilities Enrolled by Their Parents in Private Schools
General Comments
Comment: Many comments were received regarding the parentally-
placed private school children with disabilities requirements in
Sec. Sec. 300.130 through 300.144. Many commenters supported the
changes to the regulations and believed the regulations simplify the
processes for both private schools and public schools. Numerous
commenters, however, expressed concern regarding the implementation of
the private school requirements.
Many of the commenters expressed concern with the requirement that
the LEAs where private elementary schools and secondary schools are
located are now responsible for child find, individual evaluations, and
the provision of services for children with disabilities enrolled by
their parents in private schools located in the LEA. These commenters
described the private school provisions in the Act and the NPRM as
burdensome and difficult to understand.
Discussion: The revisions to the Act in 2004 significantly changed
the obligation of States and LEAs to children with disabilities
enrolled by their parents in private elementary
[[Page 46590]]
schools and secondary schools. Section 612(a)(10)(A) of the Act now
requires LEAs in which the private schools are located, rather than the
LEAs in which the parents of such children reside, to conduct child
find and provide equitable services to parentally-placed private school
children with disabilities.
The Act provides that, in calculating the proportionate amount of
Federal funds under Part B of the Act that must be spent on parentally-
placed private school children with disabilities, the LEAs where the
private schools are located, after timely and meaningful consultation
with representatives of private elementary schools and secondary
schools and representatives of parents of parentally-placed private
school children with disabilities, must conduct a thorough and complete
child find process to determine the number of parentally-placed
children with disabilities attending private elementary schools and
secondary schools located in the LEAs. In addition, the obligation of
the LEA to spend a proportionate amount of funds to provide services to
children with disabilities enrolled by their parents in private schools
is now based on the total number of children with disabilities who are
enrolled in private schools located in the LEA whether or not the
children and their parents reside in the LEA.
We believe these regulations and the additional clarification
provided in our responses to comments on Sec. Sec. 300.130 through
300.144 will help States and LEAs to better understand their
obligations in serving children with disabilities placed by their
parents in private elementary schools and secondary schools. In
addition, the Department has provided additional guidance on
implementing the parentally-placed private school requirements on the
Department's Web site. We also are including in these regulations
Appendix B to Part 300--Proportionate Share Calculation to assist LEAs
in calculating the proportionate amount of Part B funds that they must
expend on parentally-placed private school children with disabilities
attending private elementary schools and secondary schools located in
the LEA.
Changes: We have added a reference to Appendix B in Sec.
300.133(b).
Comment: Several commenters expressed concern that Sec. Sec.
300.130 through 300.144 include requirements that go beyond the Act and
recommended that any requirement beyond what is statutory be removed
from these regulations.
Discussion: In general, the regulations track the language in
section 612(a)(10)(A) of the Act regarding children enrolled in private
schools by their parents. However, we determined that including
clarification of the statutory language on parentally-placed private
school children with disabilities in these regulations would be
helpful. The volume of comments received concerning this topic confirm
the need to regulate in order to clarify the statutory language and to
help ensure compliance with the requirements of the Act.
Changes: None.
Comment: Some commenters requested that the regulations provide
flexibility to States to provide services to parentally-placed private
school children with disabilities beyond what they would be able to do
with the proportionate share required under the Act. A few of these
commenters requested that those States already providing an individual
entitlement to special education and related services or providing a
full range of special education services to parentally-placed private
school children be deemed to have met the requirements in Sec. Sec.
300.130 through 300.144 and be permitted to continue the State's
current practices. One commenter specifically recommended allowing
States that provide additional rights or services to parentally-placed
private school children with disabilities (including FAPE under section
612 of the Act and the procedural safeguards under section 615 of the
Act), the option of requesting that the Secretary consider alternate
compliance with these requirements that would include evidence and
supporting documentation of alternate procedures under State law to
meet all the requirements in Sec. Sec. 300.130 through 300.144.
A few commenters requested that the child find and equitable
participation requirements should not apply in States with dual
enrollment provisions where children with disabilities who are
parentally-placed in private elementary schools or secondary schools
are also enrolled in public schools for special education and have IEPs
and retain their due process rights.
Discussion: The Act in no way prohibits States or LEAs from
spending additional State or local funds to provide special education
or related services for parentally-placed private school children with
disabilities in excess of those required in Sec. 300.133 and section
612(a)(10)(A) of the Act, consistent with State law or administrative
procedures. The Act, however, does not provide the Secretary with the
authority to waive, in whole or in part, the parentally-placed private
school requirements in Sec. Sec. 300.130 through 300.144 for States or
LEAs that spend State or local funds to provide special education or
related services beyond those required under Part B of the Act. The
Secretary, therefore, cannot consider alternative compliance with the
parentally-placed private school provisions in the Act and these
regulations or consider States and LEAs that use State and local funds
to provide services to parentally-placed private school children with
disabilities beyond the required proportionate share of Federal Part B
funds, including providing FAPE to such children, to have met the
statutory and regulatory requirements governing parentally-placed
private school children with disabilities. States and LEAs must meet
the requirements in the Act and these regulations.
With regard to the comment requesting that the child find and
equitable participation requirements for parentally-placed private
school children with disabilities not apply in States with dual
enrollment, there is no exception in the Act to the child find and
equitable participation requirements of section 612(a)(10)(A) for
States that permit dual enrollment of a child at a parent's discretion.
Therefore, there is no basis to regulate to provide such an exception.
It would be a matter of State or local discretion to decide whether to
have a dual enrollment policy and, if established, how it would be
implemented. Whether dual enrollment alters the rights of parentally-
placed private school children with disabilities under State law is a
State matter. There is nothing, however, in Part B of the Act that
would prohibit a State from requiring dual enrollment as a condition
for a parentally-placed private school child with a disability to be
eligible for services from a public agency. As long as States and LEAs
meet the requirements in Sec. Sec. 300.130 through 300.144, the local
policy covering enrollment is a matter of State and local discretion.
Changes: None.
Comment: Several commenters expressed concern regarding the
applicability of the child find and equitable participation
requirements in Sec. Sec. 300.130 through 300.144 for children with
disabilities who reside in one State and are enrolled by their parents
in private elementary schools or secondary schools located in another
State. These commenters recommended that the regulations clarify
whether the LEA in the State where the private elementary school or
secondary school is located or the LEA in the State where the child
[[Page 46591]]
resides is responsible for conducting child find (including individual
evaluations and reevaluations), and providing and paying for equitable
services for children who are enrolled by their parents in private
elementary schools or secondary schools.
Discussion: Section 612(a)(10)(A)(i)(II) of the Act provides that
the LEA where the private elementary schools and secondary schools are
located, after timely and meaningful consultation with private school
representatives, is responsible for conducting the child find process
to determine the number of parentally-placed children with disabilities
attending private schools located in the LEA. We believe this
responsibility includes child find for children who reside in other
States but who attend private elementary schools and secondary schools
located in the LEA, because section 612(a)(10)(A)(i)(II) of the Act is
clear about which LEA is responsible for child find and the Act does
not provide an exception for children who reside in one State and
attend private elementary schools and secondary schools in other
States.
Under section 612(a)(10)(A)(i) of the Act, the LEA where the
private elementary schools and secondary schools are located, in
consultation with private school officials and representatives of
parents of parentally-placed private school children with disabilities,
also is responsible for determining and paying for the services to be
provided to parentally-placed private school children with
disabilities. We believe this responsibility extends to children from
other States who are enrolled in a private school located in the LEA,
because section 612(a)(10)(A)(i) of the Act clarifies that the LEA
where the private schools are located is responsible for spending a
proportionate amount of its Federal Part B funds on special education
and related services for children enrolled by their parents in the
private schools located in the LEA. The Act does not provide an
exception for out-of-State children with disabilities attending a
private school located in the LEA and, therefore, out-of-State children
with disabilities must be included in the group of parentally-placed
children with disabilities whose needs are considered in determining
which parentally-placed private school children with disabilities will
be served and the types and amounts of services to be provided.
Changes: We have added a new paragraph (f) to Sec. 300.131
clarifying that each LEA where private, including religious, elementary
schools and secondary schools are located must, in carrying out the
child find requirements in this section, include parentally-placed
private school children who reside in the State other than where the
private schools they attend are located.
Comment: A few commenters recommended the regulations clarify the
LEA's obligation under Sec. Sec. 300.130 through 300.144 regarding
child find and equitable participation for children from other
countries enrolled in private elementary schools and secondary schools
by their parents.
Discussion: The obligation to consider children with disabilities
for equitable services extends to all children with disabilities in the
State who are enrolled by their parents in private schools within each
LEA's jurisdiction.
Changes: None.
Comment: Several commenters recommended the regulations clarify the
applicability of the child find and equitable participation
requirements in Sec. Sec. 300.130 through 300.144 for children with
disabilities, aged three through five, enrolled by their parents in
private preschools or day care programs. Many commenters recommended
the regulations clarify that preschool children with disabilities
should be counted in determining the proportionate share of funds
available to serve children enrolled in private elementary schools by
their parents.
Discussion: If a private preschool or day care program is
considered an elementary school, as defined in Sec. 300.13, the child
find and equitable services participation requirements in Sec. Sec.
300.130 through 300.144, consistent with section 612(a)(10) of the Act,
apply to children with disabilities aged three through five enrolled by
their parents in such programs. Section 300.13, consistent with section
602(6) of the Act, defines an elementary school as a nonprofit
institutional day or residential school, including a public elementary
charter school, which provides elementary education, as determined
under State law. We believe it is important to clarify in the
regulations that children aged three through five are considered
parentally-placed private school children with disabilities enrolled in
private elementary schools only if they are enrolled in private schools
that meet the definition of elementary school in Sec. 300.13.
Changes: We have added a new Sec. 300.133(a)(2)(ii) to clarify
that children aged three through five are considered to be parentally-
placed private school children with disabilities enrolled by their
parents in private, including religious, elementary schools, if they
are enrolled in a private school that meets the definition of
elementary school in Sec. 300.13.
Definition of Parentally-Placed Private School Children With
Disabilities (Sec. 300.130)
Comment: A few commenters recommended removing ``or facilities''
from the definition of parentally-placed private school children
because it is not defined in the Act or the regulations. Another
commenter recommended including a definition of ``facilities.''
Discussion: Under section 612(a)(10)(A) of the Act, the obligation
to conduct child find and provide equitable services extends to
children who are enrolled by their parents in private elementary
schools and secondary schools. This obligation also applies to children
who have been enrolled by their parents in private facilities if those
facilities are elementary schools or secondary schools, as defined in
subpart A of the regulations. Because facilities that meet the
definition of elementary school or secondary school are covered under
this section, we believe it is important to retain the reference to
facilities in these regulations. We will, however, revise Sec. 300.130
to clarify that children with disabilities who are enrolled by their
parents in facilities that meet the definition of elementary school in
Sec. 300.13 or secondary school in new Sec. 300.36 (proposed Sec.
300.35) would be considered parentally-placed private school children
with disabilities.
Changes: Section 300.130 has been revised to clarify that
parentally-placed private school children with disabilities means
children with disabilities enrolled by their parents in private,
including religious, schools or facilities that meet the definition of
an elementary school in Sec. 300.13 or secondary school in Sec.
300.36.
Child Find for Parentally-Placed Private School Children With
Disabilities (Sec. 300.131)
Comment: A few commenters recommended permitting the LEA where
private schools are located to request reimbursement from the LEA where
the child resides for the cost of conducting an individual evaluation,
as may be required under the child find requirements in Sec. 300.131.
One commenter recommended that the LEA where private schools are
located be responsible for locating and identifying children with
disabilities enrolled by their parents in private schools and the LEA
where the children reside be responsible for conducting individual
evaluations.
[[Page 46592]]
Discussion: Section 300.131, consistent with section
612(a)(10)(A)(i) of the Act, requires that the LEA where private
elementary schools and secondary schools in which the child is enrolled
are located, not the LEA where the child resides, is responsible for
conducting child find, including an individual evaluation for a child
with a disability enrolled by the child's parent in a private
elementary school or secondary school located in the LEA. The Act
specifies that the LEA where the private schools are located is
responsible for conducting both the child find process and the initial
evaluation. Therefore, the LEA where private schools are located may
not seek reimbursement from the LEA of residence for the cost of
conducting the evaluation or to request that the LEA of residence
conduct the evaluation. However, the LEA where the private elementary
school or secondary school is located has options as to how it meets
its responsibilities. For example, the LEA may assume the
responsibility itself, contract with another public agency (including
the public agency of residence), or make other arrangements.
Changes: None.
Comment: One commenter recommended permitting a parent who enrolled
a child in a private elementary school or secondary school the option
of not participating in child find required under Sec. 300.131.
Discussion: New Sec. 300.300(e)(4) clarifies that parents who
enroll their children in private elementary schools and secondary
schools have the option of not participating in an LEA's child find
activities required under Sec. 300.131. As noted in the Analysis of
Comments and Changes section for subpart D, once parents opt out of the
public schools, States and school districts do not have the same
interest in requiring parents to agree to the evaluation of their
children as they do for children enrolled in public schools, in light
of the public agencies' obligation to educate public school children
with disabilities. We further indicate in the discussion of subpart D
that we have added new Sec. 300.300(e)(4) (proposed Sec. 300.300(d))
to clarify that if the parent of a child who is home schooled or placed
in a private school by the child's parent at the parent's own expense
does not provide consent for an initial evaluation or reevaluation, the
public agency may not use the due process procedures in section 615 of
the Act and the public agency is not required to consider the child for
equitable services.
Changes: None.
Comment: Several commenters recommended permitting amounts expended
for child find, including individual evaluations, to be deducted from
the required amount of funds to be expended on equitable services for
parentally-placed private school children with disabilities.
Discussion: The requested changes would be inconsistent with the
Act. There is a distinction under the Act between the obligation to
conduct child find activities, including individual evaluations, for
parentally-placed private school children with disabilities, and the
obligation to use an amount of funds equal to a proportionate amount of
the Federal Part B grant flowing to LEAs to provide special education
and related services to parentally-placed private school children with
disabilities. The obligation to conduct child find for parentally-
placed private school children, including individual evaluations, is
independent of the services provision. Further, Sec. 300.131(d),
consistent with section 612(a)(10)(A)(ii)(IV) of the Act, clarifies
that the costs of child find activities for parentally-placed private
school children, including individual evaluations, may not be
considered in determining whether the LEA has spent an appropriate
amount on providing special education and related services to
parentally-placed private school children with disabilities.
Changes: None.
Comment: One commenter requested clarifying whether an LEA may
exclude children suspected of having certain disabilities, such as
those with specific learning disabilities, in conducting individual
evaluations of suspected children with disabilities enrolled in private
schools by their parents.
Discussion: The LEA where the private elementary schools and
secondary schools are located must identify and evaluate all children
suspected of having disabilities as defined under section 602(3) of the
Act. LEAs may not exclude children suspected of having certain
disabilities, such as those with specific learning disabilities, from
their child find activities. The Department recommends that LEAs and
private elementary schools and secondary schools consult on how best to
implement the State's evaluation criteria and the requirements under
this part for identifying children with specific learning disabilities
enrolled in private schools by their parents. This is explained in more
detail in the discussion of comments under Sec. 300.307.
Changes: None.
Comment: A few commenters expressed concern that parents who place
their children in private elementary schools and secondary schools
outside the district of residence, and who are determined by the LEA
where the private schools are located, through its child find process,
to be children with disabilities eligible for special education and
related services, would have no knowledge of the special education and
related services available for their children if they choose to attend
a public school in their district of residence. A few commenters
suggested clarifying the obligation of the LEA where the private school
is located to provide the district of residence the results of an
evaluation and eligibility determination of the parentally-placed
private school child.
A few commenters recommended that the parent of a child with a
disability identified through the child find process in Sec. 300.131
be provided with information regarding an appropriate educational
program for the child.
Discussion: The Act is silent on the obligation of officials of the
LEA where private elementary schools and secondary schools are located
to share personally identifiable information, such as individual
evaluation information, with officials of the LEA of the parent's
residence. We believe that the LEA where the private schools are
located has an obligation to protect the privacy of children placed in
private schools by their parents. We believe that when a parentally-
placed private school child is evaluated and identified as a child with
a disability by the LEA in which the private school is located,
parental consent should be required before such personally identifiable
information is released to officials of the LEA of the parent's
residence. Therefore, we are adding a new paragraph (b)(3) to Sec.
300.622 to make this clear. We explain this revision in more detail in
the discussion of comments under Sec. 300.622.
We believe the regulations adequately ensure that parents of
children enrolled in private schools by their parents, who are
identified as children with disabilities through the child find
process, receive information regarding an appropriate educational
program for their children. Section 300.138(b) provides that each
parentally-placed private school child with a disability who has been
designated to receive equitable services must have a services plan that
describes the specific education and related services that the LEA
where the private school is located has determined it will make
available to the child and the services plan must, to the extent
appropriate, meet the IEP content, development, review and revision
requirements described in
[[Page 46593]]
section 614(d) of the Act, or, when appropriate, for children aged
three through five, the IFSP requirements described in section 636(d)
of the Act as to the services that are to be provided.
Furthermore, the LEA where the private school is located must,
pursuant to Sec. 300.504(a) and section 615(d) of the Act, provide the
parent a copy of the procedural safeguards notice upon conducting the
initial evaluation.
Changes: We have added a new paragraph (b)(3) to Sec. 300.622 to
require parental consent for the disclosure of records of parentally-
placed private school children between LEAs.
Comment: A few commenters stated that Sec. 300.131 does not
address which LEA has the responsibility for reevaluations.
Discussion: The LEA where the private schools are located is
responsible for conducting reevaluations of children with disabilities
enrolled by their parents in private elementary schools and secondary
schools located within the LEA. Reevaluation is a part of the LEA's
child find responsibility for parentally-placed private school children
under section 612(a)(10)(A) of the Act.
Changes: None.
Comment: One commenter expressed concern that the regulations
permit a parent to request an evaluation from the LEA of residence at
the same time the child is being evaluated by the LEA where the private
elementary school or secondary school is located, resulting in two LEAs
simultaneously conducting evaluations of the same child.
Discussion: We recognize that there could be times when parents
request that their parentally-placed child be evaluated by different
LEAs if the child is attending a private school that is not in the LEA
in which they reside. For example, because most States generally
allocate the responsibility for making FAPE available to the LEA in
which the child's parents reside, and that could be a different LEA
from the LEA in which the child's private school is located, parents
could ask two different LEAs to evaluate their child for different
purposes at the same time. Although there is nothing in this part that
would prohibit parents from requesting that their child be evaluated by
the LEA responsible for FAPE for purposes of having a program of FAPE
made available to the child at the same time that the parents have
requested that the LEA where the private school is located evaluate
their child for purposes of considering the child for equitable
services, we do not encourage this practice. We note that new Sec.
300.622(b)(4) requires parental consent for the release of information
about parentally-placed private school children between LEAs;
therefore, as a practical matter, one LEA may not know that a parent
also requested an evaluation from another LEA. However, we do not
believe that the child's best interests would be well-served if the
parents requested evaluations of their child by the resident school
district and the LEA where the private school is located, even though
these evaluations are conducted for different purposes. A practice of
subjecting a child to repeated testing by separate LEAs in close
proximity of time may not be the most effective or desirable way of
ensuring that the evaluation is a meaningful measure of whether a child
has a disability or of providing an appropriate assessment of the
child's educational needs.
Changes: None.
Comment: Some commenters requested the regulations clarify which
LEA (the LEA of residence or the LEA where the private elementary
schools or secondary schools are located) is responsible for offering
FAPE to children identified through child find under Sec. 300.131 so
that parents can make an informed decision regarding their children's
education.
Discussion: If a determination is made by the LEA where the private
school is located that a child needs special education and related
services, the LEA where the child resides is responsible for making
FAPE available to the child. If the parent makes clear his or her
intention to keep the child enrolled in the private elementary school
or secondary school located in another LEA, the LEA where the child
resides need not make FAPE available to the child. We do not believe
that a change to the regulations is necessary, as Sec. 300.201 already
clarifies that the district of residence is responsible for making FAPE
available to the child. Accordingly, the district in which the private
elementary or secondary school is located is not responsible for making
FAPE available to a child residing in another district.
Changes: None.
Comment: One commenter requested clarification of the term
``activities similar'' in Sec. 300.131(c). Another commenter
recommended clarifying that these activities include, but are not
limited to, activities relating to evaluations and reevaluations. One
commenter requested that children with disabilities parentally-placed
in private schools be identified and evaluated as quickly as possible.
Discussion: Section 300.131(c), consistent with section
612(a)(10)(A)(ii)(III) of the Act, requires that, in carrying out child
find for parentally-placed private school children, SEAs and LEAs must
undertake activities similar to those activities undertaken for their
publicly enrolled or publicly-placed children. This would generally
include, but is not limited to, such activities as widely distributing
informational brochures, providing regular public service
announcements, staffing exhibits at health fairs and other community
activities, and creating direct liaisons with private schools.
Activities for child find must be completed in a time period comparable
to those activities for public school children. This means that LEAs
must conduct child find activities, including individual evaluations,
for parentally-placed private school children within a reasonable
period of time and without undue delay, and may not wait until after
child find for public school children is conducted. In addition,
evaluations of all children suspected of having disabilities under Part
B of the Act, regardless of whether they are enrolled by their parents
in private elementary schools or secondary schools, must be conducted
in accordance with the requirements in Sec. Sec. 300.300 through
300.311, consistent with section 614(a) through (c) of the Act, which
describes the procedures for evaluations and reevaluations for all
children with disabilities. We believe the phrase ``activities
similar'' is understood by SEAs and LEAs and, therefore, it is not
necessary to regulate on the meaning of the phrase.
Changes: None.
Provision of Services for Parentally-Placed Private School Children
With Disabilities--Basic Requirement (Sec. 300.132)
Comment: Several commenters expressed confusion regarding which LEA
is responsible for paying for the equitable services provided to a
parentally-placed private elementary school or secondary school child,
the district of the child's residence or the LEA where the private
school is located.
Discussion: We believe Sec. 300.133, consistent with section
612(a)(10)(A) of the Act, is sufficiently clear that the LEA where the
private elementary schools and secondary schools are located is
responsible for paying for the equitable services provided to a
parentally-placed private elementary school or secondary school child.
These provisions provide that the LEA where the private elementary and
secondary schools are located must spend a proportionate amount of its
Federal funds available under Part B of the Act
[[Page 46594]]
for services for children with disabilities enrolled by their parents
in private elementary schools and secondary schools located in the LEA.
The Act does not permit an exception to this requirement. No further
clarification is needed.
Changes: None.
Comment: One commenter recommended the regulations clarify which
LEA in the State is responsible for providing equitable services to
parentally-placed private school children with disabilities who attend
a private school that straddles two LEAs in the State.
Discussion: The Act does not address situations where a private
school straddles more than one LEA. However, the Act does specify that
the LEA in which the private school is located is responsible for
providing special education to children with disabilities placed in
private schools by their parents, consistent with the number of such
children and their needs. In situations where more than one LEA
potentially could assume the responsibility of providing equitable
services, the SEA, consistent with its general supervisory
responsibility, determines which LEA in the State is responsible for
ensuring the equitable participation of children with disabilities
attending that private school. We do not believe that the situation is
common enough to warrant a change in the regulations.
Changes: None.
Comment: A few commenters recommended revising the heading for
Sec. 300.132(b) to clarify that LEAs, not SEAs, are responsible for
developing service plans.
Discussion: We agree with the commenters that the heading for Sec.
300.132(b) should be changed to accurately reflect the requirement and
to avoid confusion.
Changes: We have revised the heading for Sec. 300.132(b) by
removing the reference to SEA responsibility.
Comment: One commenter requested requiring in Sec. 300.132(c) that
data on parentally-placed private school children with disabilities be
submitted to the Department. Another commenter agreed, stating that the
data should be submitted the same day as the annual child count.
Discussion: The purpose of the child count under Sec. 300.132(c)
is to determine the amount of Federal funds that the LEA must spend on
providing special education and related services to parentally-placed
private school children with disabilities in the next fiscal year. We
are not requiring States to submit these data to the Department as the
Department does not have a programmatic or regulatory need to collect
this information at this time. Section 300.644 permits the SEA to
include in its annual report of children served those parentally-placed
private school children who are eligible under the Act and receive
special education or related services. We believe this is sufficient to
meet the Department's need to collect data on this group of children
and we do not wish to place an unnecessary data collection and
paperwork burden on States.
Changes: None.
Expenditures (Sec. 300.133)
Comment: One commenter requested the regulations clarify whether an
LEA must spend its entire proportionate share for parentally-placed
private school children with disabilities by the end of a fiscal year
or could carry over any remaining funds into the next fiscal year.
Discussion: We agree with the commenter that a provision should be
included in these regulations to clarify that, if an LEA has not
expended for equitable services all of the proportionate amount of
Federal funds to be provided for parentally-placed private school
children with disabilities by the end of the fiscal year for which
Congress appropriated the funds, the LEA must obligate the remaining
funds for special education and related services (including direct
services) to parentally-placed private school children with
disabilities during a carry-over period of one additional year.
Changes: A new paragraph (a)(3) has been added to Sec. 300.133 to
address the carry over of funds not expended by the end of the fiscal
year.
Comment: None.
Discussion: It has come to our attention that there is some
confusion among States and LEAs between the count of the number of
children with disabilities receiving special education and related
services as required under section 618 of the Act, and the requirement
under section 612(a)(10)(A)(i)(II) of the Act that each LEA conduct an
annual count of the number of parentally-placed private school children
with disabilities attending private schools in the LEA. We will,
therefore, revise the heading (child count) for Sec. 300.133(c) and
the regulatory language in Sec. 300.133(c) to avoid any confusion
regarding the requirements in paragraph (c).
Changes: Section 300.133(c) has been revised as described above.
Comment: One commenter interpreted Sec. 300.133(d) to require
that: (1) LEAs provide services to parentally-placed private school
children with disabilities with funds provided under the Act and (2)
LEAs no longer have the option of using local funds equal to, and in
lieu of, the Federal pro-rated share amount. This commenter recommended
that LEAs continue to be allowed to use local funds for administrative
convenience.
Discussion: The commenter's interpretation is correct. The Act
added the supplement, not supplant requirement in section
612(a)(10)(A)(i)(IV), which is included in Sec. 300.133(d). This
requirement provides that State and local funds may supplement, but in
no case supplant the proportionate amount of the Federal Part B funds
that must be expended under this provision. Prior to the change in the
Act, if a State was spending more than the Federal proportional share
of funds from State or local funds, then the State would not have to
spend any Federal Part B funds. That is no longer permissible under the
Act.
Changes: None.
Comment: A few commenters requested revising Sec. 300.133 to
include home-schooled children with disabilities in the same category
as parentally-placed private school children with disabilities.
Discussion: Whether home-schooled children with disabilities are
considered parentally-placed private school children with disabilities
is a matter left to State law. Children with disabilities in home
schools or home day cares must be treated in the same way as other
parentally-placed private school children with disabilities for
purposes of Part B of the Act only if the State recognizes home schools
or home day cares as private elementary schools or secondary schools.
Changes: None.
Consultation (Sec. 300.134)
Comment: Some commenters recommended requiring, in Sec.
300.134(e), that the LEA include, in its written explanation to the
private school, its reason whenever: (1) The LEA does not provide
services by a professional directly employed by that LEA to parentally-
placed private school children with a disability when requested to do
so by private school officials; and (2) the LEA does not provide
services through a third party provider when requested to do so by the
private school officials.
Discussion: Section 300.134(e) incorporates the language from
section 612(a)(10)(A)(iii)(V) of the Act and requires the LEA to
provide private school officials with a written explanation of the
reasons why the LEA
[[Page 46595]]
chose not to provide services directly or through contract. We do not
believe that the additional language suggested by the commenter is
necessary because we view the statutory language as sufficient to
ensure that the LEA meets its obligation to provide private school
officials a written explanation of any reason why the LEA chose not to
provide services directly or through a contract.
Changes: None.
Written Affirmation (Sec. 300.135)
Comment: Several commenters recommended requiring LEAs to forward
the written affirmation to the SEA, because this information is
important for the SEA to exercise adequate oversight over LEAs with
respect to the participation of private school officials in the
consultation process.
Discussion: Section 300.135, regarding written affirmation, tracks
the language in section 612(a)(10)(A)(iv) of the Act. Including a
requirement in the regulations that the LEA must submit a copy of
signed written affirmations to the SEA would place reporting burdens on
the LEA that are not required by the Act and that we do not believe are
warranted in this circumstance. We expect that in most circumstances
private school officials and LEAs will have cooperative relationships
that will not need State involvement. If private school officials
believe that there was not meaningful consultation, they may raise that
issue with the SEA through the procedures in Sec. 300.136. However,
there is nothing in the Act or these regulations that would preclude a
State from requiring LEAs to submit a copy of the written affirmation
obtained pursuant to Sec. 300.135, in meeting its general supervision
responsibilities under Sec. 300.149 or as a part of its monitoring of
LEAs' implementation of Part B of the Act as required in Sec. 300.600.
Consistent with Sec. 300.199(a)(2) and section 608(a)(2) of the Act, a
State that chooses to require its LEAs to submit copies of written
affirmations to the SEA beyond what is required in Sec. 300.135 would
have to identify, in writing, to the LEAs located in the State and to
the Secretary, that such rule, regulation, or policy is a State-imposed
requirement that is not required by Part B of the Act or these
regulations.
Changes: None.
Compliance (Sec. 300.136)
Comment: One commenter recommended revising Sec. 300.136 to permit
an LEA to submit a complaint to the State if private school officials
do not engage in meaningful consultation with the LEA.
Discussion: Section 300.136, consistent with section
612(a)(10)(A)(v) of the Act, provides that a private school official
has the right to complain to the SEA that the LEA did not engage in
consultation that was meaningful and timely, or did not give due
consideration to the views of the private school official. The
provisions in the Act and the regulations apply to the responsibilities
of the SEA and its LEAs and not to private schools or entities. Because
the requirements of the Act do not apply to private schools, we do not
believe requiring SEAs to permit an LEA to submit a complaint to the
SEA alleging that representatives of the private schools did not
consult in a meaningful way with the LEA would serve a meaningful
purpose. The equitable services made available under Part B of the Act
are a benefit to the parentally-placed private school children and not
services provided to the private schools.
Changes: None.
Comment: Several commenters recommended revising Sec. 300.136 to
allow States to determine the most appropriate procedures for a private
school official to submit a complaint to the SEA that an LEA did not
engage in consultation that was meaningful and timely, or did not give
due consideration to the views of the private school officials. Many of
these commenters stated that requiring such complaints be filed
pursuant to the State complaint procedures in Sec. Sec. 300.151
through 300.153 is not required by the Act and recommended we remove
this requirement.
Discussion: We agree with the commenters that section
612(a)(10)(A)(v) of the Act does not stipulate how a private school
official must 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 to the views of the private school official. We also
agree with the commenters that the SEA should have flexibility to
determine how such complaints will be filed with the State. We will,
therefore, revise Sec. 300.136(a) to remove the requirement that
private school officials must file a complaint with the SEA under the
State complaint procedures in Sec. Sec. 300.151 through 300.153.
States may, if they so choose, use their State complaint procedures
under Sec. Sec. 300.151 through 300.153 as the means for a private
school to file a complaint under Sec. 300.136.
Changes: Section 300.136 has been revised to remove the requirement
that a private school official submit a complaint to the SEA using the
procedures in Sec. Sec. 300.151 through 300.153.
Equitable Services Determined (Sec. 300.137)
Comment: One commenter recommended removing Sec. 300.137(a),
stating it is discriminatory and that parentally-placed private school
children must receive the same amount of services as children with
disabilities in public schools.
Discussion: Section 300.137(a) reflects the Department's
longstanding policy, consistent with section 612(a)(10) of the Act, and
explicitly provides that children with disabilities enrolled in private
schools by their parents have no individual entitlement to receive some
or all of the special education and related services they would receive
if enrolled in the public schools. Under the Act, LEAs only have an
obligation to provide parentally-placed private school children with
disabilities an opportunity for equitable participation in the services
funded with Federal Part B funds that the LEA has determined, after
consultation, to make available to its population of parentally-placed
private school children with disabilities. LEAs are not required to
spend more than the proportionate Federal share on those services.
Changes: None.
Equitable Services Provided (Sec. 300.138)
Comment: Several commenters requested clarifying whether the
requirement in Sec. 300.138(a) that services provided to parentally-
placed private school children with disabilities be provided by
personnel meeting the same standards (i.e., highly qualified teacher
requirements) as personnel providing services in the public schools
applies to private school teachers who are contracted by the LEA to
provide equitable services.
Discussion: As discussed in the Analysis of Comments and Changes
section, in the response to comments on Sec. 300.18, it is the
Department's position that the highly qualified special education
teacher requirements do not apply to teachers hired by private
elementary schools and secondary schools. This includes teachers hired
by private elementary schools and secondary schools who teach children
with disabilities. Further, it is the Department's position that the
highly qualified special education teacher requirements also do not
apply to private school teachers who provide equitable services to
parentally-placed private school children with disabilities.
[[Page 46596]]
In addition to the revision we are making to new Sec. 300.18(h)
(proposed Sec. 300.18(g)) to make this position clear, we also will
revise Sec. 300.138(a)(1) to clarify that private elementary school
and secondary school teachers who are providing equitable services to
parentally-placed private school children with disabilities do not have
to meet the highly qualified special education teacher requirements.
Changes: We have revised Sec. 300.138(a)(1) as indicated.
Comment: A few commenters requested clarifying the process for
developing a services plan and explaining how a services plan differs
from an IEP.
Discussion: We do not believe that additional explanation in the
regulation is needed. Under Sec. 300.138(b), each parentally-placed
private school child with a disability who has been designated by the
LEA in which the private school is located to receive special education
or related services must have a services plan. The services plan must
describe the specific special education and related services offered to
a parentally-placed private school child with a disability designated
to receive services. The services plan also must, to the extent
appropriate, meet the IEP content, development, review, and revision
requirements described in section 614(d) of the Act, or, when
appropriate, for children aged three through five, the IFSP
requirements described in section 636(d) of the Act as to the services
that are to be provided. The LEA must ensure that a representative of
the private school attends each meeting to develop the services plan
and if the representative cannot attend, use other methods to ensure
participation by the private school, including individual or conference
telephone calls.
Children with disabilities enrolled in public schools or who are
publicly-placed in private schools are entitled to FAPE and must
receive the full range of services under Part B of the Act that are
determined by the child's IEP Team to be necessary to meet the child's
individual needs and provide FAPE. The IEPs for these children
generally will be more comprehensive than the more limited services
plans developed for parentally-placed private school children with
disabilities designated to receive services.
Changes: None.
Comment: A few commenters recommended revising the definition of
services plan to clarify that an IEP could serve as the services plan;
otherwise, States that provide IEP services to parentally-placed
private school children with disabilities would be required to develop
a services plan and an IEP.
Discussion: We do not believe it is appropriate to clarify in the
regulations that the IEP can serve as the services plan because, as
stated elsewhere in this preamble, a services plan should only describe
the specific special education and related services offered to a
parentally-placed private school child with a disability designated to
receive services. We believe that using an IEP in lieu of a services
plan for these children may not be appropriate in light of the fact
that an IEP developed pursuant to section 614(d) of the Act will
generally include much more than just those services that a parentally-
placed private school child with a disability may receive, if
designated to receive services. There is nothing, however, in these
regulations that would prevent a State that provides more services to
parentally-placed private school children with disabilities than they
are required to do under the Act to use an IEP in place of a services
plan, consistent with State law.
Changes: None.
Location of Services and Transportation (Sec. 300.139)
Comment: A few commenters asked for clarification as to how the
location where services will be provided to parentally-placed private
school children with disabilities is determined.
Discussion: Under Sec. 300.134(d), how, where, and by whom special
education and related services are provided to parentally-placed
private school children with disabilities are subjects of the process
of consultation among LEA officials, private school representatives,
and representatives of parents of parentally-placed private school
children with disabilities. Further, Sec. 300.137(b)(2) clarifies
that, after this consultation process, the final decision with respect
to the services provided to eligible parentally-placed private school
children with disabilities is made by the LEA.
Changes: None.
Comment: Some commenters recommended specifying that providing
services on the premises of private elementary schools and secondary
schools is the preferred means of serving parentally-placed private
school children with disabilities. A few commenters recommended
revising Sec. 300.139(a) to stipulate that services ``should'' or
``must'' be provided on the premises of private schools, unless there
is a compelling rationale for these services to be provided off-site.
In contrast, several commenters objected to the statement in the
preamble to the NPRM that services should be provided on-site unless
there is a compelling rationale to provide services off-site. A few of
these commenters stated that the Act does not indicate a preference for
one location of services over another and the Department has no
authority to provide such a strong comment on this issue.
Discussion: Services offered to parentally-placed private school
children with disabilities may be provided on-site at a child's private
school, including a religious school, to the extent consistent with
law, or at another location. The Department believes, in the interests
of the child, LEAs should provide services on site at the child's
private school so as not to unduly disrupt the child's educational
experience, unless there is a compelling rationale for these services
to be provided off-site. The phrase ``to the extent consistent with
law'' is in section 612(a)(10)(A)(i)(III) of the Act. We interpret this
language to mean that the provision of services on the premises of a
private school takes place in a manner that would not violate the
Establishment Clause of the First Amendment to the U.S. Constitution
and would not be inconsistent with applicable State constitutions or
law. We, therefore, do not have the statutory authority to require that
services be provided on-site.
Changes: None.
Comment: A few commenters expressed concern that Sec. 300.139(b),
regarding transportation services, goes beyond the requirements in the
Act and should be removed. A few commenters stated that transportation
is a related service and should be treated as such with respect to
parentally-placed children with disabilities in private schools.
Discussion: We do not agree that transportation services should be
removed from Sec. 300.139(b). If services are offered at a site
separate from the child's private school, transportation may be
necessary to get the child to and from that other site. Failure to
provide transportation could effectively deny the child an opportunity
to benefit from the services that the LEA has determined through
consultation to offer its parentally-placed private school children
with disabilities. In this situation, although transportation is not a
related service, as defined in Sec. 300.34, transportation is
necessary to enable the child to participate and to make the offered
services accessible to the child. LEAs should work in consultation with
representatives of private school children to ensure that services are
[[Page 46597]]
provided at sites, including on the premises of the child's private
school, so that LEAs do not incur significant transportation costs.
However, for some children with disabilities, special modifications
in transportation may be necessary to address the child's unique needs.
If the group developing the child's services plan determines that a
parentally-placed private school child with a disability chosen to
receive services requires transportation as a related service in order
to receive special education services, this transportation service
should be included as a related service in the services plan for the
child.
In either case, the LEA may include the cost of the transportation
in calculating whether it has met the requirement of Sec. 300.133.
Changes: None.
Due Process Complaints and State Complaints (Sec. 300.140)
Comment: Several commenters expressed concern that the right of
parents of children with disabilities enrolled by their parents in
private elementary schools and secondary schools to file a due process
complaint against an LEA is limited to filing a due process complaint
that an LEA has failed to comply with the child find and evaluation
requirements, and not an LEA's failure to provide special education and
related services as required in the services plan. A few commenters
recommended that the regulations clarify whether the parent should file
a due process complaint with the LEA of residence or with the LEA where
the private school is located.
Discussion: Section 615(a) of the Act specifies that the procedural
safeguards of the Act apply with respect to the identification,
evaluation, educational placement, or provision of FAPE to children
with disabilities. The special education and related services provided
to parentally-placed private school children with disabilities are
independent of the obligation to make FAPE available to these children.
While there may be legitimate issues regarding the provision of
services to a particular parentally-placed private school child with a
disability an LEA has agreed to serve, the due process provisions in
section 615 of the Act and Sec. Sec. 300.504 through 300.519 do not
apply to these disputes, because there is no individual right to these
services under the Act. Disputes that arise about these services are
properly subject to the State complaint procedures under Sec. Sec.
300.151 through 300.153.
Child find, however, is a part of the basic obligation that public
agencies have to all children with disabilities, and failure to locate,
identify, and evaluate a parentally-placed private school child would
be subject to due process. Therefore, the due process provisions in
Sec. Sec. 300.504 through 300.519 do apply to complaints that the LEA
where the private school is located failed to meet the consent and
evaluation requirements in Sec. Sec. 300.300 through 311.
In light of the comments received, we will clarify in Sec. 300.140
that parents of parentally-placed private school children with
disabilities may file a due process complaint with the LEA in which the
private school is located (and forward a copy to the SEA) regarding an
LEA's failure to meet the consent and evaluation requirements in
Sec. Sec. 300.300 through 300.311. We also will clarify that a
complaint can be filed with the SEA under the State complaint
procedures in Sec. Sec. 300.151 through 300.153 that the SEA or LEA
has failed to meet the requirements in Sec. Sec. 300.132 through
300.135 and Sec. Sec. 300.137 through 300.144. There would be an
exception, however, for complaints filed pursuant to Sec. 300.136.
Complaints under Sec. 300.136 must be filed in accordance with the
procedures established by each State under Sec. 300.136.
Changes: Proposed Sec. 300.140(a)(2) has been redesignated as new
paragraph (b). A new paragraph (b)(2) has been added to this section to
clarify that any due process complaint regarding the evaluation
requirements in Sec. 300.131 must be filed with the LEA in which the
private school is located, and a copy must be forwarded to the SEA.
Proposed Sec. 300.140(b) has been redesignated as new paragraph (c),
and has been revised to clarify that a complaint that the SEA or LEA
has failed to meet the requirements in Sec. Sec. 300.132 through
300.135 and Sec. Sec. 300.137 through 300.144 can be filed with the
SEA under the State complaint procedures in Sec. Sec. 300.151 through
300.153. Complaints filed pursuant to Sec. 300.136 must be filed with
the SEA under the procedures established under Sec. 300.136(b).
Comment: A few commenters requested clarification as to whether a
parent of a parentally-placed private school child should request an
independent educational evaluation at public expense under Sec.
300.502(b) with the LEA of residence or the LEA where the private
school is located.
Discussion: We do not believe that this level of detail needs to be
included in the regulation. If a parent of a parentally-placed child
disagrees with an evaluation obtained by the LEA in which the private
school is located, the parent may request an independent educational
evaluation at public expense with that LEA.
Changes: None.
Use of Personnel (Sec. 300.142)
Comment: Several commenters requested clarifying language regarding
who must provide equitable services to parentally-placed private school
children with disabilities.
Discussion: Under section 612(a)(10)(A)(vi)(I) of the Act,
equitable services must be provided by employees of a public agency or
through contract by the public agency with an individual, association,
agency, organization, or other entity. Section 300.142(a) provides that
an LEA may use Part B funds to make public school personnel available
in other than public facilities to the extent necessary to provide
equitable services for parentally-placed children with disabilities
attending private schools and if those services are not otherwise
provided by the private school to children as a benefit provided to all
children attending that school. Under Sec. 300.142(b), an LEA may use
Part B funds to pay for the services of an employee of a private school
to provide equitable services if the employee performs the services
outside of his or her regular hours of duty and the employee performs
the services under public supervision and control. We believe that the
regulation is sufficiently clear on this point.
Changes: None.
Property, Equipment, and Supplies (Sec. 300.144)
Comment: A few commenters requested clarification as to whether
private school officials may purchase equipment and supplies with Part
B funds to provide services to parentally-placed private school
children with disabilities designated to receive services.
Discussion: We do not believe the additional clarification
suggested by the commenters is necessary. Section 300.144, consistent
with section 612(a)(10)(A)(vii) of the Act, already requires that the
LEA must control and administer the funds used to provide special
education and related services to parentally-placed private school
children with disabilities, and maintain title to materials, equipment,
and property purchased with those funds. Thus, the regulations and the
Act prevent private school officials from purchasing equipment and
supplies with Part B funds.
Changes: None.
[[Page 46598]]
Children With Disabilities in Private Schools Placed or Referred by
Public Agencies
Applicability of Sec. Sec. 300.146 Through 300.147 (Sec. 300.145)
Comment: One commenter stated that Sec. Sec. 300.145 through
300.147 are unnecessary and solely administrative, because these
sections are addressed in the Act and the proposed regulations provide
no additional information on the application of the statutory
requirements.
Discussion: We do not agree with the commenter that the provisions
in Sec. Sec. 300.146 through 300.147 are unnecessary and solely
administrative. We believe it is necessary to retain these requirements
in the regulations, consistent with section 612(a)(10)(B) of the Act,
to ensure that public agencies are fully aware of their obligation to
ensure that children with disabilities who are placed in or referred to
a private school or facility by public agencies are entitled to receive
FAPE to the same extent as they would if they were placed in a public
agency school or program.
Changes: None.
Responsibility of SEA (Sec. 300.146)
Comment: Many commenters disagreed with the exception to the
``highly qualified teacher'' requirements in paragraph (b) of this
section and stated that the ``highly qualified teacher'' requirements
should apply to private school teachers of children with disabilities
placed or referred by public agencies. Several commenters stated that
these children are likely to have more severe disabilities and,
therefore, have a greater need for highly qualified teachers than
children served in public schools.
Several commenters stated that exempting teachers in private
schools from the requirement to be ``highly qualified'' in situations
where children with disabilities are publicly-placed in order to
receive FAPE is not consistent with the requirement that the education
provided to children in such settings meet the standards that apply to
children served by public agencies, or with the ESEA and the goal in
the Act of helping all children with disabilities achieve high
standards.
A few commenters supported the exception to ``highly qualified
teacher'' requirements. One commenter stated that States should make
their own decisions in this area in light of resource constraints.
One commenter opposed the expenditure of public school funds for
the education of publicly-placed private school children by teachers
who do not meet the ``highly qualified'' requirements.
Discussion: Section 602(10) of the Act states that ``highly
qualified'' has the meaning given the term in section 9101 of the ESEA,
which clarifies that the requirements regarding highly qualified
teachers apply to public school teachers and not teachers teaching as
employees of private elementary schools and secondary schools. As we
stated in the Analysis of Comments and Changes section regarding Sec.
300.138 in this subpart and Sec. 300.18 in subpart A, it is the
Department's position that the highly qualified teacher requirements do
not apply to teachers hired by private elementary schools and secondary
schools. This includes teachers hired by private elementary schools and
secondary schools who teach children with disabilities. We agree with
the commenters that, in many instances, a public agency may choose to
place a child with a severe disability and with more intensive
educational needs in a private school or facility as a means of
providing FAPE. When the public agency chooses to place a child with a
significant disability, or any child with a disability, in a private
school as a means of providing FAPE, the public agency has an
obligation to ensure that the child receives FAPE to the same extent
the child would if placed in a public school, irrespective of whether
the private school teachers meet the highly qualified teacher
requirements in Sec. Sec. 300.18 and 300.156(c). FAPE includes not
just the special education and related services that a child with a
disability receives, but also includes an appropriate preschool,
elementary and secondary school education in the State involved. The
required special education and related services must be provided at
public expense, at no cost to the parent, in accordance with an IEP,
and the education provided to the child must meet the standards that
apply to educational services provided by the SEA and LEA (except for
the highly qualified teacher requirements in Sec. Sec. 300.18 and
300.156(c)). In addition, the SEA must ensure that the child has all
the rights of a child with a disability who is served by a public
agency.
We do not agree with the premise of the commenters that not
requiring private school teachers who provide services to publicly-
placed children with disabilities to meet the highly qualified teacher
requirements means that the education provided to these children in the
private school setting does not meet the standards that apply to
children with disabilities served by the public agency. States have
flexibility in developing standards that meet the requirements of the
Act. The standards that SEAs apply to private schools that contract
with public agencies to provide FAPE to children with disabilities,
are, so long as they meet the requirements of Part B of the Act and its
regulations, a State matter. Federal law does not encourage or prohibit
the imposition of additional requirements as a condition of placing
these children in the private school.
With regard to the comment opposing the use of public school funds
for the education of publicly-placed private school children by
teachers who do not meet the highly qualified teacher requirements, a
State or public agency may use whatever State, local, Federal, and
private sources of support that are available in the State to meet the
requirements of the Act. We believe restricting the use of public
school funds as requested by the commenter would not only be
inconsistent with the Act, but also may unnecessarily limit a public
agency's options for providing FAPE to its publicly-placed children
with disabilities.
Changes: None.
Comment: A few commenters recommended requiring States to have
rules, regulations, and contracts requiring private schools that accept
publicly-placed children with disabilities to guarantee that children
with disabilities receive FAPE and their parents retain all of the
protections mandated for public schools, including the right to
pendency placements if the parents challenge the decisions of the
private school to terminate the children's placements. One commenter
recommended that the regulations clarify that private schools serving
children placed by a public agency are not exempt from the obligation
to provide FAPE.
Discussion: The Act does not give States and other public agencies
regulatory authority over private schools and does not place
requirements on private schools. The Act imposes requirements on States
and public agencies that refer to or place children with disabilities
in private schools for the purposes of providing FAPE to those children
because the public agency is unable to provide FAPE in a public school
or program. The licensing and regulation of private schools are matters
of State law. The Act requires States and public agencies, including
LEAs, to ensure that FAPE is made available to all children with
disabilities residing in the State in mandatory age ranges, and that
the rights and protections of the Act are extended to eligible children
and their parents. If the State or public
[[Page 46599]]
agency has placed children with disabilities in private schools for
purposes of providing FAPE to those children, the State and the public
agency must ensure that these children receive the required special
education and related services at public expense, at no cost to the
parents, in accordance with each child's IEP. It is the responsibility
of the public agency to determine whether a particular private school
in which the child with a disability will be placed for purposes of
providing FAPE meets the standards that apply to the SEA and LEA and
that a child placed by a public agency be afforded all the rights,
including FAPE, that the child would otherwise have if served by the
public agency directly.
Changes: None.
Comment: One commenter stated that, in cases where the public
agency places a child in a private school or residential treatment
facility for the purposes of providing FAPE, the public agency should
be required to determine and inform the private school or residential
treatment facility about the person or persons who have the legal
authority to make educational decisions for the child.
Discussion: The change requested by the commenter is not needed
because the public agency, not the private agency, is responsible for
providing FAPE to a child who is placed by the public agency in a
private school. Consistent with Sec. 300.146 and section 612(a)(10)(B)
of the Act, a public agency that places a child with a disability in a
private school or facility as a means of carrying out the requirements
of Part B of the Act, must ensure that the child has all the rights of
a child with a disability who is served by a public agency, which
includes ensuring that the consent requirements in Sec. 300.300 and
sections 614(a)(1)(D) and 614(c) of the Act are followed. A public
agency must, therefore, secure the needed consent from the person or
persons who have the legal authority to make such decisions, unless the
public agency has made other arrangements with the private school or
facility to secure that consent. We do not believe it is necessary or
appropriate to require the public agency to inform the private school
or facility of the persons or persons who have the legal authority to
make educational decisions for the child because this will depend on
the specific arrangements made by the public agency with a private
school or facility and, should, therefore, be determined by the public
agency on a case by case basis.
Changes: None.
Children With Disabilities Enrolled by Their Parents in Private Schools
When FAPE Is at Issue
Placement of Children by Parents When FAPE Is at Issue (Sec. 300.148)
Comment: Several commenters recommended retaining in these
regulations the requirement in current Sec. 300.403(b) that
disagreements between a parent and the LEA regarding the availability
of a FAPE and the question of financial responsibility, are subject to
the due process procedures in section 615 of the Act.
Discussion: The provision in current Sec. 300.403(b) was in the
1983 regulations and, therefore, should have been included in the NPRM
in light of section 607(b) of the Act. Section 607(b) of the Act
provides that the Secretary cannot 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. We will revise Sec. 300.148 to include the requirement
in current Sec. 300.403(b).
Changes: Section 300.148 has been revised to include the
requirement in current Sec. 300.403(b) that disagreements between a
parent and a public agency regarding the availability of a program
appropriate for the child and the question of financial responsibility
are subject to the due process procedures in Sec. Sec. 300.504 through
300.520.
Comment: One commenter requested revising the regulations to
eliminate financial incentives for parents to refer children for
special education and then unilaterally placing their child in private
schools without first receiving special education and related services
from the school district. The commenter stated that it should be clear
that a unilateral placement in a private school without first receiving
special education and related services from the LEA does not require
the public agency to provide reimbursement for private school tuition.
One commenter stated that proposed Sec. 300.148(b) goes beyond the
Act and only applies if the court or hearing officer finds that the
agency had not made FAPE available to the child in a timely manner
prior to enrollment in the private school. The commenter stated that a
determination that a placement is ``appropriate,'' even if it does not
meet the State standards that apply to education provided by the SEA or
LEAs, conflicts with the SEA's or LEA's responsibility to ensure FAPE
to children with disabilities.
Discussion: The provision in Sec. 300.148(b) that a parental
placement does not need to meet State standards in order to be
``appropriate'' under the Act is retained from current Sec. 300.402(c)
to be consistent with the Supreme Court's decisions in School Committee
of the Town of Burlington v. Department of Education, 471 U.S. 359
(1985) (Burlington) and Florence County School District Four v. Carter,
510 U.S. 7 (1993) (Carter). Under the Supreme Court's decision in
Carter, a court may order reimbursement for a parent who unilaterally
withdraws his or her child from a public school that provides an
inappropriate education under the Act and enrolls the child in a
private school that provides an education that is otherwise proper
under the Act, but does not meet the State standards that apply to
education provided by the SEA and LEAs. The Court noted that these
standards apply only to public agencies' own programs for educating
children with disabilities and to public agency placements of children
with disabilities in private schools for the purpose of providing a
program of special education and related services. The Court reaffirmed
its prior holding in Burlington that tuition reimbursement is only
available if a Federal court concludes ``both that the public placement
violated IDEA, and that the private school placement was proper under
the Act.'' (510 U.S. at 12). We believe LEAs can avoid reimbursement
awards by offering and providing FAPE consistent with the Act either in
public schools or in private schools in which the parent places the
child. However, a decision as to whether an LEA's offer or provision of
FAPE was proper under the Act and any decision regarding reimbursement
must be made by a court or hearing officer. Therefore, we do not
believe it is appropriate to include in these regulations a provision
relieving a public agency of its obligation to provide tuition
reimbursement for a unilateral placement in a private school if the
child did not first receive special education and related services from
the LEA.
This authority is independent of the court's or hearing officer's
authority under section 612 (a)(10)(C)(ii) of the Act to award
reimbursement for private placements of children who previously were
receiving special education and related services from a public agency.
Changes: None.
SEA Responsibility for General Supervision and Implementation of
Procedural Safeguards
SEA Responsibility for General Supervision (Sec. 300.149)
Comment: One commenter requested that the Department clarify in
these
[[Page 46600]]
regulations how the requirements for SEA responsibility in Sec.
300.149 apply with respect to children attending BIA-funded schools who
are sent to State prisons, including whether the Office of Indian
Education Programs in the Department of the Interior can delegate the
responsibility of ensuring that the requirements of Part B of the Act
are met by the State prison. The commenter further requested
clarification regarding tribally controlled detention facilities that
incarcerate a student from a different reservation than the reservation
where the student attended a BIA-funded school.
Discussion: As a general matter, for educational purposes, students
who were enrolled in a BIA-funded school and are subsequently convicted
as an adult and incarcerated in a State run adult prison are the
responsibility of the State where the adult prison is located. Section
612(a)(11)(C) of the Act and Sec. 300.149(d) allow flexibility to
States in that the Governor, or another individual pursuant to State
law, can designate a public agency in the State, other than the SEA, as
responsible for ensuring that FAPE is made available to eligible
students with disabilities who are convicted under State law and
incarcerated in the State's adult prisons. This provision does not
apply to the Secretary of the Interior. Therefore, the Office of Indian
Education Programs cannot delegate the responsibility of ensuring that
the requirements of Part B of the Act are met by the State prison. The
Act does not specifically address who is responsible for education of
students with disabilities in tribally controlled detention facilities.
However, the Secretary of the Interior is only responsible for students
who are enrolled in schools operated or funded by the Department of the
Interior.
Changes: None.
Comment: One commenter recommended adding a heading prior to Sec.
300.149 to separate this section from the regulations governing private
schools.
Discussion: We agree with the commenter that a heading should be
added to separate the private school provisions from other State
eligibility requirements.
Changes: We have added a heading before Sec. 300.149 to separate
the private school provisions from the provisions relating to the SEA's
responsibility for general supervision and implementation of procedural
safeguards.
State Complaint Procedures (Sec. Sec. 300.151 through 300.153)
Comment: We received several comments questioning the statutory
basis for the State complaint provisions in Sec. Sec. 300.151 through
300.153. One commenter stated that the Act includes only two statutory
references to State complaints and both references (sections
612(a)(14)(E) and 615(f)(3)(F) of the Act) immediately follow statutory
prohibitions on due process remedies.
One commenter stated that Congress did not require SEAs to create a
complaint system and that section 1232c(a) of the General Education
Provisions Act, 20 U.S.C. 1232c(a) (GEPA), provides only that the
Department may require a State to investigate and resolve all
complaints received by the State related to the administration of an
applicable program. The commenter stated that the permissive wording of
this provision suggests that the Secretary or the Department can choose
not to require a complaint investigation and resolution mechanism,
particularly when such mechanism is unnecessary or, as in the case of
the Act, effectively preempted by more specific requirements in the Act
governing the applicable program.
Another commenter concluded that there is no basis for the State
complaint procedures in Sec. Sec. 300.151 through 300.153 because the
Act only allows complaints to be filed with the State in two
situations: (1) By private school officials, regarding consultation and
child find for parentally-placed private school children pursuant to
section 612(a)(10)(A)(i) and (10)(A)(iii) of the Act, and (2) by
parents, regarding personnel qualifications in section 612(a)(14)(E) of
the Act. The commenter stated that in both cases, the Act does not
detail a complaint process.
Discussion: Although Congress did not specifically detail a State
complaint process in the Act, we believe that the State complaint
process is fully supported by the Act and necessary for the proper
implementation of the Act and these regulations. We believe a strong
State complaint system provides parents and other individuals an
opportunity to resolve disputes early without having to file a due
process complaint and without having to go to a due process hearing.
The State complaint procedures are referenced in the following three
separate sections of the Act: (1) Section 611(e)(2)(B)(i) of the Act,
which requires that States spend a portion of the amount of Part B
funds that they can use for State-level activities on complaint
investigations; (2) Section 612(a)(14)(E) of the Act, which provides
that nothing in that paragraph creates a private right of action for
the failure of an SEA or LEA staff person to be highly qualified or
prevents a parent from filing a complaint about staff qualifications
with the SEA, as provided for under this part; and (3) Section
615(f)(3)(F) of the Act, which states that ``[n]othing in this
paragraph shall be construed to affect the right of a parent to file a
complaint with the State educational agency.'' Paragraph (f)(3) is
titled ``Limitations on Hearing'' and addresses issues such as the
statute of limitations and that hearing issues are limited to the
issues that the parent has raised in their due process notice. The
Senate Report explains that this provision clarifies that ``nothing in
section 615 shall be construed to affect a parent's right to file a
complaint with the State educational agency, including complaints of
procedural violations' (S. Rpt. No. 108-185, p. 41).
Furthermore, the State complaint procedures were a part of the
initial Part B regulations in 1977 (45 CFR 121a.602). These regulations
were moved into part 76 of the Education Department General
Administrative Regulations (EDGAR) in the early 1980s, and were
returned to the Part B regulations in 1992 (after the Department
decided to move the regulations out of EDGAR and place them in program
regulations for the major formula grant programs). Although the State
complaint procedures have changed in some respects in the years since
1977, the basic right of any individual or organization to file a
complaint with the SEA alleging any violation of program requirements
has remained the same. For these reasons, we believe the State
complaint procedures should be retained in the regulations.
Changes: None.
Comment: Several commenters stated that use of the term
``complaint'' in reference to due process complaints and State
complaint procedures is confusing. One commenter requested that we use
the phrase ``due process hearing request'' instead of ``due process
complaint'' in the regulations to avoid confusion between the two
processes.
Discussion: Section 615 of the Act uses the term ``complaint'' to
refer to due process complaints. We have used the phrase ``due process
complaint'' instead of the statutory term ``complaint'' throughout
these regulations to provide clarity and reduce confusion between due
process complaints in section 615 of the Act and complaints under the
State complaint procedures in Sec. Sec. 300.151 through 300.153. We
believe this distinction is sufficient to reduce confusion and it is
not necessary to add further clarification regarding the use of the
term ``complaint'' in these regulations.
[[Page 46601]]
The regulations for State complaints under Sec. Sec. 300.151
through 300.153 provide for the resolution of any complaint, including
a complaint filed by an organization or an individual from another
State alleging that the public agency violated a requirement of Part B
of the Act or of part 300. The public agency must resolve a State
complaint within 60 days, unless there is a time extension as provided
in Sec. 300.152(b). Due process complaints, as noted in Sec. 300.507,
however, may be filed by a parent or a public agency, consistent with
Sec. Sec. 300.507 through 300.508 and Sec. Sec. 300.510 through
300.515.
Changes: None.
Adoption of State Complaint Procedures (Sec. 300.151)
Comment: Many commenters recommended that only issues related to
violations of the law should be subject to the State complaint process.
One commenter stated that the State complaint procedures should be used
only for systemic violations that reach beyond the involvement of one
child in a school.
A few commenters requested that the regulations clarify that the
State complaint procedures can be used for the denial of appropriate
services and the failure to provide FAPE in accordance with a child's
IEP. However, some commenters requested that the regulations clarify
that disputes involving appropriateness of services and whether FAPE
was provided should be dealt with in a due process hearing. One
commenter stated that the State complaint procedures should be used to
investigate whether required procedures were followed and not to
determine if evaluation data and student-specific data support the IEP
Team's determination of what is appropriate for the child. The
commenter went on to state that the procedures for administrative
hearings permit the examination and cross-examination of expert
witnesses and establishing the credibility of the testimonies, which
are the functions of a hearing officer, not SEA complaint specialists.
Discussion: Some commenters, as noted above, seek to limit the
scope of the State complaint system. We believe the broad scope of the
State complaint procedures, as permitted in the regulations, is
critical to each State's exercise of its general supervision
responsibilities. The complaint procedures provide parents,
organizations, and other individuals with an important means of
ensuring that the educational needs of children with disabilities are
met and provide the SEA with a powerful tool to identify and correct
noncompliance with Part B of the Act or of part 300. We believe placing
limits on the scope of the State complaint system, as suggested by the
commenters, would diminish the SEA's ability to ensure its LEAs are in
compliance with Part B of the Act and its implementing regulations, and
may result in an increase in the number of due process complaints filed
and the number of due process hearings held.
We do not believe it is necessary to clarify in the regulations
that the State complaint procedures can be used to resolve a complaint
regarding the denial of appropriate services or FAPE for a child, since
Sec. 300.153 is sufficiently clear that an organization or individual
may file a written complaint that a public agency has violated a
requirement of Part B of the Act or part 300. The State complaint
procedures can be used to resolve any complaint that meets the
requirements of Sec. 300.153, including matters concerning the
identification, evaluation, or educational placement of the child, or
the provision of FAPE to the child.
We believe that an SEA, in resolving a complaint challenging the
appropriateness of a child's educational program or services or the
provision of FAPE, should not only determine whether the public agency
has followed the required procedures to reach that determination, but
also whether the public agency has reached a decision that is
consistent with the requirements in Part B of the Act in light of the
individual child's abilities and needs. Thus, the SEA may need to
review the evaluation data in the child's record, or any additional
data provided by the parties to the complaint, and the explanation
included in the public agency's notice to the parent as to why the
agency made the determination regarding the child's educational program
or services. If necessary, the SEA may need to interview appropriate
individuals, to determine whether the agency followed procedures and
applied standards that are consistent with State standards, including
the requirements of Part B of the Act, and whether the determination
made by the public agency is consistent with those standards and
supported by the data. The SEA may, in its effort to resolve a
complaint, determine that interviews with appropriate individuals are
necessary for the SEA to obtain the relevant information needed to make
an independent determination as to whether the public agency is
violating a requirement of Part B of the Act or of part 300. However,
such interviews conducted by the SEA, as part of its effort to resolve
a State complaint, are not intended to be comparable to the requirement
in section 615(h)(2) of the Act, which provides any party to a due
process hearing the right to present evidence and confront, cross-
examine, and compel the attendance of witnesses.
In addition, a parent always has the right to file a due process
complaint and request a due process hearing on any matter concerning
the identification, evaluation, or educational placement of his or her
child, or the provision of FAPE and may seek to resolve their disputes
through mediation. It is important to clarify that when the parent
files both a due process complaint and a State complaint on the same
issue, the State must set aside any part of the complaint that is being
addressed in the due process hearing until the conclusion of the
hearing. However, any issue in the complaint that is not a part of the
due process hearing must be resolved using the State complaint
procedures in Sec. 300.152, including using the time limit and
procedures in paragraphs (b) and (d) of Sec. 300.152. (See Sec.
300.152(c)(1)). Under the Act, the decision reached through the due
process proceedings is the final decision on those matters, unless a
party to the hearing appeals that decision by requesting State-level
review, if applicable, or by bringing a civil action in an appropriate
State or Federal court.
Changes: None.
Comment: A few commenters requested amending Sec. 300.151(a)(2) to
specifically include school personnel and teacher organizations in the
list of entities to whom the SEA must disseminate the State complaint
procedures. Another commenter requested that representatives of private
schools or residential treatment facilities be included on the list of
entities to whom the State must disseminate complaint procedures.
Discussion: Section 300.151(a)(2) already requires the State to
widely disseminate the State complaint procedures in Sec. Sec. 300.151
through 300.153 to parents and other interested parties, including
parent training and information centers, protection and advocacy
organizations, independent living centers, and other appropriate
entities. There is nothing in these regulations that would prevent a
State from disseminating information about the State complaint
procedures to school personnel, teacher organizations, or
representatives of private schools or residential facilities. However,
we believe this decision is best left to the States. We do not believe
that there is a need to add these entities to the mandatory
distribution as individuals involved in the education of children
[[Page 46602]]
with disabilities are generally acquainted with these procedures.
Changes: None.
Remedies for Denial of Appropriate Services (Sec. 300.151(b))
Comment: Many commenters requested retaining current Sec.
300.660(b)(1), regarding the awarding of monetary reimbursement as a
remedy for denial of appropriate services. One commenter stated that
the regulations should clarify that States continue to have authority
to award monetary reimbursement, when appropriate. A few commenters
stated that the regulations should clarify that monetary reimbursement
is not appropriate for a majority of State complaints. Some commenters
stated that removing current Sec. 300.660(b)(1) creates ambiguity and
may result in increased litigation because parents may choose to use
the more costly and time-consuming due process system if they believe
that monetary relief is not available to them under the State complaint
system. Some commenters stated that removing current Sec.
300.660(b)(1) implies that monetary reimbursement is never appropriate.
A few commenters stated that removing the monetary reimbursement
provision in current Sec. 300.660(b)(1) suggests that the Department
no longer supports the use of this remedy. A few commenters requested
that the regulations clarify that compensatory services are an
appropriate remedy when the LEA has failed to provide appropriate
services.
Discussion: The SEA is responsible for ensuring that all public
agencies within its jurisdiction meet the requirements of the Act and
its implementing regulations. In light of the SEA's general supervisory
authority and responsibility under sections 612(a)(11) and 616 of the
Act, we believe the SEA should have broad flexibility to determine the
appropriate remedy or corrective action necessary to resolve a
complaint in which the SEA has found that the public agency has failed
to provide appropriate services to children with disabilities,
including awarding monetary reimbursement and compensatory services. To
make this clear, we will change Sec. 300.151 to include monetary
reimbursement and compensatory services as examples of corrective
actions that may be appropriate to address the needs of the child.
Changes: We have added ``compensatory services or monetary
reimbursement'' as examples of corrective actions in Sec.
300.151(b)(1).
Comment: One commenter stated that the remedies available in Sec.
300.151(b) are silent about whether the complainant may be reimbursed
for attorneys' fees and requested clarification as to whether
reimbursement is permissible for State complaints. Another commenter
requested that the language in section 615(i)(3)(B) of the Act,
regarding the awarding of attorneys' fees for due process hearings, be
included in the State complaint procedures as a way to limit
repetitive, harassing complaints.
Discussion: The awarding of attorneys' fees is not addressed in
Sec. 300.151(b) because the State complaint process is not an
administrative proceeding or judicial action, and, therefore, the
awarding of attorneys' fees is not available under the Act for State
complaint resolutions. Section 615(i)(3)(B) of the Act clarifies that a
court may award attorneys' fees to a prevailing party in any action or
proceeding brought under section 615 of the Act. We, therefore, may not
include in the regulations the language from section 615(i)(3)(B) of
the Act, as suggested by the commenters, because State complaint
procedures are not an action or proceeding brought under section 615 of
the Act.
Changes: None.
Minimum State Complaint Procedures (Sec. 300.152)
Time Limit; Minimum Procedures (Sec. 300.152(a))
Comment: One commenter suggested changing Sec. 300.152(a)(1), to
include situations when the SEA is the subject of a complaint. Another
commenter recommended that the State complaint procedures include how
the SEA should handle a complaint against the SEA for its failure to
supervise the LEA or failure to provide direct services when given
notice that the LEA has failed to do so.
Discussion: We do not believe it is necessary to specify in the
regulations how the SEA should handle a complaint filed against the SEA
because Sec. 300.151 clarifies that, if an organization or individual
files a complaint, pursuant to Sec. Sec. 300.151 through 300.153, that
a public agency has violated a requirement of Part B of the Act or part
300, the SEA must resolve the complaint. Pursuant to Sec. 300.33 and
section 612(a)(11) of the Act, the term public agency includes the SEA.
The SEA must, therefore, resolve any complaint against the SEA pursuant
to the SEA's adopted State complaint procedures. The SEA, however, may
either appoint its own personnel to resolve the complaint, or may make
arrangements with an outside party to resolve the complaint. If it
chooses to use an outside party, however, the SEA remains responsible
for complying with all procedural and remediation steps required in
part 300.
Changes: None.
Comment: One commenter suggested that the regulations include
language requiring an on-site investigation unless the SEA determines
that it can collect all evidence and fairly determine whether a
violation has occurred with the evidence provided by the complainant
and a review of records.
Discussion: We do not believe the regulations should require the
SEA to conduct an on-site investigation in the manner suggested by the
commenter because we believe Sec. 300.152(a)(1) is sufficient to
ensure that an independent on-site investigation is carried out if the
SEA determines that such an investigation is necessary to resolve a
complaint. The minimum State complaint procedures in Sec. 300.152 are
intended to be broad in recognition of the fact that States operate
differently and standards appropriate to one State may not be
appropriate in another State. Therefore, the standards to be used in
conducting an on-site investigation are best determined by the State.
Changes: None.
Comment: One commenter stated that Sec. 300.152 would allow an
unlimited period of time to resolve complaints and requested that the
regulations limit the complaint resolution process to 30 days, similar
to the procedures when a due process hearing is requested. A few
commenters requested that the 60-day time limit be lengthened to 90
days, given that many complaints involve complex issues and multiple
interviews with school administrators.
Discussion: Section 300.152 does not allow an unlimited period of
time to resolve a complaint. Paragraph (a) of this section provides
that an SEA has a time limit of 60 days after a complaint is filed to
issue a written decision to the complainant that addresses each
allegation in the complaint (unless, under paragraph (b) of this
section, there is an extension for exceptional circumstances or the
parties agree to extend the timeline because they are engaged in
mediation or in other alternative means of dispute resolution, if
available in the State). We believe the right of parents to file a
complaint with the SEA alleging any violation of Part B of the Act or
part 300 to receive a written decision within 60 days is reasonable in
light of the SEA's responsibilities in resolving a complaint pursuant
to its complaint procedures, and is appropriate to the interest of
resolving allegations promptly. In
[[Page 46603]]
addition, the 60-day time limit for resolving a State complaint is a
longstanding requirement and States have developed their State
complaint procedures based on the 60-day time limit. We believe
altering this timeframe would be unnecessarily disruptive to States'
developed complaint procedures. For these reasons, we do not believe it
is appropriate to change the time limit as recommended by the
commenters.
Changes: None.
Comment: One commenter expressed concern that the regulations are
silent as to how an amended State complaint should be handled. One
commenter expressed concern about resolving complaints within the 60-
day time limit when the complainant submits additional information
about the complaint and amends the complaint. The commenter requested
that in such cases, the regulations should allow the 60-day time limit
to begin from the date the State receives the amended complaint.
Discussion: Section 300.152 provides that the complaint must be
resolved 60 days after a complaint is filed and that the complainant
must be given an opportunity to submit additional information, either
orally or in writing, about the allegations in the complaint.
Generally, if the additional information a parent submits is on the
same or related incident, it would be part of the amended complaint. If
the information submitted by the complainant is on a different or
unrelated incident, generally, the new information would be treated as
a separate complaint. On the other hand, if the information submitted
by the complainant were on the same incident, generally, the new
information would be treated as an amendment to the original complaint.
It is, ultimately, left to each State to determine whether the new
information constitutes a new complaint or whether it is related to a
pending complaint. We believe the decision regarding whether the
additional information is a new complaint or an amendment to an
existing complaint, is best left to the State. The State must have the
flexibility to make this determination based on the circumstances of a
particular complaint and consistent with its State complaint process
and, therefore, we do not believe it is appropriate to regulate further
on this matter.
There are no provisions in Part B of the Act or in these
regulations that permit the 60-day time limit to begin from the date
the State receives an amended complaint, if additional information
submitted by the complainant results in an amendment to the complaint.
However, Sec. 300.152(b) permits an extension of the 60-day time limit
if exceptional circumstances exist or the parent and the public agency
agree to extend the time limit to attempt to resolve the complaint
through mediation.
Changes: None.
Comment: One commenter requested clarification regarding the time
limit for a public agency to respond with a proposal to resolve the
complaint.
Discussion: The 60-day time limit to resolve a complaint does not
change if a public agency decides to respond to the complaint with a
proposal to resolve the complaint. However, Sec. 300.152(b)(2) permits
the 60-day time limit to be extended under exceptional circumstances or
if the parent and public agency agree to engage in mediation or in
other alternative means of dispute resolution, if available in the
State.
Changes: None.
Comment: One commenter expressed concern that Sec. 300.152(a)
could limit the SEA's investigation of a complaint to an exchange of
papers since the SEA is not required to conduct an on-site
investigation.
Discussion: Section 300.152 provides that the SEA must review all
relevant information and, if it determines it to be necessary, carry
out an independent on-site investigation in order to make an
independent determination as to whether the public agency is violating
a requirement of Part B of the Act or part 300. We believe the SEA is
in the best position, and should have the flexibility, to determine
what information is necessary to resolve a complaint, based on the
facts and circumstances of the individual case. It is true that, in
some cases, a review of documents provided by the parties may be
sufficient for the SEA to resolve a complaint and that conducting an
on-site investigation or interviews with staff, for example, may be
unnecessary. The SEA, based on the facts in the case, must decide
whether an on-site investigation is necessary. We also believe
requiring an on-site investigation for each State complaint would be
overly burdensome for public agencies and unnecessary.
Changes: None.
Comment: A few commenters requested adding language to proposed
Sec. 300.152(a)(3) to allow an SEA to provide opportunities for
resolving the complaint through mediation and other informal mechanisms
for dispute resolution with any party filing a complaint, not only the
parents. Some commenters requested that the regulations clarify that
mediation is the appropriate method to resolve State complaints
regarding the denial of appropriate services.
A few commenters expressed concern that the phrase ``[w]ith the
consent of the parent'' in proposed Sec. 300.152(a)(3) implies that
complaints are disagreements between parents and public agencies,
rather than allegations of violations of a child's or a parent's rights
under the Act.
A few commenters supported the use of mediation to resolve a
complaint, but requested that alternative means of dispute resolution
be deleted. Other commenters expressed concern that providing yet
another means of initiating mediation or other dispute resolution is
unnecessary because these options are already available to parties who
wish to use them. A few commenters requested that the regulations
define alternative means of dispute resolution.
Discussion: Section 300.152(a)(3) was proposed to encourage
meaningful, informal, resolution of disputes between the public agency
and parents, organizations, or other individuals by providing an
opportunity for parties to resolve disputes at the local level without
the need for the SEA to resolve the matter. We believe that, at a
minimum, the State's complaint procedures should allow the public
agency that is the subject of the complaint the opportunity to respond
to a complaint by proposing a resolution and provide an opportunity for
a parent who has filed a complaint and the public agency to resolve a
dispute by voluntarily engaging in mediation. However, we do not
believe that the SEA should be required to offer other alternative
means of dispute resolution, and so will remove the reference to these
other alternatives from the minimum procedures in Sec. 300.152(a)(3).
We believe it is important to retain the provision in Sec.
300.152(a)(3)(ii) (proposed Sec. 300.152(a)(3)(B)), with modification,
to reinforce the use of voluntary mediation as a viable option for
resolving disputes between the public agency and the parents at the
local level prior to the SEA investigating, if necessary, and resolving
a dispute. Resolving disputes between parties at the local level
through the use of mediation, or other alternative means of dispute
resolution, if available in the State, will be less adversarial and
less time consuming and expensive than a State complaint investigation,
if necessary, or a due process hearing and, ultimately, children with
disabilities will be the beneficiaries of a local level resolution.
Requiring that the public agency provide an opportunity for the
parent
[[Page 46604]]
who has filed a complaint and the public agency to voluntarily engage
in mediation in an effort to resolve a dispute is an appropriate
minimum requirement and consistent with the statutory provision in
section 615(e) of the Act that voluntary mediation be made available to
parties (i.e., parent and public agency) to disputes involving any
matter under Part B of the Act, including matters arising prior to the
filing of a due process complaint. However, the statute does not
require that mediation be available to other parties, and we believe it
would be burdensome to expand, through regulation, new Sec.
300.152(a)(3)(ii) (proposed Sec. 300.152(a)(3)(B)) to require that
States offer mediation to non-parents. Although we do not believe we
should regulate to require that mediation be offered to non-parents,
there is nothing in the Act or these regulations that would preclude an
SEA from permitting the use of mediation, or other alternative dispute
resolution mechanisms, if available in the State, to resolve a State
complaint filed by an organization or individual other than a parent,
and we will add language to Sec. 300.152(b)(1)(ii) to permit
extensions of the timeline if the parties are voluntarily engaged in
any of these dispute resolution procedures. In fact, we encourage SEAs
and their public agencies to consider alternative means of resolving
disputes between the public agency and organizations or other
individuals, at the local level, consistent with State law and
administrative procedures. It is up to each State, however, to
determine whether non-parents can use mediation or other alternative
means of dispute resolution.
Section 615(e) of the Act makes clear that mediation is a voluntary
mechanism for resolving disputes and may not be used to delay or deny a
parent's right to a due process hearing on the parent's due process
complaint, or to deny any other rights afforded under Part B of the
Act. In light of the fact that mediation is a voluntary process, the
parties only need to agree to engage in mediation and it is not
necessary to obtain parental written consent to engage in this
voluntary process. We will, therefore, change new Sec.
300.152(a)(3)(ii) (proposed Sec. 300.152(a)(3)(B)) by removing the
phrase ``[w]ith the consent of the parent'' and adding a reference to
Sec. 300.506.
We do not believe it is necessary to include in the regulations a
definition of the term ``alternative means of dispute resolution''
because the term is generally understood to refer to other procedures
and processes that States have found to be effective in resolving
disputes quickly and effectively but does not include those dispute
resolution processes required under the Act or these final regulations.
Changes: We have changed new Sec. 300.152(a)(3)(ii) (proposed
Sec. 300.152(a)(3)(B)) by removing ``with the consent of the parent''
and ``or other alternative means of dispute resolution'' and adding a
reference to Sec. 300.506. We have also amended Sec.
300.152(b)(1)(ii), as stated above, to clarify that a public agency's
State complaint procedures must permit an extension of the 60-day time
limit if a parent (or individual or organization, if mediation, or
other alternative means of dispute resolution is available to the
individual or organization under State procedures) who has filed a
complaint and the public agency voluntarily agree to extend the time to
engage in mediation or other alternative means of dispute resolution,
if available in the State.
Comment: A few commenters stated that the agreement to extend the
60-day time limit (to allow the parties to engage in mediation, or
alternative means of dispute resolution, or both) should meet the
consent requirements in Sec. 300.9. One commenter requested an
extension of the 60-day time limit to resolve complaints when mediation
is underway.
Discussion: We do not agree that consent, as defined in Sec.
300.9, should be required to extend the 60-day time limit because it
would add burden and is not necessary. It is sufficient to require
agreement of the parties. At any time that either party withdraws from
mediation or other alternative means of dispute resolution, or
withdraws agreement to the extension of the time limit, the extension
would end. We believe Sec. 300.152(b) is sufficiently clear that an
extension of the 60-day time limit is permissible if exceptional
circumstances exist with respect to a particular complaint, or if the
parent and the public agency agree to extend the time to engage in
mediation. We also believe it would be permissible to extend the 60-day
time limit if the public agency and an organization or other individual
agree to engage in an alternative means of dispute resolution, if
available in the State, and the parties agree to extend the 60-day time
limit. We will revise Sec. 300.152(b)(1)(ii) to include this
exception.
Changes: We have revised Sec. 300.152(b)(1)(ii) to clarify that it
would be permissible to extend the 60-day time limit if the parties
agree to engage in other alternative means of dispute resolution, if
available in the State.
Comment: Several commenters requested that Sec. 300.152(a) be
modified to include language allowing parents, in addition to the
public agency, an opportunity to submit a proposal to resolve the
complaint.
Discussion: We do not believe it is necessary to include the
language in Sec. 300.152(a) as suggested by the commenter because
Sec. 300.153(b)(4)(v) already requires that the signed written
complaint submitted to the SEA by the complainant include a proposed
resolution to the problem. A parent who is a complainant must include a
proposed resolution to the problem to the extent known and available to
the parent at the time the complaint is filed.
Changes: None.
Complaints Filed Under This Section and Due Process Hearings Under
Sec. 300.507 or Sec. Sec. 300.530 Through 300.532 (Sec. 300.152(c))
Comment: A few commenters requested that the regulations include a
provision to allow parents to use the State complaint process to
enforce agreements reached in mediation and resolution sessions. One
commenter expressed concern that if an SEA does not have authority to
enforce agreements arising from mediation and resolution sessions, the
burden will be on a parent to incur costs necessary to file a petition
with a court to have the agreement enforced.
Discussion: The Act provides that the enforcement and
implementation of agreements reached through mediation and resolution
sessions may be obtained through State and Federal courts. Section
300.506(b)(7), consistent with section 615(e)(2)(F)(iii) of the Act,
states that a written, signed mediation agreement is enforceable in any
State court of competent jurisdiction or in a district court of the
United States. Similarly, Sec. 300.510(c)(2), consistent with section
615(f)(1)(B)(iii)(II) of the Act, states that a written settlement
agreement resulting from a resolution meeting is enforceable in any
State court of competent jurisdiction or in a district court of the
United States.
However, as noted in the Analysis of Comments and Changes for
subpart E, we have added new Sec. 300.537 that allows, but does not
require, a State to have mechanisms or procedures that permit parties
to mediation or resolution agreements to seek enforcement of those
agreements and decisions at the SEA level. We believe this provision is
sufficient to allow States the flexibility to determine what mechanisms
or procedures, if any, may be appropriate to enforce such agreements,
including utilizing their
[[Page 46605]]
State complaint procedures, if they choose to do so, so long as the
mechanisms or procedures are not used to deny or delay a parent's right
to seek enforcement through State and Federal courts.
Changes: None.
Comment: Numerous commenters requested that current Sec.
300.661(c)(3), regarding the SEA's responsibility to resolve complaints
alleging a public agency's failure to implement due process decisions,
be retained. Many commenters raised concerns that removing this
language will lead to more litigation. One commenter stated that
parents would be forced to litigate due process decisions, which will
prolong the denial of FAPE to children. Another commenter stated that
not allowing States to enforce a hearing officer's decision encourages
litigation because it is the only avenue for relief. Several commenters
stated that parents are placed at a disadvantage because they may not
have the resources to file in State or Federal court.
Discussion: The SEA's obligation to implement a final hearing
decision is consistent with the SEA's general supervisory
responsibility, under sections 612(a)(11) and 616 of the Act, over all
education programs for children with disabilities in the State, which
includes taking necessary and appropriate actions to ensure that the
provision of FAPE and all the requirements in Part B of the Act and
part 300 are carried out. However, we agree that the requirements from
current Sec. 300.661(c)(3) should be retained for clarity.
Changes: We have added the requirement in current Sec.
300.661(c)(3) as new Sec. 300.152(c)(3).
Comment: Numerous commenters requested retaining current Sec.
300.661(c)(1), which requires that any issue in the complaint that is
not a part of a due process complaint be resolved using the applicable
State complaint timelines and procedures. One commenter stated that
Sec. 300.152(c)(1) requires the State to set aside an entire complaint
if due process proceedings commence with respect to any subject that is
raised in the complaint. A few commenters expressed concern that if
issues in a State complaint, which are not part of a due process
complaint, are not investigated until the due process complaint is
resolved, children may go without FAPE for extended periods of time.
These commenters also stated that parents are likely to file for due
process on every issue of concern, rather than using the more
expeditious and less expensive State complaint procedures.
Discussion: We agree that language in current Sec. 300.661(c),
requiring that States set aside any part of a State complaint that is
being addressed in a due process hearing, until the conclusion of the
hearing and resolve any issue that is not a part of the due process
hearing, should be retained.
Changes: We have revised Sec. 300.152(c)(1) by adding the
requirements in current Sec. 300.661(c)(1) to the regulations.
Comment: One commenter stated that the regulations do not address
the disposition of a complaint if a parent and a public agency come to
a resolution of a complaint through mediation. One commenter
recommended that the regulations provide guidance on how an SEA should
handle a complaint that is withdrawn. Another commenter requested
clarification on what should occur if an SEA does not approve of the
agreement reached between the parent and the public agency.
Discussion: We do not believe it is necessary to regulate on these
matters, as recommended by the commenters. Section 615(e)(2)(F) of the
Act and Sec. 300.506(b)(7) clarify that an agreement reached through
mediation is a legally binding document enforceable in State and
Federal courts. Therefore, an agreement reached through mediation is
not subject to the SEA's approval. We strongly encourage parties to
resolve a complaint at the local level without the need for the SEA to
intervene. If a complaint is resolved at the local level or is
withdrawn, no further action is required by the SEA to resolve the
complaint.
Changes: None.
Comment: One commenter suggested including language in the
regulations that would require parties to provide evidence under threat
of perjury. Another commenter stated that the State complaint process
should be non-adversarial and that neither party should have the right
to review the other's submissions or to cross-examine the other party.
Discussion: We do not believe it is appropriate to include the
language suggested by the commenters because we believe requiring
parties to provide evidence under the threat of perjury, permitting
parties to review submissions, and allowing one party to cross-examine
the other party are contrary to the intent of the State complaint
process. The State complaint process is intended to be less adversarial
than the more formal filing of a due process complaint and possibly
going to a due process hearing. To make the changes requested by the
commenters will serve only to make the State complaint process more
adversarial and will not be in the best interest of the child. The
State complaint procedures in Sec. Sec. 300.151 through 300.153 do not
require parties to provide evidence, nor do they require that a State
allow parties to review the submissions of the other party or to cross-
examine witnesses.
Changes: None.
Filing a Complaint (Sec. 300.153)
Comment: One commenter recommended the regulations include a limit
on the number of times that an individual may file a State complaint
against a public agency.
Discussion: An SEA is required to resolve any complaint that meets
the requirements of Sec. 300.153, including complaints that raise
systemic issues, and individual child complaints. It would be
inconsistent with the Act's provisions in section 616 regarding
enforcement and the Act's provisions in section 612 regarding general
supervision for an SEA to have a State complaint procedure that removes
or limits a party's right to file a complaint that a public agency has
violated a requirement of Part B of the Act or part 300, including
limiting the number of times a party can file a complaint with the SEA.
Therefore, it is not appropriate to include in the regulations the
language suggested by the commenter, nor should the SEA include in its
State complaint procedures any restriction on the number of times a
party can file a complaint, as long as the complaint meets the
requirements of Sec. 300.153.
Changes: None.
Comment: Many commenters requested retaining current Sec.
300.662(c), which permits a complaint to be filed about a violation
that occurred more than one year prior to the date the complaint is
received if the violation is continuing or the complainant is
requesting compensatory services for a violation that occurred more
than three years prior to the date the complaint is received.
Some commenters requested that the regulations permit a parent to
have as much time to file a State complaint as a parent would have to
file a due process complaint (two years, unless provided otherwise by
State law). One commenter stated that extensions of the statute of
limitations should be granted when circumstances warrant an extension.
Another commenter suggested adding language providing that the
timeline begins when a parent first learns about the violation. A few
commenters stated that parents need a longer statute of
[[Page 46606]]
limitations for State complaints because they do not always know about
violations when they occur and may not fully understand how the
violation affects their child's education.
Several commenters stated that Congress did not intend to create a
one-year statute of limitations for State complaints when it created a
two-year statute of limitations for due process hearings. Several
commenters stated that there is no evidence that Congress intended to
change the current three-year statute of limitations on the parents'
right to file a State complaint when the violation is ongoing or
compensatory services are being requested.
Discussion: We believe a one-year timeline is reasonable and will
assist in smooth implementation of the State complaint procedures. The
references to longer periods for continuing violations and for
compensatory services claims in current Sec. 300.662(c) were removed
to ensure expedited resolution for public agencies and children with
disabilities. Limiting a complaint to a violation that occurred not
more than one year prior to the date that the complaint is received
will help ensure that problems are raised and addressed promptly so
that children receive FAPE. We believe longer time limits are not
generally effective and beneficial to the child because the issues in a
State complaint become so stale that they are unlikely to be resolved.
However, States may choose to accept and resolve complaints regarding
alleged violations that occurred outside the one-year timeline, just as
they are free to add additional protections in other areas that are not
inconsistent with the requirements of the Act and its implementing
regulations. For these reasons, we do not believe it is necessary to
retain the language in current Sec. 300.662(c).
We do not believe it is appropriate to change the timeline to begin
when a parent first learns about the violation, as suggested by the
commenter, because such a provision could lead to some complaints being
filed well beyond one year from the time the violation actually
occurred. This also would make the issue of the complaint so stale that
the SEA would not be able to reasonably resolve the complaint and
recommend an appropriate corrective action.
As we stated earlier in the Analysis of Comments and Changes for
this subpart, Congress did not specifically address or detail a State
complaint process in the Act; nor did Congress express an opinion
regarding the time limit for filing a complaint under a State's
complaint process.
Changes: None.
Comment: Several commenters stated that Sec. 300.153(c) appears to
indicate that if a State complaint, is also the subject of a due
process complaint, the time period to file the complaint is two years,
rather than the one-year time limit applicable for all other State
complaints. Several commenters stated that this provision should be
removed and that a one-year limitation should apply to all State
complaints, regardless of whether a request for a due process hearing
is filed on the issue(s) in the complaint.
Discussion: If a State complaint contains multiple issues of which
one or more is part of a due process hearing, the one-year statute of
limitations would apply to the issues that are resolved under the State
complaint procedures; the State due process statute of limitations
would apply to the issues that are the subject of the due process
hearing. We agree that the language in Sec. 300.153 is confusing and
will amend the language to remove the reference to the due process
complaint.
Changes: We have removed the phrase, ``Except for complaints
covered under Sec. 300.507(a)(2)'' in Sec. 300.153(c).
Comment: Some commenters recommended removing the requirement in
Sec. 300.153(d) that requires the party filing the complaint to
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. One
commenter stated that filing a complaint is onerous enough for parents,
without including an extra step of requiring a copy of the complaint to
be forwarded to the school. One commenter stated that this poses an
unnecessary paperwork burden on parents. A few commenters stated that
forwarding a copy of the complaint to the LEA should be the
responsibility of the SEA, not the parents.
One commenter expressed concern that requiring the party filing the
complaint to forward a copy of the complaint to the LEA or public
agency serving the child will discourage parents or school personnel
whistle blowers from filing a complaint and recommended instead, that
the regulations require SEAs to provide the LEA with a concise
statement of fact upon which the complaint is based and the provisions
of laws and rules that are at issue. A few commenters requested
including language in Sec. 300.153(d) giving the SEA discretion to
protect the confidentiality of the complainant. A few commenters
recommended removing the requirement in Sec. 300.153(b)(3) for the
written complaint to include the signature and contact information for
the complainant.
Discussion: The purpose of requiring the party filing the complaint
to 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,
is to ensure that the public agency involved has knowledge of the
issues and an opportunity to resolve them directly with the complaining
party at the earliest possible time. The sooner the LEA knows that a
complaint is filed and the nature of the issue(s), the quicker the LEA
can work directly with the complainant to resolve the complaint. We
believe the benefit of having the complainant forward a copy of the
complaint to the LEA or public agency far outweigh the minimal burden
placed on the complainant because it will lead to a faster resolution
of the complaint at the local level. For these reasons, we also do not
believe it is more efficient to have the SEA forward the complaint to
the public agency or provide the public agency with a statement
summarizing the complaint.
We do not believe that the complaint procedures should provide for
the confidentiality of the complainant. The complainant should not
remain unknown to the public agency that is the subject of the
complaint because that public agency needs to know who the complainant
is and something about the complaint (consistent with Sec. 300.153)
before it can be expected to resolve the issues. We believe it is
reasonable to require a party to file a signed complaint and provide
contact information to the SEA in order to ensure the credibility of
the complaint and provide the SEA with the basic contact information
necessary for the SEA to handle complaints expeditiously. If the SEA
receives a complaint that is not signed, as required in Sec. 300.153,
the SEA may choose to dismiss the complaint.
Changes: None.
Comment: One commenter expressed concern that a parent must have
legal knowledge in order to correctly file a State complaint.
Discussion: Contrary to the commenter's assertion that a parent
must have legal knowledge to file a complaint, we believe the State
complaint procedures, which are under the direct control of the SEA,
provide the parent and the school district with mechanisms that allow
them to resolve differences without having to resort to a more costly
and cumbersome due process complaint, which, by its nature, is
litigious. We believe if a State effectively implements its State
complaint procedures, both parents and public agencies will generally
find the
[[Page 46607]]
process efficient and easy to initiate. We further believe that the
requirement in Sec. 300.509 that each SEA must develop model forms to
assist parents in filing a State complaint in accordance with
Sec. Sec. 300.151 through 300.153, and in filing a due process
complaint in accordance with Sec. Sec. 300.507(a) and 300.508(a)
through (c), will make the process of filing such complaints much
easier for parents and others.
Changes: We have made a minor wording change in Sec. 300.153(b)(4)
for clarity.
Comment: One commenter stated that the complainant should not have
to propose a resolution to the problem, as required in Sec.
300.153(b)(4)(v), in order to have the State investigate a complaint.
Discussion: Section 300.153(b)(4)(v) requires the complainant to
propose a resolution to the complaint only to the extent known and
available to the complainant at the time the complaint is filed. We
believe this proposed resolution is necessary because it gives the
complainant an opportunity to state what he or she believes to be the
problem and how the complainant believes it can be resolved. This is
important because it gives the complainant an opportunity to tell the
public agency what is wrong and what it would take to fix the problem
from the complainant's point of view. It also will give the LEA an
opportunity to choose either to do as the complainant requests or
propose a solution that it believes would resolve the issue raised by
the complainant. Thus, if successful, the parties will avoid an
adversarial relationship and possibly the expense of a due process
hearing.
Changes: None.
Comment: One commenter requested that Sec. 300.153(d) include
language allowing an LEA to appeal an SEA finding to an administrative
hearing or the courts. Another commenter expressed concern that the
State complaint procedures lack an appeals process for parties that
lose under the State complaint procedures.
Discussion: The regulations neither prohibit nor require the
establishment of procedures to permit an LEA or other party to request
reconsideration of a State complaint decision. We have chosen to be
silent in the regulations about whether a State complaint decision may
be appealed because we believe States are in the best position to
determine what, if any, appeals process is necessary to meet each
State's needs, consistent with State law.
If a State chooses, however, to adopt a process for appealing a
State complaint decision, such process may not waive any of the
requirements in Sec. Sec. 300.151 through 300.153. Section 300.152
requires that the SEA issue a final decision on each complaint within
60 calendar days after the complaint is filed, unless the SEA extends
the timeline as provided in Sec. 300.152(b). This means that, absent
an appropriate extension of the timeline for a particular complaint,
the State must issue a final decision within 60 calendar days.
However, if after the SEA's final decision is issued, a party who
has the right to request a due process hearing (that is, the parent or
LEA) and who disagrees with the SEA's decision may initiate a due
process hearing, provided that the subject of the State complaint
involves an issue about which a due process hearing can be filed and
the two-year statute of limitations for due process hearings (or other
time limit imposed by State law) has not expired.
Changes: None.
Method of Ensuring Services (Sec. 300.154)
Establishing Responsibility for Services (Sec. 300.154(a))
Comment: One commenter suggested posting interagency agreements on
SEA Web sites and in public buildings, and making them available upon
request.
Discussion: There is nothing in the Act or these regulations that
would prohibit an SEA from posting interagency agreements on Web sites,
in public buildings, or making them available upon request. However, we
believe that it would be unnecessarily burdensome to require SEAs to do
so and any decision regarding posting interagency agreements is best
left to the States' discretion.
Changes: None.
Comment: One commenter stated that interagency agreements are
important because agencies other than SEAs (e.g., mental health
agencies that place children in residential facilities) are responsible
for providing special educational services. The commenter requested
that the regulations specify that residential facilities be allowed
reimbursement for providing educational services and that children in
these facilities are entitled to FAPE.
Discussion: We do not believe it is necessary to further clarify in
the regulations that children with disabilities who are placed in
residential facilities by public agencies are entitled to FAPE because
Sec. 300.146, consistent with section 612(a)(10)(B) of the Act,
provides that SEAs must ensure that children with disabilities receive
FAPE when they are placed in or referred to private schools or
facilities by public agencies. Whether residential facilities can
receive reimbursement for educational services will depend on how
States have apportioned financial responsibility among State agencies
and we do not believe that regulating on this issue is appropriate or
necessary.
Changes: None.
Obligation of Noneducational Public Agencies (Sec. 300.154(b))
Comment: One commenter expressed concern that Sec. 300.154(b)
allows LEAs to discontinue services when there is a dispute with other
agencies and requested the regulations require LEAs to bear the
ultimate responsibility for providing services.
Discussion: We do not believe it is necessary to further clarify
that the LEA is ultimately responsible for providing services because
Sec. 300.154(b)(2) sufficiently requires that if a public agency other
than an educational agency fails to provide or pay for the special
education and related services in Sec. 300.154(b)(1), 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. Disagreements about
the interagency agreements should not stop or delay the receipt of the
services described in the child's IEP. Section 300.103(c) also
addresses timely services and clarifies that, consistent with Sec.
300.323(c), the State must ensure there is no delay in implementing a
child's IEP, including any situation in which the source for providing
or paying for the special education or related services to a child is
being determined. Section 612(a)(12)(A)(i) of the Act provides that the
financial responsibility of public agencies (other than an educational
agency), including Medicaid and other public insurers obligated under
Federal or State law or assigned responsibility under State policy,
must precede financial responsibility of the LEA.
Changes: None.
Children With Disabilities Who Are Covered by Public Benefits or
Insurance (Sec. 300.154(d))
Comment: One commenter expressed concern regarding the use of a
parent's public benefits or insurance to pay for services required
under Part B of the Act because co-payments and other out-of-pocket
expenses would be a hardship to low-income families. A few commenters
stated that services paid for by public benefits or insurance would
count against a child's lifetime cap.
Discussion: The commenters' concerns are addressed in Sec.
300.154(d)(2)(ii) and (d)(2)(iii). Section 300.154(d)(2)(ii) states
that a public agency may not require parents to incur
[[Page 46608]]
an out-of-pocket expense, such as the payment of a deductible or co-pay
amount, in filing a claim for services, and may pay from funds reserved
under the Act, the cost that the parent would otherwise be required to
pay. In addition, Sec. 300.154(d)(2)(iii) states that a public agency
may not use a child's benefits under a public benefits or insurance
program if that use would decrease lifetime coverage or any other
insured benefit; result in the family paying for services that would
otherwise be covered by the public benefits or insurance program and
that are required for the child outside of the time the child is in
school; increase premiums or lead to the discontinuation of benefits or
insurance; or risk loss of eligibility for home and community-based
waivers, based on aggregate health-related expenditures.
Changes: None.
Comment: One commenter suggested changing ``parental consent'' to
``informed parental consent.'' One commenter recommended requiring
public agencies to obtain parental consent each time the public agency
seeks to access the parent's public benefits or insurance. Some
commenters recommended removing the requirement to obtain parental
consent to use Medicaid benefits to pay for services required under
Part B of the Act. A few commenters opposed requiring parental consent,
stating the process is an administrative burden. Other commenters
recommended waiving the requirement for consent if the agency has taken
reasonable measures to obtain such consent or the parent's consent was
given to the State Medicaid Agency.
Discussion: In order for a public agency to use the Medicaid or
other public benefits or insurance program in which a child
participates to provide or pay for services required under the Act, the
public agency must provide the benefits or insurance program with
information from the child's education records (e.g., services
provided, length of the services). Information from a child's education
records is protected under the Family Educational Rights and Privacy
Act of 1974, 20 U.S.C. 1232(g) (FERPA), and section 617(c) of the Act.
Under FERPA and section 617(c) of the Act, a child's education records
cannot be released to a State Medicaid agency without parental consent,
except for a few specified exceptions that do not include the release
of education records for insurance billing purposes. Parental consent
requires, among other things, that the parent be fully informed in his
or her native language, or other mode of communication, consistent with
Sec. 300.9. Thus, there is no need to change ``parental consent'' to
``informed consent,'' as recommended by one commenter. However, we
believe it would avoid confusion for the references to ``consent'' in
paragraphs (d) and (e) in Sec. 300.154 to be consistent. Therefore, we
will add a reference to Sec. 300.9 in Sec. 300.154(d)(2)(iv)(A) and
delete ``informed'' from Sec. 300.154(e)(1).
We believe obtaining parental consent each time the public agency
seeks to use a parent's public insurance or other public benefits to
provide or pay for a service is important to protect the privacy rights
of the parent and to ensure that the parent is fully informed of a
public agency's access to his or her public benefits or insurance and
the services paid by the public benefits or insurance program.
Therefore, we will revise Sec. 300.154(d)(2)(iv) to clarify that
parental consent is required each time the public agency seeks to use
the parent's public insurance or other public benefits. We do not
believe that it would be appropriate to include a provision permitting
waiver of parental consent in this circumstance, even where a public
agency makes reasonable efforts to obtain the required parental
consent. However, we agree with the commenter that a public agency
could satisfy parental consent requirements under FERPA and section
617(c) of the Act if the parent provided the required parental consent
to the State Medicaid agency, and the consent satisfied the Part B
definition of consent in Sec. 300.9.
We also believe that it is important to let parents know that their
refusal to allow access to their public benefits or insurance does not
relieve the public agency of its responsibility to ensure that all
required services are provided at no cost to the parents. We will,
therefore, add a new paragraph (B) to Sec. 300.154(d)(2)(iv) to make
this clear.
Finally, because we have referenced the definition of consent in
Sec. 300.9 throughout the rest of these regulations, rather than the
consent provisions in Sec. 300.622, we have removed the reference to
Sec. 300.622.
Changes: Section 300.154(d)(2)(iv) has been changed to clarify that
consent must be obtained each time the public agency seeks to access a
parent's public benefits or insurance and to clarify that a parent's
refusal to allow access to the parent's public benefits or insurance
does not relieve the public agency of its responsibility to ensure that
all required services are provided at no cost to the parent. The
reference to Sec. 300.622 has been removed and we have added
``consistent with Sec. 300.9'' following ``parental consent'' in Sec.
300.154(d)(2)(iv)(A). For consistency, we have removed ``informed''
before ``consent'' in Sec. 300.154(e)(1).
Comment: One commenter stated that LEAs and agencies that, by law,
must provide educational services should not be allowed to use public
benefits or insurance to pay for these programs. One commenter
suggested that the Act be more closely aligned with the Medicaid laws.
One commenter requested requiring public benefits or insurance
agencies, when paying for special education, to meet the standards of
the Act, and not the standards for medical environments.
Discussion: We disagree with the comment that LEAs and other public
agencies responsible for providing special education and related
services to children with disabilities should not be allowed to use
public benefits or insurance to pay for these services. Pursuant to
section 612(a)(12) of the Act, if a child is covered by a public
benefits or insurance program and there is no cost to the family or the
child in using the benefits of that program to support a service
included in a child's IEP, the public agency is encouraged to use the
public benefits or insurance to the extent possible. We believe public
benefits or insurance are important resources for LEAs and other public
agencies to access, when appropriate, to assist in meeting their
obligation to make FAPE available to all children who are eligible to
receive services.
Section 300.103 retains the Department's longstanding provision
that clarifies that each State may use whatever State, local, Federal,
and private sources of support are available in the State to meet the
requirements of part 300. Nothing in part 300 relieves an insurer or
similar third party from an otherwise valid obligation to provide or
pay for services provided to a child with a disability.
The Act does not give the Department the authority to impose the
standards of the Act on public benefits or insurance agencies, when
paying for special education. If, however, a third party provider, such
as a public benefits or insurance company, is unable to provide funding
for services outside a clinical setting or other specific setting, the
public agency cannot use the third party provider's inability to
provide such funding as an appropriate justification for not providing
a child with a disability FAPE in the LRE. Nothing in part 300 alters
the requirements imposed on a State Medicaid agency, or any other
agency administering a public benefits or insurance program by Federal
statute, regulation, or policy under Title XIX or
[[Page 46609]]
Title XXI of the Social Security Act, 42 U.S.C. 1396 through 1396(v)
and 42 U.S.C. 1397aa through 1397jj, or any other public benefits or
insurance program. See section 612(a)(12) and (e) of the Act.
We believe the regulations are sufficiently aligned with the
Medicaid program and consistent with the Act and no further
clarification is necessary.
Changes: None.
Comment: One commenter requested clarifying that a child cannot be
denied Medicaid-supported medical services merely because he or she
receives educational services funded by Medicaid.
Discussion: We do not believe further clarification is necessary
because Sec. 300.154(d)(2) is sufficiently clear that the child's
receipt of Medicaid-funded educational services, consistent with the
Act and these regulations, should not deny the child receipt of other
services for which he or she may be eligible under Medicaid or other
noneducational programs. Further, Sec. 300.103(b) provides that
nothing in part 300 relieves an insurer or third party from an
otherwise valid obligation to pay for services provided to a child with
a disability.
Changes: None.
Comment: One commenter stated that LEAs and agencies that, by law,
must provide educational services should not be allowed to use public
benefits or insurance to pay for these programs. One commenter
suggested that the Act be more closely aligned with the Medicaid laws.
One commenter requested requiring public benefits or insurance
agencies, when paying for special education, to meet the standards of
the Act, and not the standards for medical environments.
Discussion: We disagree with the comment that LEAs and other public
agencies responsible for providing special education and related
services to children with disabilities should not be allowed to use
public benefits or insurance to pay for these services. Pursuant to
section 612(a)(12) of the Act, if a child is covered by a public
benefits or insurance program and there is no cost to the family or the
child in using the benefits of that program to support a service
included in a child's IEP, the public agency is encouraged to use the
public benefits or insurance to the extent possible. We believe public
benefits or insurance are important resources for LEAs and other public
agencies to access, when appropriate, to assist in meeting their
obligation to make FAPE available to all children who are eligible to
receive services.
Section 300.103 retains the Department's longstanding provision
that clarifies that each State may use whatever State, local, Federal,
and private sources of support are available in the State to meet the
requirements of part 300. Nothing in part 300 relieves an insurer or
similar third party from an otherwise valid obligation to provide or
pay for services provided to a child with a disability.
The Act does not give the Department the authority to impose the
standards of the Act on public benefits or insurance agencies, when
paying for special education. If, however, a third party provider, such
as a public benefits or insurance company, is unable to provide funding
for services outside a clinical setting or other specific setting, the
public agency cannot use the third party provider's inability to
provide such funding as an appropriate justification for not providing
a child with a disability FAPE in the LRE. Nothing in part 300 alters
the requirements imposed on a State Medicaid agency, or any other
agency administering a public benefits or insurance program by Federal
statute, regulation, or policy under Title XIX or Title XXI of the
Social Security Act, 42 U.S.C. 1396 through 1396(v) and 42 U.S.C.
1397aa through 1397jj, or any other public benefits or insurance
program. See section 612(a)(12) and (e) of the Act.
We believe the regulations are sufficiently aligned with the
Medicaid program and consistent with the Act and no further
clarification is necessary.
Changes: None.
Comment: One commenter requested clarifying that a child cannot be
denied Medicaid-supported medical services merely because he or she
receives educational services funded by Medicaid.
Discussion: We do not believe further clarification is necessary
because Sec. 300.154(d)(2) is sufficiently clear that the child's
receipt of Medicaid-funded educational services, consistent with the
Act and these regulations, should not deny the child receipt of other
services for which he or she may be eligible under Medicaid or other
noneducational programs. Further, Sec. 300.103(b) provides that
nothing in part 300 relieves an insurer or third party from an
otherwise valid obligation to pay for services provided to a child with
a disability.
Changes: None.
Personnel Qualifications (Sec. 300.156)
Comment: One commenter requested that Sec. 300.156 use the term
``standards'' when referring to personnel qualifications.
Discussion: We are not changing Sec. 300.156 because its language
follows the specific language in section 612(a)(14) of the Act. Current
Sec. 300.136 refers to ``personnel standards'' but was removed
consistent with the changes in section 612(a)(14) of the Act.
Changes: None.
Comment: Some commenters requested that the personnel qualification
requirements in Sec. 300.156 apply to personnel who provide travel
instruction and teachers of children with visual impairments. Other
commenters requested that personnel who provide therapeutic recreation
services be required to meet the personnel qualifications. Some
commenters requested that the personnel qualifications apply to
preschool special education teachers.
Discussion: It is not necessary to list the specific personnel who
provide services to children with disabilities under the Act and to
whom the requirements in Sec. 300.156 apply because the regulations
are sufficiently clear that all needed personnel are covered. This
includes personnel who provide travel instruction or therapeutic
recreation services; teachers of children with visual impairments, if
such personnel are necessary to carry out the purposes of this part;
and preschool teachers in States where preschool teachers are
considered elementary school teachers. Section 300.156(a), consistent
with section 612(a)(14)(A) of the Act, requires each SEA to establish
and maintain personnel qualification requirements to ensure that
personnel necessary to carry out the purposes of Part B of the Act and
part 300 are appropriately and adequately prepared and trained, and
have the content knowledge and skills to serve children with
disabilities.
Changes: None.
Comment: One commenter stated that the regulations should define
what it means to be qualified to provide services to children with
disabilities under the Act. The commenter stated that the regulations
do not include any requirements for general education teachers or
administrators who are involved in providing instruction and services
for children in special education.
Discussion: It is not necessary to change the regulations to define
what it means to be qualified to provide services because we believe
that, aside from the ``highly qualified'' requirements for teachers and
special education teachers in ESEA and the Act, other personnel
qualifications are appropriately left to the States, in light of the
variability in State circumstances. Further, Sec. 300.156, consistent
with section 612(a)(14) of the Act, makes it clear that it is the
responsibility of the
[[Page 46610]]
SEA, not the Federal government, to establish and maintain
qualifications for personnel who provide services to children with
disabilities under the Act.
Changes: None.
Comment: One commenter objected to the removal of the requirements
for a comprehensive system of personnel development in current Sec.
300.135. The commenter also stated that regular education teachers need
to be trained to work with children with disabilities to ensure that
their inclusion in the regular classroom is successful.
Discussion: Current Sec. 300.135 required States to have in effect
a system of personnel development to ensure an adequate supply of
qualified special education, regular education, and related services
personnel. Section 612(a)(14) of the Act removed this requirement. The
removal of current Sec. 300.135, however, does not diminish the
responsibility of each State to establish and maintain qualifications
to ensure that personnel (including regular education teachers)
necessary to carry out the purposes of the Act are appropriately and
adequately prepared and trained, consistent with Sec. 300.156.
Changes: None.
Comment: Some commenters recommended that the regulations include
language from note 97 of the Conf. Rpt., p. 192, which requires SEAs to
establish rigorous qualifications for related services providers to
ensure that children with disabilities receive the appropriate quality
and quantity of care. Several commenters requested that the regulations
require SEAs to consult with LEAs, other State agencies, the disability
community, and professional organizations regarding appropriate
qualifications for related services providers and different service
delivery models (e.g., consultative, supervisory, and collaborative
models).
Discussion: We believe that States already have sufficient
incentive to ensure that related services providers provide services of
appropriate quality so that children with disabilities can achieve to
high standards and that further regulation in this area is not
necessary. Section 300.156(b), consistent with section 612(a)(14)(B) of
the Act, includes the qualifications for related services personnel.
There is nothing in the Act that requires SEAs to consult with LEAs,
other State agencies, or other groups and organizations to determine
the appropriate qualifications for related services providers and the
use of different service delivery models, and while we agree that this
is good practice and encourage SEAs to participate in such
consultation, we do not believe that we should regulate in this manner.
States should have the flexibility, based on each State's unique
circumstances, to determine how best to establish and maintain
standards for all personnel who are providers of special education and
related services.
Changes: None.
Comment: Numerous commenters objected to Sec. 300.156(b) and the
removal of the requirement in current Sec. 300.136 for State
professional requirements to be based on the highest requirements in
the State. The commenters stated that the removal of this requirement
relaxes the qualification standards for speech-language pathologists
and other related services personnel. Several commenters stated that
speech-language professionals should be required to have advanced
degrees (i.e., master's level) because a bachelor's degree does not
provide adequate preparation. Many commenters expressed concern that
the requirements in Sec. 300.156(b) will lead to a decline in the
quality of related services provided to children with disabilities in
public schools. Other commenters expressed concern that increasing the
standards will exacerbate the shortage of related services personnel
experienced by large urban school districts.
Discussion: We are not changing Sec. 300.156 because it reflects
the specific language in section 612(a)(14) of the Act, which was
intended to provide greater flexibility to SEAs to establish
appropriate personnel standards, including the standards for speech-
language pathologists. As indicated in note 97 of the Conf. Rpt., p.
192, section 612(a)(14) of the Act removes the requirement for State
professional requirements to be based on the highest requirements in
the State because of concerns that the previous law, regarding the
qualifications of related services providers, established an
unreasonable standard for SEAs to meet, and as a result, led to a
shortage of related services providers for children with disabilities.
We believe that States can exercise the flexibility provided in Sec.
300.156 and section 612(a)(14) of the Act while ensuring appropriate
services for children with disabilities without additional regulation.
Changes: None.
Comment: Many commenters expressed concern that Sec. 300.156(b)
establishes qualifications for related services providers in public
schools that are less rigorous than the qualifications for related
services providers who provide Medicaid services or services in other
public settings, such as hospitals. The commenters stated that less
rigorous qualifications would result in a two-tiered system in which
related services providers in public schools will be less qualified
than related services providers in other public agencies. Another
commenter expressed concern that the relaxation of standards for
speech-language pathologists would cause LEAs to lose Medicaid funds
that are used to assist children with disabilities.
Discussion: Section 300.156, consistent with section
612(a)(14)(B)(i) of the Act, clarifies that it is up to each SEA to
establish qualifications for personnel to carry out the purposes of the
Act. This will require weighing the various policy concerns unique to
each State. The qualifications of related services providers required
under Medicaid, or in hospitals and other public settings, and the fact
that Medicaid will not pay for providers who do not meet Medicaid
provider qualifications should serve as an incentive for States that
want to bill for medical services on children's IEPs to impose
consistent requirements for qualifications of related services
providers.
Changes: None.
Comment: Some commenters stated that related services personnel
should be considered to have met the qualifications in Sec.
300.156(b)(1), regarding State-recognized certification, licensing,
registration or other comparable requirements, if such personnel hold
an academic degree consistent with their profession's national
certification or State license to practice; demonstrate satisfactory
progress toward full certification in the schools as prescribed by the
State; and assume related services personnel functions for a specified
period not to exceed three years.
A few commenters objected to the requirement that related services
personnel must not have had certification or licensure requirements
waived. One commenter stated that emergency, temporary, or provisional
certificates are necessary for professionals relocating from different
States or different countries, and predicted that professionals with
emergency, temporary, or provisional certification would work for
contract agencies to bypass the requirements.
Discussion: We believe the provisions in Sec. 300.156(b) that
State qualifications for related services personnel must include
qualifications that 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, are
[[Page 46611]]
sufficient to ensure related services personnel are qualified to
provide appropriate services to children with disabilities while
maintaining the States' flexibility to establish appropriate personnel
standards for related services personnel. We do not believe, therefore,
that it is necessary to include additional regulation as suggested by
commenters.
Section 300.156(b)(2)(ii) tracks the statutory requirement in
section 612(a)(14)(B)(ii) of the Act, which requires that related
services personnel not have certification or licensure requirements
waived on an emergency, temporary, or provisional basis. We do not
believe this provision unnecessarily hinders States from hiring
professionals from other States or countries. States, in examining the
credentials of prospective related services personnel from other States
or countries, may find that their existing certification or licensure
requirements are ones that these related services personnel could
readily meet. Because each State has full authority to define and
enforce its own requirements that personnel must meet in order to
receive full State certification or licensure, States that employ
related services personnel from other States or countries may,
consistent with State law and policy, consider establishing a separate
category of certification that would differ from emergency, temporary,
or provisional certification in that the State would not be waiving any
training or experiential requirements.
Changes: None.
Comment: One commenter recommended using nationally recognized
standards to determine the qualifications of related services
personnel. Another commenter recommended requiring SEAs to consider
current professional standards in establishing appropriate
qualifications for related services personnel. One commenter requested
adding language to the regulations to prevent professional
organizations from establishing personnel standards for related
services personnel that override standards set by the SEA.
Discussion: We do not believe it is necessary to regulate as
suggested by the commenters because these matters are better left to
States to decide as States are in the best position to determine
appropriate professional requirements for their States. There is
nothing in the Act that requires an SEA to determine qualifications of
related services personnel based on nationally recognized standards or
current professional standards. Professional organizations may
establish personnel standards for related services personnel that
differ from the standards established by a State, but section
612(a)(14) of the Act clarifies that the State is responsible for
establishing and maintaining personnel qualifications to ensure that
related services personnel have the knowledge and skills to serve
children with disabilities under the Act.
Changes: None.
Comment: A few commenters requested that the regulations specify
that an SEA, and not the State, has the authority to establish
certification and licensure qualifications of related services
personnel.
Discussion: We do not believe it is necessary to change the
regulation because Sec. 300.156(b), which follows the language in
section 612(a)(14)(B) of the Act, clarifies that the SEA must establish
qualifications for related services personnel that are consistent with
State-approved or State-recognized certification, licensing,
registration, or other comparable requirements that apply to related
services personnel.
Changes: None.
Comment: Some commenters requested that the regulations require
related services providers who do not meet existing State standards to
be supervised by qualified personnel.
Discussion: Related services providers who do not meet the
personnel qualifications established by the SEA would not be considered
qualified to serve children with disabilities under the Act even with
supervision by qualified personnel. Section 300.156(d), consistent with
section 612(a)(14)(D) of the Act, clarifies that each State must ensure
that LEAs take measurable steps to recruit, hire, train, and retain
highly qualified special education personnel to provide special
education and related services to children with disabilities under the
Act.
Changes: None.
Comment: Some commenters recommended that the regulations require
high standards for paraprofessionals. Several commenters requested
guidance on the appropriate use of paraprofessionals to ensure that
paraprofessionals and assistants are not used as a means of
circumventing certification and licensing requirements for related
services providers. A few commenters requested language clarifying that
the elimination of the requirement that State professional requirements
be based on the highest requirements in the State in current Sec.
300.136(b) must not be used to justify the inappropriate use of
paraprofessionals or related services providers. Another commenter
asked that the regulations require States to ensure that
paraprofessionals are properly supervised at all times. One commenter
stated that the regulations should clarify the use of State standards
for speech-language pathology paraprofessionals.
Discussion: We believe the provisions in Sec. 300.156, consistent
with section 612(a)(14) of the Act, are sufficient to ensure that
paraprofessionals meet high standards and that including additional
requirements in these regulations is unnecessary. These provisions
require an SEA to establish and maintain qualifications to ensure that
personnel, including paraprofessionals, are appropriately and
adequately prepared and trained, and have the content knowledge and
skills to serve children with disabilities; and require the
qualifications for paraprofessionals to be 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. In addition, the ESEA requires that paraprofessionals working
in a program supported by title I of the ESEA, including special
education paraprofessionals who assist in instruction in title I-funded
programs, have at least an associate's degree, have completed at least
two years of college, or meet a rigorous standard of quality and
demonstrate, through a formal State or local assessment, knowledge of,
and the ability to assist in instruction in reading, writing, and
mathematics, reading readiness, writing readiness, or mathematics
readiness, as appropriate. Paraprofessionals in title I schools do not
need to meet these requirements if their role does not involve
instructional support, such as special education paraprofessionals who
solely provide personal care services. For more information on the ESEA
requirements for paraprofessionals, see 34 CFR 200.58 and section 1119
of the ESEA, and the Department's nonregulatory guidance, Title I
Paraprofessionals (March 1, 2004), which can be found on the
Department's Web site at: http://www.ed.gov/policy/elsec/guid/paraguidance.pdf.
With regard to the commenter requesting that the regulations
clarify the use of State standards for speech-language
paraprofessionals, we do not believe it is appropriate to include
clarification regarding a specific discipline in these regulations
because the Act requires States to establish and maintain
qualifications to ensure that paraprofessionals, including speech-
language paraprofessionals, are
[[Page 46612]]
appropriately and adequately prepared and trained.
Section 300.156(b)(2)(iii), consistent with section
612(a)(14)(B)(iii) of the Act, does specifically allow
paraprofessionals and assistants who are appropriately trained and
supervised, in accordance with State law, regulation, or written
policy, to assist in providing special education and related services
to children with disabilities under the Act. However, this provision
should not be construed to permit or encourage the use of
paraprofessionals as a replacement for teachers or related services
providers who meet State qualification standards. To the contrary,
using paraprofessionals and assistants as teachers or related services
providers would be inconsistent with the State's duty to ensure that
personnel necessary to carry out the purposes of Part B of the Act are
appropriately and adequately prepared and trained. Paraprofessionals in
public schools are not directly responsible for the provision of
special education and related services to children with disabilities;
rather, these aides provide special education and related services to
children with disabilities only under the supervision of special
education and related services personnel. We believe the provision in
Sec. 300.156(b)(2)(iii) sufficiently ensures that paraprofessionals
and assistants are adequately supervised and further clarification in
these regulations is unnecessary.
The Act makes clear that the use of paraprofessionals and
assistants who are appropriately trained and supervised must be
contingent on State law, regulation, and written policy giving States
the option of determining whether paraprofessionals and assistants can
be used to assist in the provision of special education and related
services under Part B of the Act, and, if so, to what extent their use
would be permissible. However, it is critical that States that use
paraprofessionals and assistants to assist in providing special
education and related services to children with disabilities do so in a
manner that is consistent with the rights of children with disabilities
to FAPE under Part B of the Act. There is no need to provide additional
guidance on how States and LEAs should use paraprofessionals and
assistants because States have the flexibility to determine whether to
use them, and, if so, to determine the scope of their responsibilities.
Changes: None.
Comment: One commenter recommended different requirements for
paraprofessionals who perform routine tasks and those who perform
specific activities to assist in the provision of special education and
related services.
Discussion: We do not see the need to make a change to the
regulations as suggested by the commenter because, under Sec. 300.156,
consistent with section 612(a)(14) of the Act, SEAs have the
responsibility for establishing and maintaining qualifications to
ensure that personnel necessary to carry out the purposes of this part
are appropriately and adequately prepared and trained. Furthermore,
SEAs and LEAs have the flexibility to determine the tasks and
activities to be performed by paraprofessionals and assistants, as long
as they are consistent with the rights of children with disabilities to
FAPE.
It should be kept in mind, however, that the ESEA has different
requirements for paraprofessionals, including special education
paraprofessionals, who assist in instruction in title I schools versus
paraprofessionals in title I schools who do not provide instructional
support, such as special education paraprofessionals who solely provide
personal care services.
Changes: None.
Comment: A number of comments were received on the qualifications
for special education teachers in Sec. 300.156(c) that were similar to
the comments received regarding the definition of highly qualified
special education teacher in Sec. 300.18.
Discussion: We combined and responded to these comments with the
comments received in response to the requirements in Sec. 300.18.
Changes: None.
Comment: Some commenters requested that the regulations allow
alternative routes to certification for related services personnel and
other non-teaching personnel, just as such routes are allowed for
highly qualified teachers.
Discussion: As we stated earlier in this section, section
612(a)(14)(B) of the Act, clarifies that the SEA must establish
qualifications for related services personnel that are consistent with
State-approved or State-recognized certification, licensing,
registration, or other comparable requirements that apply to related
services personnel. While the Act does not address alternative routes
to certification programs for related services personnel or other non-
teaching personnel, there is nothing in the Act or the regulations that
would preclude a State from providing for alternate routes for
certification for related services personnel or other non-teaching
personnel. It is, however, up to a State to determine whether related
services or non-teaching personnel participating in alternative routes
to certification programs meet personnel requirements established by
the State, consistent with the requirements in Sec. 300.156 and
section 612(a)(14) of the Act.
Changes: None.
Comment: Many commenters recommended that Sec. 300.156 provide
more guidance to ensure that States and LEAs implement proven
strategies for recruiting and retaining qualified personnel. A few
commenters stated that this is especially important for speech-language
pathologists because large caseloads, increased paperwork, and lack of
time for planning and collaboration have been shown to contribute to
their burn out and attrition. Several commenters recommended that
strategies to recruit and retain qualified personnel include reasonable
workloads, improved working conditions, incentive programs, salary
supplements, loan forgiveness, tuition assistance, signing bonuses,
streamlined application processes, State and national advertising
venues, school and university partnerships, release time for
professional development, certification reciprocity between States,
grants to LEAs for recruitment and retention programs, alternate
professional preparation models, caseload size standards, and classroom
size standards.
One commenter requested that the requirements to recruit, hire,
train, and retain highly qualified personnel in Sec. 300.156(d) apply
to paraprofessionals who provide special education and related
services.
Discussion: The list of strategies recommended by the commenters
includes many strategies that may be effective in recruiting and
retaining highly qualified personnel; however, we do not believe it is
appropriate to include these or other strategies in our regulations
because recruitment and retention strategies vary depending on the
unique needs of each State and LEA. States and LEAs are in the best
position to determine the most effective recruitment and retention
strategies for their location.
With regard to the comment regarding the applicability of Sec.
300.156(d) to paraprofessionals who provide special education and
related services, Sec. 300.156(d), consistent with section
612(a)(14)(C) of the Act, applies to all personnel who provide special
education and related services under the Act, including
paraprofessionals.
Changes: None.
Comment: A few commenters stated that the rule of construction in
Sec. 300.156(e) is inconsistent with the rule
[[Page 46613]]
of construction in the definition of highly qualified teacher in
proposed Sec. 300.18(e). Some commenters requested that the
regulations clarify that the rule of construction in Sec. 300.156(e)
is applicable to both administrative and judicial actions.
A few commenters requested that the regulations specify that a
parent may file a State complaint with the State regarding failure of
their child to receive FAPE because staff is not highly qualified.
However, several commenters stated that parents should not be allowed
to file a State complaint under Sec. Sec. 300.151 through 300.153
regarding staff qualifications.
Discussion: We agree that the rules of construction in both
proposed Sec. 300.156(e) and proposed Sec. 300.18(e) must be revised
so that both rules are the same. The changes will clarify that a parent
or student may not file a due process complaint on behalf of a student,
or file a judicial action on behalf of a class of students for the
failure of a particular SEA or LEA employee to be highly qualified;
however, a parent may file a complaint about staff qualifications with
the SEA. In addition to permitting a parent to file a State complaint
with the SEA, an organization or an individual may also file a
complaint about staff qualifications with the SEA, consistent with the
State complaint procedures in Sec. Sec. 300.151 through 300.153. We
believe that this is appropriate given the wording of section
612(a)(14)(E) of the Act `` * * * or to prevent a parent from filing a
complaint about staff qualifications with the State educational
agency'' and incorporated in the regulations in Sec. 300.156(e) and
new Sec. 300.18(f) (proposed Sec. 300.18(e)). By incorporating the
wording from the construction clause in section 612(a)(14)(E) of the
Act in the regulations as previously noted, parents and other
interested parties, may seek compliance through the State complaint
process.
Changes: We have added ``or a class of students'' to Sec.
300.156(e) to clarify that a judicial action on behalf of a class of
students may not be filed for failure of a particular SEA or LEA
employee to be highly qualified. We have substituted the word,
``employee'' for ``staff person'' to be more precise and for
consistency with the rule of construction in new Sec. 300.18(f)
(proposed Sec. 300.18(e)). We have also reformatted Sec. 300.156(e).
Comment: Some commenters recommended adding language to the
regulations restricting a parent's right to file a complaint regarding
an LEA's failure to take measurable steps to recruit, hire, train, and
retain highly qualified personnel.
Discussion: We believe the regulations do not need clarification.
Section Sec. 300.151(a) is sufficiently clear that an organization or
individual may file a State complaint under Sec. Sec. 300.151 through
300.153 alleging a violation of a requirement of Part B of the Act or
of this part. This includes the requirement that an LEA take measurable
steps to recruit, hire, train, and retain highly qualified personnel
consistent with section 612(a)(14)(D) of the Act.
Changes: None.
Comment: Some commenters requested that the regulations clarify
that, unless the State has statutory control over district staffing,
parents cannot obtain compensatory damages or services or a private
school placement based on the lack of highly qualified personnel.
Discussion: We do not agree that the exception requested by the
commenter should be added to the regulations because new Sec.
300.18(f) (proposed Sec. 300.18(e)), and Sec. 300.156(e) are
sufficiently clear that nothing in part 300 shall be construed to
create a right of action on behalf of an individual child for the
failure of a particular SEA or LEA staff person to be highly qualified.
Changes: None.
Comment: One commenter recommended that the qualifications of all
personnel should be made a matter of public record.
Discussion: To do as the commenter recommends would add burden for
local school personnel and it is not required under the Act. In
contrast, title I of the ESEA required that LEAs receiving title I
funds provide parents, at their request, the qualifications of their
children's classroom teachers. There is nothing in the Act or these
regulations, however, which would prevent an SEA or LEA from adopting
such a policy should it wish to do so. In the absence of a
congressional requirement in the Act, such policies are matters best
left to State law.
Section 1111(h)(6) of the ESEA requires LEAs to inform parents
about the professional qualifications of their children's classroom
teachers. The ESEA requires that at the beginning of each school year,
an LEA that accepts title I, part A funding must notify parents of
students in title I schools that they can request information regarding
their children's classroom teachers, including, at a minimum: (1)
Whether the teacher has met the State requirements for licensure and
certification for the grade levels and subject-matters in which the
teacher provides instruction; (2) whether the teacher is teaching under
emergency or other provisional status through which State qualification
or licensing criteria have been waived; (3) the college major and any
other graduate certification or degree held by the teacher, and the
field of discipline of the certification or degree; and (4) whether the
child is provided services by paraprofessionals, and if so, their
qualifications. In addition, each title I school must provide each
parent timely notice that the parent's child has been assigned, or has
been taught for four or more consecutive weeks by, a teacher who is not
highly qualified. These requirements apply only to special education
teachers who teach core academic subjects in Title I schools.
Changes: None.
Performance Goals and Indicators (Sec. 300.157)
Comment: Several commenters recommended that the regulations retain
current Sec. 300.137(a)(2), which requires that States have goals for
the performance of children with disabilities in the State that are
consistent, to the maximum extent appropriate, with other goals and
standards for all children established by the State. The commenters
specifically objected to the removal of the word ``maximum'' before
``extent appropriate;'' and the removal of the word ``all'' before
``children'' in Sec. 300.157(a)(4).
Discussion: Section 612(a)(15)(A)(iv) of the Act specifically
removed the words in current Sec. 300.137(a)(2) that the comment
references. Therefore, we believe that it would be contrary to the
intent of the statutory drafters to restore these words to the
regulatory provision.
Changes: None.
Comment: A few commenters requested that the regulations in Sec.
300.156(b) require States to involve parent centers in establishing the
performance goals and indicators and measurable annual objectives for
children with disabilities.
Discussion: We encourage broad stakeholder involvement in the
development of performance goals, indicators, and annual objectives for
children with disabilities, including the involvement of parent
centers. We see no need to single out a particular group, however. The
regulations in Sec. 300.165(a) already require specific public
participation in the adoption of policies and procedures needed to
demonstrate eligibility under Part B, including this requirement.
Changes: None.
[[Page 46614]]
Participation in Assessments (Proposed Sec. 300.160)
Comment: None.
Discussion: Participation in assessments is the subject of a notice
of proposed rulemaking published in the Federal Register on December
15, 2005 (70 FR 74624) to amend the regulations governing programs
under title I of the ESEA and Part B of the Act, regarding additional
flexibility for States to measure the achievement of children with
disabilities based on modified achievement standards.
Changes: Therefore, we are removing proposed Sec. 300.160 and
designating the section as ``Reserved.''
Supplementation of State, Local, and Other Federal Funds (Sec.
300.162)
Comment: One commenter disagreed with the removal of current Sec.
300.155, which requires that States have policies and procedures on
file with the Secretary to ensure that funds paid to the State under
Part B of the Act are spent in accordance with the provisions of Part
B.
Discussion: Current Sec. 300.155 was removed from these
regulations consistent with section 612(a)(17) of the Act. The removal
of this requirement is also consistent with section 612(a) of the Act,
which requires a State to submit a plan that provides assurances to the
Secretary that the State has in effect policies and procedures to
ensure that the State meets the requirements of the Act rather than
submitting the actual policies and procedures to the Department. To
alleviate burden, Congress removed the statutory provisions which
required that States have policies and procedures on file with the
Secretary to ensure that funds paid to the State under Part B of the
Act are spent in accordance with the provisions of Part B. OSEP
continues to have responsibility to ensure that States are properly
implementing the Act. Given the statutory change that Congress made to
remove the prior requirement, we believe it would be inappropriate to
include it in these regulations.
Changes: None.
Maintenance of State Financial Support (Sec. 300.163)
Comment: One commenter requested that Sec. 300.163(c)(1),
regarding waivers for maintenance of State financial support for
exceptional or uncontrollable circumstances, provide examples of what
would be considered a precipitous and unforeseen decline in the State's
financial resources.
Discussion: We decline to limit the Secretary's discretion in these
matters in the abstract. The Secretary makes the determinations
regarding these waivers on a case-by-case basis and given the facts and
circumstances at the time such a request is made.
Changes: None.
Public Participation (Sec. 300.165)
Comment: Several commenters objected to the removal of current
Sec. Sec. 300.280 through 300.284, regarding public participation, and
recommended that all provisions, including those related to public
hearings, comment periods, and review of public comments be restored.
Discussion: We do not believe it is necessary to retain in the
regulations the requirements in current Sec. Sec. 300.280 through
300.284 because the provisions in Sec. 300.165 and GEPA, in 20 U.S.C.
1232d(b)(7), provide sufficient opportunities for public participation.
We also believe retaining the requirements in Sec. Sec. 300.280
through 300.284 would place unnecessary regulatory burden on States.
Section 300.165(a) incorporates 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, and requires States to
ensure that there are public hearings, adequate notice of hearings, and
an opportunity for comment available to the general public.
Furthermore, paragraph (b) of this section requires States to comply
with the public participation requirements of GEPA, in 20 U.S.C.
1232d(b)(7), before submitting a State plan under this part. In
accordance with the GEPA requirement, the State must assure that it
will provide reasonable opportunities for participation by local
agencies, representatives of the class of individuals affected by
programs under this part and other interested institutions,
organizations, and individuals in the planning for the operation of
programs under this part. GEPA also requires that the State publish
each proposed State plan under this part, in a manner that will ensure
circulation throughout the State, at least 60 days prior to the date on
which the State plan is submitted to the Secretary or on which the
State plan becomes effective, whichever occurs earlier, with an
opportunity for public comments on such plan to be accepted for at
least 30 days. In addition, the State must comply with any State-
specific public participation requirements in adopting policies and
procedures related to Part B of the Act.
Changes: None.
Comment: One commenter requested that the regulations define the
meaning of ``adequate notice'' as it is used in Sec. 300.165(a) to
ensure that there is adequate notice of public hearings prior to
adopting any policies and procedures needed to comply with Part B of
the Act.
Discussion: We do not think it is appropriate or necessary to
include in the regulations a definition of ``adequate notice'' because
what constitutes ``adequate notice'' will vary depending on the unique
circumstances in each State and we believe States should have the
flexibility of determining and applying a workable and reasonable
standard that meets their circumstances to ensure public participation
at public hearings. We believe it would be reasonable for the State to
assume that it provided adequate notice if, at its public hearings,
there were sufficient representatives of the general public, including
individuals with disabilities and parents of children with
disabilities, in attendance.
Changes: None.
Comment: One commenter requested that the regulations require
States to provide notices of public hearings in multiple languages and
alternative formats.
Discussion: It is unnecessary to include regulations requiring
States to provide notice of public hearings in multiple languages and
alternative formats. Public agencies are required by other Federal
statutes to take appropriate actions to ensure that the public has
access, in alternative formats and languages other than English, to
public hearings. 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), 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).
Changes: None.
Comment: One commenter requested that the regulations require
States to work with the parent centers to identify appropriate
locations and times for public hearings.
Discussion: There is nothing in the Act or these regulations that
would prohibit a State from working with the parent centers to identify
appropriate
[[Page 46615]]
locations and times for public hearings, but we see no need to require
States to do so. We believe that this matter should be left to State
discretion.
Changes: None.
Rule of Construction (Sec. 300.166)
Comment: One commenter requested clarification regarding the use of
Federal funds to offset decreases in State formula allocations to LEAs
that use attendance, enrollment, or inflation as elements of the State
funding formula for special education.
Discussion: Section 300.166 was added to incorporate language in
section 612(a)(20) of the Act. It specifies that States with laws that
require a specific level of funding to their LEAs cannot use Federal
Part B funds for this purpose.
Changes: None.
State Advisory Panel
State Advisory Panel (Sec. 300.167)
Comment: One commenter stated that Sec. Sec. 300.167 through
300.169 are unnecessary and do not add any requirements beyond those in
section 612(a)(21) of the Act. The commenter recommended removing these
requirements and stated that they can be adequately implemented through
guidance provided by the Department and not through regulation.
Discussion: The requirements of the State advisory panel in
Sec. Sec. 300.167 through 300.169 reflect the specific language in
section 612(a)(21) of the Act. We believe it is necessary to include
these statutory requirements in the regulations to provide parents,
public agencies, and others with information on the requirements
applicable to State advisory panels.
Changes: None.
Comment: Several commenters recommended retaining the procedures to
govern State advisory panels in current Sec. 300.653 and strengthening
the requirements of notice and opportunity for public comment at State
advisory panel meetings by mandating publication of meeting dates,
agendas, and minutes on Web sites. A few commenters stated that
eliminating the notice requirements and the opportunity to participate
in meetings in current Sec. 300.653(d) and (e) will result in fewer
low income, hearing-impaired, and foreign-language speaking parents
attending State advisory panel meetings. One commenter expressed
concern that the removal of current Sec. 300.653 will result in less
panel visibility, less public participation, and that State advisory
panels will become ``rubber-stamps'' for positions taken by State
officials. One commenter stated that the removal of the requirements in
current Sec. 300.653 weakens the protection of children with
disabilities, and, therefore, violates section 607(b) of the Act.
Discussion: The requirements in current Sec. 300.653 were removed
to provide greater State flexibility in the operation of advisory
panels. We do not believe the removal of current Sec. 300.653 will
mean that the States will not ensure that State advisory panel meetings
are announced in advance and open to the public because States
generally have adequate sunshine laws that ensure public access to
governmental agency meetings. We do not believe it is necessary to
require that information regarding State advisory panel meetings be
posted on State Web sites because sunshine laws generally contain
provisions regarding meeting notices, agendas, and the availability of
minutes of public meetings. However, it is important that individuals
consult the laws governing their State and locality on the issue of
open meetings and public access.
Section 607(b)(2) of the Act provides that the Secretary may not
implement, or publish in final form, any regulation pursuant to the Act
that procedurally or substantively lessens the protections provided to
children with disabilities as embodied in regulations in effect on July
20, 1983. We do not believe removing from these regulations the
requirements in current Sec. 300.653 procedurally or substantively
lessens the protections provided to children with disabilities pursuant
to section 607(b)(2) of the Act because we do not view public notice of
advisory committee meetings to be a protection provided to children
with disabilities.
Changes: None.
Membership (Sec. 300.168)
Comment: We received numerous, specific requests to revise Sec.
300.168 to add to the list of individuals who can serve as members of
the State advisory panels. Some commenters recommended requiring State
advisory panels to include representatives from the Parent Training and
Information Centers and Community Parent Resource Centers funded by the
Department under sections 671 and 672 of the Act because their
representation would ensure a diverse group of people experienced with
children with different disabilities on the panels. One commenter
expressed concern that, without representation from these groups, panel
members would make recommendations based solely on their individual
circumstances and backgrounds. A few commenters requested including
school psychologists and other student support staff on State advisory
panels. One commenter suggested including a representative of a
residential treatment facility as a member on State advisory panels
because children in these facilities are a growing population and have
specialized needs. A few commenters requested adding representatives
from centers for independent living because these individuals are
experienced in advocating for people with disabilities. One commenter
suggested including State coordinators for education of homeless
children and youth. A few commenters suggested including disabled high
school and postsecondary students on the list because the intended
beneficiaries of the Act are often denied a voice. A few commenters
proposed requiring each State advisory panel to be racially,
culturally, linguistically, and socio-economically representative of
the State. One commenter expressed concern that the new regulations
could lead States to abruptly replace current panel members causing
discontinuity and decreasing expertise, and recommended phasing in the
new requirements and allowing panel members to complete their terms of
office.
Discussion: The membership of State advisory panels is described in
section 612(a)(21)(B) and (C) of the Act and the Department does not
agree that there is a need to require additional representatives or to
change the panel composition. However, nothing in the Act or these
regulations would prevent the appointment of additional
representatives, if a State elected to add these individuals. With
respect to the request to include State coordinators for education of
homeless children on the panels, State and local officials who carry
out activities under the McKinney-Vento Homeless Assistance Act are
already included in the list of individuals identified to serve on the
State advisory panels in Sec. 300.168(a)(5).
Section 612(a)(21)(B) of the Act, as reflected in Sec. 300.168,
requires the State advisory panel to be representative of the State
population and be composed of individuals involved in, or concerned
with, the education of children with disabilities. Also, the Act and
these regulations require a majority of the panel members to be
individuals with disabilities or parents of children with disabilities
(ages birth through 26). We also do not believe there is a need to
phase in the new requirements, as those members that do not need to
change should provide sufficient continuity of panel functions.
[[Page 46616]]
Changes: None.
Duties (Sec. 300.169)
Comment: A few commenters recommended requiring States to submit
any rules or regulations related to children with disabilities to the
State advisory panel for consideration before the rules are finalized.
One commenter requested requiring panel members to take positions on
State proposed rules and regulations regarding the education of
children with disabilities and offer their views to the appropriate
State agencies.
Discussion: Section 612(a)(21)(D) of the Act clearly specifies the
duties of the State advisory panel and these duties are accurately
reflected in Sec. 300.169. Paragraph (b) of this section clarifies
that the advisory panel must comment publicly on any State proposed
rules or regulations regarding the education of children with
disabilities. We believe Sec. 300.169(b) is sufficient to ensure that
the advisory panel has the opportunity to consider any State rules or
regulations before they are final and, accordingly, further regulatory
language is unnecessary. Further, we believe it is inappropriate to
require that panel members ``take positions'' on proposed rules and
regulations because to do so would be overly controlling of the
advisory panel and may impact the panel's ability to effectively meet
its statutory responsibility of providing public comment on State
proposed rules and regulations.
Changes: None.
Comment: Many commenters suggested retaining current Sec.
300.652(b), which requires State advisory panels to provide advice for
educating students with disabilities in adult correctional facilities.
A few of these commenters noted that students in adult correctional
facilities are members of one of the most vulnerable populations.
Discussion: Given the breadth of the State advisory panel's
statutory responsibilities we removed from the regulations all
nonstatutory mandates on the State advisory panel, including the
provision in current Sec. 300.652(b), regarding advising on the
education of eligible students with disabilities who have been
convicted as adults and have been incarcerated in adult prisons. We
believe placing such nonstatutory mandates on the State advisory panel
may hinder the advisory panel's ability to effectively provide policy
guidance with respect to special education and related services for
children with disabilities in the State. There is nothing, however,
that would prevent a State from assigning other responsibilities to its
State advisory panel, as long as those other duties do not prevent the
advisory panel from carrying out its responsibilities under the Act.
Changes: None.
Access to Instructional Materials (Sec. 300.172)
Comment: One commenter recommended including the National
Instructional Materials Accessibility Standard (NIMAS) in these
regulations.
Discussion: We agree with the commenter. The final NIMAS was
published in the Federal Register on July 19, 2006 (71 FR 41084) and
will be included as Appendix C to Part 300--National Instructional
Materials Accessibility Standard of these regulations. We will add
language in Sec. 300.172(a) to refer to this location and to reference
the publication date of the NIMAS in the Federal Register.
Changes: The final NIMAS has been added as appendix C to part 300.
We have added language in Sec. 300.172(a) to refer to the location of
the NIMAS in these regulations and the publication date of the NIMAS in
the Federal Register.
Comment: Several commenters expressed concern that the language
requiring States to adopt the NIMAS ``in a timely manner'' is ambiguous
and could lead to delays in providing instructional materials to
children with disabilities, inconsistencies across States, and
increased litigation. Several commenters requested that the regulations
specify a timeline for States to adopt the NIMAS. Some commenters
recommended requiring all States to adopt the NIMAS by December 3,
2006. However, one commenter stated that States should not be given a
deadline to adopt the NIMAS.
A number of commenters requested that the regulations define the
meaning of ``adopt'' in Sec. 300.172(a) and specify what States must
do to adopt the NIMAS. Several commenters recommended defining
``adopt'' to mean that the State, through regulatory or legislative
procedures, designates NIMAS as the only required source format for
publishers to convert print instructional materials into specialized
formats for children with disabilities. One commenter urged the
Department to define ``adopt'' to mean that a State must accept a NIMAS
file as satisfying the publisher's legal obligation to provide
accessible instructional materials. Other commenters recommended that
the regulations clearly state that adoption of the NIMAS means that
SEAs and LEAs must accept and use electronic copies of instructional
materials in the NIMAS format that are provided by the publishers.
Discussion: Section 300.172(a), consistent with section
612(a)(23)(A) of the Act, requires States to adopt the NIMAS in a
timely manner after the publication of the NIMAS in the Federal
Register for the purpose of providing instructional materials to blind
or other persons with print disabilities. As noted in the discussion to
the previous comment, the NIMAS is included as Appendix C to Part 300--
National Instructional Materials Accessibility Standard and was
published in the Federal Register on July 19, 2006 (71 FR 41084). The
Department believes that States should make every effort to adopt the
NIMAS in a timely manner following the publication of the NIMAS in the
Federal Register, recognizing that the timelines and requirements for
adopting new rules, policies, or procedures vary from State to State.
States choosing to coordinate with the NIMAC must, consistent with
section 612(a)(23)(C) of the Act and Sec. 300.172(c) of these
regulations, not later than December 3, 2006, as part of any print
instructional materials adoption process, procurement contract, or
other practice or instrument used for purchase of print instructional
materials, enter into a written contract with the publisher of the
print instructional materials to: (1) Require the publisher to prepare
and, on or before delivery of the print instructional materials,
provide the NIMAC with electronic files containing the content 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. Clearly, we would expect that
these States would have adopted the NIMAS by December 3, 2006. We
decline to require a specific adoption date for all States, however,
given the lack of specificity in the Act. We also decline to include a
definition of ``adopt'' in these regulations because requirements for
adopting new rules and policies may vary from State to State. The
Department's view is that it is inherent in the adoption requirement
that, at a minimum, upon ``adoption'' of the NIMAS, a State must accept
and use electronic copies of instructional materials in the NIMAS
format for the purpose of providing instructional materials to blind or
other persons with print disabilities. Under Sec. 300.172(a), adopting
the NIMAS is a State responsibility and does not impose any legal
obligations on publishers of instructional materials.
[[Page 46617]]
Changes: We have made technical changes in Sec. 300.172(c). For
clarity, we have replaced the phrase ``not later than'' with ``as of.''
We have removed the phrase ``two years after the date of enactment of
the Individuals with Disabilities Education Improvement Act of 2004''
because it is unnecessary.
Comment: One commenter recommended requiring States to comply with
the requirements for public hearings and public comment in section
612(a)(19) of the Act before adopting policies and procedures to
implement the requirements in Sec. 300.172 related to access to
instructional materials. The commenter stated that all interested
members of the public, including parents of children with disabilities,
are entitled to participate in designing the plan for implementing
these policies and procedures.
Discussion: Section 300.165(a), consistent with section 612(a)(19)
of the Act, requires States to hold public hearings and receive public
comment before implementing any policies and procedures needed to
comply with Part B of the Act. These public hearing and public comment
requirements apply to the policies and procedures needed to implement
the requirements in Sec. 300.172.
Changes: None.
Comment: One commenter requested clarification on whether the NIMAS
is limited to print materials on the medium of paper or also includes
the iconic representation of letters and words.
Discussion: The NIMAS is the standard established by the Secretary
to be used in the preparation of electronic files of print
instructional materials so they can be more easily converted to
accessible formats, such as Braille. In addition to print materials,
the NIMAS provides standards for textbooks and related core materials
where icons replace text. Materials with icons will be available if
they are in printed textbooks and related printed core materials that
are written and published primarily for use in elementary school and
secondary school instruction and are required by an SEA or LEA for use
by children in the classroom, consistent with section 674(e)(3)(C) of
the Act.
Changes: None.
Comment: A few commenters recommended clarifying that providing
materials in accessible formats includes changes in the depth, breadth,
and complexity of materials. Some commenters stated that Sec. 300.172
should include language regarding universal design of instructional
materials.
Discussion: Section 300.172 is consistent with section 612(a)(23)
of the Act and focuses specifically on providing access to print
instructional materials using the NIMAS. The NIMAS is designed to
improve the quality and consistency of print instructional materials
converted into accessible formats for persons who are blind and persons
with print disabilities, not to alter the content (e.g., the depth,
breadth, or complexity) of the print instructional materials. While the
NIMAS is designed to make print instructional materials more readily
and easily accessible to persons who are blind and persons with print
disabilities, it is not intended to provide materials that are
universally designed. Therefore, while the Department acknowledges the
importance of universal design, it would be inappropriate to reference
universal design in this section.
The NIMAS Development Center has been charged with examining the
need for future changes in the NIMAS. This Center, funded by the
Department, is looking at a variety of issues, including the extent to
which universal design features should be incorporated into future
iterations of the NIMAS. Information about the NIMAS Development Center
can be found at: http://nimas.cast.org/.
Changes: None.
Comment: One commenter recommended that books on tape be made
available in the same manner as print materials.
Discussion: The conversion of text to speech for digital talking
books is one of the accessible formats that can be generated from a
NIMAS file. The NIMAS makes it possible for such talking books to be
generated more efficiently so that children who need them will receive
them more quickly than in the past. Such audio formats will be made
available for printed textbooks and related printed core materials that
are written and published primarily for use in elementary school and
secondary school instruction and are required by an SEA or LEA for use
by children in the classroom, consistent with section 674(e)(3)(C) of
the Act. The NIMAS does not pertain to books on tape that are produced
in sound studios.
Changes: None.
Comment: Many commenters requested that the regulations specify
that providing instructional materials to children with disabilities in
a timely manner means providing these materials at the same time they
are provided to children without disabilities. One commenter
recommended defining ``in a timely manner'' as the start of the school
year or, for children who transfer schools after the start of the
school year, within 30 days of the start of the school year, regardless
of whether a State chooses to coordinate with the NIMAC.
Discussion: The Department agrees that States should make every
effort to provide children with disabilities accessible instructional
materials at the same time as other children receive their
instructional materials. The Department's position is consistent with
S. Rpt. No. 108-185, p. 19, which states, ``The committee feels
strongly that instructional materials should be provided to blind and
print disabled students at the same time their fellow students without
print disabilities are receiving the same materials.'' This position
also is consistent with H. Rpt. No. 108-77, pp. 97-98.
However, the Department recognizes that this may not be possible in
all circumstances, for example, when a child with a disability
transfers to a new school in the middle of a school year. Additionally,
there could be circumstances beyond the control of the public agency
that could prevent children with disabilities who need instructional
materials in accessible formats from receiving them at the same time as
instructional materials are provided to other children, such as if the
public agency's contractor is unable to produce the instructional
materials in an accessible format because of some unforeseen
circumstance. In situations such as these, it is understandable that
the accessible format materials may not be immediately available.
Therefore, we will add a provision to the regulations to specify that
in order to meet their obligation to provide accessible format
instructional materials in a timely way, public agencies must take all
reasonable steps to make those instructional materials available at the
same time as instructional materials are provided to other children.
Reasonable steps, for example, would include requiring publishers or
other contractors to provide instructional materials in accessible
formats by the beginning of the school year for children whom the
public agency has reason to believe will be attending its schools.
Reasonable steps also might include having a means of acquiring
instructional materials in accessible formats as quickly as possible
for children who might transfer into the public agency in the middle of
the year. Reasonable steps would not include withholding instructional
materials from other children until instructional materials in
accessible formats are available. To clarify that the obligation to
make instructional materials available in a timely manner applies even
to
[[Page 46618]]
States that coordinate with the NIMAC, we are adding a new provision to
that effect. We also are clarifying that the definitions in Sec.
300.172(e) apply to each State and LEA, whether or not the State or LEA
chooses to coordinate with the NIMAC.
Changes: We have amended paragraph (b) in Sec. 300.172 by adding a
new paragraph (b)(4) requiring the SEA to ensure that all public
agencies take all reasonable steps to provide instructional materials
in accessible formats to children with disabilities who need those
instructional materials at the same time as other children receive
instructional materials. We have reorganized paragraph (c) and added a
new paragraph (c)(2) requiring States that coordinate with the NIMAC to
provide accessible materials in a timely manner. We have also amended
paragraph (e) by adding a new paragraph (e)(2) to clarify that the
definitions in Sec. 300.172(e)(1) apply to each SEA and LEA whether or
not the SEA or LEA chooses to coordinate with the NIMAC. We have made
technical changes to Sec. 300.172(e) and renumbered Sec. 300.172(e)
to be consistent with this change.
Comment: Many commenters expressed concern that the regulations
fail to ensure timely access to instructional materials for children
with other types of disabilities besides print disabilities. One
commenter recommended clarifying that children do not have to be blind
or have print disabilities to fit into the description of children who
need accessible materials. However, another commenter stated that Sec.
300.172(b)(3), which require SEAs to be responsible for providing
accessible materials for children for whom assistance is not available
from the NIMAC, should be removed because the Act does not include
these requirements.
A few commenters requested adding a regulation to clarify that the
requirements in Sec. 300.172 do not apply if an SEA is not responsible
for purchasing textbooks. The commenters stated that if an SEA cannot
purchase textbooks, it has no legal relationship with textbook
publishers and cannot comply with the requirements in Sec. 300.172.
Discussion: Timely access to appropriate and accessible
instructional materials is an inherent component of a public agency's
obligation under the Act to ensure that FAPE is available for children
with disabilities and that children with disabilities participate in
the general curriculum as specified in their IEPs. Section
300.172(b)(3) provides that nothing relieves 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 who are eligible to receive materials
produced from NIMAS files obtained through the NIMAC, receive those
instructional materials in a timely manner. Therefore, we do not
believe that any further clarification is necessary. Even SEAs that are
not directly responsible for purchasing textbooks have this
responsibility. In short, we believe these regulations are necessary to
fully implement the Act.
Changes: None.
Comment: One commenter stated that all children with disabilities
should receive assistance from the NIMAC.
Discussion: We disagree with the commenter. Section 674(e) 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, or are unable to read or use standard print
materials because of physical limitations, and children who have
reading disabilities that result from organic dysfunction, as provided
for in 36 CFR 701.6. 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 their SEA or LEA may not receive assistance from
the NIMAC, as provided in Sec. Sec. 300.172(b)(3) and 300.210(b).
Changes: None.
Rights and Responsibilities of SEAs (Sec. 300.172(b))
Comment: Many commenters expressed concern about allowing States to
choose not to coordinate with the NIMAC. A few commenters stated that
coordination with the NIMAC should be mandatory for all States. One
commenter recommended that the Department strongly encourage States to
coordinate with the NIMAC, because it may be difficult for States to
provide the assurances required in Sec. 300.172(b)(2) if they choose
not to coordinate with the NIMAC. A few commenters recommended that
States that cannot demonstrate a past history of providing
instructional materials to children with disabilities in a timely
manner should be required to coordinate with the NIMAC.
Discussion: It would be inconsistent with section 612(a)(23)(B) of
the Act to make coordination with the NIMAC mandatory for all States or
to require certain States to coordinate with the NIMAC (e.g., States
that do not have a history of providing instructional materials to
children with disabilities in a timely manner), as suggested by the
commenters. Section 612(a)(23)(B) of the Act provides that nothing in
the Act shall be construed to require any SEA to coordinate with the
NIMAC.
Changes: None.
Comment: Several commenters requested that the regulations clearly
define the process for a State to choose not to coordinate with the
NIMAC. A few commenters requested additional details on what assurances
States must provide if they choose not to coordinate with the NIMAC.
Other commenters requested that State assurances provide the public
with information to evaluate the capacity of the State to provide
materials to children who are blind or have print disabilities. Some
commenters stated that the assurances provided by States that choose
not to coordinate with the NIMAC should be done annually and in
writing.
Several commenters requested that the regulations provide a means
for the public to obtain information about which States choose not to
coordinate with the NIMAC. A few commenters requested that the
Department publish the assurances made by SEAs that choose not to
coordinate with the NIMAC. Some commenters stated that SEAs that choose
to coordinate with the NIMAC should be required to provide information
to the Department on the LEAs in the State that elect not to coordinate
with the NIMAC.
Discussion: Section 300.172(b)(2), consistent with section
612(a)(23)(B) of the Act, requires SEAs that choose not to coordinate
with the NIMAC to provide an assurance to the Secretary that the agency
will provide instructional materials to blind persons and other persons
with print disabilities in a timely manner. As part of a State's
application for Part B funds, Sec. 300.100 and section 612(a) of the
Act require States to provide assurances to the Secretary that the
State has in effect policies and procedures to ensure that the State
meets the conditions of eligibility. (The Part B Annual State
Application for 2006, OMB No. 1820-0030, can be found at: http://www.ed.gov/fund/grant/apply/osep/2006apps.html.)
Therefore, the Department will compile a list of the States that
choose to coordinate with the NIMAC and those that do not, and will
make this list
[[Page 46619]]
available on OSEP's monitoring Web site at: http://www.ed.gov/policy/speced/guid/idea/monitor/index.html.
Section 612(a)(23)(B) of the Act does not mandate that States
coordinate with the NIMAC or place conditions on which States can
choose to coordinate with the NIMAC. Therefore, it is unnecessary to
require a State's assurance to include information on its capacity to
provide instructional materials to children who are blind or have print
disabilities, as commenters recommended.
We do not believe it is appropriate to regulate to require States
to provide information to the Department on the LEAs in the State that
elect not to coordinate with the NIMAC. Under Sec. 300.149 and section
612(a)(11) of the Act, States are responsible for ensuring that LEAs in
the State meet the requirements of the Act, including providing
instructional materials to blind persons or other persons with print
disabilities in a timely manner. As stated in Sec. 300.210 and section
613(a)(6)(B) of the Act, if an LEA chooses not to coordinate with the
NIMAC, the LEA must provide an assurance to the SEA that the LEA will
provide instructional materials to blind persons or other persons with
print disabilities in a timely manner.
Changes: None.
Comment: Some commenters proposed that the regulations require
States that choose not to coordinate with the NIMAC to annually report
to the public on when children with disabilities receive their
materials, how print materials are provided in a timely manner, and the
steps the State has taken to ensure that materials will be provided at
the same time as materials are provided to children without
disabilities. One commenter stated that, if a State chooses not to
coordinate with the NIMAC, the State should be required to submit data
to the Department on the number of children with print disabilities
served by the State and when those children received the accessible
version of print instructional materials compared with when other
children received their materials. Other commenters recommended that
States choosing not to coordinate with the NIMAC should be required to
develop and publish their policies and procedures that govern how they
maintain and distribute NIMAS files.
Discussion: It would be unfair to impose additional data collection
and reporting requirements, such as those requested by the commenters,
only on those States that choose not to coordinate with the NIMAC. All
States, regardless of whether they choose to coordinate with the NIMAC,
must ensure that children with disabilities who need instructional
materials in accessible formats receive instructional materials in a
timely manner, consistent with Sec. 300.172(b)(3).
Furthermore, even States that choose to coordinate with the NIMAC
will need to take steps to ensure that the instructional materials for
children eligible to receive print instructional materials derived from
NIMAS files are received in a timely manner. As provided in section
674(e)(3)(A) of the Act, the NIMAC is a distribution center for NIMAS
files obtained from publishers, SEAs, and LEAs. Section 612(a)(23) of
the Act requires SEAs that choose to coordinate with the NIMAC to enter
into written contracts with publishers to require the publishers to
provide electronic files using the NIMAS to the NIMAC on, or before,
delivery of the print instructional materials to the SEA.
The NIMAC is not responsible for converting NIMAS files to the
accessible formats needed by the children eligible to receive print
instructional materials derived from NIMAS files. All States will need
to arrange to have the NIMAS files converted to student-ready versions
of instructional materials in the accessible formats needed by these
children.
Changes: None.
Comment: One commenter requested that the Department provide
information and training to States and LEAs on the NIMAC so that they
can make an informed choice regarding whether to coordinate with the
NIMAC. Another commenter recommended that the Department provide
written guidance for States and LEAs regarding the NIMAS and the NIMAC.
Discussion: The Department recognizes the need to provide
information to SEAs and LEAs regarding the NIMAS and the NIMAC and will
provide technical assistance through the NIMAS Technical Assistance
Center after the Department has approved the NIMAC procedures.
Changes: None.
Preparation and Delivery of Files (Sec. 300.172(c))
Comment: One commenter recommended that the regulations require
instructional materials provided to children with disabilities to be
complete and accurate. Another commenter requested requiring publishers
to provide copies of the original books to the NIMAC along with the
electronic files, because a copy of the original book is necessary for
alignment of page numbers and descriptions of pictures.
Discussion: We understand and appreciate the importance of having a
copy of the original material to ensure accuracy of the files. However,
the NIMAC is not responsible for ensuring the accuracy of materials,
aligning page numbers, or describing pictures. Rather, the NIMAC is a
distribution center for NIMAS files obtained from publishers, SEAs, and
LEAs. Consistent with section 674(e)(3)(A) of the Act, the duties of
the NIMAC are to receive and maintain a catalog of print instructional
materials prepared in the NIMAS format and made available to the NIMAC
by the textbook publishing industry, SEAs, and LEAs. Accessible,
student-ready versions of instructional materials are created from
NIMAS source files by national third-party conversion organizations;
regional or State conversion sources; desktop applications created by
software developers; or curriculum publishers that produce accessible
alternate format versions for direct sale to SEAs and LEAs. The Act
does not authorize the Department to impose obligations on such
entities to provide accurate materials. States and LEAs that contract
with such entities, however, may wish to require the accuracy of such
materials, including the alignment of page numbers and descriptions of
pictures, as part of their agreements.
Changes: None.
Comment: One commenter suggested that the regulations permit an SEA
to receive assistance from the NIMAC, even if the SEA is not formally
coordinating with the NIMAC.
Discussion: The Act does not require the NIMAC to provide
assistance to SEAs if the SEA has chosen not to coordinate with the
NIMAC. However, there is nothing in the Act that would prevent the
NIMAC from doing so. As stated in section 674(e)(2)(B) of the Act, the
NIMAC must provide access to print instructional materials, including
textbooks, in accessible media, free of charge, to blind or other
persons with print disabilities in elementary and secondary schools, in
accordance with such terms and procedures as the NIMAC may prescribe.
Providing this access could include assisting an SEA, even if the SEA
has chosen not to coordinate with the NIMAC.
Changes: None.
Comment: One commenter recommended that the regulations include an
accountability mechanism so that parents and schools know whether the
State or LEA is responsible for the timely delivery of instructional
materials.
[[Page 46620]]
Discussion: Whether instructional materials are purchased by the
State or LEA is a State matter. The Act does not authorize the
Department to impose obligations on States or LEAs with respect to the
process for timely delivery of instructional materials.
Changes: None.
Comment: One commenter emphasized the need to track the progress
and monitor the advancement of accessible materials on a national and
regional level. Another commenter stated that there is a need to
establish SEA and LEA baseline data regarding the timeliness, quality,
and quantity of alternate formats in schools. One commenter stated that
States should be required to publicize information regarding whether
the State is meeting its responsibilities to provide accessible
materials to persons who are blind or other persons with print
disabilities in a timely manner.
Discussion: We believe that it would be overly burdensome to
require States to collect and report data on the timeliness, quality,
and quantity of alternate formats provided to children with
disabilities in order to track the availability of accessible materials
for children with disabilities on a regional or national level. Under
the State complaint procedures, States are responsible for resolving
complaints alleging violations of requirements under the Act, including
this one.
Changes: None.
Comment: One commenter requested information on the scope of the
NIMAC's responsibilities.
Discussion: The duties of the NIMAC are specified in section
674(e)(2) of the Act and include: (a) receiving and maintaining a
catalog of print instructional materials prepared in the NIMAS format;
(b) providing access to print instructional materials in accessible
media, free of charge to blind or other persons with print disabilities
in elementary schools and secondary schools; and (c) developing,
adopting, and publishing procedures to protect against copyright
infringement, with respect to print instructional materials provided
under sections 612(a)(23) and 613(a)(6) of the Act.
Section 674(c) of the Act provides that NIMAC's duties apply to
print instructional materials published after July 19, 2006, the date
on which the final rule establishing the NIMAS is published in the
Federal Register (71 FR 41084). The Department interprets ``publish''
to have the plain meaning of the word, which is to issue for sale or
distribution to the public. The NIMAC's duties, therefore, apply to
print instructional materials made available to the public for sale
after the NIMAS is published in the Federal Register. However, this
does not relieve SEAs and LEAs of their responsibility to provide
accessible instructional materials in a timely manner, regardless of
when the instructional materials were ``published.''
Changes: None.
Comment: A few commenters expressed concern that the regulations do
not specify the structure and operation of the NIMAC. One commenter
requested that the Department provide more information about the
operation of the NIMAC. Another commenter recommended that the NIMAC's
management board include representatives of authorized entities. One
commenter requested information on the legal protections that the
Department will provide to the NIMAC. Another commenter requested
specific information on the process and timing of the funding of the
NIMAC. One commenter recommended a timeline with a series of activities
(e.g., establishment of a cooperative agreement, cost projections) to
ensure that the NIMAC is operational. Another commenter recommended
that the Department develop a process to ensure that the files included
in the NIMAC are NIMAS compliant, complete, and of the highest quality.
One commenter expressed concern about how NIMAS files will be bundled
and delivered to the NIMAC.
Discussion: We do not believe that regulations on the structure,
operation, or budget of the NIMAC are necessary. Section 674(e) of the
Act establishes the NIMAC through the American Printing House for the
Blind (APH) and allows the NIMAC to prescribe terms and procedures to
perform its duties under the Act. The Department's Office of Special
Education Programs (OSEP) will oversee the administration of the NIMAC
through a cooperative agreement with the APH and will work with the
NIMAC to establish its structure, operating procedures, and budget. The
NIMAC procedures will be available on the NIMAC Web site at: http://www.nimac.us.
Changes: None.
Comment: One commenter stated that the duties of the NIMAC to
receive and maintain electronic files of instructional materials
provided by publishers should not be misconstrued as imposing a duty on
the NIMAC itself to use the NIMAS files to reproduce the instructional
materials in accessible formats for children with print disabilities.
Discussion: The Act clarifies that the NIMAC is not responsible for
producing instructional materials in accessible formats. As stated in
section 674(e)(2) of the Act, the NIMAC receives and maintains a
catalog of print instructional materials prepared in the NIMAS, and
made available to the NIMAC by the textbook publishing industry, SEAs,
and LEAs.
Changes: None.
Comment: One commenter expressed concern about clear guidance
regarding electronic rights. Another commenter recommended that the
regulations require the NIMAC to develop a user agreement that any
entity seeking access to a NIMAS file must sign. The commenters stated
that the agreement should detail the entities that are eligible under
Federal copyright law and the Act to access the NIMAS files, the
alternate formats that may be produced, and any other restrictions on
the dissemination and use of NIMAS files.
One commenter stated that the regulations should require that the
authorized entities have full, complete, and immediate access to
deposited files and clarify that the authorized entities are
responsible for reproducing the instructional materials in an
accessible format and therefore, the files housed by the NIMAC should
be free of charge. Another commenter stated that the Department should
ensure that NIMAS books are available to all authorized entities and
the appropriate State organizations within five days after the books
are deposited in the NIMAC.
Discussion: We do not believe it is appropriate or necessary to
regulate on the authorized entities eligible to have access to the
NIMAS files. Under section 674(e)(2)(C) of the Act, the NIMAC is
required to develop, adopt, and publish procedures to protect against
copyright infringement, with respect to the print instructional
materials produced using the NIMAS and provided by SEAs and LEAs to
blind persons or other persons with print disabilities. Such procedures
will address, for example, information regarding the authorized
entities that are eligible to have access to NIMAS files,
responsibilities of such authorized entities, and how and when access
will be provided. The NIMAC procedures will be available on the NIMAC
Web site at: http://www.nimac.us.
Changes: None.
Comment: One commenter suggested several changes in the process to
make Braille copies of instructional materials including constructing
directions for choosing answers in universal terms, such as ``write the
correct response,'' rather than ``circle'' or ``underline;''
describing, in writing, visuals that cannot be easily interpreted;
using hard
[[Page 46621]]
paper for Braille and raised drawings, rather than thermoform; using
hard-bound bindings for text, rather than plastic spiral binders; using
audio formats as supplemental materials; and using simple graphics with
easy access to map keys on the same page.
Discussion: Procedures for Braille transcribers and for conversion
entities are the responsibility of SEAs and LEAs and, as such, are
beyond the scope of these regulations.
Changes: None.
Comment: One commenter recommended that software companies
routinely create desktop publishing programs that contain text to
speech capabilities.
Discussion: It is beyond the Department's authority to impose
requirements on software companies.
Changes: None.
Comment: One commenter recommended that a NIMAS style guide be
developed that is textbook specific.
Discussion: The NIMAS Technical Assistance Center will develop a
best practices Web page with exemplars and a style guide. This
technical assistance resource will be available at: http://nimas.cast.org.
Changes: None.
Assistive Technology (Sec. 300.172(d))
Comment: A few commenters requested that the regulations clarify
that the ``assistive technology programs,'' referred to in Sec.
300.172(d), are the programs established in each State pursuant to the
Assistive Technology Act of 1998, as amended.
Discussion: Section 300.172(d) and section 612(a)(23)(D) of the Act
provide that in carrying out the requirements in Sec. 300.172, the
SEA, to the maximum extent possible, must work collaboratively with the
State agency responsible for assistive technology programs. Section
612(a)(23)(D) of the Act does not refer to any particular assistive
technology program. Therefore, we interpret broadly the phrase ``State
agency responsible for assistive technology programs'' to mean the
agency determined by the State to be responsible for assistive
technology programs, which may include programs established under
section 4 of the Assistive Technology Act of 1998, as amended.
Changes: None.
Definitions (Sec. 300.172(e))
Comment: Several commenters requested that Sec. 300.172(e) include
the full definition of terms, rather than the citations to the
definitions in the laws. A number of commenters requested that the
regulations include a definition of ``persons with print
disabilities.''
Discussion: We have published the NIMAS as Appendix C to Part 300--
National Instructional Materials Accessibility Standard of these
regulations, which will include the definition of NIMAS from section
674(e)(3)(B) of the Act.
The definition of the NIMAC in new Sec. 300.172(e)(1)(ii)
(proposed Sec. 300.172(e)(2)) and section 612(a)(23)(E)(i) of the Act
refers to the center established pursuant to section 674(e) of the Act.
Paragraph (e)(1) in section 674 of the Act establishes the center at
the APH and paragraph (e)(2) outlines the duties of the NIMAC. We do
not believe it is necessary to include this information in the
regulations in order to implement the requirements of the Act, but will
include it here for the convenience of the readers.
National Instructional Materials Access Center or NIMAC means the
center established pursuant to section 674(e) of the Act. Section
674(e) of the Act provides, in part, that--
(1) In general. The Secretary shall establish and support, through
the American Printing House for the Blind, a center to be known as the
``National Instructional Materials Access Center'' not later than one
year after the date of enactment of the Individuals with Disabilities
Education Improvement Act of 2004.
(2) Duties. The duties of the NIMAC are the following:
(A) To receive and maintain a catalog of print instructional
materials prepared in the NIMAS, as established by the Secretary, made
available to such center by the textbook publishing industry, State
educational agencies, and local educational agencies.
(B) To provide access to print instructional materials, including
textbooks, in accessible media, free of charge, to blind or other
persons with print disabilities in elementary schools and secondary
schools, in accordance with such terms and procedures as the NIMAC may
prescribe.
(C) To develop, adopt and publish procedures to protect against
copyright infringement, with respect to the print instructional
materials provided under sections 612(a)(23) and 613(a)(6).
The definitions of blind persons or other persons with print
disabilities and specialized format both refer to statutes other than
the Act. For the reasons set forth earlier in this notice, we are
referencing the definitions of terms in Sec. 300.172(e), rather than
adding them to these regulations. However, we will include them here
for the convenience of the readers.
The Library of Congress regulations (36 CFR 701.6(b)(1)) related to
the Act to Provide Books for the Adult Blind (approved March 3, 1931, 2
U.S.C. 135a) provide that blind persons or other persons with print
disabilities include:
(i) Blind persons whose visual acuity, as determined by competent
authority, is 20/200 or less in the better eye with correcting glasses,
or whose widest diameter if visual field subtends an angular distance
no greater than 20 degrees.
(ii) Persons whose visual disability, with correction and
regardless of optical measurement, is certified by competent authority
as preventing the reading of standard printed material.
(iii) Persons certified by competent authority as unable to read or
unable to use standard printed material as a result of physical
limitations.
(iv) Persons certified by competent authority as having a reading
disability resulting from organic dysfunction and of sufficient
severity to prevent their reading printed material in a normal manner.
Competent authority is defined in 36 CFR 701.6(b)(2) as follows:
(i) In cases of blindness, visual disability, or physical
limitations ``competent authority'' is defined to include doctors of
medicine, doctors of osteopathy, ophthalmologists, optometrists,
registered nurses, therapists, professional staff of hospitals,
institutions, and public or welfare agencies (e.g., social workers,
case workers, counselors, rehabilitation teachers, and
superintendents).
(ii) In the case of a reading disability from organic dysfunction,
competent authority is defined as doctors of medicine who may consult
with colleagues in associated disciplines.
Specialized formats has the meaning given the term in section
121(d)(4) of title 17, United States Code:
(A) Braille, audio, or digital text which is exclusively for use by
blind or other persons with disabilities.
(B) With respect to print instructional materials, includes large
print formats when such materials are distributed exclusively for use
by blind or other persons with disabilities.
Changes: As noted earlier, we have amended paragraph (e) of Sec.
300.172 by adding a new paragraph (e)(2) to clarify that the
definitions in Sec. 300.172(e)(1) apply to each SEA and LEA whether or
not the SEA or LEA chooses to coordinate with the NIMAC. We have made
technical changes to Sec. 300.172(e) and renumbered Sec. 300.172(e)
to be consistent with this change.
[[Page 46622]]
Prohibition on Mandatory Medication (Sec. 300.174)
Comment: A few commenters expressed concern that the regulations do
not provide sufficient guidance on what school personnel can
communicate to parents regarding medication. The commenters stated that
in the absence of additional guidance, the regulations have the
unintended effect of preventing school personnel from speaking openly
with parents regarding classroom behavior, options for addressing
behavior problems, and the impact of a child's medication on classroom
behavior. Further, the commenters requested that the regulations do
more to encourage school personnel to recommend evaluations for
children with behavior problems and communicate openly with parents
about the effectiveness of treatment, and protect school personnel.
Other commenters recommended requiring school personnel to inform
parents if they suspect that a child's behavior may be related to a
disability.
Discussion: We believe that Sec. 300.174 provides sufficient
guidance on what school personnel can and cannot communicate to parents
regarding a child's medication. Paragraph (a) clarifies that school
personnel cannot require parents to obtain a prescription for
medication for a child as a condition of attending school, receiving an
evaluation to determine if a child is eligible for special education
services, or receiving special education and related services under the
Act. Paragraph (b) clearly permits classroom personnel to speak with
parents or guardians regarding a child's academic and functional
performance, behavior in the classroom or school, or the need for an
evaluation to determine the need for special education or related
services.
We do not believe that further regulations are needed to encourage
school personnel to recommend evaluations for children with behavior
problems or to require school personnel to inform parents if they
suspect a child's behavior may be related to a disability. The child
find requirements in Sec. 300.111 clarify that States must have in
effect policies and procedures to ensure that all children with
disabilities residing in a State and who are in need of special
education and related services, are identified, located, and evaluated.
Changes: None.
States' Sovereign Immunity (New Sec. 300.177)
Comment: None.
Discussion: In developing the proposed regulations, we incorporated
those provisions of subpart A that apply to States. We inadvertently
omitted the provisions in section 604 of the Act, regarding States'
sovereign immunity. We have added these to the regulations in new Sec.
300.177. In paragraph (a), we have clarified that the statutory
language means that a State must waive immunity in order to receive
Part B funds. This is the longstanding interpretation of the Department
and is consistent with Federal Circuit Courts' decisions interpreting
this statutory language. (See, e.g., Pace v. Bogalusa City Sch. Bd.,
403 F.3d 272 (5th Cir. 2005); M.A. ex rel. E.S. v. State-Operated Sch.
Dist., 344 F.3d 335 (3rd Cir. 2003); Little Rock Sch. Dist. v. Mauney,
183 F.3d 816 (8th Cir. 1999); Marie O. v. Edgar, 131 F.3d 610 (7th Cir.
1997).)
Changes: We have added the provisions in section 604 of the Act,
regarding States' sovereign immunity, to new Sec. 300.177.
Department Procedures (Sec. Sec. 300.178 Through 300.186)
Comment: One commenter stated that the requirements in Sec. Sec.
300.179 through 300.183, regarding the notice and hearing procedures
before the Secretary determines a State is not eligible to receive a
grant under Part B of the Act, are unnecessary and go beyond what is
required in section 612(d) of the Act. The commenter recommended
removing Sec. Sec. 300.179 through 300.183 and including additional
language in Sec. 300.178 clarifying that the Secretary has the
authority to develop specific administrative procedures to determine if
States meet statutory requirements for eligibility under Part B of the
Act and that such procedures must include notification of eligibility
or non-eligibility, an opportunity for a hearing, and an opportunity
for appeal of the hearing decision.
Discussion: The Department does not agree with the commenter that
the notification and hearing procedures included in Sec. Sec. 300.179
through 300.183 are unnecessary and go beyond what is required in
section 612(d) of the Act. Section 612(d)(2) of the Act states that the
Secretary shall not make a final determination that a State is not
eligible to receive a grant under this part until after providing the
State with reasonable notice and an opportunity for a hearing. When the
Secretary proposes to deny a State's eligibility to receive a grant
under Part B of the Act, withhold funds, or take other enforcement
action, it is important to all parties that the process through which
those issues will be decided is clearly described, so that time, money,
and effort are not spent resolving procedural questions instead of the
underlying issues. For these reasons, we believe it is important to
retain Sec. Sec. 300.179 through 300.183 in the regulations.
Changes: None.
Judicial Review (Sec. 300.184)
Comment: One commenter requested that we clarify in the regulations
the status of a State's operation of a program or eligibility to
receive a grant under Part B of the Act while a final judicial decision
is pending with respect to the State's eligibility under section 612 of
the Act.
Discussion: Under section 612(a) of the Act, States must meet
certain conditions in order to be eligible for a grant under the Part B
program. Under section 612(d) of the Act, if the Secretary, after
notice and an opportunity for a hearing, makes a final determination
that a State is not eligible for a grant, the Secretary may not award
funds to the State. The procedures in Sec. Sec. 300.179 through
300.183 detail the process through which the Secretary notifies a State
of a proposed ineligibility determination, the hearing available to the
State to dispute this proposal, and the process through which the
Secretary makes a final determination. The Secretary's final
determination may be appealed through the judicial review procedure
described in section 616(e)(8) of the Act and Sec. 300.184. We decline
to address this issue more specifically in the regulations, however, as
we think the regulations already adequately convey the idea that only
States that the Secretary determines to be eligible can receive a
grant.
Changes: None.
By-Pass for Children in Private Schools (Sec. Sec. 300.190 through
300.198)
Comment: One commenter stated that Sec. Sec. 300.190 through
300.198 are unnecessary because the Act gives sufficient authority for
the Secretary to implement a by-pass for children with disabilities
enrolled in private elementary schools and secondary schools.
Discussion: Section 300.190 retains the authority for a by-pass in
current Sec. 300.480 and includes additional authority for a by-pass,
consistent with section 612(f)(1) of the Act, in cases where the
Secretary determines that an SEA, LEA, or public agency has
substantially failed, or is unwilling, to provide for equitable
participation of parentally-placed private school children with
disabilities. When the Secretary authorizes a by-pass it is important
that all parties understand the
[[Page 46623]]
process by which the Secretary determines the funds that will be
deducted from the State's allocation under Part B of the Act to provide
services, as well as the actions that are required before the Secretary
takes any final action to implement a by-pass. When such processes and
procedures are clearly described, time, money, and effort are not spent
resolving procedural questions. The requirements in Sec. Sec. 300.190
through 300.198 provide this information and we believe are necessary
to clarify and ensure effective implementation of the by-pass
provisions in the Act. We are making one change to Sec. 300.191(d) to
clarify that the Secretary deducts amounts the Secretary determines
necessary to implement a by-pass from the State's allocations under
sections 611 and 619 of the Act.
Changes: In Sec. 300.191(d) we have substituted a reference to
sections 611 and 619 of the Act for a reference to Part B of the Act.
Show Cause Hearing (Sec. 300.194)
Comment: One commenter opposed allowing a lawyer for the SEA or LEA
to present oral and written evidence and arguments at a show cause
hearing because parents are often intimidated by having to face a
lawyer.
Discussion: Section 300.194(a)(3) provides an opportunity for an
SEA, LEA, or other public agency, and representatives of private
elementary schools and secondary schools to be represented by legal
counsel and to submit oral or written evidence or arguments at a
hearing to show cause why a by-pass should not be implemented. Parents
are not parties to this hearing and generally would not appear before
the show cause hearing officer, and would, therefore, not be
intimidated by a participating lawyer. We believe that it is only fair
that the party to the hearing (SEA, LEA, or other public agency, and
representatives of private schools) be provided the option to be
represented by legal counsel because legal counsel will generally
represent the Department, as a party to the hearing.
Changes: None.
State Administration (Sec. 300.199)
Comment: One commenter indicated that Sec. 300.199 is improperly
placed in the regulations under the general heading ``By-pass for
Children in Private Schools.''
Discussion: We agree with the commenter that Sec. 300.199 does not
belong under the general heading ``By-Pass for Children in Private
Schools.''
Changes: A new undesignated center heading entitled ``State
Administration'' will be added immediately preceding Sec. 300.199 to
separate that section from the regulations related to implementation of
the by-pass provisions of the Act.
Comment: One commenter recommended including in Sec. 300.199 a
requirement that States may not eliminate from their rules,
regulations, and policies any provisions required by Part B of the Act
and its implementing regulations.
Discussion: Section 300.199 incorporates the requirement in section
608 of the Act that any rulemaking related to the Act conducted by the
State conform to the purposes of the Act. Consistent with section 608
of the Act, Sec. 300.199 makes clear that each State that receives
funds under Part B of the Act must ensure that any State rules,
regulations, and policies relating to 34 CFR part 300 conform to the
provisions of 34 CFR part 300. We do not believe it is necessary to add
a provision in Sec. 300.199 prohibiting States from eliminating from
their rules, regulations, and policies any provisions required by Part
B of the Act and its implementing regulations, as requested by the
commenter. If a State were to do so, the State's rules, regulations,
and policies would not conform to the provisions in 34 CFR part 300.
Under this provision, a State, and not the Secretary, determines
whether a particular rule, regulation, or policy conforms to the
purposes of the Act.
Changes: None.
Comment: Some commenters expressed concern that the mandate to
minimize State rules and regulations might discourage States from
developing beneficial programs, and, therefore, should not pertain to
policies that promote best practices, increased parental involvement,
educating children in the least restrictive environment, and improving
access to the general curriculum. One commenter recommended including a
statement in the regulations that a State would not be penalized for
exceeding the minimum requirements of the Act. A few commenters stated
that the services provided by the Act were intended to be a ``floor,''
rather than a ``ceiling'' and recommended a pilot program to encourage
States to adopt rules that best serve the needs of children with
disabilities.
Discussion: We do not agree that the regulations discourage States
from developing beneficial programs or establishing rules that best
serve the needs of children with disabilities. In fact, Sec.
300.199(b), consistent with section 608(b) of the Act, requires State
rules, regulations, and policies under the Act to support and
facilitate LEA and school-level system improvement designed to enable
children with disabilities to meet challenging State student academic
achievement standards.
Section 300.199(a), consistent with section 608(a) of the Act, is
intended to minimize the number of rules, regulations, and policies to
which LEAs and schools are subject under the Act, and to identify in
writing any rule, regulation, or policy that is State-imposed and not
required under the Act and its implementing regulations. The
Department's position is consistent with S. Rpt. No. 108-185, p. 10,
which states ``Through section 608(a), the committee is in no way
attempting to reduce State input or State practice in this area, but
intends to make clear what is a Federal obligation and what is a State
or local educational agency requirement for the Act.'' We believe it is
important for parents, teachers, school administrators, State
lawmakers, and others to understand what is required under the Act,
and, therefore, do not believe that Sec. 300.199 should be changed.
Changes: None.
Subpart C--Local Educational Agency Eligibility
Consistency With State Policies (Sec. 300.201)
Comment: Some commenters recommended requiring LEAs to seek input
from parents of children with disabilities in the development of LEA
policies, procedures, and programs.
Discussion: Section 300.201, consistent with section 613(a)(1) of
the Act, requires each LEA to have in effect policies, procedures, and
programs that are consistent with State policies and procedures. It is
up to each State and its LEAs to determine the manner in which LEAs
develop their policies, procedures, and programs, consistent with State
law and procedures. The Act does not authorize the Department to impose
additional obligations on States or LEAs with respect to the
development of LEA policies, procedures, and programs.
Changes: None.
Maintenance of effort (Sec. Sec. 300.202 through 300.205)
Comment: A few commenters stated that the maintenance of effort
requirements are complicated and unnecessary and should be eliminated
or simplified.
Discussion: Sections 300.202 through 300.205, regarding maintenance
of effort and the LEA's use of funds received
[[Page 46624]]
under Part B of the Act, reflect the specific statutory requirements in
section 613(a)(2) of the Act, as well as necessary information
regarding the implementation of these requirements. Much of the
additional information in Sec. Sec. 300.202 through 300.205 was
included in various sections throughout the current regulations. We
continue to believe that this information is necessary for the proper
implementation of the Act. Section 300.204(e), which has been newly
added to the regulations, includes the assumption of costs by the high
cost fund as an additional condition under which an LEA may reduce its
level of expenditures. We believe this provision is necessary 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.
In short, we have tried to present the regulations relating to LEA
maintenance of effort in a clear manner, while being consistent with
the language of the Act (which we do not have the authority to change)
and including only as much additional information as is necessary to
ensure proper implementation of the Act.
Changes: None.
Comment: One commenter stated that LEAs should be permitted to use
a reasonable amount of their Part B funds to meet the Act's
requirements relating to student assessment, outcomes, complaints,
compliance monitoring, mediation, and due process hearings.
Discussion: With one exception, nothing in the Act or these
regulations would prevent an LEA from using its Part B allotment for
the activities noted by the commenter, so long as the expenditures meet
the other applicable requirements under the Act and regulations.
LEAs may not use their Part B funds to support the mediation
process described in Sec. 300.506. Consistent with section
615(e)(2)(D) of the Act, Sec. 300.506(b)(4) requires the State (not
the LEA) to bear the cost of that mediation process. Although LEAs may
not use their Part B funds to support the mediation process required
under Sec. 300.506(b)(4), they may use their Part B funds to support
alternative mediation processes that they offer. Some LEAs (and States)
offer alternative mediation processes, in addition to the mediation
process required under section 615 of the Act. These alternative
mediation processes generally were established prior to the Federal
mandate for mediation and some LEAs (and States) continue to offer
parents the option of using these alternative mediation processes to
resolve disputes. Therefore, if an LEA has an alternative mediation
process, it may use its Part B funds for this process, so long as
parents are provided access to the required mediation process under
section 615 of the Act and are not required to use an alternative
mediation process in order to engage in the mediation process provided
under section 615 of the Act.
Changes: None.
Comment: Several commenters requested clarifying that ``per
capita'' in Sec. 300.203(b) means the amount per child with a
disability in an LEA.
Discussion: We do not believe it is necessary to include a
definition of ``per capita'' in Sec. 300.203(b) because we believe
that, in the context of the regulations, it is clear that we are using
this term to refer to the amount per child with a disability served by
the LEA.
Changes: None.
Exception to Maintenance of Effort (Sec. 300.204)
Comment: One commenter recommended expanding the exceptions to the
maintenance of effort requirements in Sec. 300.204(a) to include
negotiated reductions in staff salaries or benefits so that LEAs are
not penalized for being proactive in reducing costs. Another commenter
recommended revising Sec. 300.204 to allow LEAs to apply for a waiver
of the maintenance of effort requirements in cases of fiscal
emergencies.
Discussion: Section 300.204(a) through (d) reflects the language in
section 613(a)(2)(B) of the Act and clarifies the conditions under
which LEAs may reduce the level of expenditures below the level of
expenditures for the preceding year. Nothing in the Act permits an
exception for negotiated reductions in staff salaries or benefits or
financial emergencies. Accordingly, to expand the exceptions to the
maintenance of effort requirements, as recommended by the commenters,
would be beyond the authority of the Department.
Changes: None.
Comment: Some commenters requested clarification as to whether the
exceptions to the maintenance of effort requirements apply to an LEA
that uses funds from its SEA's high cost fund under Sec. 300.704(c)
during the preceding year.
Discussion: We do not believe further clarification is necessary
because Sec. 300.204(e) clearly states that the assumption of costs by
a State-operated high cost fund under Sec. 300.704(c) would be a
permissible reason for reducing local maintenance of effort. This
provision was included in the proposed regulations in recognition that
the new statutory authority in section 611(e)(3) of the Act that
permits States to establish a fund to pay for some high costs
associated with certain children with disabilities could logically and
appropriately result in lower expenditures for some LEAs.
Changes: None.
Adjustments to Local Fiscal Efforts in Certain Fiscal Years (Sec.
300.205)
Comment: A few commenters stated that the link between early
intervening services and reductions in maintenance of effort in Sec.
300.205(d) is not in the Act. Some commenters expressed concern that
this requirement forces an LEA to choose between providing early
intervening services and directing local funds toward nondisabled
children. One commenter stated that linking the use of funds for early
intervening services to reduction in maintenance of effort in Sec.
300.205 is not logical and was not the intent of Congress.
Discussion: The link between reductions in local maintenance of
effort (reflected in Sec. 300.205(d)) and the amount of Part B funds
that LEAs may use to provide early intervening services (reflected in
Sec. 300.226) is established in the Act. Section 300.205(d) tracks the
statutory language in section 613(a)(2)(C)(iv) of the Act and Sec.
300.226(a) tracks the statutory language in section 613(f)(1) of the
Act. Section 300.205(d) states that the amount of funds expended by an
LEA for early intervening services under Sec. 300.226 counts toward
the maximum amount of expenditures that an LEA may reduce in its local
maintenance of effort. Section 300.226(a) clearly states that the
amount of Part B funds an LEA may use to provide early intervening
services may not exceed 15 percent of the funds the LEA receives under
Part B of the Act less any amount reduced by the LEA under Sec.
300.205.
As noted in the NPRM, the Department believes it is important to
caution LEAs that seek to reduce their local maintenance of effort in
accordance with Sec. 300.205(d) and use some of their Part B funds for
early intervening services under Sec. 300.226 because the local
maintenance of effort reduction provision and the authority to use Part
B funds for early intervening services are interconnected. The decision
that an LEA makes about the amount of funds that it uses for one
purpose affects the amount that it may use for the other. Appendix D to
Part 300--Maintenance of Effort and Early Intervening Services includes
examples that illustrate how Sec. Sec. 300.205(d) and 300.226(a)
affect one another.
[[Page 46625]]
Changes: We have added a reference to Appendix D in Sec.
300.226(a).
Schoolwide Programs Under Title I of the ESEA (Sec. 300.206)
Comment: A few commenters recommended specifying in Sec.
300.206(b) that LEAs can use only funds provided under section 611 of
the Act (and not section 619 of the Act) to carry out a schoolwide
program under section 1114 of the ESEA. The commenters stated that this
change is necessary so that the per capita amount of Federal Part B
funds used to carry out a schoolwide program is not artificially
inflated by including preschool grant funds that are used to serve
children ages three through five who are not placed in a title I
school.
Discussion: Section 613(a)(2)(D) of the Act specifically provides
that an LEA may use any funds it receives under Part B of the Act to
carry out schoolwide programs under title I of the ESEA. Part B funds
include any funds an LEA receives under sections 611 and 619 of the
Act.
Changes: None.
Personnel Development (Sec. 300.207)
Comment: A few commenters suggested requiring LEAs to train their
personnel through research-based practices in order to ensure that
personnel are appropriately and adequately prepared to implement Part B
of the Act.
Discussion: We believe the regulations already address the
commenters' concern and reflect the Department's position that high-
quality professional development, including the use of scientifically
based instructional practices, is important to ensure that personnel
have the skills and knowledge necessary to improve the academic
achievement and functional performance of children with disabilities.
Section 300.207, consistent with section 613(a)(3) of the Act, requires
each LEA to ensure that all personnel necessary to carry out Part B of
the Act are appropriately prepared, subject to the requirements in
Sec. 300.156 and section 2122 of the ESEA.
Section 300.156(a), consistent with section 612(a)(14) of the Act,
clearly states that each State must establish and maintain
qualifications to ensure that personnel are appropriately and
adequately prepared and trained, and have the content knowledge and
skills to serve children with disabilities. Further, section
2122(b)(1)(B) of the ESEA requires an LEA's application to the State
for title II funds (Preparing, training, and recruiting high quality
teachers and principals) to address how the LEA's activities will be
based on a review of scientifically based research.
Changes: None.
Purchase of Instructional Materials (Sec. 300.210)
Comment: One commenter recommended requiring LEAs to hold public
hearings that meet the requirements in section 612(a)(19) of the Act
before adopting its policies and procedures to purchase instructional
materials. The commenter stated that all interested members of the
public, including parents of children with disabilities, are entitled
to participate in designing the plan to meet the requirements in Sec.
300.210.
Discussion: The Act does not require LEAs to hold public hearings
before implementing new policies and procedures. This is a matter for
each State to determine, based on its rules governing public hearings
and public comment. Therefore, we do not believe it is appropriate for
these regulations to require LEAs to hold public hearings and receive
public comment on the LEA's purchase of instructional materials, as
requested by the commenter.
Changes: None.
Comment: One commenter stated that the requirements in Sec.
300.210(b)(3) are unnecessary and should be removed because the Act
does not require LEAs to provide accessible materials for children with
disabilities for whom assistance is not available from the NIMAC.
Discussion: We believe that Sec. 300.210(b)(3) is necessary
because timely access to appropriate and accessible instructional
materials is an inherent component of an LEA's obligation under the Act
to ensure that FAPE is available for all children with disabilities and
that children with disabilities participate in the general curriculum
as specified in their IEPs. Because the NIMAC is not required to serve
all children with disabilities who need accessible materials, we
believe it is important that the regulations make clear that LEAs are
still responsible for ensuring that children with disabilities who need
instructional materials in accessible formats, but who do not fall
within the definition of children who are eligible to receive materials
produced from NIMAS files obtained through the NIMAC, receive them in a
timely manner. We, therefore, decline to delete Sec. 300.210(b)(3).
Changes: None.
Comment: A significant number of commenters expressed concern about
allowing LEAs to choose not to coordinate with the NIMAC. A few
commenters stated that coordination with the NIMAC should be mandatory
for all LEAs. Other commenters recommended that LEAs that cannot
demonstrate a history of providing instructional materials to children
with disabilities in a timely manner should be required to coordinate
with the NIMAC.
Discussion: It would be inconsistent with section 613(a)(6)(B) of
the Act to make coordination with the NIMAC mandatory for all LEAs or
to require certain LEAs to coordinate with the NIMAC (e.g., LEAs that
do not have a history of providing instructional materials to children
with disabilities in a timely manner). Section 613(a)(6)(B) of the Act
provides that nothing in the Act shall be construed to require any LEA
to coordinate with the NIMAC.
Changes: None.
Comment: Several commenters requested that the regulations clearly
define the process LEAs must go through if they choose not to
coordinate with the NIMAC. A few commenters requested additional
details on what assurances LEAs must provide if they choose not to
coordinate with the NIMAC. A few commenters requested that LEA
assurances provide the public with information to evaluate the capacity
of the LEA to provide materials to children who are blind or have print
disabilities. Some commenters stated that the assurances provided by
LEAs that choose not to coordinate with the NIMAC should be done
annually and in writing.
Several commenters requested that the regulations provide a means
for the public to obtain information about which LEAs choose not to
coordinate with the NIMAC. A few commenters recommended requiring LEAs
to report to the Department whether they choose to coordinate with the
NIMAC. Some commenters requested that the Department publish the
assurances made in accordance with Sec. 300.210(b) by LEAs that choose
not to coordinate with the NIMAC.
Discussion: The process by which LEAs choose not to coordinate with
the NIMAC and the assurances that LEAs must provide if they choose not
to coordinate with the NIMAC are determined by each State. Section
300.210(b)(2), consistent with section 613(a)(6)(B) of the Act, states
that, if an LEA chooses not to coordinate with the NIMAC, the LEA must
provide an assurance to the SEA that the LEA will provide instructional
materials to blind persons or other persons with print disabilities in
a timely manner. Therefore, it would be unnecessary and burdensome to
require LEAs to provide
[[Page 46626]]
assurances to the Department or to require LEAs to report to the
Department whether they choose to coordinate with the NIMAC. Each State
has its own mechanisms and processes for obtaining assurances from its
LEAs, and we believe it would be inappropriate for these regulations to
define the process by which LEAs inform the SEA that they choose not to
coordinate with the NIMAC or to specify the content of the assurances
that LEAs must provide to the SEA if they choose not to coordinate with
the NIMAC. Similarly, it is up to each State to determine whether and
how the State will provide information to the public about LEAs in the
State that choose not to coordinate with the NIMAC.
Changes: None.
Comment: Some commenters proposed that the regulations require LEAs
that choose not to coordinate with the NIMAC to annually report to the
public on when children with disabilities receive their materials, how
print materials are provided in a timely manner, and the steps the LEA
has taken to ensure that materials are provided at the same time as
materials are provided to children without disabilities. Other
commenters recommended requiring LEAs that choose not to coordinate
with the NIMAC to develop and publish their policies and procedures
that govern how they maintain and distribute NIMAS files.
Discussion: We believe that imposing additional data collection and
reporting requirements, such as those requested by the commenters, on
LEAs that choose not to coordinate with the NIMAC is a matter that is
best left to the States. States are responsible for ensuring that
accessible instructional materials are provided in a timely manner to
all children with disabilities who need them, and are, therefore, in
the best position to know what controls, if any, are needed in their
State to ensure that LEAS comply with the requirements in Sec.
300.210(b)(3). All LEAs, regardless of whether they choose to
coordinate with the NIMAC, must ensure that children with disabilities
who need instructional materials in accessible formats receive them in
a timely manner, consistent with Sec. 300.210(b)(3).
Changes: None.
Comment: A few commenters requested that the Department provide
information to LEAs on the NIMAC and the NIMAS so that LEAs can make an
informed choice regarding whether to coordinate with the NIMAC.
Discussion: The Department recognizes the need to provide
information to LEAs regarding the NIMAC and the NIMAS. The Department
has already provided numerous informational sessions on the NIMAC and
NIMAS and more are planned following the publication of the regulations
and approval of the NIMAC procedures. Information about the NIMAC
Technical Assistance Center is available at the following Web site:
http://www.aph.org/nimac/index.html. Information on the NIMAS can be
obtained at: http://nimas.cast.org.
Changes: None.
Early Intervening Services (Sec. 300.226)
Comment: One commenter recommended clarifying that early
intervening services should not be used to delay the evaluation of
children suspected of having a disability.
Discussion: We believe that Sec. 300.226(c), which states that
nothing in Sec. 300.226 will be construed to delay appropriate
evaluation of a child suspected of having a disability, makes clear
that early intervening services may not delay an appropriate evaluation
of a child suspected of having a disability.
Changes: None.
Comment: One commenter expressed concern that the requirements for
early intervening services do not adequately protect the child's right
to FAPE and recommended that the requirements include provisions
regarding notice, consent, and withdrawal of consent, as well as
guidelines for referrals for evaluation.
Discussion: Children receiving early intervening services do not
have the same rights and protections as children identified as eligible
for services under sections 614 and 615 of the Act. Section 300.226(c),
consistent with section 613(f)(3) of the Act, is clear that early
intervening services neither limit nor create a right to FAPE.
Changes: None.
Comment: Some commenters recommended that the regulations specify
how long a child may receive early intervening services before an
initial evaluation for special education services under Sec. 300.301
is conducted.
Discussion: We do not believe it is appropriate or necessary to
specify how long a child can receive early intervening services before
an initial evaluation is conducted. If a child receiving early
intervening services is suspected of having a disability, the LEA must
conduct a full and individual evaluation in accordance with Sec. Sec.
300.301, 300.304 and 300.305 to determine if the child is a child with
a disability and needs special education and related services.
Changes: None.
Comment: A few commenters suggested clarifying that Part B funds
for early intervening services should not be used for any child
previously identified as being a child with a disability.
Discussion: A child previously identified as being a child with a
disability who currently does not need special education or related
services would not be prevented from receiving early intervening
services. For example, a child who received special education services
in kindergarten and had services discontinued in grade 1 (because the
public agency and the parent agreed that the child was no longer a
child with a disability), could receive early intervening services in
grade 2 if the child was found to be in need of additional academic and
behavioral supports to succeed in the general education environment. We
believe that language should be added to Sec. 300.226 to clarify that
early intervening services are for children who are not currently
identified as needing special education or related services.
Changes: We have modified Sec. 300.226(a) to clarify that early
intervening services are available to children who currently are not
identified as needing special education or related services.
Comment: One commenter recommended specifying that unless LEAs have
significant over-identification and over-representation of minority
students in special education, LEAs may not use Federal Part B funds
for early intervening services unless they can demonstrate that all
eligible children are receiving FAPE. Another commenter suggested
prohibiting the use of Part B funds for early intervening services if
an LEA is not providing FAPE to all eligible children.
Discussion: The Act does not restrict the use of funds for early
intervening services only to LEAs that can demonstrate that all
eligible children with disabilities are receiving FAPE. Section
613(f)(1) of the Act generally permits LEAs to use funds for early
intervening services for children in kindergarten through grade 12
(with a particular emphasis on children in kindergarten through grade
3) 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. No other restrictions on
this authority, such as a requirement that the LEA first demonstrate
that it is providing FAPE to all eligible children, are specified or
appropriate. The authority to use some Part B funds for early
intervening
[[Page 46627]]
services has the potential to benefit special education, as well as the
education of other children, by reducing academic and behavioral
problems in the regular educational environment and reducing the number
of referrals to special education that could have been avoided by
relatively simple regular education interventions. Therefore, we
believe the use of Part B funds for early intervening services should
be encouraged, rather than restricted.
In one instance, however, the Act requires the use of funds for
early intervening services. Under section 618(d)(2)(B) of the Act, LEAs
that are identified as having significant disproportionality based on
race and ethnicity with respect to the identification of children with
disabilities, the placement of children with disabilities in particular
educational settings, and the incidence, duration, and type of
disciplinary actions taken against children with disabilities,
including suspensions and expulsions, are required to reserve the
maximum amount of funds under section 613(f)(1) of the Act to provide
early intervening services to children in the LEA, particularly to
children in those groups that were significantly over-identified. This
requirement is in recognition of the fact that significant
disproportionality in special education may be the result of
inappropriate regular education responses to academic or behavioral
issues.
Changes: None.
Comment: One commenter recommended permitting LEAs to spend funds
for early intervening services on literacy instruction programs that
target at-risk limited English proficient students.
Discussion: There is nothing in the Act that would preclude LEAs
from using Part B funds for early intervening services, including
literacy instruction, that target at-risk limited English proficient
students 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.
Changes: None.
Comment: One commenter requested clarification as to whether ESAs
or other public institutions or agencies, in addition to LEAs, have the
authority to provide early intervening services.
Discussion: We do not believe any clarification is necessary
because Sec. 300.226, consistent with section 613(f) of the Act,
states that LEAs may use Part B funds to develop and implement
coordinated early intervening services. As defined in Sec. 300.28(b),
local educational agency or LEA includes ESAs and any other public
institution or agency having administrative control and direction of a
public elementary school or secondary school, including a public
nonprofit charter school that is established as an LEA under State law.
Changes: None.
Comment: Some commenters suggested modifying the regulations to
permit children age 3 through 21 to receive early intervening services.
The commenters stated that this change would allow schools to provide
early academic and behavioral supports to preschool children.
Discussion: Early intervening services may not be used for
preschool children. Section 300.226(a) tracks the statutory language in
section 613(f)(1) of the Act, which states that early intervening
services are for children in kindergarten through grade 12, with a
particular emphasis on children in kindergarten through grade 3.
Changes: None.
Comment: One commenter recommended clarifying in the regulations
that early intervening services are not equivalent to early
intervention services.
Discussion: We do not believe any changes are necessary to the
regulations to clarify the difference between early intervening
services provided under Part B of the Act and early intervention
services provided under Part C of the Act. Following is a description
of the two types of services:
Early intervening services provided under section 613(f) of the Act
are services for children in kindergarten through grade 12 (with a
particular emphasis on children in kindergarten through grade 3) who
have not been identified as needing special education and related
services, but who need additional academic and behavioral support to
succeed in a general education environment.
Early intervention services, on the other hand, are services for
children birth through age two that are designed to meet the
developmental needs of infants and toddlers with disabilities under
section 632 in Part C of the Act. Section 632(5)(A) of the Act defines
infant or toddler with a disability as a child under the age of three
years who (a) is experiencing developmental delays in one or more of
the areas of cognitive development, physical development, communication
development, social or emotional development, and adaptive development,
or (b) has a diagnosed physical or mental condition that has a high
probability of resulting in developmental delay. In addition, some
States also provide early intervention services to infants and toddlers
who are at risk of having a developmental delay. The Part C regulations
will address, in detail, the early intervention services provided under
section 632 of the Act.
Changes: None.
Comment: One commenter asked whether the reference to
scientifically based academic and behavioral interventions in Sec.
300.226(b) means that such interventions must be aligned with
recommended practices and peer-reviewed research.
Discussion: Section 300.226(b) follows the specific language in
section 613(f)(2) of the Act and requires that in implementing
coordinated, early intervening services, an LEA may provide, among
other services, professional development for teachers and other
personnel to enable such personnel to deliver scientifically based
academic and behavioral interventions. The use of the term
scientifically based in Sec. 300.226(b) is intended to be consistent
with the definition of the term scientifically based research in
section 9101(37) of the ESEA. Because this definition of scientifically
based research is important to the implementation of Part B of the Act,
a reference to section 9101(37) of the ESEA has been added in new Sec.
300.35, and the full definition of the term has been included in the
discussion of new Sec. 300.35. Under the definition, scientifically
based research must be accepted by a peer-reviewed journal or approved
by a panel of independent experts through a comparably rigorous,
objective, and scientific review. We expect that the professional
development activities authorized under Sec. 300.226(b)(1) will be
derived from scientifically based research. The statute and regulations
do not refer to ``recommended practices,'' which is a term of art that,
generally, refers to practices that the field has adopted as ``best
practices,'' and which may or may not be based on evidence from
scientifically based research.
Changes: None.
Comment: Several commenters requested including related services
personnel, including speech pathologists and school psychologists, in
the development and delivery of educational and behavioral evaluations,
services, and supports for teachers and other school staff to enable
them to deliver coordinated, early intervening services.
Discussion: State and local officials are in the best position to
make decisions regarding the provision of early intervening services,
including the specific personnel to provide the
[[Page 46628]]
services and the instructional materials and approaches to be used.
Nothing in the Act or regulations prevents States and LEAs from
including related services personnel in the development and delivery of
educational and behavioral evaluations, services, and supports for
teachers and other school staff to enable them to deliver coordinated,
early intervening services.
Changes: None.
Comment: Several commenters recommended revising the regulations to
allow public agencies to use Part B funds for early intervening
services to purchase supplemental instructional materials to support
the activities in Sec. 300.226(b).
Discussion: We agree that supplemental instructional materials may
be used, where appropriate, to support early intervening activities.
The Conf. Rpt. in note 269 provides that
[E]arly intervening services should make use of supplemental
instructional materials, where appropriate, to support student
learning. Children targeted for early intervening services under
IDEA are the very students who are most likely to need additional
reinforcement to the core curriculum used in the regular classroom.
These are in fact the additional instructional materials that have
been developed to supplement and therefore strengthen the efficacy
of comprehensive core curriculum.
We believe the terms ``services'' and ``supports'' in Sec.
300.226(b)(2) are broad enough to include the use of supplemental
instructional materials. Accordingly, we believe that it is unnecessary
to add further clarification regarding the use of supplemental
instructional materials in Sec. 300.226. Of course, use of funds for
this purpose is subject to other requirements that apply to any use of
funds, such as the limitation on purchase of equipment in section 605
of the Act and applicable requirements in 34 CFR Parts 76 and 80.
Changes: None.
Comment: Several commenters requested requiring LEAs to provide
parents with written notice regarding their child's participation in
early intervening services, the goals for such services, and an
opportunity to refuse services. Some commenters requested requiring
LEAs to inform parents of their child's progress in early intervening
services at reasonable intervals.
Discussion: Section 300.226, consistent with section 613(f) of the
Act, gives LEAs flexibility to develop and implement coordinated, early
intervening services for children who are not currently receiving
special education services, but who require additional academic and
behavioral support to succeed in a regular education environment. Early
intervening services will benefit both the regular and special
education programs by reducing academic and behavioral problems in the
regular education program and the number of inappropriate referrals for
special education and related services. It would be overly restrictive
and beyond the Department's authority to modify the regulations to
include the additional requirements suggested by the commenters.
Changes: None.
Comment: One commenter stated that data should be collected
regarding the effectiveness of early intervening services. Several
commenters requested requiring LEAs to report to the SEA, and make
available to the public, the number of children receiving early
intervening services, the length of time the children received the
services, the impact of the services, and the amount of Federal Part B
funds used for early intervening services.
Discussion: Section 300.226(d), consistent with section 613(f)(4)
of the Act, requires LEAs that develop and maintain coordinated, early
intervening services to annually report to their SEA on the number of
children receiving early intervening services and the number of those
children who eventually are identified as children with disabilities
and receive special education and related services during the preceding
two year period (i.e., the two years after the child has received early
intervening services). We believe that these data are sufficient to
provide LEAs and SEAs with the information needed to determine the
impact of early intervening services on children and to determine if
these services reduce the number of referrals for special education and
related services. Requiring LEAs to collect and report data on the
implementation of early intervening services beyond what is
specifically required in section 613(f)(4) of the Act is unnecessary
and would place additional paperwork burdens on LEAs and SEAs.
Changes: None.
Comment: Some commenters requested that the meaning of the terms
``subsequently'' and ``preceding two year period'' in Sec.
300.226(d)(2) be clarified.
Discussion: Section 300.226(d)(2), consistent with section
613(f)(4)(B) of the Act, requires LEAs to report on the number of
children who are provided early intervening services who subsequently
receive special education and related services under Part B of the Act
during the preceding two years to determine if the provision of these
services reduces the number of overall referrals for special education
and related services. The Department intends for LEAs to report on
children who began receiving special education services no more than
two years after they received early intervening services. For the
preceding two year period, the LEA would report on the number of
children who received both early intervening services and special
education services during those two years.
Changes: None.
Direct Services by the SEA (Sec. 300.227)
Comment: Some commenters requested that the regulations specify
that SEAs providing direct services must make placement decisions based
on the child's individual needs and must comply with all requirements
for providing FAPE in the LRE.
Discussion: We do not believe any changes to the regulations are
necessary because Sec. 300.227(b), consistent with section 613(g)(2)
of the Act, clearly states that SEAs providing direct special education
and related services must do so in accordance with Part B of the Act.
Accordingly, the special education and related services provided under
Sec. 300.227 would be subject to the placement requirements in Sec.
300.116 and the LRE requirements in Sec. 300.114 and section 612(a)(5)
of the Act.
Changes: None.
Disciplinary Information (Sec. 300.229)
Comment: One commenter recommended clarifying that not all student
disciplinary records can be transmitted by public agencies.
Discussion: We believe that Sec. 300.229 is clear that not all
student disciplinary records can be transmitted by public agencies.
Section 300.229(a) provides that public agencies can transmit
disciplinary information on children with disabilities only to the
extent that the disciplinary information is included in, and
transmitted with, the student records of nondisabled children. Section
300.229(b) specifies the disciplinary information that may be
transmitted, which includes 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.
Changes: None.
Comment: Some commenters requested that the required transmission
of student records include both the child's current IEP and any
statement of
[[Page 46629]]
current or previous disciplinary action related to weapons, drugs, or
serious bodily injury that has been taken against the child.
Discussion: It is important to clarify that the Act does not
require the transmission of student disciplinary information when the
child transfers from one school to another. Rather, section 613(i) of
the Act allows each State to decide whether to require its public
agencies to include disciplinary statements in student records and
transmit such statements with student records when a child transfers
from one school to another. The State's policy on transmitting
disciplinary information must apply to both students with disabilities
and students without disabilities.
Section 300.229(b) provides that if a State requires its public
agencies to include disciplinary statements in student records, these
disciplinary statements 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; disciplinary actions taken against a child
related to weapons, drugs, or serious bodily injury also could be
included in these descriptions. If a State adopts such a policy, Sec.
300.229(c) requires that the transmission of any of the child's student
records include the child's current IEP and any statement of current or
previous disciplinary action that has been taken against the child.
Therefore, with regard to the commenters' request that the
transmission of student records include any statement of current or
previous disciplinary action related to weapons, drugs, or serious
bodily injury that has been taken against the child, this information
would be transmitted only to the extent that disciplinary statements
are included in, and transmitted with, the student records of
nondisabled children.
Changes: None.
Comment: One commenter recommended requiring that the transmission
of a student's records include functional behavioral assessments and
behavior intervention plans.
Discussion: Any existing functional behavioral assessments and
behavioral intervention plans would be part of the materials that must
be transmitted under Sec. 300.323(g). In addition, if a State requires
student records to include disciplinary information and the child
transfers from one school to another, Sec. 300.229(c) requires that
the transmission of any of the child's student records include the
child's current IEP. Functional behavioral assessments and behavior
intervention plans are not required components of the IEP under Sec.
300.320. However, if a State considers functional behavioral
assessments and behavior intervention plans to be part of a student's
IEP, this information would be required to be transmitted when the
child transfers from one school to another, consistent with Sec.
300.229(c).
Changes: None.
Subpart D--Evaluations, Eligibility Determinations, Individualized
Education Programs, and Educational Placements
Parental Consent
Parental Consent (Sec. 300.300)
Comment: A few commenters noted that the terms, ``consent,''
``informed consent,'' ``agree,'' and ``agree in writing'' are used
throughout the regulations and stated that differences between the
terms should be clarified. One commenter recommended that the
regulations include the term ``informed'' every time the term
``parental consent'' is used.
Discussion: The use of these terms throughout the regulations is
consistent with their use in the Act. The definition of consent in
Sec. 300.9 includes the requirement that a parent be fully informed of
all information relevant to the activity for which consent is sought.
The definition also requires that a parent agree in writing to carrying
out the activity for which the parent's consent is sought. Therefore,
whenever the term ``consent'' is used in these regulations, it means
that the consent is both ``informed'' and ``written.'' Similarly, the
terms ``consent,'' ``informed consent,'' ``parental consent,'' and
``written informed consent,'' as used in these regulations, all are
intended to have the same meaning.
The meaning of the terms ``agree'' or ``agreement'' is not the same
as ``consent.'' ``Agree'' or ``agreement'' refer to an understanding
between the parent and the LEA about a particular question or issue.
There is no requirement that an agreement be in writing unless
specifically stated in the Act and regulations.
Changes: None.
Comment: One commenter recommended that the regulations clarify
what the required safeguards are if parents elect to receive notices
electronically or provide electronic or digital signatures for
consents, such as consent for an initial evaluation.
Discussion: Section 300.505, consistent with section 615(n) of the
Act, permits parents to elect to receive prior written notices,
procedural safeguards notices, and due process complaint notices by an
electronic mail communication, if the public agency makes that option
available. The Act does not specify documentation requirements if the
public agency makes the electronic notice delivery option available to
parents, and we believe that this is a matter that is best left to
States and LEAs that choose to use the electronic communication option.
In addition, States that wish to utilize electronic or digital
signatures for consent may do so if they choose. Consent under Sec.
300.9(b) requires a parent to understand and agree in writing to the
carrying out of the activity for which the parent's consent is sought.
Therefore, States that permit the use of electronic or digital
signatures for parental consent would need to take the necessary steps
to ensure that there are appropriate safeguards to protect the
integrity of the process.
Changes: None.
Parental Consent for Initial Evaluation (Sec. 300.300(a))
Comment: One commenter recommended that the regulations require a
public agency to conduct the following activities to obtain parental
consent for an initial evaluation: identify the child's parents and
their address and phone number; contact social service providers for
children who are wards of the State; provide parents with copies of the
Act; and inform parents of the consequences of withholding consent.
Discussion: The regulations already provide sufficient safeguards
regarding consent, and we believe that the changes requested would be
unduly burdensome. As a matter of practice, public agencies begin the
process of obtaining parental consent by identifying the parent and
contacting the parent by phone or through written correspondence, or
speaking to the parent in parent-teacher conferences.
We do not believe it is necessary to regulate to require public
agencies to contact social service agencies to obtain consent for
children who are wards of the State because it may not always be
necessary or appropriate, for example, when a child who is a ward of
the State has a foster parent who can act as a parent, consistent with
Sec. 300.30(a)(2). Additionally, section 614(a)(1)(D)(iii)(I) of the
Act provides that the public agency must make reasonable efforts to
obtain informed parental consent for children who are wards of the
State and
[[Page 46630]]
not residing with the parent. Public agencies are in the best position
to determine, on a case-by-case basis, when it is necessary to contact
social service providers to assist in obtaining parental consent for
children who are wards of the State.
We also do not believe that additional regulations are necessary to
require public agencies to inform parents of the consequences of
withholding consent for an initial evaluation or to provide parents
with copies of the Act. Section 300.503, consistent with section
615(c)(1) of the Act, already requires that prior written notice be
provided to parents before an initial evaluation, which will explain,
among other things, why the agency is proposing to conduct the
evaluation; a description of each evaluation procedure, assessment,
record, or report the agency used as a basis for proposing to conduct
the evaluation; and sources for the parent to contact to obtain
assistance in understanding the provisions under the Act. Additionally,
Sec. 300.504(a)(1), consistent with section 615(d)(1)(A)(i) of the
Act, requires the public agency to provide a copy of the procedural
safeguards to parents upon initial referral for an evaluation, which
provides information about parents' rights under the Act. Although we
do not believe the recommended requirements should be added to the
regulations, we will add the cross-references to the consent
requirements in Sec. 300.9, and the requirements for prior written
notice and the procedural safeguards notice in Sec. Sec. 300.503 and
300.504, respectively, to Sec. 300.300(a).
Changes: We have added cross-references to Sec. Sec. 300.9,
300.503, and 300.504 in Sec. 300.300(a).
Comment: One commenter recommended revising Sec. 300.300(a)(1)(ii)
and using the statutory language in section 614(a)(1)(D)(i) of the Act
to require that parental consent for evaluation may not be construed as
consent for placement for receipt of special education and related
services.
Discussion: We believe it is appropriate to use the phrase,
``initial provision of services'' in Sec. 300.300(a)(1)(ii), rather
than the statutory phrase ``consent for placement for receipt of
special education and related services,'' in section 614(a)(1)(D)(i) of
the Act to clarify that consent does not need to be sought every time a
particular service is provided to the child. In addition, the
distinction between consent for an initial evaluation and consent for
initial services is more clearly conveyed in Sec. 300.300(a)(1)(ii)
than in the statutory language, and is consistent with the Department's
longstanding position that ``placement'' refers to the provision of
special education services, rather than a specific place, such as a
specific classroom or specific school. We, therefore, decline to change
the regulation, as requested by the commenter.
Changes: None.
Comment: One commenter recommended that the regulations clarify
whether the reference to ``parent'' in Sec. 300.300(a)(2) means
``biological or adoptive parent'' or anyone who meets the definition of
parent in Sec. 300.30.
Discussion: Section 300.300(a)(2) applies to circumstances in which
the child is a ward of the State and is not residing with the child's
parents, and requires the public agency to make reasonable efforts to
obtain parental consent from the parent for an initial evaluation. The
reference to ``parent,'' in this context, refers to anyone who meets
the definition of parent in Sec. 300.30, consistent with section
614(a)(1)(D)(iii) of the Act.
Changes: None.
Comment: One commenter requested clarification on the interplay
between new Sec. 300.300(a)(2) (proposed Sec. 300.300(a)(2)(ii)),
regarding circumstances when the public agency is not required to
obtain informed parental consent for an initial evaluation of a child
who is a ward of the State, and the requirements in Sec. 300.519(c),
which require that a surrogate parent be appointed for a child who is a
ward of the State.
Discussion: New Sec. 300.300(a)(2) (proposed Sec.
300.300(a)(2)(ii)), consistent with section 614(a)(1)(D)(iii)(II) of
the Act, creates an exception to the parental consent requirements for
initial evaluations for a child who is a ward of the State who is not
residing with the child's parent if the public agency has made
reasonable efforts to obtain the parent's consent, but is unable to
discover the whereabouts of the parent, the rights of the parent of the
child have been terminated under State law, or the rights of the parent
to make educational decisions have been subrogated by a judge under
State law and consent for the initial evaluation has been given by an
individual appointed by the judge to represent the child. New Sec.
300.300(a)(2) (proposed Sec. 300.300(a)(2)(ii)) permits the public
agency to proceed with the child's initial evaluation without first
obtaining the requisite parental consent only in the circumstances
detailed in Sec. 300.300(a)(2). Therefore, when one or more of the
circumstances in Sec. 300.300(a)(2) are met and a surrogate has not
yet been appointed, the public agency need not postpone the child's
evaluation to await the appointment of a surrogate. This is appropriate
because in situations involving requests for initial evaluations, in
most cases a surrogate parent has not yet been appointed and delaying
an initial evaluation until after a surrogate is appointed and has
given consent may not be in the best interests of the child. In
contrast, in most situations involving consent for reevaluation, a
surrogate parent should already have been appointed under Sec. 300.519
if no parent can be identified, the public agency has been unable to
locate a parent, the child is a ward of the State or the child is an
unaccompanied homeless youth. Therefore, we do not think it is
appropriate to apply the provisions in Sec. 300.300(a)(2) to
reevaluation situations.
Nothing in this section is intended to relieve a public agency of
its obligation to ensure that the rights of a child who is a ward of
the State are protected through the appointment of a surrogate parent
in accordance with the procedures in Sec. 300.519(b) through (h). Once
a surrogate parent is appointed in accordance with the procedures in
Sec. 300.519(b) through (h), that person assumes the responsibilities
of a parent under the Act, and the public agency must seek consent from
that individual.
Moreover, if a child has a foster parent who can act as a parent,
as defined in Sec. 300.30(a)(2), or a person such as a grandparent or
step-parent who is legally responsible for the child's welfare, and
that person's whereabouts are known or the person can be located after
reasonable efforts by the public agency, parental consent would be
required for the initial evaluation.
We believe that the phrase ``except as provided in paragraph (a)(2)
of this section (regarding consent for wards of the State)'' in
proposed Sec. 300.300(a)(1)(i) may incorrectly convey that a public
agency is not required to make reasonable efforts to obtain informed
consent from the parent of a child who is a ward of the State, or from
a surrogate parent, foster parent, or other person meeting the
definition of a parent in Sec. 300.30(a). Therefore, we will remove
the phrase. To clarify that the provisions in Sec. 300.300(a)(2) apply
only to initial evaluations, and not reevaluations, we will modify both
Sec. Sec. 300.300(a)(2) and (c)(1).
Changes: We have removed the phrase ``except as provided in
paragraph (a)(2) of this section (regarding consent for wards of the
State)'' in Sec. 300.300(a)(1)(i), for clarity. We have also added
introductory language to
[[Page 46631]]
Sec. 300.300(a)(2) to specify that it applies only to initial
evaluations, and we have changed the cross-reference in Sec.
300.300(c)(1) to refer to Sec. 300.300(a)(1).
Comment: One commenter recommended that the regulations specify the
minimum steps that public agencies must take to obtain consent for
initial evaluations from parents of children who are wards of the
State. Another commenter recommended that the regulations define
``reasonable efforts,'' as used in new Sec. 300.300(a)(1)(iii)
(proposed Sec. 300.300(a)(2)(i)). One commenter recommended requiring
LEAs to maintain documentation of their efforts to obtain parental
consent for initial evaluations, including attempts to obtain consent
by telephone calls, visits to the parent's home, and correspondence in
the parent's native language. Several commenters requested that the
requirements in current Sec. 300.345(d) be included in new Sec.
300.300(a)(2)(i) (proposed Sec. 300.300(a)(2)(ii)(A)). Current Sec.
300.345(d) requires a public agency to document the specific steps it
has taken to arrange a mutually convenient time and place for an IEP
Team meeting (e.g., detailed records of telephone calls, any
correspondence sent to the parents, visits made to the parent's home or
place of employment) and it is cross-referenced in current Sec.
300.505(c)(2) to identify documentation of the reasonable measures that
an LEA took to obtain consent for a reevaluation.
Discussion: We believe it is important to emphasize that a public
agency must make reasonable efforts to obtain informed consent from the
parent for an initial evaluation to determine whether the child is a
child with a disability. This includes the parent of a child who is a
ward of the State. Therefore, we will add a new paragraph (a)(1)(iii)
to Sec. 300.300 to make clear that a public agency must make
reasonable efforts to obtain informed parental consent whenever a
public agency seeks to conduct an initial evaluation of a child to
determine whether the child is a child with a disability. This
requirement applies to all children including children who are wards of
the State. With the addition of this new paragraph, the requirement for
public agencies to make reasonable efforts to obtain informed consent
from the parent for an initial evaluation for children who are wards of
the State in Sec. 300.300(a)(2)(i) is no longer necessary and will be
removed.
We also agree with the commenters that a public agency should
document and make the same reasonable efforts to obtain consent for an
initial evaluation from a parent, including a parent of a child who is
a ward of the State, that are required when a public agency attempts to
arrange a mutually convenient time and place for an IEP Team meeting
(e.g., detailed records of telephone calls, any correspondence sent to
the parents, visits made to the parent's home or place of employment),
and will add a new paragraph (d)(5) to make this clear. We recognize
that the statute uses both ``reasonable measures'' and ``reasonable
efforts'' when referring to a public agency's responsibility to obtain
parental consent for an evaluation, initial services, and a
reevaluation. We believe these two phrases, when used in this context,
have the same meaning and, therefore, have used ``reasonable efforts''
throughout the regulations related to parental consent for consistency.
Changes: We have added a new paragraph (a)(1)(iii) to Sec. 300.300
to require a public agency to make reasonable efforts to obtain
informed parental consent for an initial evaluation. We will remove
Sec. 300.300(a)(2)(i) because it is redundant with the new paragraph.
Section 300.300(a)(2) has been reformatted consistent with the removal
of paragraph (a)(2)(i). We also have added a new paragraph (d)(5) to
Sec. 300.300 to require a public agency to document its attempts to
obtain parental consent using the procedures in Sec. 300.322(d).
Comment: A few commenters asked whether a public agency must obtain
consent for an initial evaluation from the biological or adoptive
parent of the child when there is another person who meets the
definition of parent in Sec. 300.30. Another commenter recommended the
regulations clarify whether a public agency must seek informed consent
for an initial evaluation from a biological or adoptive parent when a
surrogate parent has already been appointed.
Discussion: Section 300.30(b)(1) provides that, when more than one
party is qualified to act as a parent, the biological or adoptive
parent, when attempting to act as the parent under the Act, must be
presumed to be the parent, unless the biological or adoptive parent
does not have legal authority to make educational decisions for the
child.
If a surrogate parent already has been appointed because the public
agency, after reasonable efforts, could not locate a parent, the public
agency would not have to again attempt to contact other individuals
meeting the definition of parent in Sec. 300.30 to seek consent.
Changes: None.
Comment: One commenter recommended that the regulations clarify
whether the qualifications of a judge-appointed surrogate parent in
Sec. 300.519(c) would apply to new Sec. 300.300(a)(2)(iii) (proposed
Sec. 300.300(a)(2)(ii)(C)), regarding consent for an initial
evaluation for a child who is a ward of the State.
Discussion: Section 614(a)(1)(D)(iii)(II)(cc) of the Act, which is
the basis for new Sec. 300.300(a)(2)(iii) (proposed Sec.
300.300(a)(2)(ii)(C)), provides that the public agency is not required
to obtain informed consent from the parent for an initial evaluation of
a child who is a ward of the State and is not living with the child's
parent if 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. This is a special situation, limited only
to children who are wards of the State not living with a parent and
limited only to the situation of seeking consent for an initial
evaluation. A person appointed under this provision is not a surrogate
parent as that term is used in these regulations. The requirements of
Sec. 300.519(c) do not apply to persons authorized to provide consent
for initial evaluations under this provision.
It is noteworthy that the provision in new Sec. 300.300(a)(2)(iii)
(proposed Sec. 300.300(a)(2)(ii)(C)) is only a limited exception to
the requirement to obtain informed parental consent for an initial
evaluation. Most children will not have a surrogate parent already
appointed at this stage of their involvement with services under the
Act. However, if a child has a surrogate parent appointed under Sec.
300.519(c), and the rights of that person to make educational decisions
for the child have not been subrogated by a judge under State law, the
public agency would have to seek informed parental consent from that
person.
Changes: None.
Comment: One commenter recommended revising Sec. 300.300(a)(3) to
prohibit a public agency from pursuing an initial evaluation without
parental consent. Another commenter recommended requiring a public
agency to use the due process procedures to conduct an initial
evaluation if the parent does not provide consent and the public agency
believes that the child would not otherwise receive needed services. A
few commenters stated that Sec. 300.300(a)(3) is inconsistent with
statutory language and opposed language stating that the public agency
may, but is not required to, pursue the
[[Page 46632]]
initial evaluation of a child whose parents have refused to consent or
failed to respond to a request for consent.
Discussion: Section 300.300(a)(3) is consistent with section
614(a)(1)(D)(ii) of the Act, which states that a public agency may
pursue the initial evaluation of a child using the procedural
safeguards if a parent does not provide consent or fails to respond to
a request to provide consent for an initial evaluation. Consistent with
the Department's position that public agencies should use their consent
override procedures only in rare circumstances, Sec. 300.300(a)(3)
clarifies 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. State and local
educational agency authorities are in the best position to determine
whether, in a particular case, an initial evaluation should be pursued.
Changes: None.
Comment: A few commenters recommended clarifying the parental
consent requirements for an initial evaluation. Many commenters
recommended that LEAs maintain documentation that the parent has been
fully informed and understands the nature and scope of the evaluation.
One commenter recommended that the regulations require that informed
parental consent for an initial evaluation be documented in writing.
Discussion: Section 300.300(a)(1)(i), consistent with section
614(a)(1)(D)(i)(I) of the Act, is clear that 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
consent from the parent of the child before conducting the evaluation.
Consent, as defined in Sec. 300.9, means that the parent has been
fully informed in his or her native language, or other mode of
communication, and understands and agrees in writing to the initial
evaluation. The methods by which a public agency seeks to obtain
parental consent for an initial evaluation (beyond the requirement that
the public agency use the parent's native language or mode of
communication) and how a public agency documents its efforts to obtain
the parent's written consent are appropriately left to the discretion
of SEAs and LEAs.
Changes: None.
Comment: A few commenters recommended that the regulations include
language clarifying that a public agency is not in violation of the
FAPE requirements if the public agency does not pursue an initial
evaluation when the parent refuses to consent or fails to respond to a
request for consent. One commenter recommended adding language to the
regulations to clarify that if a parent refuses to consent to an
initial evaluation, the child would not be considered to be a child
with a disability.
Discussion: While we agree that a public agency would not be in
violation of the FAPE requirements for failing to pursue an initial
evaluation through due process, we do not believe that a change to the
regulations is necessary. The FAPE requirements in Sec. Sec. 300.101
through 300.112, consistent with section 612(a) of the Act, apply only
to a child with a disability, as defined in Sec. 300.8 and section
602(3) of the Act. A child would not be considered a child with a
disability under the Act if the child has not been evaluated in
accordance with Sec. Sec. 300.301 through 300.311 and determined to
have one of the disabilities in Sec. 300.8(a), and because of that
disability, needs special education and related services.
Further, Sec. 300.534(c)(1), consistent with section 615(k)(5)(C)
of the Act, provides that a public agency would not be deemed to have
knowledge that a child is a child with a disability, for disciplinary
purposes, if a parent has not allowed the child to be evaluated or
refuses services under the Act.
Changes: None.
Comment: A few commenters recommended that the regulations clarify
that the public agency is not in violation of the child find
requirements if the public agency does not pursue an initial evaluation
when the parent refuses to consent or fails to respond to a request for
consent.
Discussion: We agree that States and LEAs should not be considered
to be in violation of their obligation to locate, identify, and
evaluate children suspected of being children with disabilities under
Sec. 300.111 and section 612(a)(3) of the Act if they decline to
pursue an evaluation (or reevaluation) to which a parent has refused or
failed to consent. We will add language to the regulations to make this
clear.
Changes: We have added language to Sec. 300.300(a)(3) and (c)(1)
to clarify that a State or public agency does not violate the
requirements of Sec. 300.111 and Sec. Sec. 300.301 through 300.311 if
it declines to pursue an evaluation or reevaluation to which a parent
has refused or failed to consent.
Comment: A few commenters recommended that the regulations define
``fails to respond'' as used in Sec. 300.300(a)(3).
Discussion: Section 300.300(a)(3), consistent with section
614(a)(1)(D)(ii)(I) of the Act, states that if a parent of a child
enrolled in public school, or seeking to be enrolled in public school,
does not provide consent for an initial evaluation, or the parent
``fails to respond'' to a request to provide consent, the public agency
may, but is not required to, pursue the initial evaluation of the child
by utilizing the procedural safeguards, if appropriate, except to the
extent inconsistent with State law relating to such parental consent.
The meaning of ``fails to respond,'' in this context, is generally
understood to mean that, in spite of a public agency's efforts to
obtain consent for an initial evaluation, the parent has not indicated
whether the parent consents or refuses consent to the evaluation. We
believe the meaning is clear in the regulations and, therefore, decline
to define the phrase in these regulations.
Changes: None.
Comment: One commenter recommended that the regulations include
language to require a public agency to provide the following
information (in the parent's native language) to a parent who refuses
consent or fails to respond to a request for consent for an initial
evaluation: The reasons why the public agency believes the child may be
eligible for special education; confirmation that the requested
evaluation and any subsequent special education services will be
provided at no cost and scheduled in cooperation with parents with
transportation provided; The nature of the evaluations and credentials
of evaluators; the types of special education services that the child
could receive if eligible; and the risks of delaying an evaluation.
Discussion: The prior written notice requirements in Sec. 300.503,
consistent with section 615(c)(1) of the Act, address many of the
concerns raised by the commenter. Consistent with Sec. 300.503(b) and
(c), prior notice must be given to the parents when a public agency
proposes to evaluate a child and would explain why the public agency
believes the child needs an evaluation to determine whether the child
is a child with a disability under the Act; describe each evaluation
procedure, assessment, record, or report the agency used as a basis for
proposing that the child needs an evaluation; explain that the parents
have protection under the Act's procedural safeguards; provide sources
for parents to contact to obtain assistance in understanding the
provisions of the Act; and describe other factors that are relevant to
the agency's proposal to conduct the evaluation of the child.
[[Page 46633]]
In addition to the prior written notice, Sec. 300.504(a)(1),
consistent with section 615(d)(1)(A)(i) of the Act, requires that a
copy of the procedural safeguards notice be given to parents upon an
initial referral or parental request for an evaluation. Consistent with
Sec. 300.503(c) and Sec. 300.504(d), the prior written notice and the
procedural safeguards notice, respectively, must be written in language
understandable to the general public and be 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.
As a matter of practice, public agencies provide parents with
general information about the special education and related services
that are available to eligible children with disabilities and inform
the parent that the public agency's evaluation is provided at no cost.
We believe that this information, along with the information provided
in the prior written notice and procedural safeguards notice, will help
a parent determine whether there are any risks of delaying an
evaluation. Therefore, we do not believe additional regulations are
necessary.
With regard to information regarding an evaluator's credentials, we
do not believe it is necessary to require public agencies to provide
this information to parents because Sec. 300.304(c)(1)(v) and section
614(b)(3)(A)(iv) of the Act require the public agency to ensure that
the evaluation is conducted by trained and knowledgeable personnel.
If transportation to an evaluation outside the school environment
is necessary, the public agency would have to provide it, as a part of
its obligation to ensure that all eligible children are located,
identified, and evaluated. However, we do not believe that the parents
need to be notified of this fact because, in most cases, children can
be evaluated at school during the school day and there is no
requirement that a parent be present during the evaluation. Thus,
requiring that all parents be notified about transportation to
evaluations would be unnecessarily burdensome.
Changes: None.
Parental Consent for Services (Sec. 300.300(b))
Comment: A few commenters requested that the Department address
situations in which a child is receiving special education services and
a parent wants to withdraw consent or refuse services because the
parent believes the child no longer needs special education services. A
few commenters stated that public agencies should not be allowed to use
the procedural safeguards to continue to provide special education and
related services to a child whose parents withdraw consent for the
continued provision of special education and related services.
Discussion: We are considering the question of whether parents who
previously consented to the initiation of special education services
should have the right to subsequently remove their child from special
education services. We anticipate publishing a notice of proposed
rulemaking in the near future seeking public comment on this issue.
Changes: None.
Comment: One commenter recommended changing the regulations to
allow the public agency to provide services in anticipation of
receiving parental consent when the public agency initiates a due
process hearing to obtain parental consent for initial services.
Discussion: To implement the change requested by the commenter
would be inconsistent with the Act. Section 614(a)(1)(D)(i)(II) of the
Act requires a public agency to obtain informed parental consent before
providing initial special education and related services to a child. In
addition, a public agency may not initiate a due process hearing to
provide special education and related services to a child when a parent
refuses to consent to initial services, consistent with section
614(a)(1)(D)(ii)(II) of the Act. A child whose parent has refused
consent for initial services would not be provided special education
and related services and would continue to receive general education
services.
Changes: None.
Comment: A few commenters requested that the regulations clarify
the meaning of ``initial provision of services'' as used in Sec.
300.300(b).
Discussion: We believe Sec. 300.300(b) is clear that the ``initial
provision of services'' means the first time a parent is offered
special education and related services after the child has been
evaluated in accordance with the procedures in Sec. Sec. 300.301
through 300.311, and has been determined to be a child with a
disability, as defined in Sec. 300.8.
Changes: None.
Comment: One commenter requested that the regulations permit
mediation when a parent of a child refuses to consent to the provision
of special education and related services. A few commenters recommended
revising the regulations to require a public agency to use the due
process procedures, or other alternative dispute resolution procedures,
if a parent refuses to consent to initial services.
Discussion: Section 300.300(b)(2), consistent with section
614(a)(1)(D)(ii)(II) of the Act, is clear that if a parent fails to
respond or refuses to consent to initial services, the public agency
may not use the mediation procedures in Sec. 300.506 or the due
process procedures in Sec. Sec. 300.507 through 300.516 in order to
obtain agreement or a ruling that the services may be provided to a
child.
Changes: None.
Comment: One commenter stated that additional documentation is
necessary if a parent does not provide consent for initial services and
suggested adding language to the regulations to require public agencies
to document the steps they have taken to obtain parental consent for
initial services and to maintain them in the child's permanent file.
Another commenter recommended requiring that the parent's refusal to
consent for initial services occur during a properly convened IEP Team
meeting. The commenter also suggested requiring that the documentation
of a parent's refusal to provide consent include evidence that all
options waived by the parent have been explained, that the parent has
refused services, and the reasons for the parent's refusal.
Discussion: We believe that a public agency must make reasonable
efforts to obtain informed consent from the parent for the initial
provision of special education and related services to the child and
will make this clear in Sec. 300.300(b). We noted in our discussion
regarding the reasonable efforts that a public agency must make to
obtain parental consent for an initial evaluation to determine whether
the child is a child with a disability, that we added a new paragraph
(d)(5) to Sec. 300.300 that provides that to meet the reasonable
efforts requirement, a public agency must document its attempts to
obtain consent using the procedures in Sec. 300.322(d). We believe a
public agency should make these same reasonable efforts to obtain
parental consent for initial services, and will include this in new
Sec. 300.300(d)(5).
We do not believe it is necessary or appropriate to require a
public agency to maintain additional documentation, beyond that
required in new Sec. 300.300(d)(5), of a parent's refusal to provide
consent for initial services or to prescribe where this documentation
must be obtained or maintained. Public agencies understand the
importance of properly documenting a parent's refusal to consent to the
initial provision of special education and related services and are in
the best position to determine any additional documentation that is
[[Page 46634]]
necessary and where to obtain and maintain such documentation.
Changes: We have added a new paragraph (b)(2) to Sec. 300.300 to
clarify that the public agency must make reasonable efforts to obtain
informed consent from the parent for the initial provision of special
education and related services to the child. Subsequent paragraphs have
been renumbered accordingly. We also have included a reference to new
Sec. 300.300(b)(2) in new Sec. 300.300(d)(5) that requires a public
agency to document its attempts to obtain consent using the procedures
in Sec. 300.322(d).
Comment: One commenter recommended adding language to clarify that
if a parent does not consent to initial services, the child would be
considered a part of the general education enrollment and subject to
the same disciplinary provisions as nondisabled children.
Discussion: The language requested by the commenter is not
necessary because section 615(k)(5)(C) of the Act already provides for
situations in which a parent refuses consent for initial services and
the child subsequently engages in behavior that violates a code of
student conduct. Section 300.534(c)(1), consistent with section
615(k)(5)(C) of the Act, provides that a public agency would not be
deemed to have knowledge that a child is a child with a disability if
the parent of the child has not allowed an evaluation of the child
pursuant to Sec. Sec. 300.301 through 300.311, or has refused services
under this part. Therefore, such a child would not be able to assert
any of the protections provided to children with disabilities under the
Act, and would be subject to the same disciplinary procedures as any
other child.
Changes: None.
Comment: A few commenters recommended requiring a public agency to
refer parents who do not provide consent for initial services to the
State's PTI center so that the parents can be advised of the benefits
of special education and their rights and responsibilities under the
Act.
Discussion: We do not believe it would be appropriate to require a
public agency to refer parents to a particular agency or program. Such
matters are best left to States and LEAs to decide and should not be
included in the regulations.
Changes: None.
Comment: One commenter recommended that the regulations require a
public agency to report a parent for suspected child abuse or neglect
to the appropriate agency if the public agency believes that the
parent's failure or refusal to consent to initial services meets the
definition of child abuse or neglect under the State's mandatory
reporting law.
Discussion: It is not necessary to include the requirement
recommended by the commenter in these regulations, as the issue would
already be addressed by State law, if under State law a parent's
failure to consent to initial services under the Act was considered
child abuse or neglect.
Changes: None.
Comment: Numerous commenters expressed concern about new Sec.
300.300(b)(4)(ii) (proposed Sec. 300.300(b)(3)(ii)), which provides
that if a parent fails to consent for initial services or refuses to
respond to a request for consent, the public agency is not required to
convene an IEP Team meeting or develop an IEP for the child. A few
commenters stated that this should be permitted only when a parent
refuses services, but not when a parent fails to respond to a request
for consent for initial services. A few commenters stated that the
regulations should be revised to clarify that this applies only to
subsequent IEP Team meetings, not the initial IEP Team meeting. One
commenter recommended revising the regulations to require an IEP Team
meeting to be held and an IEP developed to provide a basis for informed
consent.
Discussion: New 300.300(b)(4)(ii) (proposed Sec.
300.300(b)(3)(ii)) follows the specific language in section
614(a)(1)(D)(ii)(III)(bb) of the Act and reflects the new provision in
the Act that relieves public agencies of any potential liability for
failure to convene an IEP Team meeting or develop an IEP for a child
whose parents have refused consent or failed to respond to a request
for consent to the initial provision of special education and related
services. It does not, however, prevent a public agency from convening
an IEP Team meeting and developing an IEP for a child as a means of
informing the parent about the services that would be provided with the
parent's consent.
Changes: None.
Comment: A few commenters questioned how a parent could be
adequately informed of the services the parent is refusing if the
public agency is not required to develop an IEP when the parent refuses
to consent to the initial provision of special education and related
services.
Discussion: We understand the commenters' concern that a parent of
a child with a disability who refuses to consent to the provision of
special education and related services may not fully understand the
extent of the special education and related services their child would
receive without the development of an IEP for their child. However, we
do not view the consent provisions of the Act as creating the right of
parents to consent to each specific special education and related
service that their child receives. Instead, we believe that parents
have the right to consent to the initial provision of special education
and related services. ``Fully informed,'' in this context, means that a
parent has been given an explanation of what special education and
related services are and the types of services that might be found to
be needed for their child, rather than the exact program of services
that would be included in an IEP.
Changes: None.
Comment: One commenter stated that the regulations should include
sanctions for parents who repeatedly fail to respond to requests for
consent from public agencies, such as paying the costs incurred by
agencies attempting to obtain consent.
Discussion: The Act does not authorize sanctions against parents
who fail to respond to requests for consent.
Changes: None.
Parental Consent for Reevaluations (Sec. 300.300(c))
Comment: Several commenters recommended allowing public agencies to
use the due process procedures to override a parent's refusal to
consent to a reevaluation.
Discussion: Override of parental refusal to consent to a
reevaluation is already addressed in the regulations. Section
300.300(c) states that each public agency must obtain informed parental
consent in accordance with Sec. 300.300(a)(1) prior to conducting any
reevaluation of a child with a disability. Section 300.300(a)(3) allows
a public agency to override parental refusal to consent to an initial
evaluation by utilizing the mediation procedures under Sec. 300.506 or
the due process procedures under Sec. Sec. 300.507 through 300.516.
The cross-reference in Sec. 300.300(c)(1)(i) to the provision in Sec.
300.300(a)(1) provides the basis for allowing a public agency to
override the parent's refusal of consent to a reevaluation. However, we
believe it is important to state this more directly and will,
therefore, add language to Sec. 300.300(c)(1) to clarify that if a
parent refuses to consent to a reevaluation, the public agency may, but
is not required to, pursue the reevaluation by using the procedural
safeguards in subpart E of this part.
Changes: We have restructured Sec. 300.300(c)(1) and added a new
[[Page 46635]]
Sec. 300.300(c)(1)(ii) to clarify that a public agency may, but is not
required to, pursue a reevaluation using the procedural safeguards.
Comment: One commenter requested that the regulations clarify a
public agency's responsibilities for a reevaluation if the agency has
taken reasonable measures to obtain consent and the parent has failed
to respond.
Discussion: We do not believe that further clarification in the
regulations is necessary. Section 300.300(c)(2), consistent with
section 614(c)(3) of the Act, is clear that a public agency may conduct
a reevaluation of a child with a disability, if the public agency can
demonstrate that it has made reasonable efforts to obtain such consent
and the child's parent has failed to respond to a request for consent.
Changes: None.
Comment: One commenter recommended that the regulations require a
public agency to obtain parental consent for any tests needed for a
reevaluation that were not used for the initial evaluation or previous
reevaluations.
Discussion: We do not agree that a change should be made. Section
614(c)(3) of the Act, which is incorporated in Sec. 300.300(c),
already requires a public agency to obtain parental consent before
conducting any tests needed for a reevaluation, regardless of whether
the tests differ from tests used in previous evaluations of the child.
Changes: None.
Comment: Many commenters recommended retaining current Sec.
300.505(c)(2), which requires a public agency to document the specific
reasonable measures it has taken to obtain parental consent for a
reevaluation, including detailed records of telephone calls made or
attempted and the results of those calls; copies of any correspondence
sent to the parents and any responses received; and detailed records of
visits made to the parents' home or place of employment and the results
of those visits. One commenter suggested that if the requirements in
current Sec. 300.505(c)(2) were not retained, the regulations should
define reasonable measures as at least three good-faith attempts to
contact a parent. Many commenters stated that current Sec.
300.505(c)(2) must be retained because it is protected by section
607(b) of the Act, which 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.
Discussion: We agree that the requirements in current Sec.
300.505(c)(2) should be retained. We noted in our discussions regarding
the reasonable efforts that a public agency must make to obtain
parental consent for an initial evaluation and the initial provision of
services, that we added a new paragraph (d)(5) to Sec. 300.300 that
provides that to meet the reasonable efforts requirement, a public
agency must document its attempts to obtain consent using the
procedures in Sec. 300.322(d). These are the same procedures in
current Sec. 300.505(c)(2). Therefore, we will include a reference to
Sec. 300.300(c)(2)(i) in new Sec. 300.300(d)(5).
Changes: We included a reference to Sec. 300.300(c)(2)(i) in new
Sec. 300.300(d)(5).
Other Consent Requirements (Sec. 300.300(d))
Comment: Many commenters recommended that the regulations include
language clarifying that a public agency is not authorized to override
the lack of parental consent for an initial evaluation for children who
are home schooled or placed in a private school by the parents at their
own expense. One commenter recommended removing the phrase ``public
school or seeking to enroll in public school'' in Sec. 300.300(a)(3)
to permit a public agency to override lack of parental consent for
children who are home schooled or placed in a private school by parents
at their own expense.
Discussion: We agree with the commenters who recommended that, for
children who are home schooled or placed in a private school by their
parents at their own expense, consent override should not be permitted.
We will add a new paragraph (4) to Sec. 300.300(d) to make this clear.
There are compelling policy reasons why the Act's consent override
procedures should be limited to children who are enrolled, or who are
seeking to enroll, in public school. Because the school district has an
ongoing obligation to educate a public school child it suspects has a
disability, it is reasonable for a school district to provide the
parents with as much information as possible about their child's
educational needs in order to encourage them to agree to the provision
of special education services to meet those needs, even though the
parent is free, ultimately, to reject those services. The school
district is accountable for the educational achievement of all of its
children, regardless of whether parents refuse the provision of
educationally appropriate services. In addition, children who do not
receive appropriate educational services may develop behavioral
problems that have a negative impact on the learning environment for
other children.
By contrast, once parents opt out of the public school system,
States and school districts do not have the same interest in requiring
parents to agree to the evaluation of their children. In such cases, it
would be overly intrusive for the school district to insist on an
evaluation over a parent's objection. The Act gives school districts no
regulatory authority over private schools. Moreover, the Act does not
require school districts to provide FAPE to children who are home
schooled or enrolled in private schools by their parents.
Public agencies do have an obligation to actively seek parental
consent to evaluate children attending private schools (including
children who are home schooled, if a home school is considered a
private school under State law) who are suspected of being children
with disabilities under the Act, in order to properly identify the
number of private school children with disabilities and consider those
children as eligible for equitable services under Sec. Sec. 300.132
through 300.144. However, this obligation does not extend to overriding
refusal of parental consent to evaluate parentally-placed private
school children.
Section 300.300(a)(3) provides that a public agency may override
parental consent for an initial evaluation only for children who are
enrolled in public school or seeking to be enrolled in public school,
so we are not making the suggested change in Sec. 300.300(a)(3).
Changes: We have added a new paragraph (4) to Sec. 300.300(d) to
clarify that consent override is not permitted for children who are
home schooled or placed in private schools by their parents.
Evaluations and Reevaluations
Initial Evaluations (Sec. 300.301)
Request for Initial Evaluation (Sec. 300.301(b))
Comment: Several commenters recommended that teachers and related
services providers be included as individuals who can refer a child for
an initial evaluation. A few commenters requested clarification as to
whether States can authorize other individuals who are acting on behalf
of a public agency (e.g., family court, probation officers, staff from
other public agencies) to refer a child for an initial evaluation, and
whether individuals responsible for protecting the welfare of a child
who are not acting on behalf of an SEA or LEA, such as physicians and
[[Page 46636]]
social workers, can refer a child for an initial evaluation.
Discussion: Section 614 (a)(1)(A) of the Act provides that an SEA,
other State agency, or LEA shall conduct a full and individual
evaluation of a child before the provision of special education and
related services. In Sec. 300.301(a), we interpret this language as
requiring public agencies, as that term is defined in Sec. 300.33, to
conduct evaluations, because those are the only agencies in the State
responsible for providing FAPE to eligible children. The same language
is used in section 614(a)(1)(B) of the Act to describe the agencies
that may initiate a request for an initial evaluation to determine if a
child is a child with a disability. We similarly interpret this
language to be referring to the entities that are public agencies under
Sec. 300.33. Therefore, Sec. 300.301(b) states that either a parent
or a public agency may initiate a request for an initial evaluation.
The language does not include employees of SEAs or LEAs (e.g., teachers
and related services providers), unless they are acting for the SEA or
LEA, or of other State agencies (e.g., probation officers, social
workers, or staff from State agencies that are not public agencies as
defined in Sec. 300.33).
The requirements in Sec. 300.301(b) pertain to the initiation of
an evaluation under Sec. Sec. 300.301 through 300.305 and should not
be confused with the State's child find responsibilities in Sec.
300.111 and section 612(a)(3) of the Act. The child find requirements
permit referrals from any source that suspects a child may be eligible
for special education and related services. Child find activities
typically involve some sort of screening process to determine whether
the child should be referred for a full evaluation to determine
eligibility for special education and related services. Therefore,
persons such as employees of the SEA, LEA, or other public agencies
responsible for the education of the child may identify children who
might need to be referred for an evaluation. However, it is the parent
of a child and the public agency that have the responsibility to
initiate the evaluation procedures in Sec. Sec. 300.301 through
300.311 and section 614 of the Act.
Changes: None.
Comment: Several commenters stated that the regulations should
clarify that the 60-day timeframe in Sec. 300.301(c) to complete an
evaluation does not begin if a parent requests an initial evaluation,
the LEA denies the request, and the parent challenges the LEA's
decision in a due process hearing.
Discussion: We believe the regulations already address the
commenters' concern. Section 300.301(b) provides that a parent may
initiate a request for an initial evaluation to determine if the child
is a child with a disability. If the public agency agrees to conduct
the evaluation, Sec. 300.304(a) requires the public agency to provide
notice to the parents, in accordance with Sec. 300.503, that describes
any evaluation procedures that the agency proposes to conduct. The
public agency must obtain informed consent for the evaluation,
consistent with Sec. Sec. 300.9 and 300.300, prior to conducting the
evaluation. The 60-day timeframe begins when the public agency receives
the consent for evaluation.
If, however, the public agency does not suspect that the child has
a disability and denies the request for an initial evaluation, the
public agency must provide written notice to the parents, consistent
with Sec. 300.503(b) and section 615(c)(1) of the Act, which explains,
among other things, why the public agency refuses to conduct an initial
evaluation and the information that was used as the basis to make that
decision. The parent may challenge such a refusal by requesting a due
process hearing, but the timeline for conducting the evaluation does
not begin prior to parental consent for evaluation. A parent would not
be able to give consent under this part without knowing what specific
evaluation procedures the public agency is proposing to conduct.
Changes: None.
Comment: A few commenters recommended that the regulations clarify
whether a public agency has the right to deny a parent's request for an
initial evaluation.
Discussion: The regulations are sufficiently clear on this point.
Section 300.503(a), consistent with section 615(b)(3) of the Act,
provides that a public agency may refuse to initiate or change the
identification, evaluation, or educational placement of the child, or
the provision of FAPE to the child, if the public agency provides
written notice. This includes situations in which a public agency
wishes to deny a parent's request for an initial evaluation. The
written notice must meet the requirements in Sec. 300.503(b). Thus,
for situations in which a public agency wishes to deny a parent's
request for an initial evaluation, the written notice would provide,
among other things, an explanation of why the public agency refuses to
conduct an initial evaluation and the information that was used to make
that decision. A parent may challenge the public agency's refusal to
conduct an initial evaluation by requesting a due process hearing.
Changes: None.
Procedures for Initial Evaluation (Sec. 300.301(c))
Comment: Numerous commenters requested that the regulations clarify
when the 60-day timeframe for a public agency to conduct an initial
evaluation begins. One commenter requested that the 60-day timeframe
include completing both the evaluation and eligibility determination.
Several commenters recommended reducing the timeframe for
evaluations from 60 days to 30 days. Some commenters recommended that
the 60-day timeframe be 60 school days. A few commenters stated that
the timeframe for evaluation should be longer if additional time is
required for specific assessments, such as behavioral assessments or
other assessments based on scientific practices.
Discussion: It would be inconsistent with the Act to reduce the
timeframe from 60 days to 30 days, require the 60-day timeframe to be
60 school days, extend the timeframe for particular types of
assessments, or require that the 60-day timeframe cover both the
evaluation and determination of eligibility. Section 614(a)(1)(C)(i)(I)
of the Act requires an initial evaluation to be conducted within 60
days of receiving parental consent for the evaluation or, if the State
establishes a timeframe within which the evaluation must be conducted,
within that timeframe. The regulations in Sec. 300.301(c) reflect this
requirement.
Changes: None.
Comment: A few commenters asked whether a State could establish a
timeframe of more than 60 days to complete an initial evaluation. A
significant number of commenters recommended that if a State
establishes its own timeframe within which an evaluation must be
conducted, that the timeframe be less, but not more, than 60 days.
Several commenters recommended that if a State has its own timeframe
for evaluation, the timeframe should be reasonable and ``reasonable''
should be defined. Some commenters recommended that if a State's
timeframe is greater than 60 days, the Department should provide
guidance to the State and to parents in that State. One commenter
recommended that if a State establishes its own timeframe, the State
must offer parents an adequate opportunity to assert their procedural
rights.
Discussion: Section 300.301(c), consistent with section
614(a)(1)(C)(i)(I) of the Act, requires an initial evaluation to be
completed within 60 days of receiving parental consent for evaluation
or, if the State establishes a
[[Page 46637]]
timeframe within which the evaluation must be conducted, within such
timeframe. The Department declines to require that a State-established
timeframe be less than 60 days or to place additional requirements on
States with timeframes of greater than 60 days because the Act gives
States the authority to establish different timeframes and imposes no
restrictions on State exercise of that authority. We believe this is
evidence of an intent to permit States to make reasoned determinations
of the appropriate period of time in which evaluations should be
conducted based on particular State circumstances.
Changes: None.
Comment: Numerous commenters requested clarification regarding the
timeframe to complete an initial evaluation and convene the IEP Team. A
few commenters stated that the timeframe from referral to IEP
development could be as long as 120 calendar days (30 days from
referral to consent; 60 days from consent to the eligibility
determination; and 30 days from the eligibility determination to
development of the IEP), and recommended that this timeframe be 60
days.
One commenter recommended that public agencies provide consent
forms to parents promptly after a referral for evaluation has been made
so that the child's evaluation is not delayed. A few commenters asked
how promptly an LEA must seek parental consent following a referral for
evaluation, and whether an LEA can wait until September to obtain
consent if a referral is made in June or July.
Discussion: We cannot change the timeframe for an initial
evaluation specified in section 614(a)(1)(C) of the Act. Section
614(a)(1)(C) of the Act requires that an initial evaluation be
conducted within 60 days of receiving parental consent for the
evaluation, or within the timeframe established by the State. Section
300.323(c) is a longstanding requirement that a meeting be held to
develop the child's IEP within 30 days of determining that a child
needs special education and related services. We decline, however, to
specify the timeframe from referral for evaluation to parental consent,
or the timeframe from the completion of an evaluation to the
determination of eligibility, as we are not in a position to determine
the maximum number of days that should apply to these periods in all
circumstances.
However, it has been the Department's longstanding policy that
evaluations be conducted within a reasonable period of time following
the agency's receipt of parental consent, if the public agency agrees
that an initial evaluation is needed to determine whether a child is a
child with a disability. Likewise, the Department believes that
eligibility decisions should be made within a reasonable period of time
following the completion of an evaluation.
The child find requirements in Sec. 300.111 and section
612(a)(3)(A) of the Act require that all children with disabilities in
the State who are in need of special education and related services be
identified, located, and evaluated. Therefore, it would generally not
be acceptable for an LEA to wait several months to conduct an
evaluation or to seek parental consent for an initial evaluation if the
public agency suspects the child to be a child with a disability.
If it is determined through the monitoring efforts of the
Department or a State that there is a pattern or practice within a
particular State or LEA of not conducting evaluations and making
eligibility determinations in a timely manner, this could raise
questions as to whether the State or LEA is in compliance with the Act.
With regard to the total timeframe from referral to IEP
development, this will vary based on a number of factors, including the
timing of parental consent following referral for an evaluation and
whether a State establishes its own timeframe to conduct an initial
evaluation. Given such factors, we do not believe it is feasible to
further regulate on this timeframe.
Changes: None.
Comment: Numerous commenters recommended that an initial evaluation
be conducted in an expedited timeframe for children who are homeless or
in the custody of a child welfare agency. The commenters stated that
public agencies should take into consideration the date on which the
child was first referred for evaluation by any public agency.
Discussion: Congress recognized the unique problems homeless
children face and included several new provisions in the Act to ensure
that homeless children and youth with disabilities have access to the
same services and supports as all other children with disabilities. The
Department recognizes that the high mobility rates of some homeless
children with disabilities (as well as other children, including some
children who are in the custody of a State child welfare agency) pose
unique challenges when a child is referred for an evaluation, but moves
to another district or State before an evaluation can be initiated or
completed. In such cases, the Department believes it is important that
the evaluations be completed as expeditiously as possible, taking into
consideration the date on which the child was first referred for
evaluation in any LEA. However, the high mobility rate of these
children and their potential range of evaluation needs means that any
specific expedited timeframe could be both too long to ensure that all
children are evaluated before they move, and too short to be reasonable
in all circumstances. There is nothing, however, in Part B of the Act
or these regulations that would prohibit a State from establishing its
own policies to address the needs of homeless children, including
adopting a timeframe for initial evaluations that is less than 60 days.
Changes: None.
Exception (Sec. 300.301(d))
Comment: Numerous commenters requested clarification regarding
whether the 60-day timeframe for initial evaluations could be extended
by mutual agreement between the parent and the public agency. A few
commenters asked whether the 60-day timeframe could be extended for
reasons other than the exceptions listed in Sec. 300.301(d), and
whether a State could include other exceptions in its State policies
and procedures.
Discussion: Congress was clear in limiting the exceptions to the
60-day timeframe to the situations in section 614(a)(1)(C)(ii) of the
Act. Therefore, we do not believe it is appropriate to include in the
regulations other exceptions, such as permitting a parent and a public
agency to mutually agree to extend the 60-day timeframe or to include
exceptions to the timeframe, that would be in addition to those in the
Act and listed in Sec. 300.301(d). However, the Act gives States
considerable discretion with a State-adopted timeframe. A State could
adopt a timeframe of 60 days or some other number of days, with
additional exceptions.
Changes: None.
Comment: A number of comments were received requesting
clarification on the provision in Sec. 300.301(d)(1), which allows an
extension of the 60-day or State-established timeframe to complete an
initial evaluation if the parent of a child repeatedly fails or refuses
to produce the child for an evaluation. A few commenters asked whether
the exception applies when a child is not available because of absences
on the days the evaluation is scheduled. Several commenters stated that
``produce'' does not necessarily mean the child's physical presence in
school. Other commenters requested that the regulations define
``repeatedly
[[Page 46638]]
fails'' and ``refuses to produce'' so that LEAs do not have to engage
in exhaustive efforts to obtain access to the child to complete the
evaluation.
One commenter recommended that the regulations clarify that an LEA
must document that it has made several attempts to address the parent's
concerns and clarify any confusion the parent may have about the
evaluation, as well as address issues that make it difficult for the
parent to bring the child to a scheduled evaluation, such as lack of
transportation and childcare.
Discussion: Section 300.301(d) follows the specific language in
section 614(a)(1)(C)(ii)(II) of the Act. We do not believe it is
appropriate or reasonable to define ``repeatedly fails'' or ``refuses
to produce'' because the meaning of these phrases will vary depending
on the specific circumstances in each case. For example, situations in
which a child is absent on the days the evaluation is scheduled because
the child is ill would be treated differently than if a parent
repeatedly fails to keep scheduled appointments. Similarly, situations
in which a parent fails to keep scheduled appointments when a public
agency repeatedly schedules the evaluation to accommodate the parent's
schedule would be treated differently than situations in which a public
agency makes no attempt to accommodate a parent's schedule.
We do not believe it is necessary to clarify that an LEA must
document that it has made several attempts to address a parent's
concerns and issues about the evaluation. As a matter of practice, LEAs
attempt to address parent's concerns and issues prior to scheduling an
evaluation because repeated cancellations of appointments or repeated
failures to produce the child for an evaluation are costly in terms of
staff time and effort.
Changes: None.
Comment: Numerous commenters recommended that there be an exception
to the 60-day timeframe when a child transfers to a new school before
an evaluation is completed.
Discussion: The exception referred to by the commenters is already
in the regulations. Section 300.301(d)(2), consistent with section
614(a)(1)(C)(ii)(I) of the Act, states that the 60-day or State-
established timeframe does not apply when a child transfers to a new
school before an evaluation is completed, if the new public agency is
making sufficient progress to ensure prompt completion of the
evaluation, and the parent and new public agency agree to a specific
time when the evaluation will be completed. While the exception to the
60-day timeframe, as stated in section 614(a)(1)(C)(ii)(I) of the Act
and paragraph (d)(2) of this section, only applies when a child
transfers to a school located in another public agency, we do not
believe the language in paragraph (d)(2), as proposed in the NPRM, is
necessarily clear on this matter. We, therefore, have added language in
paragraph (d)(2) to provide additional clarity. We believe it is
important that it is understood that the 60-day or State-established
timeframe does not apply when a child transfers from one school to
another school in the same public agency. When a child transfers from
one school to another school in the same public agency, we expect that
an initial evaluation will be conducted within 60 days of receiving
parental consent for the evaluation, or within the State-established
timeframe.
Changes: We have added language to Sec. 300.301(d)(2) to clarify
that the exception to the 60-day or State-established timeframe only
applies when a child transfers to a new school located in another
public agency.
Comment: Several comments were received on the provision in new
Sec. 300.301(e) (proposed Sec. 300.301(d)(2)(ii)) that allows an
exception to the 60-day or State-established timeframe, only if the new
public agency is making sufficient progress to ensure a prompt
completion of the evaluation and the parent and new public agency agree
to a specific time when the evaluation will be completed. One commenter
stated that schools would be unable to meet the 60-day timeframe for
children who transfer from another public agency if the new public
agency has not been notified of the evaluation timeframe. Another
commenter recommended that exceptions to the 60-day timeframe should
not be permitted because the term ``sufficient progress'' is not
defined. A few commenters requested that the regulations define
``sufficient progress.''
One commenter stated that there might be legitimate reasons for not
completing an evaluation within the 60-day timeframe, such as
differences in the assessment instruments used in the previous and new
public agency, and requested that the regulations provide guidance on
how a public agency should determine if appropriate progress is being
made.
One commenter recommended that if there is no date certain when an
evaluation must be completed when a child transfers public agencies,
the new public agency should conduct an evaluation within 60 days of
the enrollment date of the child; make reasonable efforts to obtain
evaluation information from the previous public agency; and consider
any available evaluation information from the previous public agency.
One commenter recommended requiring the new public agency to
contact the previous public agency within five days to request a report
of any actions taken to transfer the child's records, copies of
completed evaluations, a copy of the child's file, and an estimate as
to when the information will be sent. The commenter stated that public
agencies should be required to keep records of such attempts to inform
parents of all actions through written communication. The commenter
stated that if the information is not received within 15 days, the new
public agency should be required to begin a new evaluation and complete
it within the 60-day or State-established timeframe.
Discussion: The exceptions to the 60-day or State-established
timeframe must be permitted because they are statutory. Section
614(a)(1)(C)(ii)(I) of the Act, which is incorporated in Sec.
300.300(d)(2), provides that the 60-day or State-established timeframe
does not apply if a child enrolls in a school served by the public
agency after the relevant timeframe 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. The exception applies only if the
subsequent public agency is making sufficient progress to ensure prompt
completion of the evaluation, and the parent and subsequent public
agency agree to a specific time when the evaluation will be completed.
We do not believe it is necessary to define the phrase ``sufficient
progress'' because the meaning will vary depending on the specific
circumstances in each case. As one commenter noted, there may be
legitimate reasons for not completing the evaluation within the 60-day
timeframe, such as differences in assessment instruments used in the
previous and new public agencies, and the length of time between a
child leaving one school and enrolling in the next school. Therefore,
we believe that whether a new public agency is making sufficient
progress to ensure prompt completion of an evaluation is best left to
the discretion of State and local officials and parents to determine.
It would be over-regulating to specify the number of days within
which a new public agency must request a child's records from the
previous public agency or to require the new public agency to document
its attempts to obtain the records and keep parents informed of all
[[Page 46639]]
actions through written communication. We note, however, that Sec.
300.304(c)(5), consistent with section 614(b)(3)(D) of the Act,
requires each public agency to ensure that the evaluations of children
with disabilities who transfer from one school district to another
school district in the same school year are coordinated with the
children's prior and subsequent schools, as necessary, and as
expeditiously as possible, to ensure prompt completion of full
evaluations.
Additionally, new Sec. 300.323(g) (proposed Sec. 300.323(e)(2)),
consistent with section 614(d)(2)(C)(ii) of the Act, requires the new
school in which the child enrolls to 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. The previous public agency in which the child
was enrolled must also take reasonable steps to promptly respond to the
request from the new public agency. We believe that these requirements
will help to ensure that a child's records are promptly received by the
new public agency.
The Act does not require the evaluation of a child who is
transferring to a new school to be completed within 60 days of the
enrollment date of the child, as recommended by one commenter, and we
do not believe that such a requirement should be included in the
regulations. The completion of evaluations for children who transfer to
another school are subject to multiple factors and we decline to
regulate on a specific timeframe that would apply in all circumstances.
Changes: None.
Comment: One commenter recommended sanctions against a new public
agency that fails to make an effort to complete an evaluation of a
child who transfers to another school that was begun by a previous
public agency. The commenter stated that the previous public agency
should also be sanctioned for failure to cooperate with a new public
agency or for otherwise impeding the ability of the new public agency
to complete the evaluation promptly.
Discussion: As part of its general supervisory responsibilities in
Sec. 300.149 and section 612(a)(11) of the Act, each SEA is
responsible for ensuring that the requirements of Part B of the Act are
followed, including the requirements for children who transfer from one
public agency to another public agency within the school year. Whether
sanctions against a particular LEA are appropriate should be determined
by the SEA in the first instance, as they are in the best position to
determine what sanctions, technical assistance, or combination of the
two are likely to lead to future compliance. For that reason, we
decline to regulate with more specificity in this area.
Changes: None.
Screening for Instructional Purposes Is Not Evaluation (Sec. 300.302)
Comment: One commenter requested clarification on the difference
between screening and evaluation and recommended that the regulations
include specific examples of what constitutes screening, including
testing instruments that are appropriate to be used for screening to
determine appropriate instructional strategies. Many commenters
recommended permitting States to determine the screening process for
identifying appropriate instructional strategies.
One commenter stated that ``screening'' is too loosely defined and
may be confused with State regulations that require screening for a
child's entrance into school. The commenter recommended that the
regulations address issues such as the need for parental consent prior
to screening and a timeframe for screening subsequent to a request.
Discussion: An ``evaluation,'' as used in the Act, refers to an
individual assessment to determine eligibility for special education
and related services, consistent with the evaluation procedures in
Sec. Sec. 300.301 through 300.311. ``Screening,'' as used in Sec.
300.302 and section 614(a)(1)(E) of the Act, refers to a process that a
teacher or specialist uses to determine appropriate instructional
strategies. Screening is typically a relatively simple and quick
process that can be used with groups of children. Because such
screening is not considered an evaluation under Sec. Sec. 300.301
through 300.311 to determine eligibility for special education
services, parental consent is not required.
Section 300.302 does not address screening for a child's entrance
into school under a State's rules. Screening required under a State's
rules for a child's entrance into school is the responsibility of the
State and is not within the purview of the Act. We believe that the
provisions in Sec. Sec. 300.301 through 300.311, regarding
evaluations, and Sec. 300.302, regarding screening for instructional
purposes, are clear, and therefore, we do not believe it is necessary
to add language to the regulations.
We decline to provide specific examples of testing instruments to
determine appropriate instructional strategies because this will vary
based on the age of the child and the subject matter, and is best left
to State and local officials to determine. Likewise, the process for
screening, including the timeframe to complete the screening process,
is a decision that is best left to State and local officials to
determine, based on the instructional needs of the children.
Changes: None.
Comment: One commenter asked whether the provisions in Sec.
300.302, regarding screening, apply to a child with a disability, as
well as a child who has not been identified as a child with a
disability. One commenter noted that Sec. 300.302 refers to screening
of a child by a teacher or a specialist and asked who would be
considered a specialist. Another commenter requested clarification
regarding the term ``instructional strategies for curriculum
implementation,'' as used in Sec. 300.302.
Discussion: Section 300.302, consistent with section 614(a)(1)(E)
of the Act, states that the screening of a child by a teacher or
specialist to determine appropriate instructional strategies is not
considered an evaluation for purposes of determining eligibility for
special education and related services. This applies to a child with a
disability, as well as a child who has not been identified as a child
with a disability. Such screening, therefore, could occur without
obtaining informed parental consent for screening.
We believe the determination of who is considered a ``specialist''
should be left to the discretion of the public agency and should not be
specified in the regulations. The term, ``instructional strategies for
curriculum implementation'' is generally used to refer to strategies a
teacher may use to more effectively teach children.
Changes: None.
Comment: One commenter recommended clarification regarding whether
States can develop and implement policies that permit screening of
children to determine if evaluations are necessary.
Discussion: There is nothing in the Act that requires a State to,
or prohibits a State from, developing and implementing policies that
permit screening children to determine if evaluations are necessary.
However, screening may not be used to delay an evaluation for special
education and related services. If a child is referred for an
evaluation to determine eligibility for special education and related
services, the public agency must implement the requirements in
Sec. Sec. 300.301 through 300.311 and adhere to the 60-day or the
[[Page 46640]]
State-established timeframe to complete the evaluation.
Changes: None.
Reevaluations (Sec. 300.303)
Comment: A few commenters recommended clarifying that a parent is
not required to provide a reason for requesting a reevaluation. Several
commenters recommended that the regulations require a public agency to
provide prior written notice if a parent requests a reevaluation within
a year and the public agency refuses the request.
Discussion: Section 300.303(b), consistent with section
614(a)(2)(A)(ii) of the Act, states that a reevaluation may occur if
the child's parent or teacher requests a reevaluation. There is no
requirement that a reason for the reevaluation be given and we agree
that a reevaluation cannot be conditioned on the parent providing a
reason for requesting a reevaluation.
Section 300.303(b), consistent with section 614(a)(2)(B) of the
Act, provides that a reevaluation may occur not more than once a year
and must occur at least once every three years, unless the parent and
the public agency agree otherwise. If a parent requests more than one
reevaluation in a year and the public agency does not believe a
reevaluation is needed, we believe the regulations are clear that the
public agency must provide the parents with written notice of the
agency's refusal to conduct a reevaluation, consistent with Sec.
300.503 and section 615(c)(1) of the Act. We do not believe additional
regulations are necessary to address this specific instance of a public
agency's refusal to initiate a reevaluation and the written notice
requirements in Sec. 300.503.
Changes: None.
Comment: A few commenters requested clarification regarding whether
an evaluation that assesses skills that were not previously assessed in
the same related services area would be considered an evaluation or
reevaluation. One commenter, asked, for example, if a speech-language
evaluation was conducted to assess a child's speech impairment one
year, would an evaluation the following year to assess the child's
language abilities be considered an evaluation or reevaluation?
Discussion: An initial evaluation of a child is the first complete
assessment of a child to determine if the child has a disability under
the Act, and the nature and extent of special education and related
services required. Once a child has been fully evaluated, a decision
has been rendered that a child is eligible for services under the Act,
and the required services have been determined, any subsequent
evaluation of a child would constitute a reevaluation. In the example
provided by the commenter, the second evaluation would be considered a
reevaluation.
Changes: None.
Comment: One commenter recommended that reevaluations be required
at least once every three years because a child's mental and physical
profile changes in three years, and thus, so would the child's
educational needs. Another commenter recommended requiring LEAs to
inform parents that information from the most recent evaluation, which
could be three or more years old if the parent agrees that a
reevaluation is unnecessary, will be used in the development of a
child's IEP.
A few commenters recommended an accountability process for LEAs
that do not conduct reevaluations at least every three years. The
commenters recommended requiring LEAs to report to the State the number
of children with disabilities who qualified for, but were not given a
three-year reevaluation; provide prior written notice to parents if the
LEA determines that a three-year reevaluation is not necessary,
including the justification for such determination; and inform the
parent in writing in the parent's language that a three-year
reevaluation will be conducted if the parent disagrees with the LEA's
determination.
One commenter recommended requiring an LEA that does not conduct a
reevaluation at least once every three years to justify the reasons in
writing, especially if there is evidence that the child is not meeting
the State's academic achievement standards.
Discussion: Section 300.303(b)(2), consistent with section
614(a)(2)(B)(ii) of the Act, requires a reevaluation to occur at least
once every three years, unless the parent and the public agency agree
that a reevaluation is unnecessary.
It would be overly burdensome to require an LEA to report to the
State the number of children with disabilities who qualified for, but
were not given a three-year reevaluation. Similarly, it would be overly
burdensome to require LEAs to inform parents that information from the
most recent evaluation will be used to develop a child's IEP or to
justify to the parent in writing the LEA's reasons for not conducting a
reevaluation every three years if the parent and the agency have
already agreed that a reevaluation is unnecessary.
If a parent requests a reevaluation and the public agency disagrees
that a reevaluation is needed, the public agency must provide prior
written notice to the parent, consistent with Sec. 300.503, that
explains, among other things, why the agency refuses to conduct the
reevaluation and the parent's right to contest the agency's decision
through mediation or a due process hearing.
In situations where a public agency believes a reevaluation is
necessary, but the parent disagrees and refuses consent for a
reevaluation, new Sec. 300.300(c)(1)(ii) is clear that the public
agency may, but is not required to, pursue the reevaluation by using
the consent override procedures described in Sec. 300.300(a)(3).
Changes: None.
Comment: One commenter recommended the following requirements for
the reevaluation of a child with the most significant cognitive
disabilities who is assessed based on alternate achievement standards:
(a) Prohibiting the public agency from automatically determining that a
three-year reevaluation is not needed; (b) requiring the public agency
to consider whether the child has been correctly identified to be
assessed against alternate achievement standards; and (c) requiring a
review of evaluation data to determine whether the child is, to the
extent possible, being educated in the general curriculum and assessed
with instruments aligned with that curriculum.
Discussion: We do not believe changes to the regulations are
necessary to address the commenter's concerns. The Act does not include
any special requirements for the reevaluation of a child with the most
significant cognitive disabilities who is assessed against alternate
achievement standards. It would be inconsistent with the individualized
evaluation and reevaluation procedures in section 614(b) and (c) of the
Act for a public agency to automatically determine that reevaluations
are unnecessary for a specific group of children. In determining
whether a reevaluation is needed, the parent and the public agency must
consider the child's educational needs, which may include whether the
child is participating in the general education curriculum and being
assessed appropriately.
Changes: None.
Comment: One commenter recommended clarifying that parents have the
right to prevent the over-testing of their child and that the
requirements for reevaluations do not diminish the rights of parents to
make decisions regarding the reevaluation. Several commenters
recommended that the regulations require States to establish
[[Page 46641]]
additional procedural safeguards to ensure that parents who agree that
a reevaluation is unnecessary are aware of the implications of their
decision.
Discussion: There is nothing in the Act to suggest that the
requirements for reevaluations in Sec. 300.303 diminish the rights of
parents. As stated in Sec. 300.303, consistent with section 614(a)(2)
of the Act, a parent can request a reevaluation at any time, and can
agree with the public agency to conduct a reevaluation more frequently
than once a year. Likewise, a parent and a public agency can agree that
a reevaluation is not necessary. We believe that in reaching an
agreement that a reevaluation is unnecessary, as provided for in Sec.
300.303(b), the parent and public agency will discuss the advantages
and disadvantages of conducting a reevaluation, as well as what effect
a reevaluation might have on the child's educational program.
Therefore, we do not agree with the commenter that additional
procedural safeguards are necessary to ensure that parents who agree
that a reevaluation is unnecessary are aware of the implications of
their decision.
Changes: None.
Comment: Many commenters requested that the opportunity to waive a
reevaluation occur only after the IEP Team has reviewed extant data to
determine whether additional data are needed to determine the child's
eligibility and the educational needs of the child.
Discussion: The review of existing data is part of the reevaluation
process. Section 300.305(a), consistent with section 614(c)(1) of the
Act, is clear that, as part of any reevaluation, the IEP Team and other
qualified professionals, as appropriate, must review existing
evaluation data, and on the basis of that review, and input from the
child's parents, identify what additional data, if any, are needed to
determine whether the child continues to have a disability, and the
educational needs of the child. Therefore, the opportunity for a parent
and the public agency to agree that a reevaluation is unnecessary
occurs before a reevaluation begins. It would be inconsistent with the
Act to implement the commenters' recommendation.
Changes: None.
Comment: One commenter recommended that the regulations clarify
that waiving a three-year reevaluation must not be adopted as routine
agency policy or practice and should only be used in exceptional
circumstances. Another commenter recommended that the regulations
require the LEA to offer parents a reevaluation at least annually when
a parent agrees that a three-year reevaluation is not needed. Another
commenter recommended that the regulations clarify that a reevaluation
may be warranted more than once a year if the child's condition changes
or new information becomes available that has an impact on the child's
educational situation.
Discussion: It is not necessary to add language clarifying that
waiving three-year reevaluations must not be a routine agency policy or
practice because the regulations are clear that this is a decision that
is made individually for each child by the parent of the child and the
public agency. Section 300.303(b)(2), consistent with section
614(a)(2)(B)(ii) of the Act, states that a reevaluation must occur at
least once every three years, unless the parent and the public agency
agree that a reevaluation is unnecessary. When a parent and a public
agency agree that a three-year reevaluation is unnecessary, there is no
requirement that the public agency offer the parent a reevaluation each
year. We do not believe that it is necessary to have such a requirement
because if parents who have waived a three year reevaluation later
decide to request an evaluation, they can do so. Also, public agencies
have a continuing responsibility to request parental consent for a
reevaluation if they determine that the child's educational or related
services needs warrant a reevaluation.
We do not believe additional regulations are needed to clarify that
a reevaluation can occur more than once a year. Section 300.303(b)(1),
consistent with section 614(a)(2)(B)(i) of the Act, already provides
that a reevaluation can occur more than once a year if the parent and
the public agency agree that a reevaluation is needed.
Changes: None.
Comment: One commenter asked whether the agreement between the
parent and the public agency that a reevaluation is unnecessary is the
same as parental consent in Sec. 300.9.
Discussion: An agreement between a parent and a public agency is
not the same as parental consent in Sec. 300.9. Rather, an agreement
refers to an understanding between a parent and the public agency and
does not need to meet the requirements for parental consent in Sec.
300.9.
Changes: None.
Comment: One commenter recommended that the regulations clarify
that when a parent obtains an independent educational evaluation (IEE)
and provides new information to the public agency, a reevaluation could
be conducted more than once a year so that the public agency can verify
the results of the IEE.
Discussion: The changes recommended by the commenter are
unnecessary. Section 300.303(b)(1), consistent with section
614(a)(2)(B)(i) of the Act, is clear that a reevaluation can be
conducted more than once a year if the parent and the public agency
agree that it is necessary. Therefore, in the situation presented by
the commenter, if the results of an IEE provide new information that
the public agency and the parent agree warrant a reevaluation, the
parent and the public agency could agree to conduct a reevaluation.
Changes: None.
Comment: One commenter asked whether an IEE is considered a
reevaluation and whether an IEE is prohibited within less than a year
of the public agency's most recent evaluation.
Discussion: An IEE would be considered as a potential source of
additional information that the public agency and parent could consider
in determining whether the educational or related services needs of the
child warrant a reevaluation, but it would not be considered a
reevaluation. There is no restriction on when a parent can request an
IEE.
Changes: None.
Evaluation Procedures (Sec. 300.304)
Notice (Sec. 300.304(a))
Comment: Numerous commenters recommended that the regulations
clarify that the requirement for prior written notice to parents in
Sec. 300.304(a) is satisfied if the public agency notifies the parent
of the type(s) of assessment(s) that will be conducted. One commenter
stated that the prior written notice requirements for evaluations
should be satisfied if the public agency notifies the parent of the
type(s) of assessment(s) that will be conducted, the method(s) of
assessment, and the persons who will conduct the assessment(s).
Discussion: It would be inconsistent with the Act for a public
agency to limit the contents of the prior written notice in the manner
requested by the commenters. In addition to describing the evaluation
procedures the agency proposes to use, as required in Sec. 300.303(a),
section 615(c)(1) of the Act requires the prior written notice to
include an explanation of why the agency proposes to evaluate the
child; a description of each evaluation procedure, assessment, record,
or report the agency used as a basis for requesting the evaluation; a
statement that the parents have protection under the procedural
safeguards of the Act, and if this notice is not an initial referral
for
[[Page 46642]]
evaluation, the means by which a copy of the procedural safeguards can
be obtained; sources for the parents to contact to obtain assistance in
understanding the provisions of the Act; a description of other options
that were considered and why these reasons were rejected; and a
description of other factors that are relevant to the agency's proposal
to request consent for an evaluation.
Changes: None.
Comment: A few commenters stated that the notice to parents
regarding the evaluation procedures the agency proposes to use must be
provided in the native language of the parents, and recommended that
this requirement be clarified in Sec. 300.304.
Discussion: Information regarding the evaluation procedures the
agency proposes to use, as required in Sec. 300.303(a), is included in
the prior written notice required in Sec. 300.503(c)(1)(ii). Section
300.503(c)(1)(ii) requires, that the prior written notice to parents be
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. We see no need to repeat these requirements in Sec. 300.304 and
believe that doing so could cause confusion about the status of other
applicable requirements that would not be repeated in this section.
Changes: None.
Conduct of Evaluation (Sec. 300.304(b))
Comment: One commenter asked whether the ``procedure'' referred to
in Sec. 300.304(b)(2) is the same as the ``measure or assessment''
referred to in section 614(b)(2)(B) of the Act. Another commenter
recommended changing Sec. 300.304(b)(2) to follow the statutory
language.
Discussion: Section 300.304(b)(2), as proposed, states that the
public agency may 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.
Section 614(b)(2)(B) of the Act states that in conducting an
evaluation, the LEA must not use any single ``measure or assessment''
as the sole criterion for determining whether a child is a child with a
disability or determining an appropriate educational program for the
child. We agree that the statutory language should be used in Sec.
300.304(b)(2) because use of the term ``procedure,'' rather than
``measurement or assessment,'' could be confusing.
Changes: We have changed ``procedure'' to ``measurement or
assessment'' in Sec. 300.304(b)(2), consistent with the statutory
language.
Comment: One commenter recommended adding the word ``always'' to
Sec. 300.304(b) to state that the public agency must ``always''
conduct an evaluation in accordance with the requirements in Sec.
300.304(b)(1) through (b)(3).
Discussion: Adding the word ``always'' to Sec. 300.304(b) would
not change the requirements for conducting an evaluation consistent
with Sec. 300.304(b). The regulation already requires a public agency
to conduct the evaluation in accordance with Sec. 300.304(b)(1)
through (b)(3) and there are no exceptions to that requirement.
Therefore, we decline to change Sec. 300.304(b) in the manner
recommended by the commenter.
Changes: None.
Comment: One commenter recommended that the regulations define
``technically sound instruments'' and ``relative contribution'' in
Sec. 300.304(b)(3). Another commenter recommended that the instruments
used in reevaluations to determine whether the child continues to have
a disability should be based on scientific research methods.
Discussion: Section 300.304(b)(3) follows the specific language in
section 614(b)(2)(C) of the Act and requires that the evaluation of a
child use technically sound instruments that may assess the relative
contribution of cognitive and behavioral factors, in addition to
physical and developmental factors. ``Technically sound instruments''
generally refers to assessments that have been shown through research
to be valid and reliable. Therefore, it would be redundant to add
language requiring that instruments used in reevaluations be based on
scientific research methods, as recommended by one commenter. The
phrase ``relative contribution,'' as used in Sec. 300.304(b)(3),
generally means that assessment instruments that allow the examiner to
determine the extent to which a child's behavior is a result of
cognitive, behavioral, physical, or developmental factors may be used
in evaluating a child in accordance with Sec. 300.304. Because the
meaning of ``relative contribution'' is context specific, we do not
believe it should be defined in these regulations.
Changes: None.
Other Evaluation Procedures (Sec. 300.304(c))
Comment: One commenter recommended clarifying that differences in
language and socialization practices must be considered when
determining eligibility for special education and related services,
including biases related to the assessment.
Discussion: We do not believe that the clarification requested by
the commenter is necessary. The Act and these regulations recognize
that some assessments may be biased and discriminatory for children
with differences in language and socialization practices. Section
614(b)(3)(A)(i) of the Act requires that assessments and other
evaluation materials used to assess a child under the Act are selected
and administered so as not to be discriminatory on a racial or cultural
basis. Additionally, in interpreting evaluation data for the purpose of
determining eligibility of a child for special education and related
services, Sec. 300.306(c) requires each public agency to draw upon
information from a variety of sources, including aptitude and
achievement tests, parent input, teacher recommendations, as well as
information regarding a child's physical condition, social or cultural
background, and adaptive behavior. We believe that these provisions
provide adequate protection for the concerns raised by the commenter.
Changes: None.
Comment: One commenter requested that the regulations clarify that
a public agency should not use the ``not clearly feasible'' exception
in Sec. 300.304(c)(1)(ii) to improperly limit a child's right to be
evaluated in the child's native language or other mode of
communication.
Discussion: Section 300.304(c)(1)(ii), consistent with section
614(b)(3)(A)(ii) of the Act, requires that assessments and other
evaluation materials used to assess a child be 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, unless it is clearly not feasible
to so provide or administer. We agree that this provision should not be
improperly used to limit evaluations in a child's native language, but
we do not believe that a change to the regulations is necessary or that
it would prevent inappropriate application of the existing rule.
Changes: None.
Comment: One commenter recommended including ``behavior'' in the
list of areas to be evaluated in Sec. 300.304(c)(4). Another commenter
recommended requiring a functional behavioral assessment to be part of
a child's evaluation whenever any member of the IEP Team requests it or
raises concerns about the child's behavior. One commenter asked why
physical assessments were not included
[[Page 46643]]
in the list of assessments that should be conducted.
Discussion: Section 300.304(c)(4) requires the public agency to
ensure that the child is assessed in all areas related to the suspected
disability. This could include, if appropriate, health, vision,
hearing, social and emotional status, general intelligence, academic
performance, communicative status, and motor abilities. This is not an
exhaustive list of areas that must be assessed. Decisions regarding the
areas to be assessed are determined by the suspected needs of the
child. If a child's behavior or physical status is of concern,
evaluations addressing these areas must be conducted. No further
clarification is necessary.
Changes: None.
Comment: Many commenters recommended that the evaluation report
include a description of the extent to which an assessment varied from
standard conditions because there are few assessments that produce
valid and reliable information for English language learners suspected
of having a disability. Several commenters stated that it is standard
practice for professionals administering assessments to include
information in their reports when assessments are conducted using
nonstandard conditions. One commenter recommended that the regulations
require all evaluation reports to clearly indicate the language or
other mode of communication used in assessing a child and a
determination of whether using such language or other mode of
communication yielded accurate information.
Discussion: As stated by several commenters, it is standard test
administration practice to include in the evaluation report the extent
to which an assessment varied from standard conditions, including the
language or other mode of communication that was used in assessing a
child. It is, therefore, unnecessary to include this requirement in the
regulations.
Changes: None.
Comment: Many commenters recommended that the regulations require
public agencies to provide parents with evidence that the assessments
to be used are reliable and valid for their particular use, as well as
assurances that the assessments will be administered in the child's
primary language or mode of communication. The commenters also
recommended that public agencies be required to provide parents with
information regarding the assumptions being made about the tests and
the inferences that can be drawn from the test results.
Discussion: Section 300.304(a), consistent with section 614(b)(1)
of the Act, requires the public agency to provide notice to the parents
of a child with a disability, in accordance with Sec. 300.503, that
describes the evaluation procedures the agency proposes to conduct. To
require public agencies to provide all parents with the specific
information recommended by the commenters would be burdensome for
public agencies, and could be overwhelming for some parents, and
therefore, we decline to add such a requirement to the regulations.
While we understand that some parents will want the detailed
information mentioned by the commenter, parents can always request such
additional information before providing informed written consent for
the evaluation or reevaluation.
Changes: None.
Comment: A few commenters recommended that the regulations require
comprehensive psychological and educational evaluations to rule out
alternate causes of functional impairments in academic achievement.
Discussion: We believe the regulations already address the
commenters' concerns and we do not believe any further clarification is
necessary. Section 300.304(c)(6) requires that evaluations are
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 identified. In
addition, Sec. 300.306(b), consistent with section 614(b)(5) of the
Act, states that a child must not be determined to be a child with a
disability if the determinant factor for that determination is lack of
appropriate instruction in reading or math, or limited English
proficiency.
Changes: None.
Comment: Several commenters recommended that the requirements in
new Sec. 300.301(d)(2) and (e) (proposed Sec. 300.301(d)(2)(i) and
(ii)), regarding children who transfer to another public agency before
an initial evaluation is completed, should be cross-referenced in Sec.
300.304(c)(5).
Discussion: We agree that a cross-reference in Sec. 300.304(c)(5)
is appropriate.
Changes: We have added ``consistent with Sec. 300.301(d)(2) and
(e),'' following ``possible'' in Sec. 300.304(c)(5).
Comment: None.
Discussion: In reviewing Sec. 300.304(c)(5), we determined that
Sec. 300.304(c)(5) should be amended to refer to children with
disabilities who transfer to another public agency ``in the same school
year'' rather than ``in the same academic year'' because that is the
term most commonly understood by parents and school officials.
Changes: We have changed ``academic year'' to ``school year'' in
Sec. 300.304(c)(5).
Comment: One commenter recommended adding language regarding
scientifically based special education and related services to Sec.
300.304(c)(6).
Discussion: Section 300.304(c)(6) requires that the evaluation of a
child with a disability be sufficiently comprehensive to identify all
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. We believe that the focus on providing scientifically
based special education and related services is clear in the Act and
these regulations and do not believe it is necessary to refer to
``scientifically based'' services each time we refer to special
education and related services. Therefore, we decline to add this
language in Sec. 300.304(c)(6), as requested by the commenter.
Changes: None.
Additional Requirements for Evaluations and Reevaluations (Sec.
300.305)
Review of Existing Evaluation Data (Sec. 300.305(a))
Comment: One commenter stated that a comma should be added after
``current classroom-based'' in Sec. 300.305(a)(1)(ii) to clarify that
a review of existing evaluation data for a child must include, as
appropriate, data from three types of assessments: Current classroom-
based, local, or State assessments.
Discussion: We agree with the commenter and will revise the
language consistent with the commenter's suggestion and consistent with
section 614(c)(1)(A)(ii) of the Act. The changes will clarify that a
review of existing evaluation data on a child must include, as
appropriate, current classroom-based, local, or State assessment data.
Changes: We have inserted a comma following ``classroom based'' and
``local'' in Sec. 300.305(a)(1)(ii), consistent with the statutory
language.
Comment: One commenter asked whether a public agency must conduct a
reevaluation when a reevaluation is requested to determine the child's
educational and functional needs, but the child's eligibility for
special education and related services is not in question.
Discussion: Section 300.305(a)(2), consistent with section
614(c)(1)(B) of
[[Page 46644]]
the Act, states that one of the purposes of a reevaluation is to
determine the educational needs of the child, including whether any
additions or modifications to the special education and related
services are needed to enable the child to meet the child's IEP goals
and to participate in the general education curriculum. Thus, if a
reevaluation is requested to determine the child's educational needs
when the child's continued eligibility is not in question, the public
agency must either conduct the reevaluation or provide notice to the
parents as to why the public agency believes a reevaluation is
unnecessary.
Changes: None.
Requirements if Additional Data Are Not Needed (Sec. 300.305(d))
Comment: One commenter requested that the regulations define or
remove the phrase ``qualified professionals, as appropriate'' in Sec.
300.305(d)(1).
Discussion: Section 300.305(d)(1) follows the specific language in
section 614(c)(1) of the Act and refers to the decision made by the IEP
Team and ``other qualified professionals, as appropriate'' regarding
whether additional data are needed to determine whether a child
continues to be a child with a disability and the child's educational
needs. The phrase, ``qualified professionals, as appropriate'' is used
to provide flexibility for public agencies to include other
professionals who may not be a part of the child's IEP Team in the
group that determines if additional data are needed to make an
eligibility determination and determine the child's educational needs.
We believe that public agencies should have flexibility in determining
how to define ``qualified professionals'' and we do not believe a
definition should be included in the regulations.
Changes: None.
Evaluations Before Change in Eligibility (Proposed Evaluations Before
Change in Placement) (Sec. 300.305(e))
Comment: One commenter stated that the heading for Sec.
300.305(e), ``Evaluations before change in placement'' should be
changed because the regulations that follow do not deal with changes in
placement. Another commenter requested clarification regarding the
meaning of the term ``placement.'' The commenter stated that Sec.
300.305(e) uses the term to mean that special education services are no
longer required, but that this is not the meaning when used in the
context of alternative educational placements. The commenter also asked
whether moving a child from a self-contained classroom to a resource
room is a change of placement.
Discussion: We agree that the heading for Sec. 300.305(e) should
be changed to more accurately reflect the requirements in this
subsection. We will, therefore, change the heading to ``Evaluations
before change in eligibility,'' which is consistent with the heading in
section 614(c)(5) of the Act.
With regard to the commenter's question about whether moving a
child from a self-contained classroom to a resource room would be a
change of placement, we believe that it would be, as it would change
the child's level of interaction with his or her nondisabled peers.
However, as noted previously, the term ``change of placement'' should
not have been used in connection this regulation.
In the example provided by the commenter, generally, if a child is
moved from a self-contained classroom to a resource room, it is likely
that the child's current IEP cannot be implemented in the resource
room, because the educational program in the resource room is likely to
be substantially and materially different than the educational program
in the self-contained classroom or the educational program in the
resource room would change the level of interaction with nondisabled
peers. Therefore, this situation would likely be a change of placement
under the Act.
Changes: We have removed the heading ``Evaluations before change in
placement'' in Sec. 300.305(e) and replaced it with ``Evaluations
before change in eligibility'' for clarity and consistency with the
heading in section 614(c)(5) of the Act.
Comment: Many commenters recommended that evaluations for other
institutions (e.g., vocational rehabilitation agencies, colleges and
universities) should be required before a child graduates from
secondary school with a regular diploma or exceeds the age limit for
FAPE. However, a number of commenters disagreed and stated that public
agencies should not be required to conduct evaluations that will be
used to meet the entrance or eligibility requirements of another
institution or agency. One commenter requested clarification regarding
whether schools must provide updated evaluations for college testing
and admissions purposes and recommended including language in the
regulations that explicitly states that public agencies are not
required to conduct tests that are needed for admission to
postsecondary programs. Another commenter recommended that the
regulations clarify that LEAs have responsibility for providing the
postsecondary services that are included in the summary of the child's
academic achievement and functional performance.
One commenter requested requiring a reevaluation before a child
exits the school system. Another commenter recommended clarifying that
a comprehensive evaluation is not required for children aging out of
special education.
A number of commenters provided recommendations on the information
that should be included in the summary of a child's academic and
functional performance required in Sec. 300.305(e)(3). Commenters
suggested that the summary report should include information about the
child's disability; the effect of the disability on the child's
academic and functional performance (sufficient to establish
eligibility under the Americans with Disabilities Act and Section 504
of the Rehabilitation Act, if appropriate); any needed modifications or
adaptations essential to the child's success; the child's most recent
evaluations by professionals, including the child's academic
achievement and functional performance levels; assistive technology and
other supports used by the child; and any modifications and supports
that would facilitate the child's successful transition to
postsecondary education or employment.
Discussion: We do not believe that the regulations should require
public agencies to conduct evaluations for children to meet the
entrance or eligibility requirements of another institution or agency
because to do so would impose a significant cost on public agencies
that is not required by the Act. While the requirements for secondary
transition are intended to help parents and schools assist children
with disabilities transition beyond high school, section 614(c)(5) in
the Act does not require a public agency to assess a child with a
disability to determine the child's eligibility to be considered a
child with a disability in another agency, such as a vocational
rehabilitation program, or a college or other postsecondary setting.
The Act also does not require LEAs to provide the postsecondary
services that may be included in the summary of the child's academic
achievement and functional performance. We believe it would impose
costs on public agencies not contemplated by the Act to include such
requirements in the regulations.
It would be inconsistent with the Act to require public agencies to
conduct evaluations for children who are exiting the school system
because they exceed the age for eligibility under State law. Section
300.305(e)(2), consistent with
[[Page 46645]]
section 614(c)(5)(B)(i) of the Act, is clear that an evaluation in
accordance with Sec. Sec. 300.304 through 300.311 is not required
before the termination of a child's eligibility under the Act due to
graduation from secondary school with a regular diploma or due to
exceeding the age eligibility for FAPE under State law.
Section 300.305(e)(3), consistent with section 614(c)(5)(B)(ii) of
the Act, states that the summary required when a child graduates with a
regular diploma or exceeds the age eligibility under State law must
include information about the child's academic achievement and
functional performance, as well as recommendations on how to assist the
child in meeting the child's postsecondary goals. The Act does not
otherwise specify the information that must be included in the summary
and we do not believe that the regulations should include a list of
required information. Rather, we believe that State and local officials
should have the flexibility to determine the appropriate content in a
child's summary, based on the child's individual needs and
postsecondary goals.
Changes: None.
Comment: One commenter stated that public agencies should not be
required to conduct an evaluation of a child who graduates with a
regular diploma because a regular diploma means that the child has met
the same requirements and achieved the same or similar level of
competency as the child's nondisabled classmates. The commenter also
requested that the regulations define a regular diploma to mean that
the child has reached a comparable level of achievement as the child's
nondisabled classmates.
Discussion: Section 300.305(e)(2) specifically states that a public
agency does not need to evaluate a child with a disability who
graduates with a regular diploma. In addition, as noted in the Analysis
of Comments and Changes section for subpart B, we have clarified in
Sec. 300.101(a)(3)(iv) that a regular diploma does not include
alternate degrees, such as a general educational development (GED)
credential. We do not believe that any further clarification with
respect to the definition of ``regular diploma'' is necessary.
Changes: None.
Determination of Eligibility (Sec. 300.306)
Comment: One commenter recommended that the regulations require
public agencies to provide parents with copies of all evaluations at no
cost. However, another commenter stated that evaluations are often
lengthy and requested clarification as to whether public agencies must
provide copies of evaluations to parents at no cost.
Discussion: Section 300.306(a)(2), consistent with section
614(b)(4)(B) of the Act, requires that a copy of the evaluation report
and the documentation of determination of eligibility be given to the
parent. We have added language to Sec. 300.306(a)(2) to clarify that
the public agency must provide these copies at no cost to the parent.
With regard to providing parents with copies of all evaluations,
Sec. 300.501(a), consistent with section 615(b)(1) of the Act, affords
parents an opportunity to inspect and review all education records with
respect to the identification, evaluation, and educational placement of
the child, and the provision of a FAPE to the child. Specific
procedures for access to records are contained in the confidentiality
provisions in Sec. Sec. 300.610 through 300.627.
Section 300.613 requires a public agency to permit a parent to
inspect and review any education records relating to their child that
are collected, maintained, or used by the agency under the Act. The
right to inspect and review records includes the right to a response
from the agency to reasonable requests for explanations and
interpretations of the records; 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 the right
to have a representative of the parent inspect and review the records.
To the extent that the commenters may have been concerned about free
copies of evaluation documents that would not be provided under the
above regulations, we decline to regulate further, as we believe that
the cited provisions adequately balance the interests of the parents
for free copies and the public agencies in controlling costs.
Changes: We have added language to Sec. 300.306(a)(2) to clarify
that the evaluation report and the documentation of determination of
eligibility must be provided at no cost to the parent.
Comment: One commenter recommended that parents receive evaluation
reports prior to an IEP Team meeting because the reports may have
information that parents need to participate in making decisions about
the IEP. The commenter stated that, if parents receive reports at
meetings, rather than before the meetings, they cannot be active
participants. Another commenter stated that parents should be provided
with copies of documents related to the determination of eligibility at
least five days prior to the eligibility determination meeting.
Discussion: The Act does not establish a timeline for providing a
copy of the evaluation report or the documentation of determination of
eligibility to the parents and we do not believe that a specific
timeline should be included in the regulations because this is a matter
that is best left to State and local discretion. It is, however,
important to ensure that parents have the information they need to
participate meaningfully in IEP Team meetings, which may include
reviewing their child's records. Section 300.613(a) requires a public
agency to comply with a parent request to inspect and review existing
education records, including an evaluation report, without unnecessary
delay and before any meeting regarding an IEP, and in no case more than
45 days after the request has been made. This includes the right to a
response from the public agency to reasonable requests for explanations
and interpretations of records, consistent with Sec. 300.613(b)(1).
While it would be appropriate for parents to review documents
related to the determination of eligibility prior to the eligibility
determination, there is no requirement that eligibility be determined
at an IEP Team meeting and it would not be appropriate for a public
agency to provide documentation of the determination of eligibility
prior to discussing a child's eligibility for special education and
related services with the parent. Section 300.306(a)(1) and section
614(b)(4)(A) of the Act require that a group of qualified professionals
and the parent determine whether the child is a child with a
disability. Therefore, providing documentation of the eligibility
determination to a parent prior to a discussion with the parent
regarding the child's eligibility would indicate that the public agency
made its determination without including the parent and possibly,
qualified professionals, in the decision.
Changes: None.
Special Rule for Eligibility Determination (Sec. 300.306(b))
Comment: A number of commenters recommended other factors that
should be ruled out before a child is determined to be a child with a
disability. Many commenters stated that a child should not be
determined to be a child with a disability if the determinant factor is
lack of instruction in English language development or lack of access
to State content standards. A
[[Page 46646]]
few commenters expressed concern regarding subjective judgments about
the definition of ``appropriate instruction.'' One commenter stated
that determining the quality of reading instruction that children
received in the past might be difficult, if not impossible, especially
when children are referred for an evaluation after they enter middle
school or are highly mobile.
Discussion: We agree that a child should not be determined to be a
child with a disability if the determinant factor is lack of access to
State content standards, and we believe this is implicit in section
614(b)(5) of the Act, which states that a child must not be determined
to be a child with a disability if the determinant factor is lack of
appropriate instruction in reading (including the essential components
of reading instruction, as defined in the ESEA) or lack of instruction
in math.
During the Department's internal review of these regulations, we
noted that, while Sec. 300.306(b)(1)(i) refers to lack of
``appropriate'' instruction in reading, there is no similar qualifier
for math. We believe it is equally important that a child not be
determined to be a child with a disability if the determinant factor is
the lack of ``appropriate'' instruction in math. Therefore, we will
revise Sec. 300.306(b)(1)(ii) to make this clear.
We are unclear what the commenter means by lack of instruction in
English language development. However, if a child's low achievement is
a result of limited English proficiency or lack of access to
instruction in reading, the child must not be determined to be a child
with a disability, consistent with section 614(b)(5) of the Act.
Whether a child has received ``appropriate instruction'' is
appropriately left to State and local officials to determine. While
information regarding the quality of instruction a child received in
the past may be helpful in determining whether a child is eligible for
special education services, it is not essential. Schools, however, must
ensure that the determinant factor in deciding that a child is a child
with a disability is not a lack of appropriate instruction in reading
and math.
Changes: We have added ``appropriate'' in Sec. 300.306(b)(1)(ii)
to refer to a ``lack of appropriate instruction in math.''
Comment: Some commenters requested that we include in the
regulations the essential components of reading instruction defined in
the ESEA.
Discussion: For reasons set forth elsewhere in this preamble, we
are not adding definitions to these regulations from statutes other
than the Act. However, the definition of the essential components of
reading instruction from section 1208(3) of the ESEA is included here
for reference.
Essential Components of Reading Instruction--The term ``essential
components of reading instruction'' means explicit and systematic
instruction in--
(A) Phonemic awareness;
(B) Phonics;
(C) Vocabulary development;
(D) Reading fluency, including oral reading skills; and
(E) Reading comprehension strategies.
Changes: None.
Procedures for Determining Eligibility and Educational Need (Proposed
Procedures for Determining Eligibility and Placement) (Sec.
300.306(c))
Comment: None.
Discussion: During the review of these regulations, we noted that
section 614(b)(4) of the Act refers to procedures for determining
eligibility and ``educational need,'' rather than procedures for
determining eligibility and ``placement,'' as in the heading for
proposed Sec. 300.306(c). Therefore, we will change the heading in
Sec. 300.306(c) to be consistent with section 614(b)(4) of the Act.
Changes: We have replaced ``placement'' with ``educational need''
in the heading to Sec. 300.306(c), consistent with section 614(b)(4)
of the Act.
Additional Procedures for Identifying Children With Specific Learning
Disabilities
Specific Learning Disabilities (Sec. 300.307)
Comment: Numerous commenters supported proposed Sec.
300.307(a)(1), which allowed States to prohibit LEAs from using a
severe discrepancy between IQ and achievement (discrepancy models) to
determine eligibility under the specific learning disability (SLD)
category. However, many commenters supported the use of discrepancy
models and requested that the regulations allow discrepancy models to
continue to be used. Numerous commenters stated that Sec.
300.307(a)(1) exceeds statutory authority and that LEAs should be
permitted to use discrepancy models. Many commenters cited Conf. Rpt.
108-779 and stated that Congress did not intend to prohibit LEAs from
using discrepancy models.
Discussion: The Department agrees that proposed Sec. 300.307(a)(1)
should be removed. We believe this will improve the clarity of the
regulations and make it easier for parents and professionals to
understand. With respect to permitting LEAs to use discrepancy models,
even with the removal of Sec. 300.307(a)(1), States are responsible
for developing criteria to determine whether a child is a child with a
disability, as defined in Sec. 300.8 and section 602(3) of the Act,
including whether a particular child meets the criteria for having an
SLD. Under section 614(b)(6) of the Act, States are free to prohibit
the use of a discrepancy model. States, including States that did not
use a discrepancy model prior to the Act, are not required to develop
criteria that permit the use of a discrepancy model.
Changes: We have removed Sec. 300.307(a)(1) and redesignated the
subsequent provisions in Sec. 300.307.
Comment: Many commenters stated that response to intervention (RTI)
should be considered one component of the evaluation process and not
the sole component. Another commenter stated that neither a discrepancy
model nor an RTI model alone can correctly identify children with SLD
and that other data are needed, such as informal and formal
assessments, histories, and observations. One commenter stated that all
relevant and available evaluation data, such as the nature and type of
evaluation, evaluator qualifications, and outcome data should be
considered. One commenter recommended that RTI be tied to the general
evaluation procedures. Another commenter recommended referencing the
evaluation procedures in Sec. 300.309 to clarify that RTI must be used
as one component of the evaluation process to determine eligibility for
special education and related services. Several commenters stated that
relying solely on an RTI model would result in larger numbers of
children being identified with an SLD.
Discussion: Consistent with Sec. 300.304(b) and section 614(b)(2)
of the Act, the evaluation of a child suspected of having a disability,
including an SLD, must include a variety of assessment tools and
strategies and cannot rely on any single procedure as the sole
criterion for determining eligibility for special education and related
services. This requirement applies to all children suspected of having
a disability, including those suspected of having an SLD.
To simplify new Sec. 300.307(a)(2) (proposed Sec. 300.307(a)(3))
and remove unnecessary repetition, we will: (a) Remove the phrase ``as
part of the
[[Page 46647]]
evaluation procedures described in Sec. 300.304;'' and (b) replace
``process that determines if the child responds to scientific,
research-based intervention'' with ``process based on the child's
response to scientific, research-based intervention.'' Section
300.311(a)(7) will also be revised, consistent with this language.
Changes: We have revised new Sec. 300.307(a)(2) (proposed Sec.
300.307(a)(3)) and Sec. 300.311(a)(7) for clarity.
Comment: Several commenters recommended changing new Sec.
300.307(a)(2) (proposed Sec. 300.307(a)(3)) to require that State
criteria ``may'' rather than ``must'' permit a process that determines
if a child responds to research-based intervention in order to be
consistent with section 614(b)(6)(B) of the Act.
Discussion: Making the requested change to new Sec. 300.307(a)(2)
(proposed Sec. 300.307(a)(3)) would be inconsistent with the Act.
Section 614(b)(6)(B) of the Act gives LEAs the option of using a
process that determines if a child responds to research-based
interventions.
Changes: None.
Comment: Several commenters recommended that the regulations
include a statement that discrepancy models have been discredited and
that there is no evidence that they can be applied in a valid and
reliable manner. Several commenters recommended that the Department
urge States, at least through guidance, to eliminate provisions under
State laws that permit the use of discrepancy models.
Discussion: We do not believe it is appropriate to add language in
the regulations discouraging the use of discrepancy models to identify
children with SLD. We removed current Sec. 300.541(a)(2), which
required States to use a discrepancy model to determine whether a child
has an SLD, because section 614(b)(6) of the Act now specifies that an
LEA shall not be required to consider a severe discrepancy in
determining whether a child has an SLD. New Sec. 300.307(a)(2)
(proposed Sec. 300.307(a)(3)) requires States to permit the use of a
process that examines whether the child responds to scientific,
research-based interventions as part of the information reviewed to
determine whether a child has an SLD. The regulations reflect the
Department's position on the identification of children with SLD and
our support for models that focus on assessments that are related to
instruction and promote intervention for identified children.
Changes: None.
Comment: One commenter recommended that any guidance the Department
issues on RTI models should emphasize that RTI represents a shift in
how children are identified for special education services and not just
an additional task that special education teachers must do.
Discussion: Consensus reports and empirical syntheses indicate a
need for major changes in the approach to identifying children with
SLD. Models that incorporate RTI represent a shift in special education
toward goals of better achievement and improved behavioral outcomes for
children with SLD because the children who are identified under such
models are most likely to require special education and related
services. We will consider addressing this issue in future guidance.
Changes: None.
Comment: Many commenters stated that the elimination of discrepancy
models would result in an inability to identify children with SLD who
are gifted. One commenter stated that a scatter of scores should be
used to identify children with SLD who are gifted.
Discussion: Discrepancy models are not essential for identifying
children with SLD who are gifted. However, the regulations clearly
allow discrepancies in achievement domains, typical of children with
SLD who are gifted, to be used to identify children with SLD.
Changes: None.
Comment: Many commenters opposed the use of RTI models to determine
whether a child has an SLD, stating that there is a lack of scientific
evidence demonstrating that RTI models correctly identify children with
SLD. One commenter stated that RTI is a subjective method of
determining whether treatment is effective and is not a treatment
itself. A few commenters requested additional research demonstrating
the efficacy of the wide-scale use of RTI models. Some commenters
stated that research on the use of RTI models has been conducted only
in the area of reading in the primary grades and pointed to the lack of
scientific data on achievement gains or long-term success. One
commenter stated that there is no evidence that RTI is effective for
non-native speakers of English and minority populations. Another
commenter stated that RTI would fail to identify young children with
SLD. One commenter stated that when a child fails to respond to an
intervention, it is unclear why the child failed (e.g., inappropriate
intervention, ineffective teaching, unreasonable expectations). One
commenter stated that longitudinal data are needed to determine if
children who succeed in an RTI process later become eligible under the
category of SLD based on reading fluency and comprehension
difficulties, or difficulties in other academic areas, such as
mathematics problem-solving or written expression.
Discussion: The Act requires that LEAs be permitted to use a
process that determines if a child responds to research-based
interventions. Further, there is an evidence base to support the use of
RTI models to identify children with SLD on a wide scale, including
young children and children from minority backgrounds. These include
several large-scale implementations in Iowa (the Heartland model;
Tilly, 2002); the Minneapolis public schools (Marston, 2003);
applications of the Screening to Enhance Equitable Placement (STEEP)
model in Mississippi, Louisiana, and Arizona (VanDerHeyden, Witt, &
Gilbertson, in press); and other examples (NASDE, 2005).\1\ While it is
true that much of the research on RTI models has been conducted in the
area of reading, 80 to 90 percent of children with SLD experience
reading problems. The implementation of RTI in practice, however, has
included other domains. RTI is only one component of the process to
identify children in need of special education and related services.
Determining why a child has not responded to research-based
interventions requires a comprehensive evaluation.
---------------------------------------------------------------------------
\1\ Tilly III, W. D. (2002). School psychology as a problem
solving enterprise. In A. Thomas & J. Grimes (Eds.), Best Practices
in School Psychology IV. Washington D.C.: National Association of
School Psychologists; VanDerHeyden, A.M, Witt, J.C, & Gilbertson, D.
(in press). Effect of a problem solving intervention on the accurate
identification of children. Journal of School Psychology; Marston,
D., Muyskens, P., Lau, M., & Canter, A. (2003). Problem-solving
model for decision making with high incidence disabilities: The
Minneapolis experience. Learning Disabilities Research and Practice,
18, 187-200; Gresham, F., VanDerHeyden, A.M, & Witt, J.C. (in
press). Response to intervention in the identification of learning
disabilities: Empirical support and future challenges. School
Psychology Review; National Association of State Directors of
Special Education (2005). Response to intervention: policy
considerations and implementations. Alexandria VA: Author.
---------------------------------------------------------------------------
Changes: None.
Comment: One commenter expressed concern about how LEAs will
conduct evaluations for children suspected of having an SLD who attend
private schools because requiring an RTI process could become entangled
with the private school's instructional practices. The commenter
recommended clarifying that child find does not require an LEA to use
RTI to
[[Page 46648]]
identify children with SLD who are attending private schools.
Discussion: An RTI process does not replace the need for a
comprehensive evaluation. A public agency must use a variety of data
gathering tools and strategies even if an RTI process is used. The
results of an RTI process may be one component of the information
reviewed as part of the evaluation procedures required under Sec. Sec.
300.304 and 300.305. As required in Sec. 300.304(b), consistent with
section 614(b)(2) of the Act, an evaluation must include a variety of
assessment tools and strategies and cannot rely on any single procedure
as the sole criterion for determining eligibility for special education
and related services.
It is up to each State to develop criteria to determine whether a
child has a disability, including whether a particular child has an
SLD. In developing their criteria, States may wish to consider how the
criteria will be implemented with a child for whom systematic data on
the child's response to appropriate instruction is not available.
However, many private schools collect assessment data that would permit
a determination of how well a child responds to appropriate
instruction. The group making the eligibility determination for a
private school child for whom data on the child's response to
appropriate instruction are not available may need to rely on other
information to make their determination, or identify what additional
data are needed to determine whether the child is a child with a
disability. However, under Sec. 300.306(b), a public agency may not
identify any public or private school child as a child with a
disability if the determinant factor is lack of appropriate instruction
in reading or math.
Changes: None.
Comment: One commenter stated that adoption of new procedures for
evaluating children suspected of having an SLD should not penalize or
declassify children who under prior procedures were found to have an
SLD. The commenter recommended using the requirements in Sec. 300.305,
rather than data from a child's response to a scientific, research-
based intervention process, to consider whether a child continues to
have an SLD.
Discussion: An RTI process does not replace the need for a
comprehensive evaluation, and a child's eligibility for special
education services cannot be changed solely on the basis of data from
an RTI process. Consistent with Sec. 300.303 and section 614(a)(2) of
the Act, a child with a disability must be reevaluated if the public
agency determines that the educational or related services needs of the
child warrant a reevaluation or if the child's parent or teacher
requests a reevaluation. A reevaluation must occur no more than once a
year, unless the parent and the public agency agree otherwise, and at
least once every three years, unless the parent and the public agency
agree that a reevaluation is unnecessary, to determine whether the
child continues to have a disability and to determine the educational
needs of the child. Reevaluations must be conducted in accordance with
Sec. Sec. 300.304 through 300.311. In addition, as noted in Sec.
300.305(e)(1), except for children at the end of their secondary school
career, a reevaluation must be done before determining that a child is
no longer a child with a disability. In conducting a reevaluation, as
noted in Sec. 300.305, consistent with section 614(c) of the Act, the
IEP Team and other qualified professionals must review existing
evaluation data on the child including evaluations provided by the
parents of the child; current classroom-based, local, or State
assessments and classroom-based observations; and observations by
teachers and related services providers.
The results of an RTI process may be one component of the
information reviewed as part of the reevaluation process. It is up to
each State to develop criteria to determine whether a child continues
to have a disability, including whether a particular child has an SLD.
States that change their eligibility criteria for SLD may want to
carefully consider the reevaluation of children found eligible for
special education services using prior procedures. States should
consider the effect of exiting a child from special education who has
received special education and related services for many years and how
the removal of such supports will affect the child's educational
progress, particularly for a child who is in the final year(s) of high
school. Obviously, the group should consider whether the child's
instruction and overall special education program have been appropriate
as part of this process. If the special education instruction has been
appropriate and the child has not been able to exit special education,
this would be strong evidence that the child's eligibility needs to be
maintained.
Changes: None.
Alternative Research-Based Procedures (New Sec. 300.307(a)(3))
(Proposed Sec. 300.307(a)(4))
Comment: Many commenters expressed support for allowing the use of
alternative research-based procedures to determine whether a child has
an SLD. However, a few commenters stated that the use of alternative
research-based procedures should be removed because there is no
indication that these procedures will assist in identifying a child
with an SLD and because the Act does not use this term.
Discussion: New Sec. 300.307(a)(3) (proposed Sec. 300.307(a)(4))
recognizes that there are alternative models to identify children with
SLD that are based on sound scientific research and gives States
flexibility to use these models. For example, a State could choose to
identify children based on absolute low achievement and consideration
of exclusionary factors as one criterion for eligibility. Other
alternatives might combine features of different models for
identification. We believe the evaluation procedures in section
614(b)(2) and (b)(3) of the Act give the Department the flexibility to
allow States to use alternative, research-based procedures for
determining whether a child has an SLD and is eligible for special
education and related services.
Changes: None.
Comment: One commenter stated that alternative research-based
procedures are not based on scientific research and should therefore be
removed.
Discussion: The Department does not support the use of
identification procedures that are not based on scientific research.
Models or procedures that claim to assist in identifying a child with
an SLD, but which are not based on sound scientific research, are not
appropriate and should not be adopted by LEAs or States.
Changes: None.
Comment: A few commenters stated that the meaning of alternative
research-based procedures is unclear and should be defined. One
commenter stated that there would be inappropriate interventions and
procedures without further clarification as to the meaning of
alternative research-based procedures.
Discussion: As noted in the Analysis of Comments and Changes
section for subpart A, we have added the definition of scientifically
based research from section 9101(37) of the ESEA to the definitions
section of these regulations. This definition is the most appropriate
definition to include in these regulations, given the importance
Congress placed on aligning the Act with the ESEA. The Department does
not intend to dictate how extensive the research must be or who, within
an LEA or State, should determine that the research is of high quality.
We believe that this is a matter best left to State and
[[Page 46649]]
local officials because determining the presence of an appropriate
instructional process is part of the State-adopted criteria. This
addition should provide the clarity requested by the commenters.
Changes: We have added a definition of scientifically based
research to Sec. 300.35, giving the term the definition in section
9101(37) of the ESEA.
Consistency With State Criteria (Sec. 300.307(b))
Comment: Several commenters expressed concern about allowing States
to decide on the approach to determining whether a child has an SLD,
and requested the Department develop criteria to be used across the
nation. However, numerous commenters supported the development of State
criteria and requiring public agencies to use the State criteria to
determine whether a child has an SLD. Many commenters stated that this
requirement is necessary to prevent inconsistent eligibility
requirements among LEAs in a State. Other commenters stated that the
requirement exceeds statutory authority and that LEAs should be allowed
to make decisions about the criteria and methods to identify children
with SLD.
Discussion: The Department believes that eligibility criteria must
be consistent across a State to avoid confusion among parents and
school district personnel. The Department also believes that requiring
LEAs to use State criteria for identifying children with disabilities
is consistent with the State's responsibility under section 612(a)(3)
of the Act to locate, identify, and evaluate all eligible children with
disabilities in the State. We believe this provides the Department with
the authority to require a public agency to use State criteria in
determining whether a child has an SLD, consistent with Sec. Sec.
300.307 through 300.311.
Changes: None.
Comment: A few commenters requested requiring States to adopt and
implement only one model to determine whether a child has an SLD.
However, several commenters requested that States and LEAs have the
flexibility to use more than one model. One commenter noted that States
need flexibility to determine eligibility criteria until there is
greater understanding of the effectiveness of evidence-based protocols
in identifying children with SLD.
Discussion: There is nothing in the Act that would require a State
to use one model of identification to identify a child with an SLD. We
do not believe the regulations should include such a requirement,
because section 614(b)(6) of the Act indicates that some flexibility in
the selection of models of identification by LEAs can be appropriate,
if permitted by the State.
Changes: None.
Comment: One commenter recommended that the Department require
States to develop a plan to implement Statewide eligibility criteria
that includes dissemination of research-based models, collecting data
on the use of such models, providing professional development on the
State's criteria, and implementing appropriate services and
instruction.
Discussion: We agree that it could be helpful for States to develop
a plan to implement any new SLD criteria, as recommended by the
commenter. However, we do not believe States should be required to
adopt such a plan, as this is a matter that is best left to individual
States to decide.
Changes: None.
Group Members (Sec. 300.308)
Comment: Several commenters requested an explanation of the use of
``group members'' rather than ``team members'' to describe the group
that determines whether a child suspected of having an SLD is a child
with a disability. One commenter stated that the eligibility
determination is an IEP Team function and, therefore, using the term
``group members'' is inappropriate. One commenter stated that Sec.
300.308 is confusing because the group seems to be the same as the IEP
Team.
Discussion: The change from ``team members'' to ``group members''
was made in the 1999 regulations to distinguish this group from the IEP
Team, because the team of qualified professionals and the parent in
Sec. 300.306(a)(1) that makes the eligibility determination does not
necessarily have the same members as an IEP Team. In some States, this
group of professionals may have the same individuals as the IEP Team,
but in other States, this is not the case. We inadvertently referred to
``team members'' in 300.309(a)(2)(ii) and, therefore, will change this
to ``group.''
Changes: We have changed ``team members'' to ``group'' in Sec.
300.309(a)(2)(ii) to be consistent with Sec. 300.306(a)(1).
Comment: Several commenters stated that the requirements for the
qualifications of the group members in proposed Sec. 300.308(a) are
unnecessary and should be removed because they are not included in the
Act, are overly prescriptive, and add another set of procedural
requirements. On the other hand, a number of commenters recommended
additional or different qualifications that should be required of the
group members in Sec. 300.308. Several commenters recommended that the
group members be qualified to conduct assessments in the area of
``cognition'' rather than ``intellectual development'' to ensure that
specific cognitive abilities are assessed, rather than global
intellectual abilities.
Several commenters recommended that proposed Sec. 300.308(a)(2),
requiring group members to apply ``critical analysis'' to the data, be
changed to require group members to apply ``clinical'' analysis to the
data. One commenter stated that clinical analysis should be defined and
suggested a definition that includes professional judgment informed by
empirical research, training, and experience, and guided by
interpretation of patterns in evaluation findings from a number of
sources (e.g., test scores; interviews; work samples; observational
data; and information from parents, school personnel, and other related
services providers).
A few commenters recommended requiring evaluations to be completed
by certified speech-language pathologists and school psychologists to
ensure that qualified professionals conduct the assessments. One
commenter recommended that the examples of the areas for diagnostic
assessments be preceded by ``such as'' to avoid a misinterpretation
that a speech-language pathologist, for example, is mandated to
participate in every SLD determination.
Several commenters agreed with the professional competencies for
the group members described in Sec. 300.308(a). However, one commenter
stated that ``collectively qualified'' is too broad a term and should
be more narrowly defined. Another commenter stated that there is no way
to ensure that the group members possess the necessary expertise unless
there is a mechanism to determine whether the group members have the
specified competencies in proposed Sec. 300.308(a).
One commenter stated that, although professionals from more than
one discipline may be qualified to administer certain assessments, they
do not bring the same expertise to the process. One commenter asked if
a special education teacher, a regular education teacher, and parent
were all that would be necessary if they collectively met the
competency requirements.
Several commenters stated that the list of professionals in
proposed Sec. 300.308(b) for the eligibility group should be removed
and decisions about group members left to schools and
[[Page 46650]]
districts. Other commenters stated that the requirements for the
eligibility group should be the same as those for the group that
determines the eligibility of children suspected of all other
disabilities.
Many commenters recommended that additional or different
professionals should be included in the group. Numerous commenters
recommended including speech-language pathologists in the group because
of their expertise in reading and conducting individual diagnostic
assessments in the areas of speech and language.
A few commenters stated that a school psychologist should be a
required member of the group, rather than listed as ``if appropriate.''
One of these commenters stated that, even if school psychologists are
no longer required to administer assessments to determine whether there
is a discrepancy between the child's achievement and ability, school
psychologists conduct assessments related to cognitive functioning,
behavior, and other issues that may affect a child's learning.
Numerous commenters recommended requiring the special education
teacher who is part of the eligibility group to have expertise in the
area of SLD. However, one commenter stated that it is unnecessary for a
special education teacher to be part of the group because the teacher
would not have any instructional experience with the yet-to-be
identified child and nothing in the Act requires special education
teachers to possess any diagnostic expertise in the area of SLD.
One commenter recommended that the group include a teacher with
experience in teaching children who are failing or at-risk for failing,
in addition to a general education and special education teacher.
Several commenters recommended adding a reading specialist as a
required member. A few commenters recommended including a social worker
as a required member, stating that it is important that one of the
members examine the child's home and community environment to rule out
environmental and economic factors as a primary source of the child's
learning difficulties. Another commenter recommended adding a guidance
counselor as a required member. One commenter recommended including a
school nurse and stated that a school nurse can contribute information
about educationally relevant medical findings.
One commenter stated that a reading teacher and an educational
therapist should always be included in the group. A few commenters were
not familiar with the role of an educational therapist and requested a
definition or elimination of the term from the list of ``other
professionals.'' One commenter stated that two of the three
professionals listed as ``other professionals'' (school psychologist,
reading teacher, educational therapist) are not credentialed and
questioned why they were included in the group.
Discussion: The Department has considered the diversity of comments
received and, given the lack of consensus about which individuals
should be included in the group that makes eligibility determinations
for children suspected of having an SLD, believes that the requirements
in current Sec. 300.540 should be retained. Current Sec. 300.540
states that the eligibility group for children suspected of having SLD
must include the child's parents and a team of qualified professionals,
which must include the child's regular teacher (or if the child does
not have a regular teacher, a regular classroom teacher qualified to
teach a child of his or her age) or for a child of less than school
age, an individual qualified by the SEA to teach a child of his or her
age; and at least one person qualified to conduct individual diagnostic
examinations of children, such as a school psychologist, speech-
language pathologist or remedial reading teacher. We believe this
allows decisions about the specific qualifications of the members to be
made at the local level, so that the composition of the group may vary
depending on the nature of the child's suspected disability, the
expertise of local staff, and other relevant factors. For example, for
a child suspected of having an SLD in the area of reading, it might be
important to include a reading specialist as part of the eligibility
group. However, for a child suspected of having an SLD in the area of
listening comprehension, it might be appropriate for the group to
include a speech-language pathologist with expertise in auditory
processing disorders. Current Sec. 300.540 provides flexibility for
schools and districts, and ensures that the group includes individuals
with the knowledge and skills necessary to interpret the evaluation
data and make an informed determination as to whether the child is a
child with an SLD, and the educational needs of the child.
Changes: Section 300.308 has been changed to include the
requirements from current Sec. 300.540.
Determining the Existence of a Specific Learning Disability (Sec.
300.309)
Comment: One commenter stated that there is no authority in the Act
for the SLD eligibility requirements outlined in Sec. 300.309.
Discussion: We agree that the statutory language is broad and does
not include the specific requirements to determine whether a child
suspected of having an SLD is a child with a disability. The purpose of
these regulations, however, is to provide details to assist States in
the appropriate implementation of the Act. We believe the requirements
in Sec. 300.309 are necessary to ensure that States have the details
necessary to implement the Act.
Changes: None.
Comment: One commenter stated that RTI was Congress' preference for
determining eligibility under SLD, and therefore, the criteria for RTI
should be the first paragraph of Sec. 300.309 (Determining the
existence of a specific learning disability).
Discussion: The Department believes that the criteria in Sec.
300.309 are presented in a logical order and are consistent with the
Act.
Changes: None.
Comment: One commenter stated that a discrepancy between
intellectual ability and achievement can differentiate between children
with disabilities and children with general low achievement, and noted
that the problems with discrepancy models have been in implementation,
rather than in the concept itself for identifying children with SLD.
Discussion: There is a substantial research base summarized in
several recent consensus reports (Donovan & Cross, 2002; Bradley et
al., 2003) and meta-analyses (Hoskyn & Swanson, 2000; Steubing et al.,
2002) that does not support the hypothesis that a discrepancy model by
itself can differentiate children with disabilities and children with
general low achievement.\2\ Therefore, we disagree with the comment
because such a differentiation is not possible with any single
criterion, including RTI.
---------------------------------------------------------------------------
\2\ Donovan, M.S., & Cross, C.T. (2002). Minority students in
special and gifted education. Washington, DC: National Academy
Press; Bradley, L., Danielson, & Hallahan, D.P. (Eds.).
Identification of learning disabilities: Research to practice.
Mahway, NJ: Erlbaum; Hoskyn, M., & Swanson, H.L (2000). Cognitive
processing of low achievers and children with reading disabilities:
A selective meta-analytic review of the published literature. The
School Psychology Review, 29, 102-119; Steubing, K.K., Fletcher,
J.M., LeDoux, J.M., Lyon, G.R., Shaywitz, S.E., & Shoywitz B.A.
(2002). Validity of IQ-discrepancy, classifications of reading
disabilities: A meta-analysis. American Educational Research
Journal, 39, 469-518.
---------------------------------------------------------------------------
Changes: None.
Comment: One commenter requested retaining the language in current
Sec. 300.541, regarding the use of discrepancy models.
[[Page 46651]]
Discussion: Section 614(b)(6) of the Act prohibits States from
requiring a discrepancy approach to identify children with SLD. Current
Sec. 300.541 requires a discrepancy determination and is, therefore,
inconsistent with the Act.
Changes: None.
Comment: One commenter requested that the eligibility group be
allowed to consider the results from standardized, individualized
testing (not just criterion-based testing or functional assessments) in
the eligibility determination.
Discussion: Nothing in the Act or these regulations would preclude
the eligibility group from considering results from standardized tests
when making eligibility determinations.
Changes: None.
Comment: Many commenters recommended adding the concept of
psychological processing disorders to the eligibility criteria in Sec.
300.309. Several commenters noted that the criteria in Sec. 300.309 do
not fully address the definition of SLD in Sec. 300.8(c)(10), which
includes a processing disorder in one or more of the basic
psychological processes. Several commenters stated that, without
requiring documentation of a basic psychological processing disorder,
the number of children identified with SLD will significantly increase
and the use of assessment tools that have the potential to
significantly guide instruction will decrease. Several commenters
stated that failure to consider individual differences in cognitive
processing skills reverses more than 20 years of progress in cognitive
psychology and developmental neuroscience. One commenter stated that
identifying a basic psychological processing disorder would help ensure
that children identified with an SLD are not simply victims of poor
instruction. One commenter stated that the shift away from requiring
diagnostic assessments in the area of cognition would make it
conceptually impossible to document that a child has a disorder in one
or more of the basic psychological processes, as required in the
definition of SLD in Sec. 300.8(c)(10).
Discussion: The Department does not believe that an assessment of
psychological or cognitive processing should be required in determining
whether a child has an SLD. There is no current evidence that such
assessments are necessary or sufficient for identifying SLD. Further,
in many cases, these assessments have not been used to make appropriate
intervention decisions. However, Sec. 300.309(a)(2)(ii) permits, but
does not require, consideration of a pattern of strengths or
weaknesses, or both, relative to intellectual development, if the
evaluation group considers that information relevant to an
identification of SLD. In many cases, though, assessments of cognitive
processes simply add to the testing burden and do not contribute to
interventions. As summarized in the research consensus from the OSEP
Learning Disability Summit (Bradley, Danielson, and Hallahan, 2002),
``Although processing deficits have been linked to some SLD (e.g.,
phonological processing and reading), direct links with other processes
have not been established. Currently, available methods for measuring
many processing difficulties are inadequate. Therefore, systematically
measuring processing difficulties and their link to treatment is not
yet feasible * * *. Processing deficits should be eliminated from the
criteria for classification * * *.'' (p. 797).\3\ Concerns about the
absence of evidence for relations of cognitive discrepancy and SLD for
identification go back to Bijou (1942; \4\ see Kavale, 2002) \5\.
Cronbach (1957) \6\ characterized the search for aptitude by treatment
interactions as a ``hall of mirrors,'' a situation that has not
improved over the past few years as different approaches to assessment
of cognitive processes have emerged (Fletcher et al., 2005; Reschly &
Tilly, 1999) \7\.
---------------------------------------------------------------------------
\3\ Bradley, R., Danielson, L., & Hallahan, D.P. (Eds.). (2002).
Identification of learning disabilities: Research to practice.
Mahwah, NJ: Erlbaum.
\4\ Bijou, S.W. (1942). The psychometric pattern approach as an
aid to clinical assessment--a review. American Journal of Mental
Deficiency, 46, 354-362.
\5\ Kavale, K. (2002). Discrepancy models in the identification
of learning disabilities. In R. Bradley, L. Danielson, & D.P.
Hallahan (Eds.). Identification of learning disabilities: Research
to practice (pp. 370-371). Mahwah, NJ: Erlbaum.
\6\ Cronbach, L.J. (1957). The two disciplines of scientific
psychology. American Psychologist, 12, 671-684.
\7\ Fletcher, J.M., Denton, C., & Francis, D.J. (2005). Validity
of alternative approaches for the identification of LD:
Operationalizing unexpected underachievement. Journal of Learning
Disabilities, 38, 545-552; Reschly, D.J., & Tilly, W.D. (1999).
Reform trends and system design alternatives. In D.J. Reschly, W.D.
Tilly, III, and J.P. Grimes (Eds.). Special education in transition:
Functional assessment and noncategorical programming. Longmont, CO:
Sopris West.
---------------------------------------------------------------------------
Changes: None.
Comment: Several commenters requested that the regulations include
a definition of ``intellectual development.''
Discussion: We do not believe it is necessary to define
``intellectual development'' in these regulations. Intellectual
development is included in Sec. 300.309(a)(2)(ii) as one of three
standards of comparison, along with age and State-approved grade-level
standards. The reference to ``intellectual development'' in this
provision means that the child exhibits a pattern on strengths and
weaknesses in performance relative to a standard of intellectual
development such as commonly measured by IQ tests. Use of the term is
consistent with the discretion provided in the Act in allowing the
continued use of discrepancy models.
Changes: None.
Comment: Several commenters stated that intra-individual
differences, particularly in cognitive functions, are essential to
identifying a child with an SLD and should be included in the
eligibility criteria in Sec. 300.309.
Discussion: As indicated above, an assessment of intra-individual
differences in cognitive functions does not contribute to
identification and intervention decisions for children suspected of
having an SLD. The regulations, however, allow for the assessment of
intra-individual differences in achievement as part of an
identification model for SLD. The regulations also allow for the
assessment of discrepancies in intellectual development and
achievement.
Changes: None.
Comment: One commenter requested guidance on how to determine
whether a child was provided with learning experiences appropriate for
the child's age, as required in Sec. 300.309(a)(1).
Discussion: While such guidance might be helpful, we believe SEAs
and LEAs are in the best position to provide guidance on age-
appropriate learning experiences.
Changes: None.
Comment: Several commenters expressed support for the requirements
in Sec. 300.309(a)(1) and stated that the first element of determining
eligibility for an SLD is a finding that the child does not achieve
commensurate with the child's age in one or more of the eight areas
when provided with learning experiences appropriate to the child's age.
However, several commenters requested requiring that eligibility
determinations for an SLD include evidence that the child's achievement
level is not commensurate with the child's age and ability (emphasis
added). One commenter indicated that knowledge of a child's ability
level is important to ensure that a determination is not based on
deficits in areas not related to cognitive processing (e.g., lack of
opportunity to learn, social or emotional disturbances), and to prevent
misdiagnosis of children with mental
[[Page 46652]]
retardation and SLD. One commenter stated that Sec. 300.309(a)(1)
would allow any child who failed to achieve commensurate with his or
her age to be considered to have an SLD, and this will increase the
number of children referred for special education and related services.
Several commenters expressed concern that the eligibility
determination for SLD is based on whether the child achieves
commensurate with his or her age because current practice uses
normative data that are based on grade level. These commenters
recommended clarifying that grade level or classmate performance should
also be considered.
Discussion: The first element in identifying a child with SLD
should be a child's mastery of grade-level content appropriate for the
child's age or in relation to State-approved grade-level standards, not
abilities. This emphasis is consistent with the focus in the ESEA on
the attainment of State-approved grade-level standards for all
children. State-approved standards are not expressed as ``norms'' but
represent benchmarks for all children at each grade level. The
performance of classmates and peers is not an appropriate standard if
most children in a class or school are not meeting State-approved
standards. Furthermore, using grade-based normative data to make this
determination is generally not appropriate for children who have not
been permitted to progress to the next academic grade or are otherwise
older than their peers. Such a practice may give the illusion of
average rates of learning when the child's rate of learning has been
below average, resulting in retention. A focus on expectations relative
to abilities or classmates simply dilutes expectations for children
with disabilities.
We will modify Sec. 300.309(a)(1) to clarify that, as a first
element in determining whether a child has an SLD, the group must
determine that the child does not demonstrate achievement that is
adequate for the child's age or the attainment of State-approved grade-
level standards, when provided with learning experiences and
instruction appropriate for the child's age or State-approved grade-
level standards in one or more of the areas listed in Sec.
300.309(a)(1). The reference to ``State-approved grade-level
standards'' is intended to emphasize the alignment of the Act and the
ESEA, as well as to cover children who have been retained in a grade,
since age level expectations may not be appropriate for these children.
The reference to ``instruction'' will be added to emphasize that
children may not be identified as having SLD if there is no
documentation of appropriate instruction, consistent with the Act and
the ESEA. Consistent with this change, we will add a reference to
``State-approved grade-level standards'' in Sec. Sec. 300.309(a)(2)(i)
and (ii). We will also combine proposed Sec. 300.311(a)(5) and (6)
into Sec. 300.311(a)(5) to ensure consistency with the requirements in
Sec. 300.309(a).
Changes: We have modified Sec. 300.309(a)(1) and Sec. Sec.
300.309(a)(2)(i) and (ii), and combined proposed Sec. 300.311(a)(5)
and (6) into Sec. 300.311(a)(5) to ensure consistency with the
requirements in Sec. 300.309(a).
Comment: Several commenters expressed support for including reading
fluency in the list of areas to be considered when determining whether
a child has an SLD. However, several commenters recommended removing
reading fluency from the list in Sec. 300.309(a)(1), stating that a
weakness in reading fluency, in isolation, does not indicate a reading
disability.
Discussion: No assessment, in isolation, is sufficient to indicate
that a child has an SLD. Including reading fluency in the list of areas
to be considered when determining whether a child has an SLD makes it
more likely that a child who is gifted and has an SLD would be
identified. Fluency assessments are very brief and highly relevant to
instruction. We, therefore, do not believe that reading fluency should
be removed from Sec. 300.309(a)(1).
Changes: None.
Comment: Many commenters stated that eligibility criteria based on
RTI models will result in dramatic increases in referrals, special
education placements, and legal problems. One commenter stated that the
eligibility criteria in Sec. 300.309 do not provide sufficient checks
and balances to ensure that only those children who truly require
special education are identified as having SLD. A few commenters stated
that using an RTI model would result in incorrectly identifying
underachieving children as having SLD.
Discussion: We do not believe that eligibility criteria based on
RTI models will result in dramatic increases in referrals and special
education placements. Well-implemented RTI models and models that
identify problems early and promote intervention have reduced, not
increased, the number of children identified as eligible for special
education services and have helped raise achievement levels for all
children in a school.\8\ We believe that the regulations do provide
sufficient checks to ensure that only children who need special
education and related services are identified as having SLD.
---------------------------------------------------------------------------
\8\ Burns, M., Appleton, J., Stehouwer, J. (2005). Meta-analytic
review of responsiveness-to-intervention research: Examining field-
based and research-implemented models. Journal of Psychoeducational
Assessment, 23, 381-394.
---------------------------------------------------------------------------
Changes: None.
Comment: Several commenters stated that the language in Sec.
300.309(a)(2)(ii) is very confusing and should be rewritten. Many
commenters stated that the word ``or'' instead of ``and'' should be
used between Sec. 300.309(a)(2)(i) and Sec. 300.309(a)(2)(ii),
because otherwise a child could be identified with an SLD because he or
she failed to meet passing criteria on a State assessment, and failure
to make sufficient progress on a State-approved assessment alone is not
grounds for a determination that a child has an SLD. Several commenters
stated that the phrase, ``pattern of strengths and weaknesses in
performance, achievement, or both'' is a typographical error because it
is repeated twice.
Discussion: We do not agree that ``and'' should be used instead of
``or'' between Sec. 300.309(a)(2)(i) and (ii), because this would
subject the child to two different identification models. We agree that
failing a State assessment alone is not sufficient to determine whether
a child has an SLD. However, failing a State assessment may be one
factor in an evaluation considered by the eligibility group. As
required in Sec. 300.304(b)(1), consistent with section 614(b)(2)(A)
of the Act, the evaluation must use a variety of assessment tools and
strategies to gather relevant information about the child. Further,
Sec. 300.304(b)(2), consistent with section 614(b)(2)(B) of the Act,
is clear that determining eligibility for special education and related
services cannot be based on any single measure or assessment as the
sole criterion for determining whether a child is a child with a
disability.
We agree that Sec. 300.309(a)(2)(ii) could be stated more clearly
and will rewrite it to state that the eligibility group can determine
that a child has an SLD if the child meets the criteria in Sec.
300.309(a)(1) and exhibits a pattern of strengths and weaknesses in
performance, achievement, or both, relative to age and State-approved
grade-level standards, or intellectual development, that is determined
by the group to be relevant to the identification of an SLD.
Changes: We have changed Sec. 300.309(a)(2)(ii) for clarity.
[[Page 46653]]
Comment: Several commenters requested a definition of ``State-
approved results.'' One commenter stated that the language was
extremely confusing and that ``State-approved results'' could be
interpreted to mean approved results that are equivalent to proficiency
on State assessments under the ESEA, and this could lead to eligibility
determinations for a very large group of older children with poor
reading performance for whom it would be nearly impossible to make
sufficient progress to become proficient readers. This commenter
recommended changing the language to refer to a child's failure to
achieve a rate of learning to make sufficient progress based on
``State-defined criteria.'' Another commenter recommended substituting
``State achievement standards'' for ``State approved results.''
Discussion: The intention is to refer to State assessments approved
under the ESEA. We have changed ``State-approved results'' to ``State-
approved grade-level standards.'' We believe this change adequately
addresses the commenters concerns.
Changes: We have removed ``State-approved results'' and inserted in
its place ``State-approved grade-level standards'' in Sec. 300.309 and
Sec. 300.311.
Comment: One commenter stated that including ``State-approved
results'' in Sec. 300.309(a)(2)(i) means that there is no Federal
definition of SLD.
Discussion: States must develop criteria for determining whether a
child has an SLD that are consistent with the Federal requirements in
Sec. Sec. 300.307 through 300.311 and the definition of SLD in Sec.
300.8(c)(10).
Changes: None.
Comment: A few commenters stated that using the criteria in Sec.
300.309(a)(2), a child could meet State standards and still be
identified as a child with an SLD.
Discussion: We agree with the commenters. Accelerated growth
toward, and mastery of, State-approved grade-level standards are goals
of special education. Furthermore, as stated in Sec. 300.101, the fact
that a child is advancing from grade to grade does not make a child
with a disability ineligible for special education and related
services. However, consistent with Sec. 300.8, the group making the
eligibility determination must conclude both that the child has an SLD
and, that, because of that disability, the child needs special
education and related services.
Changes: None.
Comment: Many commenters requested more detail and specific
guidelines on RTI models, such as information on who initiates the RTI
process and who should be involved in the process; how one ensures
there is a strong leader for the RTI process; the skills needed to
implement RTI models; the role of the general education teacher; how to
determine that a child is not responsive to instruction, particularly a
child with cultural and linguistic differences; the number of different
types of interventions to be tried; the responsibility for monitoring
progress; the measurement of treatment integrity; and ways to document
progress. One commenter stated that it is imperative that the
regulations allow the flexibility necessary to accommodate the array of
RTI models already in use.
Several commenters requested that the Department define and set a
standard for responsiveness that calls for demonstrated progress and
improvement in the rate of learning, to indicate that a child can
function in the classroom. Several commenters stated that there would
be a dramatic increase in the number of children identified with an SLD
without a clearly defined system in place.
Discussion: There are many RTI models and the regulations are
written to accommodate the many different models that are currently in
use. The Department does not mandate or endorse any particular model.
Rather, the regulations provide States with the flexibility to adopt
criteria that best meet local needs. Language that is more specific or
prescriptive would not be appropriate. For example, while we recognize
that rate of learning is often a key variable in assessing a child's
response to intervention, it would not be appropriate for the
regulations to set a standard for responsiveness or improvement in the
rate of learning. As we discussed earlier in this section, we do not
believe these regulations will result in significant increases in the
number of children identified with SLD.
Changes: None.
Comment: One commenter stated that, without additional clarity,
eligibility criteria will vary substantially among States and that
States will have definitions that are suited to their individual
preferences, rather than a universal sense of what constitutes
eligibility under SLD based on the research and national standards of
professional practice.
Discussion: State eligibility criteria must meet the requirements
in Sec. Sec. 300.307 through 300.111 and LEAs must use these State-
adopted criteria. We believe that, although these provisions allow
States some flexibility in how children with SLD are identified, the
requirements in these provisions will ensure that SLD criteria do not
vary substantially across States.
Changes: None.
Comment: One commenter stated that, without more clarity in the
requirements for RTI models, there would be an increase in the number
of eligibility disputes between parents and school districts.
Discussion: We do not believe more clarity in the requirements for
RTI models is necessary. States can avoid disputes over eligibility
determinations by developing clear criteria, consistent with the
regulatory parameters, and providing staff with the necessary guidance
and support to implement the criteria.
Changes: None.
Comment: One commenter urged the Department to encourage States to
convene a group of education, disability, and parent stakeholders to
discuss and design a model approach to early identification of children
with SLD.
Discussion: The Department agrees that it is important to identify
children with SLD early and to provide the necessary instruction and
supports to avoid referrals to special education. The extent to which
States involve other interested parties (e.g., disability groups,
parent groups) in the design or development of such a system is a
decision that should be made by each State.
Changes: None.
Comment: A few commenters stated that professional development
requirements to implement RTI models should be incorporated into the
regulations so RTI models are not haphazardly implemented. One
commenter stated that before RTI can be used systematically as part of
the special education identification process, school districts must
have administrative support at all levels, ongoing professional
development for all staff, and coordination with institutions of higher
education. Several commenters recommended encouraging States to develop
efficient, collaborative evaluation systems. One commenter recommended
requiring regular education teachers to address the needs of children
with different learning styles, identify early and appropriate
interventions for children with behavioral challenges, and understand
and use data and assessments to improve classroom practices and
learning.
Discussion: We agree that administrative support, professional
development, and coordination with teacher training programs would be
[[Page 46654]]
helpful in the effective implementation of RTI models. We also agree
that efficient and collaborative evaluation systems should be
developed, and that all teachers, including regular education teachers,
should be trained to address the needs of children with different
learning styles, identify early and appropriate interventions for
children with behavioral challenges, and understand and use data and
assessments to improve classroom practices and learning. However,
professional development requirements are a State responsibility,
consistent with Sec. 300.156 and section 612(a)(14) of the Act, and it
would be inappropriate for the Department to include specific
professional development requirements in these regulations.
Changes: None.
Comment: One commenter stated that if a State prohibits the use of
a discrepancy model, there would not be sufficient time or funds
necessary to effectively train staff. Several commenters asked that
there be a transition period so that personnel can be adequately
trained in RTI or other forms of assessment and observation.
Discussion: It is not necessary for these regulations to require a
transition period for implementing RTI models, particularly because
there are many schools and districts currently implementing RTI models.
Under the requirements in section 614(b)(6) of the Act, which took
effect July 1, 2005, States should have developed mechanisms to permit
LEAs to use RTI models. States may need to make adjustments based on
these final regulations. Nothing in these regulations requires an LEA
to drop current practices in favor of a new model with no transition.
Obviously, a plan would need to be developed when changing to an RTI
model, including strategies for implementation and professional
development.
Changes: None.
Comment: Many commenters stated that the use of RTI models would be
costly, requiring massive staff training and resources. Many commenters
recommended ways in which the Department could support States in
improving identification and interventions for children with SLD.
Commenters' recommendations included the following: long-term,
Statewide pilot studies on assessments and interventions for children
with SLD; methods to increase the use of RTI; guidance on establishing
appropriate timelines for instructional interventions; and information
on new scientifically based approaches to identifying children with
SLD.
Discussion: The Department recognizes the need for technical
assistance and training to implement RTI models and is directing
technical assistance funds under Part D of the Act, administered by the
Department's Office of Special Education Programs (OSEP), toward this
effort. OSEP plans to develop and disseminate an RTI resource kit and
devote additional resources to technical assistance providers to assist
States in implementing RTI models. OSEP will also continue to identify
and develop model RTI implementation sites and evaluate SLD
identification models in math and reading. In addition, the
Comprehensive Center on Instruction, jointly funded by OSEP and the
Office of Elementary and Secondary Education (OESE), will provide
technical assistance to States on RTI implementation.
Changes: None.
Comment: Many commenters supported examining the pattern of
strengths and weaknesses in determining whether a child is considered
to have an SLD. A number of commenters stated that it is important that
groups use a process to determine whether a child responds to
scientific, research-based interventions, as well as consider relevant,
empirically validated patterns of strengths and weaknesses in
achievement, performance, or both, relative to intellectual
development. One commenter stated that ``pattern of strengths and
weaknesses in performance'' in Sec. 300.309(a)(2)(ii) is
insufficiently defined and without a clearer definition of ``pattern,''
schools will continue the wait-to-fail model. One commenter recommended
clarifying the meaning of ``weakness,'' stating that weakness does not
mean failure, and that there may be specific actions that could address
weaknesses in performance that would result in failure if left alone.
Discussion: Patterns of strengths and weaknesses commonly refer to
the examination of profiles across different tests used historically in
the identification of children with SLD. We believe that the meaning of
``pattern of strengths and weaknesses'' is clear and does not need to
be clarified in these regulations.
Changes: None.
Comment: Some commenters stated that using a pattern of strengths
and weaknesses in a child's performance to identify a child with an SLD
could be misinterpreted to identify children, other than children with
disabilities, who are underperforming due to cultural factors,
environmental or economic disadvantage, or low effort.
Discussion: Section 300.309(a)(3) is clear that children should not
be identified with SLD if the underachievement is primarily the result
of a visual, hearing, or motor disability; mental retardation;
emotional disturbance; cultural factors; or environmental or economic
disadvantage. The eligibility group makes the determination after the
evaluation of the child is completed. Therefore, we believe that there
is minimal risk that a child who is underachieving due to these factors
will be identified as having an SLD.
Changes: None.
Comment: Some commenters recommended using ``cognitive ability'' in
place of ``intellectual development'' because ``intellectual
development'' could be narrowly interpreted to mean performance on an
IQ test. One commenter stated that the term ``cognitive ability'' is
preferable because it reflects the fundamental concepts underlying SLD
and can be assessed with a variety of appropriate assessment tools. A
few commenters stated that the reference to identifying a child's
pattern of strengths and weaknesses that are not related to
intellectual development should be removed because a cognitive
assessment is critical and should always be used to make a
determination under the category of SLD.
Discussion: We believe the term ``intellectual development'' is the
appropriate reference in this provision. Section 300.309(a)(2)(ii)
permits the assessment of patterns of strengths and weakness in
performance, including performance on assessments of cognitive ability.
As stated previously, ``intellectual development'' is included as one
of three methods of comparison, along with age and State-approved
grade-level standards. The term ``cognitive'' is not the appropriate
reference to performance because cognitive variation is not a reliable
marker of SLD, and is not related to intervention.
Changes: None.
Comment: One commenter reviewed the list of factors in Sec.
300.309(a)(3) that must be ruled out as primary reasons for a child's
performance and asked whether children with other health impairments
(OHI), traumatic brain injury (TBI), or speech impairments would
overlap with the SLD definition. Several commenters noted that many
children with hearing, visual, or motor disabilities; mental
retardation; or emotional disturbances (ED) also have concomitant
learning disabilities that go unidentified, and that these children end
up with lower academic and functional achievement levels than they
[[Page 46655]]
should because an important contributing factor to their learning
problems has not been addressed. Several commenters recommended adding
language to the regulations stating that a child with a disability
other than an SLD may also be identified with an SLD.
Discussion: Children with one of the disabilities in Sec. 300.8
should be identified as a child with a disability using the category
that is most appropriate for the child. Some children may be identified
under other disability categories, such as OHI, TBI, ED, or speech
impairment, and may also have low achievement and even meet SLD
criteria. Services must meet the child's needs and cannot be determined
by the child's eligibility category. We believe it is unnecessary to
add language regarding SLD as a concomitant disability.
Changes: None.
Comment: One commenter asked what kind of assessment identifies
culture as a primary cause of academic performance deficits and
recommended removing the requirement in Sec. 300.309(a)(3)(iv) unless
there are objective methods to determine whether a child's low
performance is a result of cultural factors.
Discussion: The identification of the effect of cultural factors on
a child's performance is a judgment made by the eligibility group based
on multiple sources of information, including the home environment,
language proficiency, and other contextual factors gathered in the
evaluation. The Department believes that the identification of children
with SLD will improve with models based on systematic assessments of a
child's response to appropriate instruction, the results of which are
one part of the information reviewed during the evaluation process to
determine eligibility for special education and related services.
States and public agencies must follow the evaluation procedures in
Sec. Sec. 300.304 and 300.305 and section 614(b) of the Act, including
using assessments and other evaluation materials that do not
discriminate on a racial or cultural basis, consistent with Sec.
300.304(c)(1)(i) and section 614(b)(3)(A)(i) of the Act.
Changes: None.
Comment: Many commenters recommended that limited English
proficiency be among the factors that the eligibility group must rule
out as a primary factor affecting a child's performance.
Discussion: Section 300.306(b)(1)(iii), consistent with section
614(b)(5)(C) of the Act, is clear that a child must not be identified
as a child with a disability if the determinant factor for that
determination is limited English proficiency. However, we agree that it
is important to re-emphasize this requirement in Sec. 300.309 and will
add this to the list of factors that the eligibility group must rule
out as a primary factor affecting a child's performance.
Changes: We have added a new paragraph (vi) to Sec. 300.309(a)(3)
to include ``limited English proficiency'' in the list of factors that
must be ruled out as a primary factor affecting a child's performance
before determining that a child is eligible for special education
services under the category of SLD.
Comment: Numerous commenters supported the requirement in Sec.
300.309(b)(1) for data demonstrating that a child suspected of having
an SLD has been provided with high-quality, research-based instruction
in regular education settings delivered by qualified personnel. Several
commenters stated that this requirement should apply to all children
and asked why this requirement is confined to only children suspected
of having SLD. One commenter stated that if schools would use proven
best practices, there would be fewer children in need of special
education in the later grades. However, one commenter stated that it is
incorrect to assume that any child who is not responding to
interventions must have an SLD when there are a myriad of reasons why
children may not be responding to instruction. One commenter
recommended adding ``to the extent practicable'' to acknowledge that
scientific research-based interventions are not available in many
areas, particularly in mathematics. One commenter recommended
decreasing the emphasis on research-based instruction.
Discussion: Sections 300.306(b)(1)(i) and (ii), consistent with
section 614(b)(5)(A) and (B) of the Act, specifically state that
children should not be identified for special education if the
achievement problem is due to lack of appropriate instruction in
reading or mathematics. This issue is especially relevant to SLD
because lack of appropriate instruction in these areas most commonly
leads to identifying a child as having an SLD. All children should be
provided with appropriate instruction provided by qualified personnel.
This is an important tenet of the Act and the ESEA. Both the Act and
the ESEA focus on doing what works as evidenced by scientific research
and providing children with appropriate instruction delivered by
qualified teachers.
Changes: None.
Comment: We received a number of comments concerning the
requirement for high-quality, research-based instruction provided by
qualified personnel. One commenter stated that it would be difficult
for rural school districts to meet this requirement because of staffing
requirements in the regular education setting. Several commenters
stated that the requirement for high-quality, research-based
instruction exceeds statutory authority and should be removed, because
it provides a basis for challenging any determination under the
category of SLD. One commenter asked for clarification regarding the
legal basis for providing high-quality, research-based instruction if
the child is not determined eligible for special education. Another
commenter stated that attorneys will read Sec. 300.309(b) as providing
a legal entitlement to ESEA, research-based instruction and data-based
documentation for every child considered for eligibility under the
category of SLD, and that when this standard is not met, will bring the
matter to a due process hearing and request compensatory education.
Numerous commenters requested a definition of high-quality,
research-based instruction. One commenter asked who validates that the
research meets the highest quality. Another commenter asked that the
regulations specify how much research a program must undergo before it
is deemed to be research-based. One commenter stated that the
Department must address how States determine whether a child has been
provided with a high-quality, research-based instructional program;
whether appropriate classroom interventions were delivered; and whether
an intervention has been successful. One commenter stated that the
absence of additional clarification would result in great disparity in
States' policies and lead to inappropriate interventions and
procedures. One commenter recommended that there be evidence that the
instruction is effective for the child's age and cultural background.
A few commenters recommended that children who are not progressing
because they have not received research-based instruction by a
qualified teacher should immediately receive intensive, high-quality,
research-based instruction by qualified personnel. One commenter
expressed concern that Sec. 300.309(b) restricts referrals to only
those children who have received high-quality, research-based
instruction from qualified teachers. One commenter stated that a
child's eligibility to receive
[[Page 46656]]
special education services under the category of SLD appears to be
contingent on the LEA's commitment to providing effective regular
education services by qualified staff, and, as such, a child with an
SLD is held hostage by a system that is not working. One commenter
asked whether the eligibility group can make a determination that a
child has an SLD in the absence of a child's response to high-quality
research-based instruction.
Several commenters stated that the lack of research-based
instruction by a qualified teacher should not limit a child's
eligibility for services. Another commenter recommended clarifying that
a child should not be found ineligible under the category of SLD
because the child either did not respond to a scientific, research-
based intervention during a truncated evaluation, or because the child
was not provided an opportunity to respond to such an intervention.
Discussion: Watering down a focus on appropriate instruction for
any children, including children with disabilities or children living
in rural areas would be counter to both the Act and the ESEA. However,
we agree that the requirement for high quality, research-based
instruction exceeds statutory authority. The Act indicates that
children should not be eligible for special education if the low
achievement is due to lack of appropriate instruction in reading or
math. Therefore, we will change the regulations to require that the
eligibility group consider evidence that the child was provided
appropriate instruction and clarify that this means evidence that lack
of appropriate instruction was the source of underachievement.
The eligibility group should not identify a child as eligible for
special education services if the child's low achievement is the result
of lack of appropriate instruction in reading or math. Eligibility is
contingent on the ability of the LEA to provide appropriate
instruction. Determining the basis of low achievement when a child has
been given appropriate instruction is the responsibility of the
eligibility group.
Whether a child has received ``appropriate instruction'' is
appropriately left to State and local officials to determine. Schools
should have current, data-based evidence to indicate whether a child
responds to appropriate instruction before determining that a child is
a child with a disability. Children should not be identified as having
a disability before concluding that their performance deficits are not
the result of a lack of appropriate instruction. Parents of children
with disabilities have due process rights that allow them to file a
complaint on any matter that relates to the identification, evaluation,
and educational placement of their child with a disability, and the
provision of FAPE to their child.
Changes: We have revised the introductory material in Sec.
300.309(b) to emphasize that the purpose of the review is to rule out a
lack of appropriate instruction in reading or math as the reason for a
child's underachievement. We have also revised Sec. 300.309(b)(1) to
refer to appropriate instruction rather than high-quality, research-
based instruction, and removed the cross reference to the ESEA.
Comment: One commenter stated that many reading programs claim to
be research-based, but lack credible evidence of the program's
effectiveness.
Discussion: Programs that claim to be research-based, but which are
not based on sound scientific research, should not be considered
research-based instruction by a State or LEA.
Changes: None.
Comment: One commenter asked what criteria should be used to
determine that the child was provided with appropriate high quality,
research-based instruction, especially when the child has been home
schooled or attends a private school. One commenter asked about
children referred for evaluation from charter schools and expressed
concern that these children would not be eligible under the category of
SLD because they did not have instruction delivered by qualified
personnel.
Discussion: As part of the evaluation, the eligibility group must
consider whether the child received appropriate instruction from
qualified personnel. For children who attend private schools or charter
schools or who are home-schooled, it may be necessary to obtain
information from parents and teachers about the curricula used and the
child's progress with various teaching strategies. The eligibility
group also may need to use information from current classroom-based
assessments or classroom observations. On the basis of the available
information, the eligibility group may identify other information that
is needed to determine whether the child's low achievement is due to a
disability, and not primarily the result of lack of appropriate
instruction. The requirements for special education eligibility or the
expectations for the quality of teachers or instructional programs are
not affected, and do not differ, by the location or venue of a child's
instruction.
Changes: None.
Comment: Many commenters requested a definition of ``qualified
personnel.'' One commenter stated that teachers should be trained to
deliver the program of instruction and simply saying they should be
highly qualified is not sufficient. One commenter recommended removing
the phrase ``qualified personnel'' in Sec. 300.309(b)(1), because it
is likely to be interpreted to mean that instruction must be delivered
by highly qualified teachers, as defined in the ESEA.
Discussion: Section 300.156 and section 614(a)(14) of the Act are
clear that each State is responsible for establishing and maintaining
personnel 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.
Consistent with Sec. 300.18 and section 602(10) of the Act, a public
school teacher, including a special education teacher, who teaches core
academic subjects must meet the highly qualified teacher standards
under the Act. The term that is used in Sec. 300.309(b)(1),
``qualified personnel,'' does not, and should not be interpreted to,
require that private school teachers be ``highly qualified'' to deliver
the instruction discussed in Sec. 300.309(b)(1).
Changes: None.
Comment: One commenter asked whether the regulations require an LEA
to provide high-quality, research-based instruction in the regular
education setting prior to, or as part of, the referral process before
the group can determine whether a child has an SLD. One commenter
recommended that research-based interventions occur prior to a referral
to special education. Several commenters stated that an evaluation to
assess all areas of suspected disability should follow an assessment of
a child's response to instruction.
Discussion: What is important is that the group making the
eligibility decision has the information that it needs to rule out that
the child's underachievement is a result of a lack of appropriate
instruction. That could include evidence that the child was provided
appropriate instruction either before, or as a part of, the referral
process. Evidence of appropriate instruction, including instruction
delivered in an RTI model, is not a substitute for a complete
assessment of all of the areas of suspected need. As discussed earlier
in this section, we have revised Sec. 300.309(b) to make this clear.
Changes: As discussed previously, we have revised Sec. 300.309(b).
[[Page 46657]]
Comment: One commenter recommended that data be maintained on the
number of children identified with SLD.
Discussion: Data are maintained on the number of children
identified with SLD. Section 618 of the Act requires States to report
annually to the Department the number and percentage of children with
disabilities by disability category, in addition to race, ethnicity,
limited English proficiency status, and gender.
Changes: None.
Comment: Many commenters recommended reinforcing the role of
parents in determining whether a child has an SLD by adding language to
Sec. 300.309(b) stating that the child's parents and the group of
qualified professionals must consider whether the child is a child with
a disability.
Discussion: Section 300.306(a)(1), consistent with section
614(b)(4)(A) of the Act, is clear that the parent of the child is
included in eligibility determinations. Section 300.309(a) cross-
references the group in Sec. 300.306, which includes the parent. We
believe this adequately addresses the role of the parent and that no
changes are necessary.
Changes: None.
Comment: One commenter requested a definition of ``data-based
documentation.''
Discussion: Data-based documentation refers to an objective and
systematic process of documenting a child's progress. This type of
assessment is a feature of strong instruction in reading and math and
is consistent with Sec. 300.306(b)(1)(i) and (ii) and section
614(b)(5)(A) and (B) of the Act, that children cannot be identified for
special education if an achievement problem is due to lack of
appropriate instruction in reading or math.
Changes: None.
Comment: Numerous commenters supported requiring data-based
documentation of repeated assessments of achievement at reasonable
intervals to be provided to parents during the time the child is
receiving instruction. One commenter emphasized the importance of
documenting that the interventions used are data based and implemented
with fidelity. One commenter stated that data-based documentation
should be provided to all parents of children with disabilities, not
just children suspected of having SLD. However, several commenters
stated that requiring data-based documentation of repeated assessments
is an additional bureaucratic requirement that is overly prescriptive
and costly, and will require additional paperwork.
Discussion: We believe that one of the most important aspects of
good teaching is the ability to determine when a child is learning and
then to tailor instruction to meet the child's individual needs.
Effective teachers use data to make informed decisions about the
effectiveness of a particular instructional strategy or program. A
critical hallmark of appropriate instruction is that data documenting a
child's progress are systematically collected and analyzed and that
parents are kept informed of the child's progress. Assessments of a
child's progress are not bureaucratic, but an essential component of
good instruction.
Changes: None.
Comment: Several commenters requested definitions for ``repeated
assessments'' and ``reasonable intervals.''
Discussion: Instructional models vary in terms of the frequency and
number of repeated assessments that are required to determine a child's
progress. It would be inappropriate for the Department to stipulate
requirements in Federal regulations that would make it difficult for
districts and States to implement instructional models they determine
appropriate to their specific jurisdictions.
Changes: None.
Comment: One commenter recommended removing the requirement for
data-based documentation of repeated assessments of achievement at
reasonable intervals because it would make it impossible to determine
eligibility if a child is new to a school district and district
personnel do not have a child's records with such information.
Discussion: We do not believe removing the requirement is the
appropriate solution to the commenter's problem. States will need to
adopt criteria for determining how to provide such data for children
new to a district. Children should not be identified as having SLD if
there is no evidence of appropriate instruction.
Changes: None.
Comment: One commenter expressed concern that Sec. 300.309(b)(2),
requiring parents to be informed of their child's repeated failure to
perform well on assessments, could be interpreted to refer to the
assessments under the ESEA and that this would mean that a child must
perform poorly over a period of several school years to be considered
for eligibility under the category of SLD.
Discussion: While the results of a child's performance on
assessments under the ESEA may be included as data documenting a
child's progress, relying exclusively on data from Statewide
assessments under the ESEA would likely not meet the requirement for
repeated assessments at ``reasonable intervals,'' as required by these
regulations. It is possible that a State could develop other
assessments tied to the State approved test that would meet these
requirements.
Changes: None.
Comment: Numerous commenters asked how long an intervention should
continue before determining a child has not made adequate progress and
a referral for an evaluation to determine eligibility for special
education is made. Several commenters recommended that if a child is
not making progress within 45 days, an evaluation should take place.
Other commenters recommended a time limit of 90 days. One commenter
recommended the regulations include a range of active intervention
days, not just a waiting period, within which the IEP Team expects to
notice a change, and recommended between 45-75 school days. One
commenter suggested 6-10 weeks as an appropriate period of time.
A few commenters recommended requiring States to establish
reasonable time limits for decision making. Several commenters
recommended requiring the IEP Team and the parents to agree on an
appropriate period of time.
Several commenters stated that unless a timeline is specified in
the regulations, there would be different standards occurring
throughout the country. A few commenters expressed concern that if time
limits were not clarified, school districts and parents would interpret
the timelines differently, which would result in contentious situations
and litigation. One commenter stated that a parent could sue for
compensatory services if, after requesting an evaluation, the LEA
requires an assessment of how the child responds to high quality
research-based instruction.
Several commenters stated that the lack of a specific timeline
means that an evaluation could be indefinitely delayed and children
denied services. Several commenters recommended adding language to the
regulations to ensure that RTI models could not be used to delay an
evaluation of a child suspected of having a disability, access to
special education and related services, or protections under the Act.
In addition to requesting a definition of an ``appropriate period
of time,'' a few commenters requested a definition of ``adequate
progress'' and recommended adding language to
[[Page 46658]]
require States to define ``adequate progress.'' One commenter stated
that a child's rate of learning needs to be examined carefully. One
commenter offered a definition of a ``developmentally appropriate
rate'' as the time or the number of repetitions required to have at
least 85 percent of children at the same age or grade level acquire and
retain the particular skill or academic levels, as established by
research or by experience with the delivery of that curriculum or
program.
Discussion: Instructional models vary in terms of the length of
time required for the intervention to have the intended effect on a
child's progress. It would not be appropriate for the Department to
establish timelines or the other requirements proposed by the
commenters in Federal regulations, because doing so would make it
difficult for LEAs to implement models specific to their local school
districts. These decisions are best left to State and local
professionals who have knowledge of the instructional methods used in
their schools.
The Department believes that good instruction depends on repeated
assessments of a child's progress. This allows teachers to make
informed decisions about the need to change their instruction to meet
the needs of the child, and also provides parents with information
about their child's progress so that they can support instruction and
learning at home. Parents should be informed if there are concerns
about their child's progress and should be aware of the strategies
being used to improve and monitor their child's progress.
We understand the commenters' requests for more specific details on
timelines and measures of adequate progress. However, as noted above,
these decisions are best left to professionals who have knowledge about
the instructional models and strategies used in their States and
districts.
We also understand the commenters' concerns that the requirements
in Sec. 300.309(b) may result in untimely evaluations or services and
that parents must be fully informed about the school's concerns about
their child's progress and interventions provided by the school.
Therefore, we will combine proposed Sec. 300.309(c) and (d), and
revise the new Sec. 300.309(c) to ensure that the public agency
promptly requests parental consent to evaluate a child suspected of
having an SLD who has not made adequate progress when provided with
appropriate instruction, which could include instruction in an RTI
model, and whenever a child is referred for an evaluation. We will also
add a new Sec. 300.311(a)(7)(ii) to ensure that the parents of a child
suspected of having an SLD who has participated in a process that
evaluates the child's response to scientific, research-based
intervention, are notified about the State's policies regarding
collection of child performance data and the general education services
that will be provided; strategies to increase their child's rate of
learning; and their right to request an evaluation at any time. If
parents request an evaluation and provide consent, the timeframe for
evaluation begins and the information required in Sec. 300.309(b) must
be collected (if it does not already exist) before the end of that
period.
Changes: We have combined proposed Sec. 300.309(c) and (d), and
revised the new paragraph (c) in Sec. 300.309 to require the public
agency to promptly request parental consent to evaluate a child
suspected of having an SLD who has not made adequate progress when
provided appropriate instruction, and whenever a child is referred for
an evaluation. We also have added a new Sec. 300.311(a)(7)(ii) to
require that the eligibility report include evidence that when a child
has participated in an RTI process, the parents were informed of State
policies regarding child performance data that would be collected and
the general education services that would be provided; strategies to
support the child's rate of learning; and a parent's right to request
an evaluation at any time.
Comment: Many commenters recommended clarifying when parental
consent for evaluation should be obtained and when the 60-day timeline
to complete an evaluation begins. Several commenters recommended
ensuring that the 60-day timeline for evaluation applies regardless of
the evaluation model used. One commenter asked how scientific research-
based interventions could be completed within a 60-day evaluation
timeline. One commenter stated that 60 days may not be enough time to
appropriately determine whether a child responds to instruction,
particularly for children who have not had exposure to such
interventions (e.g., children entering the public school system for the
first time). One commenter asked if the intent of the regulations is to
allow a determination that a child has an SLD to take place outside the
timeline for an initial evaluation, and stated that without
clarification of the intersection between an RTI process (that may, by
definition, require additional time beyond that which is permitted for
an evaluation) and the required period of time for an initial
assessment, the regulations would cause confusion and result in
improper evaluations and eligibility determinations.
Several commenters recommended that the regulations address the
need for an extension of the timeline and allow States to set an
alternative timeline without a written agreement. Several commenters
requested adding a provision for an extended timeline, with parental
consent, in exceptional circumstances. Several commenters stated that
the language regarding an extension of timelines is confusing.
Discussion: Section 300.309(c), as revised, clarifies that if a
child has not made adequate progress after an appropriate period of
time, a referral for an evaluation must be made. As required in Sec.
300.301(c), the initial evaluation must be conducted within 60 days of
receiving consent for an evaluation (or if the State establishes a
timeframe within which the evaluation must be completed, within that
timeframe). Models based on RTI typically evaluate the child's response
to instruction prior to the onset of the 60-day period, and generally
do not require as long a time to complete an evaluation because of the
amount of data already collected on the child's achievement, including
observation data. RTI models provide the data the group must consider
on the child's progress when provided with appropriate instruction by
qualified professionals as part of the evaluation.
Section 300.309(b)(1) requires that the eligibility group consider
data on the child's progress when provided with appropriate instruction
by qualified professionals as part of this evaluation. These data,
along with other relevant information, will assist the eligibility
group in determining whether the child's low achievement is
attributable to a lack of appropriate instruction. As required in Sec.
300.306(b)(1)(i) and (ii), consistent with section 614(b)(5)(A) and (B)
of the Act, a child cannot be identified as a child with a disability
if the determinant factor for that determination is lack of appropriate
instruction in reading or math.
Based on their review of the existing data, and input from the
child's parents, the eligibility group must decide, on a case-by-case
basis, depending on the needs of the child and the information
available regarding the child, what additional data, if any, are needed
to determine whether the child is a child with a disability, and the
educational needs of the child. If the eligibility group determines
that additional data are needed and that these data cannot be
[[Page 46659]]
obtained within the 60-day timeframe (or the timeframe established by
the State), new Sec. 300.309(c) (proposed Sec. 300.309(d)) allows the
extension of the timeframe with mutual written agreement of the child's
parent and the eligibility group.
Changes: None.
Comment: One commenter asked how the 60-day timeframe would be
followed if the time extends over school breaks.
Discussion: The 60-day timeframe refers to 60 calendar days and
would include school breaks.
Changes: None.
Comment: Several commenters stated that the regulations appear to
set up a separate process and procedure for the evaluation and
identification of children with SLD, and then impose the timeframe and
procedures that apply to the evaluation of all other disability
categories. One commenter stated that the timeframe for evaluating
children with SLD is less stringent than for other disability
categories and is, therefore, discriminatory.
Discussion: Although there are additional criteria and procedures
for evaluating and identifying children suspected of having SLD, the
group must also comply with the procedures and timelines that apply to
all evaluations, including evaluations for SLD. Evaluation of children
suspected of having SLD must follow the same procedures and timeframes
required in Sec. Sec. 300.301 through 300.306, in addition to those in
Sec. Sec. 300.307 through 300.311.
Changes: None.
Comment: One commenter stated that ``appropriate period of time''
should be replaced with ``reasonable period of time'' because courts
are accustomed to deciding what constitutes a reasonable timeframe in
various evaluation contexts.
Discussion: It is not necessary to change ``appropriate period of
time'' to ``reasonable period of time,'' because the terms here have
similar meanings and are commonly understood to be synonymous.
Changes: None.
Comment: One commenter requested that the regulations clarify who
should refer a child for an evaluation to determine eligibility for
special education services.
Discussion: Under Sec. 300.301(b), and consistent with the
requirements in Sec. 300.300 and section 614(a)(1)(D) of the Act,
either a parent of a child or a public agency may initiate a request
for an evaluation at any time to determine if the child is a child with
a disability. We do not believe that further clarification is
necessary.
Changes: None.
Comment: One commenter stated that a school district should retain
its discretion not to evaluate a child subject to the parent's right to
contest the decision through due process procedures.
Discussion: The commenter's concern is already addressed in Sec.
300.111, which provides that an LEA must identify, locate, and evaluate
children who are in need of special education and related services. If
an LEA refuses to evaluate a child, the LEA must provide prior written
notice, consistent with Sec. 300.503 and section 615(b)(3) of the Act.
The parent can challenge this decision through a due process hearing.
Changes: None.
Observation (Sec. 300.310)
Comment: Many commenters recommended removing the observation
requirements in Sec. 300.310, stating that they are costly and overly
prescriptive and have no statutory basis. One commenter stated that the
requirements for determining eligibility under the category of SLD are
so specific that the observation requirements are unnecessary.
Discussion: The observation requirements for children suspected of
having SLD have been in the regulations since before 1983. Important
information can be obtained about a child through observation in the
classroom, or for a child less than school age, in an environment
appropriate for a child of that age. Objective observations are
essential to assessing a child's performance and should be a part of
routine classroom instruction and are not costly or overly
prescriptive. We believe the observation requirements are an important
matter to regulate clearly. We will, therefore, change Sec. 300.310(a)
through Sec. 300.310(c) to clearly state that the public agency must
ensure appropriate observation and documentation of the child's
academic performance and behavior in the areas of difficulty to
determine whether a child has an SLD.
Changes: We have changed Sec. 300.310(a) through Sec. 300.310(c)
to clearly state the observation requirements in determining whether a
child has an SLD.
Comment: Several commenters supported requiring a member of the
group to be trained in observation. Many commenters requested
clarification regarding what it means to be trained in observation. One
commenter stated that there are no established training protocols or
uniform professional standards for conducting an observation.
Discussion: We agree that the requirement for an individual to be
trained in observation is unclear and should be removed. States are
responsible for determining specific personnel qualification
requirements, and, for the reasons stated under Sec. 300.308, States
and LEAs should determine appropriate group membership.
Changes: We have removed the phrase ``trained in observation'' from
Sec. 300.310(a).
Comment: Several commenters stated that the public agency should
determine the most appropriate individual to conduct the observation.
One commenter recommended specifying a reading specialist to conduct
the observation when the child's learning problems involve reading.
Another commenter stated that the observer should not be limited to a
member of the eligibility group. One commenter stated that it is not
necessary to obtain parental consent for the observation.
Discussion: The person conducting the observation should be a
member of the eligibility group because information from the
observation will be used in making the eligibility determination. If
information is available from an observation conducted as part of
routine classroom instruction that is important for the eligibility
group to consider, the eligibility group should include the person who
conducted that routine classroom. This will eliminate redundant
observations and save time and resources. Parental consent is not
required for observations conducted as part of routine classroom
instruction and monitoring of the child's performance before the child
is referred for an evaluation.
If an observation has not been conducted, or additional observation
data are needed, the decision as to which person should conduct the
observation is best left to members of the eligibility group, based on
the type of information that is needed to make the eligibility
determination and identify the child's needs. Parental consent is
required for observations conducted after the child is suspected of
having a disability and is referred for an evaluation. We will revise
Sec. 300.310 to clarify the different ways in which observation data
may be obtained and to clarify that parental consent is required for
observations conducted after the child is suspected of having a
disability and is referred for an evaluation.
Changes: We have revised Sec. 300.310 to specify in paragraph (a)
that the public agency must ensure that the child is observed in the
child's learning environment. A new Sec. 300.310(b) has
[[Page 46660]]
been added to require the eligibility group to use the information
obtained from the routine classroom observation or conduct a new
observation and to require parental consent for observations conducted
after the child is suspected of having a disability and is referred for
an evaluation. Proposed Sec. 300.310(b) has been redesignated as new
Sec. 300.310(c).
Comment: One commenter requested clarification regarding the
definition of an ``appropriate'' environment in which to conduct the
observation of a child who is less than school age, as well as guidance
in determining what such an environment would be for children who are
out of school.
Discussion: The eligibility group is in the best position to
determine the environment appropriate for a child who is less than
school age or out of school.
Changes: None.
Comment: One commenter requested clear guidance about the working
relationship between the special education teacher and the general
education teacher in conducting an observation.
Discussion: We decline to provide specific guidance on the working
relationship between the special education teacher and the general
education teacher in conducting an observation because this
relationship will necessarily vary depending on how classrooms are
structured and teacher responsibilities assigned. Such decisions are
best made at the local level. Generally, we would expect that the
child's general education teacher would have data from routine
classroom instruction and would work with the other members of the
eligibility group to determine what additional data, if any, are needed
to determine whether a child has an SLD. A special education teacher
who is experienced in working with children with SLD, for example,
might have suggestions on ways to structure a particular observation
session to obtain any additional information that is needed, and may be
able to assist the general education teacher in gathering the data.
Changes: None.
Comment: One commenter recommended requiring an observation for any
child suspected of having a disability, not just those suspected of
having an SLD.
Discussion: Observation data will generally be a part of the
existing data reviewed for any child suspected of having a disability.
Section 300.305(a)(1) requires the eligibility group for any child
suspected of having a disability to review existing evaluation data,
including classroom-based observations and observations by teachers and
related services providers. We do not believe that requiring an
observation of children suspected of other disabilities is necessary,
however, as identification of those other disabilities is not always as
dependent on classroom performance and behavior as is identification of
children with SLD.
Changes: None.
Specific Documentation for the Eligibility Determination (Proposed
Written Report) (Sec. 300.311)
Comment: Several commenters supported the requirements for the
written report, stating that they provide a useful framework for
practitioners. However, several commenters stated that the requirements
for the written report should be removed because they go beyond the
requirements of the Act and impose additional procedural and paperwork
burdens for school personnel. Several commenters stated that the report
is much more detailed than the evaluation and eligibility report for
children with other disabilities, and stated that this could discourage
schools from evaluating children suspected of having SLD.
Discussion: Section 614(b)(4)(B) of the Act requires the public
agency to provide a copy of the evaluation report and the documentation
of determination of eligibility to the parents for all children
evaluated under the Act. Section 300.311 specifies the content for the
evaluation report for children suspected of having SLD. States and LEAs
have more discretion over the specific content of an evaluation report
for children suspected of having a disability under the other
disability categories. Therefore, whether the SLD evaluation report is
more detailed or burdensome than other evaluation reports would depend
on State and local requirements. We believe that the elements of the
report specified in Sec. 300.311 provide important checks to prevent
misidentification and ensure that children who actually have SLD are
identified.
Changes: None.
Comment: Several commenters recommended that the written report
include statements regarding the existence of a psychological
processing disorder and the basis for making the determination; whether
the child achieved commensurate with the child's age and ability;
whether the child achieved commensurate with the child's age and
intellectual development; whether the child achieved commensurate with
the child's peers; and whether there are strengths and weaknesses in
performance or cognitive abilities in one or more of the areas in Sec.
300.309(a) that require special education and related services.
Discussion: We decline to change the content of the written report
in the manner recommended by the commenters because the statements that
commenters recommended be included in the written report are
inconsistent with the eligibility requirements for children with SLD in
Sec. 300.309.
Changes: None.
Comment: One commenter recommended including an assurance that the
eligibility determination was made in accordance with Sec.
300.306(c)(1), regarding procedures for determining eligibility and
placement, and Sec. 300.8(c)(10), regarding the definition of specific
learning disability.
Discussion: Section 300.311(b) requires each member of the
eligibility group to certify in writing whether the report reflects the
particular member's conclusion about whether the child has an SLD, and
if it does not reflect his or her conclusion, submit a separate
statement presenting his or her conclusions. There is no need for any
additional assurances.
Changes: None.
Comment: One commenter stated that including ``evaluation report''
in the description of the written report is confusing because it is
unclear whether the evaluation report is something additional to the
written report.
Discussion: The information required in the written report in Sec.
300.311 is a part of the documentation of eligibility required in Sec.
300.306(a)(2). Section 300.306(b) and (c) lists the requirements for
eligibility determinations for all children suspected of having a
disability, including children suspected of having SLD. Section 300.311
provides specific elements that must be addressed in the report for
children suspected of having SLD. Two separate reports are not
necessary as long as the information in Sec. 300.311 is included in
the documentation of the eligibility determination in Sec.
300.306(a)(2). We agree that this should be clarified. Therefore, we
will change the heading for Sec. 300.311 from ``Written report'' to
``Specific documentation for the eligibility determination'' and will
modify the language in Sec. 300.311(a) accordingly.
Changes: We have changed the heading for Sec. 300.311 and modified
Sec. 300.311(a) to clarify that the requirements in Sec. 300.311 are
in addition to the requirements for the documentation of the
eligibility
[[Page 46661]]
determination required in Sec. 300.306(a)(2).
Comment: Several commenters requested that the written report
include the determination of the group concerning the effects of
cultural factors, limited English proficiency, and environmental or
economic disadvantage to be consistent with all the elements in Sec.
300.309(a)(3).
Discussion: We agree that it is important to emphasize the
importance of considering such factors in determining eligibility under
SLD and will add these factors in Sec. 300.311(a).
Changes: We have added a new paragraph (6) to Sec. 300.311(a) to
require the written report to include a statement on the effects of
cultural factors, limited English proficiency, environmental, or
economic disadvantage.
Comment: Several commenters requested clarification of what happens
if a group member disagrees with the report and agreement is never
reached. Other commenters asked whether services are delayed pending a
group consensus; whether the submission of a separate statement is
synonymous with a veto for eligibility; whether it matters which group
member submits a separate report; and whether each group member has
equal standing.
Discussion: The eligibility group should work toward consensus, but
under Sec. 300.306, the public agency has the ultimate responsibility
to determine whether the child is a child with a disability. Parents
and school personnel are encouraged to work together in making the
eligibility determination. If the parent disagrees with the public
agency's determination, under Sec. 300.503, the public agency must
provide the parent with prior written notice and the parent's right to
seek resolution of any disagreement through an impartial due process
hearing, consistent with the requirements in Sec. 300.503 and section
615(b)(3) of the Act.
Every effort should be made to resolve differences between parents
and school staff through voluntary mediation or some other informal
dispute resolution process. However, as stated in Sec.
300.506(b)(1)(ii) and section 615(e)(2)(A)(ii) of the Act, mediation or
other informal procedures may not be used to deny or delay a parent's
right to a due process hearing, or to deny any other rights afforded
under Part B of the Act.
Changes: None.
Individualized Education Programs
Definition of Individualized Education Program (Sec. 300.320)
General (Sec. 300.320(a))
We received numerous comments requesting that we require the IEP to
include additional content that is not in the Act. Under section
614(d)(1)(A)(ii)(I) of the Act, the Department cannot interpret section
614 of the Act to require public agencies to include additional
information in a child's IEP that is not explicitly required under the
Act. Therefore, we generally have not included these comments in our
analysis and discussion of Sec. 300.320.
Comment: One commenter requested that Sec. 300.320 refer to a
``student with a disability'' instead of a ``child with a disability.''
Discussion: The words ``child'' and ``student'' are used
interchangeably throughout the Act. The regulations follow the
statutory language whenever possible. In Sec. 300.320, we used the
term ``child with a disability,'' consistent with section 614(d) of the
Act.
Changes: None.
Comment: Many commenters recommended that the regulations include a
definition of ``functional'' as it is used, for example, in
``functional performance'' in Sec. 300.320(a)(1) and ``functional
goals'' in Sec. 300.320(a)(2). Some commenters suggested defining
``functional'' as the acquisition of essential and critical skills
needed for children with disabilities to learn specific daily living,
personal, social, and employment skills, or the skills needed to
increase performance and independence at work, in school, in the home,
in the community, for leisure time, and for postsecondary and other
life long learning opportunities. One commenter recommended that the
regulations include examples of functional skills and how functional
skills should be measured.
Discussion: It is not necessary to include a definition of
``functional'' in these regulations because we believe it is a term
that is generally understood to refer to skills or activities that are
not considered academic or related to a child's academic achievement.
Instead, ``functional'' is often used in the context of routine
activities of everyday living. We do not believe it is necessary to
include examples of functional skills in the regulations because the
range of functional skills is as varied as the individual needs of
children with disabilities. We also decline to include examples of how
functional skills are measured because this is a decision that is best
left to public agencies, based on the needs of their children. However,
it should be noted that the evaluation procedures used to measure a
child's functional skills must meet the same standards as all other
evaluation procedures, consistent with Sec. 300.304(c)(1).
Changes: None.
Comment: One commenter recommended revising Sec. 300.320(a) to
state that ``an IEP includes'' rather than ``an IEP must include'' in
order to reflect the specific language in section 614(d) of the Act.
The commenter stated that use of the word ``must'' limits the contents
of an IEP to the items listed in Sec. 300.320(a).
Discussion: The word ``must'' is used in Sec. 300.320(a) to
clarify that an IEP is required to include the items listed in Sec.
300.320(a). We believe it is important to retain this language in Sec.
300.320(a). Under section 614(d)(1)(A)(ii)(I) of the Act, section 614
of the Act cannot be interpreted to require content in the IEP beyond
that which is specified in the Act.
Changes: None.
Comment: One commenter requested clarifying the meaning of
``appropriate'' as used, for example, in Sec. 300.320(a)(1)(ii) to
refer to a child's participation in ``appropriate'' activities.
Discussion: The word ``appropriate'' in these regulations does not
have a different meaning from its common usage. Generally, the word
``appropriate'' is used to mean ``suitable'' or ``fitting'' for a
particular person, condition, occasion, or place.
Changes: None.
Comment: Some commenters recommended requiring the IEP to include a
statement of the relevant social and cultural background of a child and
how those factors affect the appropriate participation, performance,
and placement of the child in special education.
Discussion: Section 614(d)(1)(A)(ii)(I) of the Act precludes the
Department from interpreting section 614 of the Act to require public
agencies to include information in a child's IEP other than what is
explicitly required in the Act. Therefore, we cannot require the IEP to
include the statement requested by the commenters. However, a child's
social or cultural background is one of many factors that a public
agency must consider in interpreting evaluation data to determine if a
child is a child with a disability under Sec. 300.8 and the
educational needs of the child, consistent with Sec. 300.306(c)(1)(i).
Changes: None.
Comment: One commenter stated that adapted physical education
should be part of a child's IEP. Another
[[Page 46662]]
commenter recommended that travel training be required in the IEP.
Discussion: The definition of special education in new Sec. 300.39
(proposed Sec. 300.38) includes adapted physical education and travel
training. We do not believe adapted physical education and travel
training should be mandated as part of an IEP because, as with all
special education and related services, each child's IEP Team
determines the special education and related services that are needed
to meet each child's unique needs in order for the child to receive
FAPE. In addition, section 614(d)(1)(A)(ii)(I) of the Act prohibits the
Department from interpreting section 614 of the Act to require public
agencies to include information in a child's IEP that is not explicitly
required under the Act.
Changes: None.
Comment: One commenter recommended that IEPs include the array of
new tools used with nondisabled children, so that children with
disabilities have access to the materials they need to progress in the
general education curriculum.
Discussion: There is nothing in the Act that requires new tools or
the same tools and materials used by nondisabled children to be used
with children with disabilities or be specified in children's IEPs.
Therefore, we cannot make the requested change because section
614(d)(1)(A)(ii)(I) of the Act prohibits the Department from
interpreting section 614 of the Act to require public agencies to
include information in a child's IEP that is not explicitly required
under the Act. Each child's IEP Team determines the special education
and related services, as well as supplementary aids, services, and
supports that are needed to meet the child's needs in order to provide
FAPE consistent with Sec. 300.320(a)(4) and section
614(d)(1)(A)(i)(IV) of the Act.
Changes: None.
Present Levels of Academic Achievement and Functional Performance
(Sec. 300.320(a)(1))
Comment: A few commenters stated that Sec. 300.320(a)(1) requires
an IEP to include a statement of the child's present levels of academic
achievement, and recommended that the regulations define ``academic
achievement.''
Discussion: ``Academic achievement'' generally refers to a child's
performance in academic areas (e.g., reading or language arts, math,
science, and history). We believe the definition could vary depending
on a child's circumstance or situation, and therefore, we do not
believe a definition of ``academic achievement'' should be included in
these regulations.
Changes: None.
Comment: Some commenters recommended that the regulations clarify
that not every child requires a functional performance statement or
functional annual goals. Some commenters stated that requiring
functional assessments for all children places an unnecessary burden on
an LEA, does not add value for every child, and creates a potential for
increased litigation. One commenter recommended that Sec.
300.320(a)(1), regarding the child's present levels of performance, and
Sec. 300.320(a)(2), regarding measurable annual goals, clarify that
functional performance and functional goals should be included in a
child's IEP only if determined appropriate by the child's IEP Team.
Discussion: We cannot make the changes requested by the commenters.
Section 614(d)(1)(A)(i)(I) of the Act requires an IEP to include a
statement of the child's present levels of academic achievement and
functional performance.
Changes: None.
Comment: One commenter requested that the regulations require a
child's present levels of performance to be aligned with the child's
annual goals. Another commenter stated that the content of the IEP
should be aligned with the State's core curriculum content standards
and the knowledge and skills needed for children with disabilities to
become independent, productive, and contributing members of their
communities and the larger society.
Discussion: The IEP Team's determination of how the child's
disability affects the child's involvement and progress in the general
education curriculum is a primary consideration in the development of
the child's annual IEP goals. Section 300.320(a)(1)(i), consistent with
section 614(d)(1)(A)(i)(I)(aa) of the Act, requires the statement of a
child's present levels of performance in the IEP to include how the
child's disability affects the child's involvement and progress in the
general education curriculum. This directly corresponds with the
provision in Sec. 300.320(a)(2)(i)(A) and section
614(d)(1)(A)(i)(II)(aa) of the Act, which requires the IEP to include
measurable annual goals designed to 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. We do not believe
further clarification is needed regarding the alignment of a child's
present levels of performance with the child's annual goals.
With regard to the alignment of the IEP with the State's content
standards, Sec. 300.320(a)(1)(i) clarifies that the general education
curriculum means the same curriculum as all other children. Therefore,
an IEP that focuses on ensuring that the child is involved in the
general education curriculum will necessarily be aligned with the
State's content standards. Congress acknowledged, in section
601(c)(5)(A) of the Act, that ensuring access to the general education
curriculum in the regular classroom, to the maximum extent possible, is
also effective in preparing children with disabilities to lead
productive and independent adult lives. We do not believe further
clarification is necessary to address the commenters' concerns.
Changes: None.
Measurable Annual Goals (Sec. 300.320(a)(2))
Comment: One commenter requested clarification as to whether IEP
goals must be specific to a particular discipline (e.g., physical
therapy goals, occupational therapy goals). One commenter recommended
that goals be explicitly defined and objectively measured. Another
commenter recommended requiring IEP goals to have specific outcomes and
measures on an identified assessment tool. One commenter recommended
clarifying that an IEP Team is permitted, under certain circumstances,
to write goals that are intended to be achieved in less than one year.
Discussion: Section 300.320(a)(2)(i), consistent with section
614(d)(1)(A)(i)(II) of the Act, requires the IEP to include measurable
annual goals. Further, Sec. 300.320(a)(3)(i), consistent with section
614(d)(1)(A)(i)(III) of the Act, requires the IEP to include a
statement of how the child's progress toward meeting the annual goals
will be measured. The Act does not require goals to be written for each
specific discipline or to have outcomes and measures on a specific
assessment tool. Furthermore, to the extent that the commenters are
requesting that we mandate that IEPs include specific content not in
section 614(d)(1)(A)(i) of the Act, under section 614(d)(1)(A)(ii)(I),
we cannot interpret section 614 to require that additional content.
IEPs may include more than the minimum content, if the IEP Team
determines the additional content is appropriate.
Changes: None.
Comment: Some commenters recommended requiring related services in
every child's IEP. The commenters stated that related services are
necessary
[[Page 46663]]
to enhance the overall health and well-being of the child to prevent
secondary conditions; ensure that the child progresses towards
independent functioning and community integration; increase the child's
ability to function and learn in his or her educational environment;
develop social interaction skills to enhance a child's ability to
communicate, build relationships, and reinforce other positive behavior
skills; and further advance the child's ability to complete his or her
own educational requirements and goals.
Discussion: To require related services for every child with a
disability would be inconsistent with the concept of individualization
that has been part of the Act since its inception in 1975. Related
services are only required to the extent that such services are
necessary to enable the child to benefit from special education.
Related services, as with any other service in an IEP, are determined
on an individual basis by the child's IEP Team.
Changes: None.
Comment: Many commenters opposed the removal of benchmarks and
short-term objectives as required components of the IEP and recommended
that States and LEAs be permitted to require benchmarks and short-term
objectives for all children with disabilities. Many commenters
recommended that the regulations allow the IEP Team to determine
whether to include short-term objectives in a child's IEP to measure
progress in functional areas that are not measurable through other
means.
Discussion: Benchmarks and short-term objectives were specifically
removed from section 614(d)(1)(A)(i)(II) of the Act. However, because
benchmarks and short-term objectives were originally intended to assist
parents in monitoring their child's progress toward meeting the child's
annual goals, we believe a State could, if it chose to do so, determine
the extent to which short-term objectives and benchmarks would be used.
However, consistent with Sec. 300.199(a)(2) and sections 608(a)(2) and
614(d)(1)(A)(ii)(I) of the Act, a State that chooses to require
benchmarks or short-term objectives in IEPs in that State would have to
identify in writing to the LEAs located in the State and to the
Secretary that such rule, regulation, or policy is a State-imposed
requirement, which is not required by Part B of the Act or the Federal
regulations.
Changes: None.
Comment: A few commenters supported the requirement in Sec.
300.320(a)(2)(ii) for benchmarks or short-term objectives to be
developed for children who take alternate assessments aligned to
alternate achievement standards. However, a few commenters stated that
limiting short-term objectives to children who take alternate
assessments is not acceptable because the one percent limit on the
percentage of children who may take alternate assessments is arbitrary.
Discussion: The requirement to develop short-term objectives or
benchmarks covers all children with disabilities who are assessed using
alternate assessments aligned to alternate achievement standards,
consistent with section 614(d)(1)(A)(i)(I)(cc) of the Act. The one
percent cap referred to by the commenter is not a limit on the number
of children who may take an alternate assessment based on alternate
achievement standards. Rather, it is a limit on the number of
proficient and advanced scores that may be included in calculating
adequate yearly progress (AYP) under the ESEA, consistent with 34 CFR
Sec. 200.13(c)(1)(ii). As noted previously, the requirement to include
benchmarks or short-term objectives for all children with disabilities
was specifically removed from section 614(d)(1)(A)(i)(II) of the Act.
Changes: None.
Comment: One commenter stated that the IEP should not include
benchmarks for alternate achievement standards because this would be
teaching to the test and would lower expectations for children.
Discussion: Section 300.320(a)(2)(ii) requires benchmarks or short-
term objectives only for children with disabilities who take alternate
assessments aligned to alternate achievement standards. By ``teaching
to the test,'' we assume that the commenter believes that a benchmark
or short-term objective must be written for each alternate achievement
standard. There is no such requirement in the Act or these regulations.
Changes: None.
Comment: One commenter requested clarification on how schools
should determine which children in kindergarten through grade two must
have short-term objectives or benchmarks in their IEPs. Another
commenter requested clarification on how the requirements for
benchmarks or short-term objectives apply to preschoolers.
Discussion: Section 300.320(a)(2)(ii), consistent with section
614(d)(1)(A)(i)(I)(cc) of the Act, requires an IEP to include
benchmarks or short-term objectives for children with disabilities who
take an alternate assessment aligned to alternate achievement
standards. This would apply to preschool children and children with
disabilities in kindergarten through grade two only if these children
are assessed in a State or districtwide assessment program and the
State has opted to develop an alternate assessment based on alternate
achievement standards. Under title I of the ESEA, States are only
required to assess children in grades 3 through 8 and once in high
school, so it is unlikely that even States that choose to develop
alternate achievement standards will include this age population in a
Statewide assessment program or develop an alternate achievement
standard for these children.
Changes: None.
Comment: One commenter recommended that the regulations require IEP
Team members, including the parents, to be involved in developing
short-term objectives.
Discussion: Sections 300.320 through 300.324 and section 614(d) of
the Act are clear that the IEP Team, which includes the parent, is
responsible for developing benchmarks or short-term objectives for
children who take alternate assessments aligned to alternate
achievement standards.
Changes: None.
Comment: One commenter recommended clarifying that goals and
objectives must be aligned with the State's alternate assessment.
Discussion: Section 612(a)(16)(C)(ii) of the Act requires alternate
assessments to be aligned with the State's challenging academic content
standards and academic achievement standards, and if the State has
adopted alternate academic achievement standards permitted under 34 CFR
Sec. 200.1(d), to measure the achievement of children with
disabilities against those standards. Section 614(d)(1)(A)(i)(II) of
the Act requires the IEP to include a statement of measurable annual
goals, including academic and functional goals, designed to 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. However, there is nothing in the Act that requires a
child's IEP goals to be aligned with the State's alternate assessment
based on alternate achievement standards. Additionally, for some
children, goals may be needed for activities that are not closely
related to a State's academic content and academic achievement
standards.
Changes: None.
Comment: A few commenters stated that the regulations should be
more specific about what must be included in an IEP goal if benchmarks
or short-term
[[Page 46664]]
objectives are not required in every child's IEP.
Discussion: The regulations are clear on the requirements for IEP
goals. Section 300.320(a)(2)(i), consistent with section
614(d)(1)(A)(i)(II) of the Act, requires that annual IEP goals be
measurable and designed to 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 to meet each of the
child's other educational needs that result from the child's
disability. We believe that these requirements will ensure that
progress toward achieving a child's annual goals can be objectively
monitored and measured. We do not believe that additional specificity
is needed.
Changes: None.
Comment: One commenter suggested requiring SEAs to ensure that LEAs
receive professional development in writing measurable goals and
effective methods of measuring progress toward achieving those goals.
Discussion: We do not believe that the requested requirement should
be included in the regulations. State and local officials are in the
best position to determine the training and professional development
needs of their personnel.
Changes: None.
Comment: One commenter recommended retaining current Sec. 300.350,
regarding the responsibilities of the public agency to provide special
education and related services to a child with a disability in
accordance with the child's IEP and to make a good-faith effort to
assist the child to achieve the goals and objectives or benchmarks in
the IEP.
Discussion: The requirement in current Sec. 300.350(a)(1),
regarding a public agency's responsibility to provide special education
and related services to a child with a disability in accordance with
the child's IEP, is unnecessary, because entitlement to FAPE under the
Act includes the provision of special education and related services in
accordance with an IEP. Paragraphs (a)(2) and (b) in current Sec.
300.350, regarding accountability for a child achieving his or her
goals, are unnecessary because 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. Current
Sec. 300.350(c), regarding the rights of parents to invoke due process
procedures if a parent feels that efforts are not being made to achieve
the IEP goals, is unnecessary because it merely provides explanatory
information regarding the due process procedures for parents and
children that are available in Sec. Sec. 300.500 through 520.
Changes: None.
Periodic Progress Reports (Sec. 300.320(a)(3)(ii))
Comment: A few commenters supported the language in Sec.
300.320(a)(3)(ii), which requires the IEP to include a description of
when periodic reports on the child's progress toward meeting the annual
goals will be provided. However, many commenters recommended retaining
current Sec. 300.347(a)(7), which requires parents of a child with a
disability to be informed about their child's progress at least as
often as parents of nondisabled children and for the report to include
information on the extent to which the child's progress is sufficient
to enable the child to achieve the goals by the end of the year.
One commenter recommended requiring progress reports to be provided
with enough time to allow changes in the IEP if the goals will not be
met by the end of the year. A few commenters recommended requiring the
reports to explain, in reasonable detail and with specific progress
measures, the extent to which the child is making progress on each of
the annual goals in the child's IEP. Another commenter recommended
requiring LEAs to report progress in measurable terms. The commenter
stated that many LEAs convert a measurable objective or goal into
subjective and vague language, such as ``adequate progress,'' which
does not provide objective measurements of achievement. Another
commenter recommended requiring progress reports to be specifically
linked to the measurable outcomes of a child's annual goals.
Numerous commenters requested that progress reports be provided
with school report cards. However, one commenter stated that not all
school districts have quarterly report cards, and, therefore, the
regulations should require progress reports to be issued at the same
time as other report cards in the district.
Discussion: Section 300.320(a)(3)(ii) follows the language in
section 614(d)(1)(A)(i)(III) of the Act and requires the IEP to include
a description of when periodic reports on the child's progress toward
meeting the annual goals will be provided. The Act does not require
report cards or quarterly report cards. Report cards and quarterly
report cards are used as examples in Sec. 300.320(a)(3)(ii) of when
periodic reports on the child's progress toward meeting the annual
goals might be provided. The specific times that progress reports are
provided to parents and the specific manner and format in which a
child's progress toward meeting the annual goals is reported is best
left to State and local officials to determine. In addition, under
section 614(d)(1)(A)(ii)(I) of the Act we cannot interpret section 614
of the Act to require additional information in a child's IEP that is
not specifically required by the Act.
Changes: None.
Statement of Special Education and Related Services (Sec.
300.320(a)(4))
Comment: One commenter recommended requiring the regular education
teacher to offer modifications for every assignment given to a child
with a disability.
Discussion: It would be inconsistent with the Act to implement the
commenter's recommendation. Consistent with Sec. 300.320(a)(4) and
section 614(d)(1)(A)(i)(IV) of the Act, the child's IEP Team determines
the special education and related services, and supplementary aids,
services, and other supports that are needed for the child to advance
appropriately toward meeting the child's annual goals.
Changes: None.
Comment: A significant number of commenters recommended the
regulations include a definition of ``peer-reviewed research,'' as used
in Sec. 300.320(a)(4). One commenter recommended that the definition
of peer-reviewed research be consistent with the work of the National
Research Council.
Discussion: ``Peer-reviewed research'' generally refers to research
that is reviewed by qualified and independent reviewers to ensure that
the quality of the information meets the standards of the field before
the research is published. However, there is no single definition of
``peer reviewed research'' because the review process varies depending
on the type of information to be reviewed. We believe it is beyond the
scope of these regulations to include a specific definition of ``peer-
reviewed research'' and the various processes used for peer reviews.
Changes: None.
Comment: Some commenters recommended revising Sec. 300.320(a)(4)
to require special education and related services, and supplementary
aids and services, to be based on ``evidenced-based practices'' rather
than ``peer-reviewed research.'' A few commenters recommended revising
Sec. 300.320(a)(4) to require special education and related services,
and supplementary aids and services to be based on peer-reviewed
research, evidenced-based practices,
[[Page 46665]]
and emerging best practices. Many commenters recommended clarifying the
meaning and intent of the phrase ``to the extent practicable.'' One
commenter recommended requiring all IEP Team meetings to include a
focused discussion on research-based methods and to provide parents
with prior written notice when the IEP Team refuses to provide
documentation of research-based methods.
Discussion: Section 300.320(a)(4) incorporates the language in
section 614(d)(1)(A)(i)(IV) of the Act, which requires that special
education and related services and supplementary aids and services be
based on peer-reviewed research to the extent practicable. The Act does
not refer to ``evidenced-based practices'' or ``emerging best
practices,'' which are generally terms of art that may or may not be
based on peer-reviewed research. Therefore, we decline to change Sec.
300.320(a)(4) in the manner suggested by the commenters. The phrase
``to the extent practicable,'' as used in this context, generally means
that services and supports should be based on peer-reviewed research to
the extent that it is possible, given the availability of peer-reviewed
research. We do not believe further clarification is necessary.
We decline to require all IEP Team meetings to include a focused
discussion on research-based methods or require public agencies to
provide prior written notice when an IEP Team refuses to provide
documentation of research-based methods, as we believe such
requirements are unnecessary and would be overly burdensome.
Changes: None.
Comment: One commenter recommended clear guidance on the
responsibilities of States, school districts, and school personnel to
provide special education and related services, and supplementary aids
and services that are based on peer-reviewed research. One commenter
requested clarification that the requirement for special education and
related services, and supplementary aids and services to be based on
peer-reviewed research does not mean that the service with the greatest
body of research is the service necessarily required for FAPE. Another
commenter requested that the regulations clarify that the failure of a
public agency to provide special education and related services, and
supplementary aids and services based on peer-reviewed research, does
not result in a denial of FAPE, and that the burden of proof is on the
moving party when the denial of FAPE is at issue.
Discussion: Section 612(d)(1)(A)(i)(IV) of the Act requires special
education and related services, and supplementary aids and services, to
be based on peer-reviewed research to the extent practicable. States,
school districts, and school personnel must, therefore, select and use
methods that research has shown to be effective, to the extent that
methods based on peer-reviewed research are available. This does not
mean that the service with the greatest body of research is the service
necessarily required for a child to receive FAPE. Likewise, there is
nothing in the Act to suggest that the failure of a public agency to
provide services based on peer-reviewed research would automatically
result in a denial of FAPE. The final decision about the special
education and related services, and supplementary aids and services
that are to be provided to a child must be made by the child's IEP Team
based on the child's individual needs.
With regard to the comment regarding the burden of proof when the
denial of FAPE is at issue, we have addressed this issue in the
Analysis of Comments and Changes section for subpart E.
Changes: None.
Comment: Several commenters recommended including a construction
clause in the regulations to clarify that no child should be denied
special education and related services, or supplementary aids and
services, based on a lack of available peer-reviewed research on a
particular service to be provided.
Discussion: We do not believe that the recommended construction
clause is necessary. Special education and related services, and
supplementary aids and services based on peer-reviewed research are
only required ``to the extent practicable.'' If no such research
exists, the service may still be provided, if the IEP Team determines
that such services are appropriate. A child with a disability is
entitled to the services that are in his or her IEP whether or not they
are based on peer-reviewed research. The IEP Team, which includes the
child's parent, determines the special education and related services,
and supplementary aids and services that are needed by the child to
receive FAPE.
Changes: None.
Comment: A few commenters recommended that the regulations clarify
that the reference to ``peer-reviewed research'' does not require an
IEP to include instructional methodologies. However, a few commenters
recommended that the regulations require all elements of a program
provided to a child, including program methodology, to be specified in
the child's IEP.
Discussion: There is nothing in the Act that requires an IEP to
include specific instructional methodologies. Therefore, consistent
with section 614(d)(1)(A)(ii)(I) of the Act, we cannot interpret
section 614 of the Act to require that all elements of a program
provided to a child be included in an IEP. The Department's
longstanding position on including instructional methodologies in a
child's IEP is that it is an IEP Team's decision. Therefore, if an IEP
Team determines that specific instructional methods are necessary for
the child to receive FAPE, the instructional methods may be addressed
in the IEP.
Changes: None.
Comment: A few commenters requested that the regulations require
programs provided to a child with a disability to be research-based
with demonstrated effectiveness in addressing the particular needs of a
child.
Discussion: While the Act clearly places an emphasis on practices
that are based on scientific research, there is nothing in the Act that
requires all programs provided to children with disabilities to be
research-based with demonstrated effectiveness in addressing the
particular needs of a child where not practicable. We do not believe
the recommended change should be made because, ultimately, it is the
child's IEP Team that determines the special education and related
services that are needed by the child in order for the child to receive
FAPE.
Changes: None.
Comment: A few commenters recommended that Sec. 300.320(a)(4)
specifically refer to assistive technology devices as supplementary
aids that must be provided to the child.
Discussion: It is not necessary to refer to assistive technology
devices in Sec. 300.320(a)(4). Section 300.324(a)(2)(v), consistent
with section 614(d)(3)(B)(v) of the Act, already requires the IEP Team
to consider whether the child needs assistive technology devices and
services.
Changes: None.
Participation With Nondisabled Children (Sec. 300.320(a)(5))
Comment: Many commenters recommended that Sec. 300.320(a)(5),
regarding the participation of children with disabilities with
nondisabled children, follow the language in section 614(d)(1)(A)(i)(V)
of the Act and use the term ``regular class'' instead of ``regular
educational environment.'' One commenter stated that parents, school
staff, and the community consider the ``regular class'' to be the place
where a
[[Page 46666]]
child's nondisabled peers go to school, while ``regular educational
environment'' is interpreted to be anywhere in the school, such as down
the hallway, in a separate wing of the school, or across the lunch
room. One commenter stated that the term ``regular education
environment'' could be interpreted to mean only special classes such as
art, music, and gym. A few commenters recommended defining ``regular
education environment'' to mean the participation of children with
disabilities with their nondisabled peers in the regular classroom and
other educational settings, including nonacademic settings.
Discussion: We agree that use of the term ``regular educational
environment'' may be misinterpreted. Therefore, we will revise Sec.
300.320(a)(5) to require the IEP to include an explanation of the
extent, if any, to which the child will not participate with
nondisabled children in the regular class.
Changes: We have changed Sec. 300.320(a)(5) to refer to the
``regular class'' instead of the ``regular education environment.''
Comment: One commenter recommended adding language to Sec.
300.320(a)(5) for preschool children with disabilities and stated that
``regular education environment'' should be replaced with ``settings
with typically developing peers.''
Discussion: Section 300.320(a)(5) follows the language in section
614(d)(1)(A)(i)(V) of the Act and applies to all children with
disabilities covered by Part B of the Act, which includes preschool
children under section 619 of the Act. We do not believe it is
necessary to change the regulations in the manner suggested by the
commenter because the ``regular class'' includes a preschool setting
with typically developing peers.
Changes: None.
Statewide and Districtwide Assessments (Sec. 300.320(a)(6))
Comment: A few commenters recommended requiring parents to be
informed in writing of the consequences of their child taking an
alternate assessment, including any effect on the child's eligibility
for graduation with a regular high school diploma. The commenters
stated that providing this information to parents is particularly
important in States that require passing a State exam in order to
obtain a regular high school diploma.
Discussion: Section 612(a)(16) of the Act requires that the State
(or, in the case of a districtwide assessment, the LEA) develop and
implement guidelines for the participation of children with
disabilities in alternate assessments, including alternate assessments
aligned to alternate achievement standards permitted under 34 CFR
200.1(d). Section 200.6(a)(2)(iii)(A)(2) of the ESEA title I
regulations requires States to inform parents that their child's
achievement will be measured against alternate achievement standards.
We acknowledge that these requirements do not specifically require
a public agency to inform parents of any potential consequences of a
child participating in an alternate assessment. The commenters'
recommendation will be considered along with other comments we have
received in response to the NPRM proposing changes to Sec. 300.160,
which was published in the Federal Register on December 15, 2005 (70 FR
74624). As noted elsewhere in this preamble, the final regulations for
Sec. 300.160, regarding participation in assessments, will be
published in a separate final rule.
Changes: None.
Comment: One commenter recommended defining ``appropriate
accommodations'' and ``individual appropriate accommodations'' as
accommodations that are needed to meet the child's unique needs that
maintain and preserve test validity, reliability, and technical testing
standards.
Discussion: Section 614(d)(1)(A)(i)(VI)(aa) of the Act requires
that the IEP include a statement of any individual appropriate
accommodations that are necessary to measure the academic and
functional performance of the child on State and districtwide
assessments. The requirements in proposed Sec. 300.160, published in
the Federal Register on December 15, 2005, provide additional
information about accommodations and the participation of children with
disabilities in State and districtwide assessments. As noted elsewhere
in this preamble, the final Sec. 300.160 will be published in a
separate final rule. We will consider the commenter's recommendation
along with other comments received in response to the NPRM proposing
changes to Sec. 300.160.
Changes: None.
Comment: One commenter recommended changing the word ``must'' in
Sec. 300.320(a)(6)(ii) to state that if an IEP Team determines that
the child will take an alternate assessment, the IEP ``will'' include a
statement of why the child cannot participate in the regular
assessment. The commenter stated that ``will'' is less coercive and
more in line with the consensus decision-making model of IEP Team
meetings.
Discussion: Generally, we have used the word ``must'' for
regulations that describe what a public agency must do and the word
``will'' when referring to what the IEP Team has determined a child
will do. While we understand the commenter's concern, we believe it is
unnecessary to change Sec. 300.320(a)(6)(ii).
Changes: None.
Comment: One commenter recommended that Sec. 300.320(a)(6) clarify
that a child with the most significant cognitive disabilities, who has
been determined by the IEP Team to be unable to make progress toward
the regular achievement standards even with the best instruction, will
be taught and assessed based on alternate achievement standards.
Discussion: It would be inappropriate to require a child with the
most significant cognitive disabilities to be taught and assessed based
on alternate achievement standards. Consistent with section
614(d)(1)(A)(i)(VI)(bb) of the Act, the child's IEP Team is responsible
for determining the particular assessment that is appropriate for a
child. Under Sec. 200.1(d) of the ESEA title I regulations, a State is
permitted, but not required, to adopt alternate achievement standards
and develop an alternate assessment based on those standards for
children with the most significant cognitive disabilities. There is no
requirement under the Act or the ESEA that a State develop an alternate
assessment based on alternate achievement standards.
Changes: None.
Comment: One commenter stated that Sec. 300.320(a)(6) should
include information about alternate assessments because there will be
children who will not be successful with generic accommodations.
Discussion: Section 612(a)(16)(C) of the Act provides information
regarding alternate assessments and the requirements for alternate
assessments under the Act. As noted elsewhere in this preamble, the
final regulations for Sec. 300.160, which will incorporate the
requirements in section 612(a)(16) of the Act and provide further
clarification regarding the participation of children with disabilities
in assessments, will be published in a separate document. We will
consider the commenter's recommendation along with other comments
received in response to the NPRM proposing changes to Sec. 300.160.
Changes: None.
Comment: One commenter suggested revising Sec. 300.320(a)(6)(i),
which requires the IEP to include a statement of any individual
appropriate accommodations that are necessary to
[[Page 46667]]
``measure'' the academic and functional performance of the child on
State and districtwide assessments. The commenter recommended revising
the statement to require the IEP to include a statement of any
individual appropriate accommodations that are necessary to allow the
child to ``participate'' in assessments.
Discussion: To change the regulation in the manner suggested by the
commenter would be inconsistent with the Act. Section 300.320(a)(6)(i)
reflects the language in section 614(d)(1)(A)(i)(VI)(aa) of the Act and
requires accommodations that are necessary to measure a child's
performance. Accommodations that allow a child to ``participate'' in
assessments could include accommodations that invalidate the child's
test score, thereby resulting in an assessment that does not
``measure'' a child's performance.
Changes: None.
Initiation, Frequency, Location, and Duration of Services (Sec.
300.320(a)(7))
Comment: One commenter recommended clarifying that the term
``duration'' in Sec. 300.320(a)(7), regarding services and
modifications in the IEP, refers to the length of a particular service
session and not the entire IEP.
Discussion: The meaning of the term ``duration'' will vary,
depending on such things as the needs of the child, the service being
provided, the particular format used in an IEP, and how the child's day
and IEP are structured. What is required is that the IEP include
information about the amount of services that will be provided to the
child, so that the level of the agency's commitment of resources will
be clear to parents and other IEP Team members. The amount of time to
be committed to each of the various services to be provided must be
appropriate to the specific service, and clearly stated in the IEP in a
manner that can be understood by all involved in the development and
implementation of the IEP.
Changes: None.
Comment: One commenter requested that the regulations require the
IEP to include information about the person(s) providing the services,
rather than just a listing of the services.
Discussion: The Act does not require the IEP to include information
about the specific person(s) providing the services. Section
614(d)(1)(A)(ii)(I) of the Act precludes the Department from
interpreting section 614 of the Act to require public agencies to
include information in the IEP beyond what is specifically required by
the Act.
Changes: None.
Transition Services (Sec. 300.320(b))
Comment: Many commenters disagreed with changing the age at which
transition services must be provided to a child with a disability from
14 years to 16 years. One commenter recommended that transition
services begin at age 13. Another commenter recommended that transition
services begin before high school, because if there is a choice of high
schools, transition goals may be a determining factor in the selection
process. A few commenters requested that the regulations clarify that
States may continue to begin transition services with the first IEP
after the child turns age 14. Some commenters recommended that
transition begin two to four full school years before the child is
expected to graduate because some children may exit school at age 17.
Numerous commenters recommended that the regulations clarify that
States have discretion to require transition services to begin before
age 16 for all children in the State. However, a few commenters
recommended removing the phrase ``or younger if determined appropriate
by the IEP Team'' in Sec. 300.320(b) because the language is not in
the Act and promotes additional special education services.
A few commenters recommended that the regulations require
transition planning to begin earlier than age 16 if necessary for the
child to receive FAPE. Other commenters recommended clarifying that, in
order for transition services to begin by age 16, transition
assessments and other pre-planning needs that would facilitate movement
to post-school life must be completed prior to the child's 16th
birthday. One commenter recommended requiring transition planning to
begin no later than the child's freshman year in high school and that
this planning include selecting assessment instruments and completing
assessments that will lead to the development of transition goals and
objectives in the child's IEP.
Discussion: Section 614(d)(1)(A)(i)(VIII) of the Act requires that
transition services begin no later than the first IEP to be in effect
when the child turns 16. Because IEP Team decisions must always be
individualized, we have included the phrase ``or younger if determined
appropriate by the IEP Team'' in Sec. 300.320(b).
The Act does not require transition planning or transition
assessments, as recommended by some commenters. Therefore, consistent
with section 614(d)(1)(A)(ii)(I) of the Act, we cannot interpret
section 614 of the Act to require that IEPs include this information
because it is beyond what is specifically required in the Act.
The Department believes that a State could require transition
services, if it chose to do so, to begin before age 16 for all children
in the State. However, consistent with Sec. 300.199(a)(2) and section
608(a)(2) of the Act, a State that chooses to require transition
services before age 16 for all children would have to identify in
writing to its LEAs and to the Secretary that such rule, regulation, or
policy is a State-imposed requirement that is not required by Part B of
the Act and Federal regulations.
Changes: None.
Comment: A few commenters recommended that Sec. 300.320(b) clarify
that the child is a participating IEP Team member and that the IEP Team
is required to consider the child's preferences in developing
transition goals and services.
Discussion: The clarification requested is not needed because Sec.
300.321(b)(1) already requires the public agency to invite a child with
a disability to attend the child's IEP Team meeting, if a purpose of
the meeting is to consider the child's postsecondary goals and the
transition services needed to assist the child to reach those goals. In
addition, Sec. 300.321(b)(2) requires the public agency to take steps
to ensure that the child's preferences and interests are considered, if
the child does not attend the IEP Team meeting. We believe that this is
sufficient clarification that, for the purposes mentioned by the
commenter, the child is a participating IEP Team member.
Changes: None.
Comment: A few commenters requested that the regulations clarify
whether ``transition assessments'' are formal evaluations or competency
assessments. One commenter stated that transition assessments should be
different for a college-bound child with a disability than for a child
with severe disabilities whose future is a group home.
Discussion: We do not believe the requested clarification is
necessary because the specific transition assessments used to determine
appropriate measurable postsecondary goals will depend on the
individual needs of the child, and are, therefore, best left to States
and districts to determine on an individual basis.
Changes: None.
Comment: One commenter requested clarification of the term
``postsecondary goals.'' Another commenter recommended defining
``postsecondary
[[Page 46668]]
goals'' in the definition section of these regulations.
Discussion: We do not believe it is necessary to include a
definition of ``postsecondary goals'' in the regulations. The term is
generally understood to refer to those goals that a child hopes to
achieve after leaving secondary school (i.e., high school).
Changes: None.
Comment: One commenter requested clarification regarding whether
Sec. 300.320(b)(1) requires measurable postsecondary goals in each of
the areas of training, education, employment, and, independent living
skills.
Discussion: Beginning not later than the first IEP to be in effect
when the child turns 16 years of age, section 614(d)(1)(A)(i)(VIII)(aa)
of the Act requires a child's IEP to include measurable postsecondary
goals in the areas of training, education, and employment, and, where
appropriate, independent living skills. Therefore, the only area in
which postsecondary goals are not required in the IEP is in the area of
independent living skills. Goals in the area of independent living are
required only if appropriate. It is up to the child's IEP Team to
determine whether IEP goals related to the development of independent
living skills are appropriate and necessary for the child to receive
FAPE.
Changes: None.
Comment: Some commenters recommended that the regulations retain
the requirement in current Sec. 300.347(b)(1) that requires IEPs to
include a statement of the transition service needs of the child under
applicable components of the child's IEP that focus on the child's
courses of study (such as participation in advanced-placement courses
or a vocational education program).
Discussion: The requirement referred to by the commenter is already
in the regulations. Section 300.320(b)(2) includes a reference to
``courses of study'' as part of transition services, consistent with
section 614(d)(1)(A)(i)(VIII)(bb) of the Act. The examples in current
Sec. 300.347(b)(2) (i.e., advanced placement course or a vocational
education program) are not included in Sec. 300.320(b)(2) because we
do not believe they are necessary to understand and implement the
requirement.
Changes: None.
Comment: Several commenters recommended that the regulations
explicitly require transition services to include vocational and career
training through work-study and documentation of accommodations needed
in the workplace.
Discussion: The Act does not require IEPs to include vocational and
career training or documentation of workplace accommodations.
Consistent with section 614(d)(1)(A)(ii)(I) of the Act, we cannot
interpret section 614 of the Act to require IEPs to include information
beyond what is specifically required in the Act. It is up to each
child's IEP Team to determine the transition services that are needed
to meet the unique transition needs of the child.
Changes: None.
Comment: A few commenters recommended that the regulations clarify
that schools can use funds provided under Part B of the Act to support
children in transitional programs on college campuses and in community-
based settings.
Discussion: We do not believe that the clarification requested by
the commenters is necessary to add to the regulations because, as with
all special education and related services, it is up to each child's
IEP Team to determine the special education and related services that
are needed to meet each child's unique needs in order for the child to
receive FAPE. Therefore, if a child's IEP Team determines that a
child's needs can best be met through participation in transitional
programs on college campuses or in community-based settings, and
includes such services on the child's IEP, funds provided under Part B
of the Act may be used for this purpose.
Changes: None.
Comment: One commenter recommended more accountability for
transition services.
Discussion: The Act contains significant changes to the monitoring
and enforcement requirements under Part B of the Act. Section 300.600,
consistent with section 616(a) of the Act, requires the primary focus
of monitoring to be on improving educational results and functional
outcomes for children with disabilities. The provisions in section
616(a) and (b)(2)(C)(ii) of the Act set forth the responsibility of
States to monitor the implementation of the Act, enforce the Act, and
annually report on performance of the State and each LEA.
Section 300.600(c), consistent with section 616(a)(3) of the Act,
requires States to measure performance in monitoring priority areas
using quantifiable indicators and such qualitative indicators as are
needed to adequately measure performance. Section 300.601 reflects
statutory language in section 616(b) of the Act and requires States to
have a performance plan that evaluates their efforts to implement the
requirement and purposes of the Act. Transition services are
specifically being addressed in State performance plans. We believe
that these changes to the monitoring and enforcement requirements will
ensure that States and LEAs are held accountable for the transition
services they provide.
Changes: None.
Comment: One commenter requested that the regulations be revised to
include an affirmative statement that transition services can be used
to drive the IEP for the child.
Discussion: It would be inappropriate to include such a requirement
in these regulations because, while section 614(d)(1)(A)(i)(VIII) of
the Act includes transition services in a child's IEP, there is no
suggestion that it be the only component or the component that governs
a child's IEP.
Changes: None.
Transfer of Rights at Age of Majority (Sec. 300.320(c))
Comment: One commenter recommended that the regulations specify how
the child is to be informed of the transfer of rights. The commenter
also recommended that the regulations require public agencies to
explain to the child the rights that will transfer to the child on
reaching the age of majority.
Discussion: The specific manner in which a child is informed about
his or her rights is best left to States, districts, and IEP Teams to
decide, based on their knowledge of the child and any unique local or
State requirements. Section 300.320(c), consistent with section
614(d)(1)(A)(i)(VIII)(cc) of the Act, already requires the IEP to
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. We do not believe further
clarification is necessary.
Changes: None.
Comment: One commenter stated that Sec. 300.320(c) is redundant
with Sec. 300.520.
Discussion: Sections 300.320 and 300.520 are related, but not
redundant. Section 300.320(c) requires the IEP to include a statement
that the child has been informed of the child's rights under Part B of
the Act that will transfer to the child on reaching the age of
majority. Section 300.520 provides additional information about the
transfer of rights as part of the procedural safeguards for parents and
children under the Act.
Changes: None.
[[Page 46669]]
Construction (Sec. 300.320(d))
Comment: One commenter stated that Sec. 300.320(d)(2) constrains
States and LEAs from adding elements to the IEP and misses the
opportunity to make sense of the one percent and two percent rules
under the ESEA. One commenter recommended that the regulations
explicitly state that nothing limits a State from adding its own
mandatory components of the IEP, especially given the purpose and
intent to align the Act with the ESEA.
Discussion: There is nothing in the Act that limits States and LEAs
from adding elements to the IEP, so long as the elements are not
inconsistent with the Act or these regulations, and States do not
interpret the Act to require these additional elements. Section
300.320(d), consistent with section 614(d)(1)(A)(ii)(I) of the Act,
does not prohibit States or LEAs from requiring IEPs to include
information beyond that which is explicitly required in section 614 of
the Act. However, if a State requires IEPs to include information
beyond that which is explicitly required in section 614 of the Act, the
State must identify in writing to its LEAs and the Secretary that it is
a State-imposed requirement and not one based on the Act or these
regulations, consistent with Sec. 300.199(a)(2) and section 608(a)(2)
of the Act.
Changes: None.
IEP Team (Sec. 300.321)
Comment: One commenter recommended that the regulations clarify
whether regular education teachers are required at every IEP Team
meeting.
Discussion: Consistent with Sec. 300.321(a)(2) and section
614(d)(1)(B)(ii) of the Act, a regular education teacher is a required
member of an IEP Team if the child is, or may be, participating in the
regular education environment. In such cases, the regular education
teacher would be expected to attend each IEP Team meeting, unless the
regular education teacher has been excused from attending a meeting,
pursuant to Sec. 300.321(e) and section 614(d)(1)(C) of the Act. We do
not believe further clarification is necessary.
Changes: None.
Comment: Many comments were received recommending that the IEP Team
include additional members beyond those required by Sec. 300.321(a).
Several commenters stated that occupational therapists should be part
of the IEP Team because of their unique training in assisting children
to learn in changing environments. A few commenters recommended that a
recreation therapist or specialist be included on the IEP Team. Other
commenters stated that a practitioner skilled in assistive technology
should be included. Several commenters recommended that the IEP Team
include individuals with knowledge or special expertise regarding the
related services needs of a child.
Some commenters stated that individuals from the child welfare
system should be included as members of the IEP Team and should be
invited to attend IEP Team meetings when the purpose of the meeting is
to consider transition services for a child who is a ward of the State
or in the custody of the child welfare agency. The commenters
recommended that the IEP Team should specifically include any of the
following individuals: The child's attorney or guardian ad litem, court
appointed special advocate, caseworker, foster parent, caretaker, or
judge.
Discussion: It would be inappropriate to require that individuals
with specific professional knowledge or qualifications attend all IEP
Team meetings. These decisions should be made on a case-by-case basis
in light of the needs of a particular child. Section 300.321(a)(6),
consistent with section 614(d)(1)(B)(vi) of the Act, already allows
other individuals who have knowledge or special expertise regarding the
child, including related services personnel, as appropriate, to be
included as members of a child's IEP Team at the discretion of the
parent or the agency. Therefore, we decline to make the changes
recommended by the commenters. However, it should be noted that if a
public agency wishes to invite officials from another agency, such as
officials of the child welfare agency that are not representing the
child, the public agency must obtain parental consent for the
individual to participate in the IEP Team meeting because confidential
information about the child from the child's education records would be
shared at the meeting.
Changes: None.
Comment: A few commenters recommended that the IEP Team include a
representative of the private school or facility when an IEP is
developed for a child in a private school.
Discussion: We believe the commenters' concerns are already
addressed in the regulations. Section 300.325(a) requires that, 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 and must ensure that a
representative of the private school or facility attends the meeting.
Changes: None.
Comment: A few commenters stated that the IEP Team should include
other persons whose presence on the IEP Team would be beneficial to the
child, regardless of their academic qualifications. Other commenters
recommended that the IEP Team include credentialed and licensed
personnel, even though it is important to recognize that people who are
not credentialed have important roles to play.
Discussion: We believe the commenters' concerns are already
addressed. Section 614(d)(1)(B)(vi) of the Act states that other
individuals who have knowledge or special expertise regarding the child
may be included as members of a child's IEP Team at the discretion of
the parent or the agency. Consistent with Sec. 300.321(c), the party
(parents or public agency) who invites the individual to be a member of
the IEP Team determines the knowledge or special expertise of such
individual.
Changes: None.
Comment: Several commenters recommended that the IEP Team include
an IEP manager who would communicate with IEP members not in
attendance, ensure that the IEP requirements are met, and assume
responsibility for implementing the IEP.
Discussion: The Act does not require an IEP Team manager as a part
of the IEP Team. While having one individual manage the provision of
services under the IEP might be a good practice in particular
circumstances, we decline to require IEP Team managers for all IEPs
because, in many cases, it would be unnecessary. In addition, to ensure
that all IEP Team members are aware of their responsibilities regarding
the implementation of a child's IEP, Sec. 300.323(d) requires that the
child's IEP be accessible to each regular education teacher, special
education teacher, related services provider, and any other service
provider who is responsible for its implementation.
Changes: None.
Comment: A few commenters recommended that the special education
teacher on a child's IEP Team should be required to have expertise in
the area of the child's disability. The commenters stated that this is
especially important for children with dyslexia and children with other
learning disabilities.
A few commenters recommended that the child's future teacher be
required to attend an end-of-the-year IEP Team meeting.
[[Page 46670]]
Discussion: Section 612(d)(1)(B)(iii) of the Act requires that not
less than one special education teacher of the child (or where
appropriate, not less than one special education provider of the child)
be included on the IEP Team. Decisions as to which particular
teacher(s) or special education provider(s) are members of the IEP Team
and whether IEP Team meetings are held at the end of the school year or
some other time, are best left to State and local officials to
determine, based on the needs of the child.
Changes: None.
Comment: A few commenters recommended defining ``regular education
environment'' in Sec. 300.321(a)(2) to mean the regular classroom and
the non-academic environment. A few commenters requested that the
regulations require children to be in the regular classroom and in
nonacademic activities with their nondisabled peers.
Discussion: It is not necessary to define ``regular education
environment'' or to repeat that children with disabilities should be
included in the regular classroom and in nonacademic activities with
their nondisabled peers. The LRE requirements in Sec. Sec. 300.114
through 300.120, consistent with section 612(a)(5) of the Act, are
clear that each public agency must ensure that, to the maximum extent
appropriate, children with disabilities are educated with children who
are nondisabled. Section 300.117, consistent with section 612(a)(5) of
the Act, is clear that this includes nonacademic and extracurricular
services and activities.
Changes: None.
Comment: A few commenters stated that a special education provider
should be allowed to substitute for a special education teacher only
when the child does not have a special education teacher because the
role of a special education teacher is different from the role of a
special education provider.
Discussion: The recommended change is not appropriate. Section
300.321(a)(2) incorporates the language in section 614(d)(1)(B)(iii) of
the Act and requires the IEP Team to include not less than one special
education teacher, or where appropriate, not less than one special
education provider. The special education provider may substitute when
there is no special education teacher. However, the Act leaves open the
possibility that there may be other appropriate circumstances when a
special education provider could substitute for a special education
teacher. These are decisions best left to State and local officials.
Changes: None.
Comment: A few commenters recommended that the regulations define
``special education teacher'' and ``special education provider,'' as
used in Sec. 300.321(a)(3).
Discussion: Section 300.321(a)(3), consistent with section
614(d)(1)(B)(iii) of the Act, requires that the IEP Team include not
less than one special education teacher, or where appropriate, not less
than one special education provider of the child. This is not a new
requirement. The same requirement is in current Sec. 300.344(a)(3). As
noted in Attachment I of the March 12, 1999 final regulations, the
special education teacher or provider who is a member of the child's
IEP Team should be the person who is, or will be, responsible for
implementing the IEP. For example, if the child's disability is a
speech impairment, the special education teacher or special education
provider could be the speech language pathologist. We do not believe
that further clarification is needed.
Changes: None.
Comment: Many commenters recommended that the regulations require
the IEP Team to include a representative of the public agency who has
the authority to commit resources. One commenter stated that the
failure of this individual to attend an IEP Team meeting lengthens the
decision-making process, delays services, and removes parents from
equal participation in an IEP Team meeting.
Discussion: Section 300.321(a)(4) incorporates the language in
section 614(d)(1)(B)(iv) of the Act and requires the IEP Team to
include a representative of the public agency who is qualified to
provide or supervise the provision of specially designed instruction to
meet the unique needs of children with disabilities; is knowledgeable
about the general education curriculum; and is knowledgeable about the
availability of LEA resources.
A public agency may determine which specific staff member will
serve as the agency representative in a particular IEP Team meeting, so
long as the individual meets these requirements. It is important,
however, that the agency representative have the authority to commit
agency resources and be able to ensure that whatever services are
described in the IEP will actually be provided. However, we do not need
to regulate in the manner suggested, as the public agency will be bound
by the IEP that is developed at an IEP Team meeting.
Changes: None.
Comment: One commenter recommended that the IEP Team include an
individual who is qualified to conduct individual diagnostic
assessments.
Discussion: Section 300.321(a)(5) follows the language in section
614(d)(1)(B)(v) of the Act and requires the IEP Team to include an
individual who can interpret the instructional implications of
evaluation results. An individual who is qualified to conduct a
particular assessment does not necessarily have the skills or knowledge
to assist the IEP Team in determining the special education, related
services, and other supports that are necessary in order for the child
to receive FAPE. Therefore, we do not believe that it is necessary to
require that the IEP Team also include an individual who can conduct
diagnostic assessments.
Changes: None.
Comment: A few commenters expressed concern that IEP Team meetings
are being used by parent advocates to train parents of other children,
and by attorneys to train their associates about the school's IEP
process. In order to prevent this, these commenters stated that the
regulations should identify the specific knowledge and expertise that
an individual must have to be included on an IEP Team. One commenter
expressed concern about confidentiality rights; the lack of credentials
for advocates; and the lack of authority for a parent or school
district to prevent advocates from participating in an IEP Team
meeting.
Discussion: Section 614(d)(1)(B)(vi) of the Act allows other
individuals who have knowledge or special expertise regarding the child
to be included on a child's IEP Team. Section 300.321(c) provides that
the determination of the knowledge or special expertise of these
individuals must be made by the party (parents or public agency) who
invited the individual to be a member of the IEP Team. We continue to
believe that this determination is best left to parents and the public
agency. We also believe that it would be inappropriate to regulate on
the specific knowledge and expertise that an individual must have to be
included on an IEP Team because it would be burdensome for both parents
and public agencies.
Additionally, nothing in the Act prevents parents from consenting
to have an observer who is not a member of the IEP Team present at the
meeting, as the parent can consent to the sharing of confidential
information about the child. With that exception, it should be
emphasized that a person who does not have knowledge and special
expertise regarding the child and who is not requested to be present at
the IEP Team meeting by the parent or public agency would not be
permitted to be a member
[[Page 46671]]
of the IEP Team or be permitted to attend the IEP Team meeting as an
observer.
Changes: None.
Comment: A few commenters recommended changing Sec. 300.321(a)(7)
to clarify that a parent has the right to bring their child to any or
all IEP Team meetings at any age.
Discussion: We do not believe that the additional clarification
requested by the commenters is necessary. Section 614(d)(1)(B)(vii) of
the Act clearly states that the IEP Team includes the child with a
disability, whenever appropriate. Generally, a child with a disability
should attend the IEP Team meeting if the parent decides that it is
appropriate for the child to do so. If possible, the agency and parent
should discuss the appropriateness of the child's participation before
a decision is made, in order to help the parent determine whether or
not the child's attendance would be helpful in developing the IEP or
directly beneficial to the child, or both.
Until the child reaches the age of majority under State law, unless
the rights of the parent to act for the child are extinguished or
otherwise limited, only the parent has the authority to make
educational decisions for the child under Part B of the Act, including
whether the child should attend an IEP Team meeting.
Changes: None.
Transition Services Participants (Sec. 300.321(b))
Comment: A few commenters recommended requiring the public agency
to invite the child with a disability to attend the child's IEP Team
meeting no later than age 16 or at least two years prior to the child's
expected graduation, whichever comes first.
Discussion: The commenters' concerns are addressed in Sec.
300.321(b), which requires the public agency to invite a child with a
disability to attend the child's IEP Team meeting if a purpose of the
meeting will be the consideration of the postsecondary goals for the
child and the transition services needed to assist the child in
reaching the child's postsecondary goals. Furthermore, a child's IEP
must include 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, consistent with Sec. 300.320(b).
Changes: None.
Comment: One commenter requested that the regulations clarify that
parents and children are not required to use the transition services
offered by agencies that the school invites to the IEP Team meeting.
Discussion: There is nothing in the Act or these regulations that
requires a parent or child to participate in transition services that
are offered by agencies that the public agency has invited to
participate in an IEP Team meeting. However, if the IEP Team determines
that such services are necessary to meet the needs of the child, and
the services are included on the child's IEP, and the parent (or a
child who has reached the age of majority) disagrees with the services,
the parent (or the child who has reached the age of majority) can
request mediation, file a due process complaint, or file a State
complaint to resolve the issue. We do not believe further clarification
in the regulations is necessary.
Changes: None.
Comment: A few commenters recommended requiring the public agency
to include all the notice requirements in Sec. 300.322(b) with the
invitation to a child to attend his or her IEP Team meeting. The
commenters stated that children need to be fully informed about the
details and purpose of the meeting in order for them to adequately
prepare and, therefore, should have the same information that is
provided to other members of the IEP Team.
Discussion: We decline to make the suggested change. We believe it
would be overly burdensome to require a public agency to include all
the notice requirements in Sec. 300.322(b) with an invitation to a
child to attend his or her IEP Team meeting, particularly because the
information is provided to the child's parents who can easily share
this information with the child. However, when a child with a
disability reaches the age of majority under State law, the public
agency must provide any notice required by the Act to both the child
and the parents, consistent with Sec. 300.520 and section 615(m)(1)(A)
of the Act.
Changes: None.
Comment: One commenter requested clarification regarding the public
agency's responsibility to invite a child who has not reached the age
of majority to the child's IEP Team meeting when a parent does not want
the child to attend.
Discussion: Section 300.321(b)(1) requires the public agency to
invite a child with a disability to attend the child's IEP Team meeting
if a purpose of the meeting will be the consideration of the
postsecondary goals for the child and the transition services needed to
assist the child in reaching those goals, regardless of whether the
child has reached the age of majority. However, until the child reaches
the age of majority under State law, unless the rights of the parent to
act for the child are extinguished or otherwise limited, only the
parent has the authority to make educational decisions for the child
under Part B of the Act, including whether the child should attend an
IEP Team meeting.
Changes: None.
Comment: A few commenters expressed concern that Sec. 300.321(b)
does not require children to have sufficient input as a member of the
IEP Team and recommended requiring the IEP Team to more strongly
consider the child's preferences and needs.
Discussion: Section 300.321(a)(7) includes the child as a member of
the IEP Team, when appropriate, and Sec. 300.321(b)(1) requires the
public agency to invite the child to the child's IEP Team meeting when
the 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. Further, if the child does
not attend the IEP Team meeting, Sec. 300.321(b)(2) requires the
public agency to take other steps to ensure that the child's
preferences and interests are considered. We believe this is sufficient
to ensure that the child's preferences and needs are considered and do
not believe that any changes to Sec. 300.321(b) are necessary.
Changes: None.
Comment: One commenter stated that the requirements in Sec.
300.321(b), regarding transition services participants, are not in the
Act, are too rigid, and should be modified to provide more flexibility
for individual children.
Discussion: We believe that, although not specified in the Act, the
requirements in Sec. 300.321(b) are necessary to assist children with
disabilities to successfully transition from high school to employment,
training, and postsecondary education opportunities. We believe it is
critical for children with disabilities to be involved in determining
their transition goals, as well as the services that will be used to
reach those goals. Section 300.321(b), therefore, requires the public
agency to invite the child to attend IEP Team meetings in which
transition goals and services will be discussed. If the child does not
attend the IEP Team meeting, Sec. 300.321(b)(2) requires the public
agency to take other steps to ensure that the child's preferences and
interests are considered.
We also believe that, when it is likely that a child will be
involved with other
[[Page 46672]]
agencies that provide or pay for transition services or postsecondary
services, it is appropriate (provided that the parent, or a child who
has reached the age of majority, consents) for representatives from
such agencies to be invited to the child's IEP Team meeting. The
involvement and collaboration with other public agencies (e.g.,
vocational rehabilitation agencies, the Social Security Administration)
can be helpful in planning for transition and in providing resources
that will help children when they leave high school. We believe that
children with disabilities will benefit when transition services under
the Act are coordinated with vocational rehabilitation services, as
well as other supports and programs that serve all children moving from
school to adult life. Therefore, we decline to change the requirements
in Sec. 300.321(b).
Changes: None.
Comment: One commenter stated that Sec. 300.321(b)(1), which
requires the public agency to invite the child to an IEP Team meeting
when transition is to be considered, duplicates Sec. 300.321(a)(7),
which requires a child with a disability to be invited to his or her
IEP Team meeting, whenever possible.
Discussion: These two provisions are not redundant. Section
300.321(a)(7) requires the public agency to include the child with a
disability, when appropriate (not ``whenever possible,'' as stated by
the commenter), in the child's IEP Team meeting, and, thus, provides
discretion for the parent and the public agency to determine when it is
appropriate to include the child in the IEP Team meeting. Section
300.321(b), on the other hand, requires a public agency to invite a
child to attend an IEP Team meeting when the purpose of the meeting
will be to consider the postsecondary goals for the child and the
transition services needed to assist the child to reach those goals.
The Department believes it is important for a child with a disability
to participate in determining the child's postsecondary goals and for
the IEP Team to consider the child's preferences and interests in
determining those goals.
Changes: None.
Comment: Many commenters recommended removing the requirement in
Sec. 300.321(b)(3) for parental consent (or consent of a child who has
reached the age of majority) before inviting personnel from
participating agencies to attend an IEP Team meeting because it is
burdensome, may reduce the number of agencies participating in the IEP
Team meeting, and may limit the options for transition services for the
child. The commenters stated that this consent is unnecessary under
FERPA, and inconsistent with Sec. 300.321(a)(6), which allows the
parent or the agency to include other individuals in the IEP Team who
have knowledge or special expertise regarding the child.
Discussion: Section 300.321(b)(3) was included in the regulations
specifically to address issues related to the confidentiality of
information. Under section 617(c) of the Act the Department must 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, irrespective of the
requirements under FERPA. We continue to believe that a public agency
should be required to obtain parental consent (or the consent of a
child who has reached the age of majority) before inviting
representatives from other participating agencies to attend an IEP Team
meeting, consistent with Sec. 300.321(b)(3).
We do not believe that the requirements in Sec. 300.321(b)(3) are
inconsistent with Sec. 300.321(a)(6). Section 300.321(a)(6) permits
other individuals who have knowledge or special expertise regarding the
child to attend the child's IEP Team meeting at the discretion of the
parent or the public agency. It is clear that in Sec. 300.321(b)(3),
the individuals invited to the IEP Team meeting are representatives
from other agencies who do not necessarily have special knowledge or
expertise regarding the child. In these situations, we believe that
consent should be required because representatives of these agencies
are invited to participate in a child's IEP Team meeting only because
they may be providing or paying for transition services. We do not
believe that representatives of these agencies should have access to
all the child's records unless the parent (or the child who has reached
the age of majority) gives consent for such a disclosure. Therefore, we
believe it is important to include the requirement for consent in Sec.
300.321(b)(3).
Changes: None.
Comment: Some commenters recommended removing the phrase, ``to the
extent appropriate'' in Sec. 300.321(b)(3) and requiring public
agencies to invite a representative of any participating agency that is
likely to be responsible for providing or paying for transition
services to the IEP Team meeting.
Discussion: We disagree with the recommended change because the
decision as to whether to invite a particular agency to participate in
a child's IEP Team meeting is a decision that should be left to the
public agency and the parent (or the child with a disability who has
reached the age of majority).
Changes: None.
Comment: Numerous commenters recommended retaining current Sec.
300.344(b)(3)(ii), which requires the public agency to take steps to
ensure the participation of invited agencies in the planning of any
transition services when the agencies do not send a representative to
the IEP Team meeting. These commenters stated that the participation of
other agencies is vital to ensuring that the child receives the
necessary services. One commenter requested that the regulations
clarify that, aside from inviting other agencies to attend a child's
IEP Team meeting, public agencies have no obligation to obtain the
participation of agencies likely to provide transition services.
Discussion: The Act has never given public agencies the authority
to compel other agencies to participate in the planning of transition
services for a child with a disability, including when the requirements
in Sec. 300.344(b)(3)(ii) were in effect. Without the authority to
compel other agencies to participate in the planning of transition
services, public agencies have not been able to meet the requirement in
current Sec. 300.344(b)(3)(ii) to ``ensure'' the participation of
other agencies in transition planning. Therefore, while we believe that
public agencies should take steps to obtain the participation of other
agencies in the planning of transition services for a child, we believe
it is unhelpful to retain current Sec. 300.344(b)(3)(ii).
Changes: None.
Comment: A few commenters recommended that the regulations require
the public agency to put parents in touch with agencies providing
transition services.
Discussion: We do not believe it is necessary to regulate to
require public agencies to put parents in touch with agencies providing
transition services. As a matter of practice, public agencies regularly
provide information to children and parents about transition services
during the course of planning and developing transition goals and
determining the services that are necessary to meet the child's
transition goals.
Changes: None.
Comment: One commenter asked whether a parent could exclude an
individual from the IEP Team.
Discussion: A parent can refuse to provide consent only for the
public
[[Page 46673]]
agency to invite other agencies that are likely to be responsible for
providing or paying for transition services. A parent may not exclude
any of the required members of the IEP Team.
Changes: None.
IEP Team Attendance (Sec. 300.321(e))
Comment: We received many comments from individuals expressing
concern about allowing IEP Team members to be excused from attending an
IEP Team meeting. A few commenters recommended that the regulations
require all IEP Team members to attend all IEP Team meetings without
exception. One commenter stated that excusing members from attending
IEP Team meetings interrupts the flow of the meeting and takes away
time from discussing the child's needs. Another commenter expressed
concern that the integrity of the IEP Team meeting process depends on a
discussion to determine the services that are necessary to meet the
child's unique needs, and that the richness of this discussion may be
diminished if IEP Team members are allowed to be excused too frequently
and the IEP Team must rely on written input.
Several commenters recommended that the regulations acknowledge
that, in most circumstances, interactive discussion in IEP Team
meetings is preferable to written input. Many commenters requested that
the multidisciplinary scope of the IEP Team meeting be maintained. One
commenter stated that written input from an excused IEP Team member is
not sufficient and will be burdensome for both the writer and the
readers.
Discussion: Section 614(d)(1)(C) of the Act allows a parent of a
child with a disability and the LEA to agree that the attendance of an
IEP Team member at an IEP Team meeting, in whole or in part, is not
necessary under certain conditions. Allowing IEP Team members to be
excused from attending an IEP Team meeting is intended to provide
additional flexibility to parents in scheduling IEP Team meetings and
to avoid delays in holding an IEP Team meeting when an IEP Team member
cannot attend due to a scheduling conflict.
Changes: None.
Comment: Many commenters stated that the excusal provisions in
Sec. 300.321 should be optional for States and that States should be
allowed to require that all IEP Team members attend each IEP Team
meeting. Several commenters recommended allowing States to determine
the circumstances or conditions under which attendance at the IEP Team
meeting is not required. A few commenters recommended clarifying
whether a State must have policies and procedures to excuse IEP Team
members.
Discussion: Under section 614(d)(1)(C) of the Act, a State must
allow a parent and an LEA to agree to excuse a member of the IEP Team.
Section 300.321(e) reflects this requirement and we do not have the
authority to make this optional for States. We also do not have the
authority to allow a State to restrict, or otherwise determine, when an
IEP Team member can be excused from attending a meeting, or to prohibit
the excusal of an IEP Team member when the LEA and parent agree to the
excusal. Whether a State must have policies and procedures to excuse
IEP Team members from attending an IEP Team meeting will depend on
whether such policies and procedures are required by a State to
implement this statutory requirement. However, every State must allow a
parent and an LEA to agree to excuse an IEP Team member from attending
an IEP Team meeting.
Changes: None.
Comment: Several commenters recommended that the regulations
clarify whether the excusal agreement must meet the standard for
informed consent. Some commenters stated that Congress intended excusal
agreements to mean informed written consent. Other commenters stated
that parents, not the public agency, can provide consent and therefore,
only parents should be allowed to provide consent for excusing IEP Team
members from IEP Team meetings. A few commenters recommended
simplifying Sec. 300.321(e) by eliminating the different procedures
for different types of excusals.
Discussion: Whether a parent must provide consent to excuse a
member of the IEP Team from attending an IEP Team meeting depends on
whether the member's area of the curriculum or related services is
being modified or discussed at the IEP Team meeting. We cannot
eliminate the different procedures for different types of excusals
because section 614(d)(1)(C) of the Act clearly differentiates between
circumstances in which parental consent is required and when an
agreement is required to excuse an IEP member from attending an IEP
Team meeting.
If the member's area is not being modified or discussed, Sec.
300.321(e)(1), consistent with section 614(d)(1)(C) of the Act,
provides that the member may be excused from the meeting if the parent
and LEA agree in writing that the member's attendance is not necessary.
An agreement is not the same as consent, but instead refers to an
understanding between the parent and the LEA. Section 614(d)(1)(C) of
the Act specifically requires that the agreement between a parent and
an LEA to excuse a member's attendance at an IEP Team meeting must be
in writing. If, however, the member's area is being modified or
discussed, Sec. 300.321(e)(2), consistent with section
614(d)(1)(C)(ii) of the Act, requires the LEA and the parent to provide
written informed consent.
Changes: None.
Comment: One commenter asked whether parents must be provided any
information when asked to excuse IEP Team members. A few commenters
recommended that the request for an excusal include the reason for the
request to excuse a member of the IEP Team, that it be written in the
chosen language of the parent, and accompanied by written evaluations
and recommendations of the excused IEP Team member.
A few commenters recommended that no IEP Team member should be
excused from attending an IEP Team meeting until the parent is informed
about the purpose of the meeting for which the public agency proposes
to excuse the IEP Team member; the IEP Team member's name and position;
the reason(s) the public agency wants to excuse the IEP Team member;
the parent's right to have the IEP Team member present; and the
parent's right to discuss with the IEP Team member any issues in
advance of the meeting so the parent is adequately informed. The
commenters stated that this notice should be included in any statement
of parent's rights that is distributed.
Numerous commenters recommended that the regulations include
specific language to clarify that, before agreeing to excuse an IEP
Team member, serious consideration must be given to determining if
written input will be sufficient to thoroughly examine what services
are needed and whether changes to the current IEP are necessary. A few
commenters recommended that parents be informed of the roles and
responsibilities of the excused member prior to giving consent for the
excusal. Some commenters stated that parents must understand that they
have the right to disagree and not excuse a member of the IEP Team who
the parents believe may be essential to developing or revising an IEP.
One commenter recommended that the written agreement be required to
include information that the parent was informed of the parent's right
to have all IEP Team members present.
[[Page 46674]]
One commenter recommended permitting States to establish additional
procedural safeguards that guarantee that parents who consent to excuse
an IEP member from a meeting do so freely and are aware of the
implications of their decisions. Some commenters expressed concern that
a parent could be pressured to agree to excuse an IEP Team member for
what, in reality, are economic or staffing reasons. One commenter
stated that parents should have the right to consent to excusal only
after conferring with the individual to be excused. Some commenters
recommended that parents be informed that they have a legal right to
require an IEP Team member to participate in the meeting.
A few commenters expressed concern that the permission to excuse
IEP Team members from attending IEP Team meetings will be abused,
particularly with language-minority parents who are often misinformed
or misled by school districts. Some commenters stated that parents do
not understand the roles of the various members and could easily be
pressured into excusing vital members of the IEP Team.
A few commenters recommended that the regulations include
requirements to guard against excessive excusals. Some commenters
stated that an LEA that routinely prevents general or special education
teachers, or related services providers, from attending IEP Team
meetings using the excusal provisions should be subject to monitoring
and review.
Discussion: When an IEP Team member's area is not being modified or
discussed, Sec. 300.321(e)(1), consistent with section 614(d)(1)(C) of
the Act, provides that the member may be excused from the meeting if
the parent and LEA agree in writing that the member's attendance is not
necessary. We believe it is important to give public agencies and
parents wide latitude about the content of the agreement and,
therefore, decline to regulate on the specific information that an LEA
must provide in a written agreement to excuse an IEP Team member from
attending the IEP Team meeting when the member's area of the curriculum
or related services is not being modified or discussed.
When an IEP Team member's area is being modified or discussed,
Sec. 300.321(e)(2), consistent with section 614(d)(1)(C)(ii) of the
Act, requires the LEA and the parent to provide written informed
consent. Consistent with Sec. 300.9, consent means that the parent has
been fully informed in his or her native language, or other mode of
communication, and understands that the granting of consent is
voluntary and may be revoked at any time. The LEA must, therefore,
provide the parent with appropriate and sufficient information to
ensure that the parent fully understands that the parent is consenting
to excuse an IEP Team member from attending an IEP Team meeting in
which the member's area of the curriculum or related services is being
changed or discussed and that if the parent does not consent the IEP
Team meeting must be held with that IEP Team member in attendance.
We believe that these requirements are sufficient to ensure that
the parent is fully informed before providing consent to excuse an IEP
Team member from attending an IEP Team meeting in which the member's
area of the curriculum will be modified or discussed, and do not
believe that it is necessary to include in the regulations the more
specific information that commenters recommended be provided to
parents.
We also do not believe it is necessary to add a regulation
permitting States to establish additional procedural safeguards for
parents who consent to excuse an IEP Team member, as recommended by one
commenter, because we believe the safeguard of requiring consent will
be sufficient to prevent parents from feeling pressured to excuse an
IEP Team member. Furthermore, parents who want to confer with an
excused team member may ask to do so before agreeing or consenting to
excusing the member from attending the IEP Team meeting, but it would
be inappropriate to add a regulation that limited parent rights by
requiring a conference before the parent could agree or consent to the
excusal of an IEP Team member.
With regard to the recommendation that the notice state that the
parent has a legal right to require an IEP Team member to participate
in an IEP Team meeting, it is important to emphasize that it is the
public agency that determines the specific personnel to fill the roles
for the public agency's required participants at the IEP Team meeting.
A parent does not have a legal right to require other members of the
IEP Team to attend an IEP Team meeting. Therefore, if a parent invites
other public agency personnel who are not designated by the LEA to be
on the IEP Team, they are not required to attend.
An LEA may not routinely or unilaterally excuse IEP Team members
from attending IEP Team meetings as parent agreement or consent is
required in each instance. We encourage LEAs to carefully consider,
based on the individual needs of the child and the issues that need to
be addressed at the IEP Team meeting whether it makes sense to offer to
hold the IEP Team meeting without a particular IEP Team member in
attendance or whether it would be better to reschedule the meeting so
that person could attend and participate in the discussion. However, we
do not believe that additional regulations on this subject are
warranted.
An LEA that routinely excuses IEP Team members from attending IEP
Team meetings would not be in compliance with the requirements of the
Act, and, therefore, would be subject to the State's monitoring and
enforcement provisions.
Changes: None.
Comment: A few commenters requested clarification on whether
excusals from IEP Team meetings apply to only regular education
teachers, special education teachers, and related services providers,
or to all individuals whose curriculum areas may be discussed at an IEP
Team meeting. One commenter recommended clarifying that all IEP Team
members, as defined in Sec. 300.321, must be represented at the IEP
Team meeting unless excused by the parents and the LEA.
One commenter stated that Sec. 300.321(e) can be read to require
that each individual invited to the IEP Team meeting by the parent or
the public agency (who has knowledge or special expertise) must attend
the meeting unless the parent and the agency agree in writing that they
need not attend. The commenter recommended that the regulations clarify
that the attendance of the other individuals invited to attend the IEP
Team meeting by the parent and public agency is discretionary and that
no waiver is needed to hold the IEP Team meeting without them. The
commenter recommended revising Sec. 300.321(e)(1) to refer to
``mandatory'' members of the IEP Team. Another commenter expressed
concern that it is not possible to pre-determine the areas of the
curriculum that may be addressed at an IEP Team meeting, and
recommended that excusals be permitted only for the IEP Team members
identified by the public agency in Sec. 300.321(a).
One commenter recommended that the regulations allow teachers with
classroom responsibilities to attend an IEP Team meeting for 15 to 20
minutes and leave the meeting when necessary. Some commenters requested
clarification regarding situations in which there is more than one
regular education teacher at an IEP Team meeting and whether one or
both
[[Page 46675]]
teachers must have a written excusal to leave before the end of an IEP
Team meeting.
One commenter stated that it is unclear whether consent must be
obtained if a speech pathologist or occupational therapist cannot
attend a meeting because speech pathologists and occupational
therapists are not required members of an IEP Team.
Discussion: We believe that the excusals from IEP Team meetings
apply to the members of the IEP Team in paragraphs (a)(2) through (5)
in Sec. 300.321, that is, to the regular education teacher of the
child (if the child is, or may be participating in the regular
education environment); not less than one special education teacher of
the child (or where appropriate, not less than one special education
provider of the child); a representative of the public agency who meets
the requirements in Sec. 300.321(a)(4); and an individual who can
interpret the instructional implications of evaluation results. We do
not believe it is necessary to require consent or a written agreement
between the parent and the public agency to excuse individuals who are
invited to attend IEP Team meetings at the discretion of the parent or
the public agency because such individuals are not required members of
an IEP Team. We will add new language to Sec. 300.321(e) to clarify
the IEP Team members for whom the requirements regarding excusals
apply.
With regard to situations in which there is more than one regular
education teacher, the IEP Team need not include more than one regular
education teacher. The regular education teacher who serves as a member
of a child's IEP Team should be a teacher who is, or may be,
responsible for implementing a portion of the IEP so that the teacher
can participate in discussions about how best to instruct the child. If
the child has more than one regular education teacher responsible for
carrying out a portion of the IEP, the LEA may designate which teacher
or teachers will serve as the IEP member(s), taking into account the
best interest of the child. An LEA could also agree that each teacher
attend only the part of the meeting that involves modification to, or
discussion of, the teacher's area of the curriculum.
Section 300.321(a)(3) requires the IEP Team to include not less
than one special education teacher or where appropriate, not less than
one special education provider of the child. As explained earlier, a
special education provider is a person who is, or will be, responsible
for implementing the IEP. Therefore, if a speech pathologist,
occupational therapist, or other special education provider, other than
the child's special education teacher is on the IEP Team, written
consent from the parent would be required for the speech pathologist,
occupational therapist, or other special education provider to be
excused from attending an IEP Team meeting, in whole or in part, when
the IEP Team meeting involves a modification to, or discussion of, the
IEP Team member's related service or area of the curriculum.
Changes: We have added language in Sec. 300.321(e)(1) to refer to
paragraphs (a)(2) through (a)(5), and a reference to paragraph (e)(1)
in Sec. 300.321(e)(2) to clarify the IEP Team members for whom a
parent and public agency must consent or agree in writing to excuse
from an IEP Team meeting.
Comment: A few commenters stated that excusal of the regular
education teacher is already built into the requirements and questioned
the circumstances under which a State might exceed these requirements.
Discussion: Section 300.321(a)(2) does not require a regular
education teacher to be part of the IEP Team for a child who is not
participating in the regular education environment or is not
anticipated to participate in the regular education environment. The
excusals from IEP Team meetings in Sec. 300.321(e) apply to a regular
education teacher who is part of the IEP Team by virtue of the fact
that the child with a disability is participating, or may be
participating, in the regular education environment.
Changes: None.
Comment: Some commmenters recommended setting a limit as to how
often teachers can be excused from IEP Team meetings. A few commenters
recommended prohibiting the excusal of IEP Team members for initial IEP
Team meetings. One commenter recommended allowing an IEP Team meeting
to occur only if there is one person who cannot attend the meeting.
Many commenters opposed the excusal of teachers, therapists, speech
providers, and other experts who work with a child on an ongoing basis.
A few commenters stated that regular education teachers should not be
excused from IEP Team meetings because they have the content expertise
that is critical to the IEP process. One commenter stated that the
excusal of an LEA representative should not be allowed.
A few commenters requested guidance to make it more difficult for
IEP Team members to be excused from IEP Team meetings. Some commenters
stated that excusing IEP Team members should only be done in limited
circumstances and only when absolutely necessary.
Some commenters recommended that the regulations provide an
opportunity for the parents to challenge a public agency's attempt to
exclude staff members who believe their attendance is necessary at an
IEP Team meeting. A few commenters suggested that the regulations
prohibit excusal of personnel based on the cost of providing coverage
in the classroom for a teacher to attend the IEP Team meeting,
disagreements over appropriate services among staff, or scheduling
problems. One commenter recommended that the regulations clearly state
that teachers cannot be barred from attending an IEP Team meeting.
Discussion: We decline to make the changes requested by the
commenters because it would be inconsistent with section 614(d)(1)(C)
of the Act to set a limit on the number of times an IEP Team member
could be excused; prohibit excusals for initial IEP Team meetings;
restrict the number of excusals per meeting; prohibit certain IEP Team
members from being excused from attending an IEP Team meeting; or
otherwise restrict or limit parents and LEAs from agreeing to excuse
IEP Team members from attending an IEP Team meeting. Likewise, it would
be inconsistent with section 614(d)(1)(C) of the Act for an LEA to
unilaterally excuse an IEP Team member from attending an IEP Team
meeting.
The public agency determines the specific personnel to fill the
roles for the public agency's required participants at the IEP Team
meeting. Whether other teachers or service providers who are not the
public agency's required participants at the IEP Team meeting can
attend an IEP Team meeting is best addressed by State and local
officials.
Changes: None.
Comment: A few commenters asked whether the regular teacher, the
special education teacher, principal, or the LEA makes the decision
with the parent to excuse an IEP member. Some commenters recommended
that the regulations require the excused IEP Team member to agree to be
excused from an IEP Team meeting. Other commenters stated that a
teacher should be included as one of the parties that decide whether a
teacher should be excused from attending the IEP Team meeting.
Numerous commenters recommended that, before an IEP Team member is
excused from attending an IEP Team meeting, sufficient notice must be
given so that other IEP Team members can consider the request. Some
commenters requested that the regulations clarify
[[Page 46676]]
whether the entire IEP Team must meet and then agree on whether a
member's attendance at the IEP Team meeting is needed.
Discussion: It would not be appropriate to make the changes
recommended by the commenters. There is no requirement that the excused
IEP Team member agree to be excused from the IEP Team meeting, that a
teacher be included as one of the parties that decides whether a
teacher should be excused from attending the IEP Team meeting, or that
other IEP Team members agree to excuse a member's attendance. It is up
to each public agency to determine the individual in the LEA with the
authority to make the agreement (or provide consent) with the parent to
excuse an IEP Team member from attending an IEP Team meeting. The
designated individual must have the authority to bind the LEA to the
agreement with the parent or provide consent on behalf of the LEA.
Changes: None.
Comment: A few commenters recommended that the regulations
specifically state that parents retain the right to change their mind
to excuse an IEP Team member and have full IEP Team member
participation, if it becomes apparent during the IEP Team meeting that
the absence of an excused IEP Team member inhibits the development of
the IEP. One commenter expressed concern that parents will be informed
of excusals at the beginning of a meeting or be given a note, report,
or letter from the absent IEP Team member.
Discussion: The IEP Team is expected to act in the best interest of
the child. As with any IEP Team meeting, if additional information is
needed to finalize an appropriate IEP, there is nothing in the Act that
prevents an IEP Team from reconvening after the needed information is
obtained, as long as the IEP is developed in a timely manner,
consistent with the requirements of the Act and these regulations. The
parent can request an additional IEP Team meeting at any time and does
not have to agree to excuse an IEP Team member. Likewise, if a parent
learns at the IEP Team meeting that a required participant will not be
at the meeting, the parent can agree to continue with the meeting and
request an additional meeting if more information is needed, or request
that the meeting be rescheduled.
Changes: None.
Comment: Several commenters recommended that the regulations
specify the amount of time prior to an IEP Team meeting by which notice
must be received by the parent about the LEA's desire to excuse an IEP
Team member from attending an IEP Team meeting. A few commenters
recommended that an LEA's request for excusal of an IEP Team member be
provided to the parent 10 business days prior to the date of the IEP
Team meeting and other commenters recommended five business days before
an IEP Team meeting.
One commenter recommended that the regulations specify when the
parent's written consent to excuse IEP Team members from the meeting
must be received by the agency. Many commenters recommended that the
regulations include language requiring that any agreement to excuse an
IEP Team member from attending the IEP Team meeting be done in advance
of the meeting. Some commenters stated that requiring an agreement in
advance of an IEP Team meeting would allow the parent to review the IEP
Team member's written input prior to the IEP Team meeting and ensure
that parental consent is informed. A few commenters recommended that
the Act prohibit a written agreement from being signed before the
meeting occurs.
Discussion: The Act does not specify how far in advance of an IEP
Team meeting a parent must be notified of an agency's request to excuse
a member from attending an IEP Team meeting or when the parent and LEA
must sign a written agreement or provide consent to excuse an IEP Team
member. Ideally, public agencies would provide parents with as much
notice as possible to request that an IEP Team member be excused from
attending an IEP Team meeting, and have agreements or consents signed
at a reasonable time prior to the IEP Team meeting. However, this might
not always be possible, for example, when a member has an emergency or
an unavoidable scheduling conflict. To require public agencies to
request an excusal or obtain a signed agreement or consent to excuse a
member a specific number of days prior to an IEP Team meeting would
effectively prevent IEP Team members from being excused from IEP Team
meetings in many situations and, thus, be counter to the intent of
providing additional flexibility to parents in scheduling IEP Team
meetings. Furthermore, if an LEA requests an excusal at the last minute
or a parent needs additional time or information to consider the
request, the parent always has the right not to agree or consent to the
excusal of the IEP Team member. We, therefore, decline to regulate on
these matters.
Changes: None.
Comment: One commenter requested that the regulations clarify the
timeframe in which the written input must be provided to the parent and
the IEP Team. Another commenter expressed concern that without knowing
whether the information submitted is sufficient to answer any of the
parent's questions, the parent could not agree, in any informed way, to
excuse an IEP Team member from attending the IEP Team meeting.
Several commenters recommended that written input be provided to
parents a reasonable amount of time prior to the meeting and not at the
beginning of the meeting. One commenter recommended requiring that
parents receive written evaluations and recommendations from the
excused member at least 10 business days before the IEP Team meeting.
Another commenter recommended that written input be provided at least
10 school days in advance of the meeting; another commenter suggested
no later than seven days before the meeting; a few commenters
recommended at least five days in advance of the meeting; and some
commenters recommended at least three business days before the meeting.
A few commenters recommended requiring public agencies to send
parents the written input of excused IEP Team members as soon as they
receive it so that parents have sufficient time to consider the input.
One commenter recommended that the regulations require the written
input to be provided to IEP Team members and parents at the same time.
Discussion: Section 614(d)(1)(C)(ii)(II) of the Act requires that
input into the development of the IEP by the IEP Team member excused
from the meeting be provided prior to the IEP Team meeting that
involves a modification to, or discussion of the member's area of the
curriculum or related services. The Act does not specify how far in
advance of the IEP Team meeting that the written input must be provided
to the parent and IEP Team members. For the reasons stated earlier, we
do not believe it is appropriate to impose a specific timeframe for
matters relating to the excusal of IEP Team members. Parents can always
reschedule an IEP Team meeting or request that an IEP Team meeting be
reconvened if additional time is needed to consider the written
information.
Changes: None.
Comment: A few commenters recommended language clarifying that IEP
Team members who submit input prior to an IEP Team meeting may still
attend the meeting. Other commenters requested that the regulations
specify
[[Page 46677]]
that failure to provide prior written input, due to inadequate notice
or unreasonable workloads, does not prohibit the excused member from
attending the meeting in person.
Discussion: The Act does not address circumstances in which an IEP
Team member is excused from an IEP Team meeting, but desires to attend
the meeting. We believe such circumstances are best addressed by local
officials and are not appropriate to include in these regulations.
Changes: None.
Comment: A few commenters recommended that the format of the
written input required in Sec. 300.321(e) be flexible and not unduly
burdensome. One commenter stated that no new form should be created for
the written input.
A few commenters recommended that the regulations clarify that the
written input must be sufficient to allow the IEP Team to thoroughly
examine the services needed and decide whether changes to the current
IEP are needed. Other commenters recommended that the written input
provide information about a child's level of academic achievement and
functional performance; recommendations for services, supports, and
accommodations to improve academic and functional performance;
revisions to the current annual goals; and other appropriate guidance.
Other commenters recommended that the written input include the IEP
Team member's opinions regarding the child's eligibility and services
needed; the basis for the opinions, including any evaluations or other
documents that formed the basis for the IEP Team member's opinion; and
whether the evaluations were conducted by the IEP Team member or
another person. These commenters also recommended that the regulations
require the excused IEP Team member to include a telephone number where
the IEP Team member can be reached prior to the meeting if the parent
wants to contact the member, and a telephone number where the member
can be reached during the meeting in case immediate input during the
meeting is required.
A few commenters recommended prohibiting public agencies from
giving the child the written input at school to take home to his or her
parents. One commenter recommended that the written input be provided
with the meeting notice required in Sec. 300.322. Another commenter
recommended that the regulations allow the written input to be provided
to parents and other IEP Team members by electronic mail or other less
formal methods.
Discussion: The Act does not specify the format or content to be
included in the written input provided by an excused member of the IEP
Team. Neither does the Act specify the method(s) by which a public
agency provides parents and the IEP Team with the excused IEP Team
member's written input. We believe that such decisions are best left to
local officials to determine based on the circumstances and needs of
the individual child, parent, and other members of the IEP Team, and
therefore decline to regulate in this area.
Changes: None.
Comment: One commenter recommended requiring any IEP Team member
who is excused from an IEP Team meeting to be trained in the updated
IEP within one calendar week of the IEP Team meeting. A few commenters
recommended that the excused IEP Team members be provided a copy of the
new or amended IEP after the meeting. One commenter recommended that
one person be designated to be responsible for sharing the information
from the meeting with the excused IEP Team member and for communicating
between the parent and the excused IEP Team member after the meeting.
Discussion: Section 300.323(d) already requires each public agency
to ensure that the child's IEP is accessible to each regular education
teacher, special education teacher, related services provider and other
service provider who is responsible for its implementation, regardless
of whether the IEP Team member was present or excused from an IEP Team
meeting. How and when the information is shared with the IEP Team
member who was excused from the IEP Team meeting is best left to State
and local officials to determine.
Changes: None.
Comment: A few commenters recommended that the regulations require
the LEA to inform a parent when the absent IEP Team member will address
the parent's questions and concerns. Another commenter recommended that
the regulations require the LEA to inform the parent of procedures for
obtaining the requested information.
Discussion: We do not believe it is appropriate to regulate on
these matters. The manner in which the parent's questions and concerns
are addressed, and how the information is shared with the parent, are
best left for State and local officials to determine.
Changes: None.
Comment: One commenter requested clarification on how the
provisions in Sec. 300.321(e), which allow IEP Team members to be
excused from IEP Team meetings, relate to revising an IEP without
convening an IEP Team meeting.
Discussion: The two provisions referred to by the commenter are
independent provisions. Section 300.321(e), consistent with section
614(d)(1)(C) of the Act, describes the circumstances under which an IEP
Team member may be excused from an IEP Team meeting. Section
300.324(a)(4), consistent with section 614(d)(3)(D) of the Act, permits
the parent and the public agency to agree not to convene an IEP Team
meeting to make changes to a child's IEP after the annual IEP Team
meeting has been held.
Changes: None.
Initial IEP Team Meeting for Child Under Part C (Sec. 300.321(f))
Comment: Several commenters recommended that the regulations
require the public agency to inform parents of their right to request
that the public agency invite their child's Part C service coordinator
to the initial IEP Team meeting. One commenter recommended that the
regulations require parents to be informed of this option in writing.
Discussion: Section 300.321(f), consistent with section
614(d)(1)(D) of the Act, requires the public agency, at the request of
the parent, to send an invitation to the Part C service coordinator or
other representatives of the Part C system to attend the child's
initial IEP Team meeting. We believe it would be useful to add a cross-
reference to Sec. 300.321(f) in Sec. 300.322 to emphasize this
requirement.
Changes: We have added a cross-reference to Sec. 300.321(f) in
Sec. 300.322.
Parent Participation (Sec. 300.322)
Public Agency Responsibility--General (Sec. 300.322(a))
Comment: A few commenters recommended that the notice of the IEP
Team meeting include a statement that the time and place of the meeting
are negotiable and must be mutually agreed on by the parent and public
agency. Other commenters recommended that the regulations emphasize the
need for flexibility in scheduling meetings so that districts make
every effort to secure parent participation in meetings.
Many commenters requested that the regulations specify how far in
advance a public agency must notify parents of an IEP Team meeting. One
commenter recommended requiring that parents be notified a minimum of
five school days before the date of the meeting.
[[Page 46678]]
Discussion: We do not agree with the changes recommended by the
commenters. Section 300.322(a) already requires each public agency to
take steps to ensure that one or both parents are present at each
meeting, including notifying parents of the meeting early enough to
ensure that they have an opportunity to attend, and scheduling the
meeting at a mutually agreed on time and place. We believe that these
requirements are sufficient to ensure that parents are provided the
opportunity to participate in meetings. We also believe that State and
local officials are in the best position to determine how far in
advance parents must be notified of a meeting, as this will vary based
on a number of factors, including, for example, the distance parents
typically have to travel to the meeting location and the availability
of childcare.
Changes: None.
Information Provided to Parents (Sec. 300.322(b))
Comment: Several comments were received requesting that additional
information be provided to parents when the public agency notifies
parents about an IEP Team meeting. One commenter recommended informing
parents that they can request an IEP Team meeting at any time. Other
commenters recommended that the notice include any agency requests to
excuse an IEP Team member from attending the meeting, and any written
input from an IEP Team member who is excused from the meeting. Another
commenter recommended that parents receive all evaluation reports
before an IEP Team meeting. A few commenters recommended that parents
receive a draft IEP so that they have time to examine the child's
present levels of performance; prepare measurable goals; and consider
appropriate programs, services, and placements.
Discussion: The purpose of the notice requirement in Sec. 300.322
is to inform parents about the IEP Team meeting and provide them with
relevant information (e.g., the purpose, time, and place of the
meeting, and who will be in attendance). This is not the same as the
procedural safeguards notice that informs parents of their rights under
the Act.
If, at the time the IEP Team meeting notice is sent, a public
agency is aware of the need to request that an IEP Team member be
excused from the IEP Team meeting, the public agency could include this
request with the meeting notice. We do not believe that it is
appropriate to require that the request to excuse an IEP Team member
from an IEP Team meeting be included in the meeting notice, because the
public agency may not be aware of the need to request an excusal of a
member at the time the IEP Team meeting notice is sent. For similar
reasons, it is not appropriate to require that the IEP Team meeting
notice include any written input from an IEP Team member who may be
excused from the IEP Team meeting.
As noted in Sec. 300.306(a)(2), the public agency must provide a
copy of an evaluation report and the documentation of determination of
eligibility at no cost to the parent. Whether parents receive all
evaluation reports before an IEP Team meeting, however, is a decision
that is best left to State and local officials to determine.
With respect to a draft IEP, we encourage public agency staff to
come to an IEP Team meeting prepared to discuss evaluation findings and
preliminary recommendations. Likewise, parents have the right to bring
questions, concerns, and preliminary recommendations to the IEP Team
meeting as part of a full discussion of the child's needs and the
services to be provided to meet those needs. We do not encourage public
agencies to prepare a draft IEP prior to the IEP Team meeting,
particularly if doing so would inhibit a full discussion of the child's
needs. However, if a public agency develops a draft IEP prior to the
IEP Team meeting, the agency should make it clear to the parents at the
outset of the meeting that the services proposed by the agency are
preliminary recommendations for review and discussion with the parents.
The public agency also should provide the parents with a copy of its
draft proposals, if the agency has developed them, prior to the IEP
Team meeting so as to give the parents an opportunity to review the
recommendations of the public agency prior to the IEP Team meeting, and
be better able to engage in a full discussion of the proposals for the
IEP. It is not permissible for an agency to have the final IEP
completed before an IEP Team meeting begins.
Changes: None.
Other Methods To Ensure Parent Participation (Sec. 300.322(c))
Comment: One commenter recommended that the regulations permit
parents to provide input through a written report in order to document
that the parents provided input into their child's education.
Discussion: Parents are free to provide input into their child's
IEP through a written report if they so choose. Therefore, we do not
believe that a change is needed.
Changes: None.
Conducting an IEP Team Meeting Without a Parent in Attendance (Sec.
300.322(d))
Comment: Many commenters recommended that Sec. 300.322(d) retain
paragraphs (d)(1) through (d)(3) in current Sec. 300.345, which
provide examples of the types of records a public agency may keep to
document its attempts to arrange a mutually agreed upon time and place
for an IEP Team meeting. These examples include detailed records of
telephone calls made or attempted and the results of those calls;
copies of correspondence sent to the parents and any responses
received; and detailed records of visits made to the parent's home or
place of employment and the results of those visits. A few commenters
stated that removing these provisions violates section 607(b) of the
Act.
Discussion: We agree that these provisions are important to
encourage parent participation in the IEP process, which is an
important safeguard for ensuring FAPE under the Act. We will,
therefore, add the requirements in current Sec. 300.345(d)(1) through
(d)(3) to Sec. 300.322(d).
Changes: We have added the requirements in current Sec.
300.345(d)(1) through (d)(3) to Sec. 300.322(d).
Comment: One commenter stated that parents who do not participate
in IEP Team meetings when the school has made good-faith efforts to
include them should be sanctioned.
Discussion: There is nothing in the Act that would permit
sanctioning a parent who does not participate in an IEP Team meeting,
nor do we believe that it would be appropriate or helpful to do so.
Sanctioning a parent is unlikely to engender the type of active
participation at IEP Team meetings that would be desirable or helpful
in developing, reviewing, or revising a child's IEP.
Changes: None.
Comment: One commenter recommended that the regulations make
explicit that the LEA can move forward and hold an IEP Team meeting
without the parent, if notice has been provided consistent with Sec.
300.322(a)(1) and (b)(1), and the parent does not participate. The
commenter recommended that this requirement be consistent with the
parent participation requirements for placement meetings in Sec.
300.501(c)(3) and (c)(4).
Discussion: Section 300.322(d) explicitly allows a meeting to be
conducted without a parent if the public
[[Page 46679]]
agency is unable to convince the parent to attend. The requirements for
parent participation in IEP Team meetings in Sec. 300.322, and
placement meetings in Sec. 300.501 are consistent. Section 300.322(d)
states that an IEP Team meeting may be conducted without a parent in
attendance if the public agency is unable to convince a parent to
attend the IEP Team meeting. Similarly, Sec. 300.501(c)(4) provides
that a group, without the involvement of the parent, may make a
placement decision if the public agency is unable to obtain the
parent's participation in the decision. In both cases, the public
agency must keep a record of its attempts to obtain the parent's
involvement.
Changes: None.
Comment: One commenter expressed concern that allowing school
districts to hold IEP Team meetings without parents could increase the
over-representation of African American children placed in special
education.
Discussion: Section 300.322(a) requires a public agency to take
steps to ensure that one or both parents are afforded the opportunity
to participate in an IEP Team meeting, including notifying parents of
the meeting early enough to ensure that they will have an opportunity
to attend, and scheduling the meeting at a mutually agreed on time and
place. Section 300.322(c) requires the public agency to use other
methods to ensure parent participation if neither parent can attend an
IEP Team meeting, including individual or conference telephone calls.
Only when a public agency is unable to convince a parent to participate
in an IEP Team meeting may the meeting be conducted without a parent.
We disagree with the implication in the comment that parents of one
race are less likely to participate in IEP Team meetings.
Changes: None.
Comment: Many commenters recommended retaining current Sec.
300.345(e), which requires the public agency to take whatever action is
necessary to ensure that the parent understands the proceedings at an
IEP Team meeting, including arranging for an interpreter for parents
with deafness or whose native language is other than English. Some
commenters stated that current Sec. 300.345(e) is protected by section
607(b) of the Act and, therefore, cannot be removed.
Many commenters acknowledged that there are other Federal laws that
require public agencies to take appropriate measures to ensure that
parents understand the proceedings at an IEP Team meeting, but stated
that not all stakeholders are aware of the applicability of those other
protections in IEP Team meetings. Several commenters expressed concern
with the removal of current Sec. 300.345(e) stating that other Federal
laws are not enforceable at special education due process hearings.
Discussion: We agree that current Sec. 300.345(e) is an important
safeguard of parent participation for parents with deafness or whose
native language is other than English. We will, therefore, add the
requirements in current Sec. 300.345(e) to the regulations.
Changes: We have added the requirements in current Sec. 300.345(e)
as new Sec. 300.322(e), and redesignated the subsequent paragraph as
Sec. 300.322(f).
Parent Copy of Child's IEP (New Sec. 300.322(f)) (Proposed Sec.
300.322(e))
Comment: One commenter recommended that the regulations clarify
that the public agency must provide the parent a copy of any amended
IEPs, in addition to the original IEP.
Discussion: Section 300.324(a)(6), consistent with section
614(d)(3)(F) of the Act, requires the public agency to, upon request of
the parent, provide the parent with a revised copy of the IEP with the
amendments incorporated. We do not believe any further clarification is
necessary.
Changes: None.
When IEPs Must Be in Effect (Sec. 300.323)
Comment: Some commenters recommended retaining current Sec.
300.342(b)(1)(i) to ensure that an IEP is in effect before special
education services are provided to a child.
Discussion: We do not believe it is necessary to retain current
Sec. 300.342(b)(1)(i) because we believe this requirement is implicit
in Sec. 300.323(a), which requires each public agency to have an IEP
in effect for each child with a disability in the public agency's
jurisdiction at the beginning of each school year.
Changes: None.
IEP or IFSP for Children Aged Three Through Five (Sec. 300.323(b))
Comment: One commenter recommended revising the regulations to
clarify when an IEP must be in place for a child transitioning from an
early intervention program under Part C of the Act to a preschool
special education program under Part B of the Act whose third birthday
occurs after the start of the school year.
Discussion: The commenter's concern is already addressed in the
regulations. Section 300.101(b), consistent with section 612(a)(1)(A)
of the Act, requires an IEP to be in effect no later than the child's
third birthday. However, Sec. 300.323(b)(1), consistent with section
614(d)(2)(B) of the Act, provides that a State, at its discretion, may
provide special education and related services to two-year-old children
with disabilities who will turn three during the school year. In such
cases, the State must ensure that an IEP is developed and in effect at
the start of the school year in which the child turns three.
Changes: None.
Comment: One commenter stated that an IFSP that was incorrectly
developed by the early intervention agency should not be the school
district's responsibility to correct.
Discussion: The development of an IFSP for children from birth
through age two is the responsibility of the designated lead agency
responsible for early intervention programs under section 635(a)(10) in
Part C of the Act. When a child turns age three, section 612(a)(9) of
the Act requires each State to ensure that an IEP has been developed
and implemented. However, if a child turns age three and an LEA and a
parent agree to use an IFSP in lieu of an IEP, as allowed under section
614(d)(2)(B) of the Act, the LEA is responsible for ensuring that the
requirements in Sec. 300.323(b) are met. Therefore, if an IFSP was
incorrectly developed by the early intervention agency and the public
agency and the parent agree to use the IFSP in lieu of an IEP, the LEA
is responsible for modifying the IFSP so that it meets the requirements
in Sec. 300.323(b).
Section 300.323(b), consistent with section 614(d)(2)(B) of the
Act, allows an IFSP to serve as an IEP for 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), under the following conditions: (a) using the IFSP as the IEP is
consistent with State policy and agreed to by the agency and the
child's parents; (b) the child's parents are provided with a detailed
explanation of the differences between an IFSP and an IEP; (c) written
informed consent is obtained from the parent if the parent chooses an
IFSP; (d) the IFSP contains the IFSP content, including the natural
environments statement; (e) the IFSP includes 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; and (f) the IFSP is developed in accordance with the IEP
procedures under Part B of the Act.
Changes: None.
Comment: One commenter recommended that the regulations
[[Page 46680]]
require the IEP Team to explain the changes in services and settings in
the initial IEP Team meeting for a child transitioning from an early
intervention program under Part C of the Act to a preschool program
under Part B of the Act.
Discussion: We do not believe it is necessary to change the
regulations in the manner recommended by the commenter. Section
300.124, consistent with section 612(a)(9) of the Act, already requires
States to have in effect policies and procedures to ensure that
children transitioning from an early intervention program under Part C
of the Act to a preschool program under Part B of the Act experience a
smooth and effective transition to those preschool programs. In
addition, each LEA is required to participate in transition planning
conferences with the lead agency responsible for providing early
intervention services and to have an IEP (or an IFSP, if consistent
with Sec. 300.323(b) and section 636(d) of the Act) for the child
developed and implemented by the child's third birthday. We believe
that in the course of the transition planning conferences and
developing the child's IEP, there would be many opportunities for
discussions regarding the services provided under Parts B and C of the
Act.
Changes: None.
Comment: One commenter stated that there is no statutory basis to
require detailed explanations of the differences between an IEP and an
IFSP or for written informed parental consent when an IFSP is used in
lieu of an IEP.
Discussion: We believe it is important to retain these requirements
in Sec. 300.323(b)(2) because of the importance of the IEP as the
statutory vehicle for ensuring FAPE to a child with a disability.
Although the Act does not specifically require a public agency to
provide detailed explanations to the parent of the differences between
an IEP and an IFSP, we believe parents need this information to make an
informed choice regarding whether to continue to use an IFSP in lieu of
an IEP. Parents, for example, should understand that it is through the
IEP that the child is entitled to the special education and related
services that the child's IEP Team determines are necessary to enable
the child to be involved in and make progress in the general education
curriculum and to receive FAPE. If a parent decides to use an IFSP in
lieu of an IEP, the parent must understand that the child will not
necessarily receive the same services and supports that are afforded
under an IEP. For a parent to waive the right to an IEP, informed
parental consent is necessary.
Changes: None.
Comment: Some commenters recommended that the regulations
explicitly state that the IFSP does not have to include all the
elements of an IEP when the IFSP is used in lieu of an IEP.
Discussion: Section 300.323(b)(1) provides that, in order for the
IFSP to be used as the IEP, the IFSP must contain the IFSP content
(including the natural environments statement) in section 636(d) of the
Act and be developed in accordance with the IEP procedures under Part B
of the Act. For children who are at least three years of age, the IFSP
must also include an educational component that promotes school
readiness and incorporates pre-literacy, language, and numeracy skills.
There is no requirement for the IFSP to include all the required
elements in an IEP. We think this point is clear in the regulations and
that no further clarification is necessary.
Changes: None.
Comment: Some commenters recommended changing Sec.
300.323(b)(2)(i) to require parental consent before a preschool-aged
child receives an IFSP in States that have a policy under section
635(c) of the Act. Some commenters recommended that the regulations
clarify whether States have flexibility to continue early intervention
services until the end of the school year in which a child turns three.
Discussion: Section 300.323(b) outlines the specific requirements
that apply when an IFSP is used in lieu of an IEP for children aged
three through five, as a means of providing FAPE for the child under
Part B of the Act. This is not the same as the policy in section 635(c)
of the Act, which gives States the flexibility to provide early
intervention services under Part C of the Act to three year old
children with disabilities until they enter into, or are eligible under
State law to enter into, kindergarten.
Under Sec. 300.323(b), when an IFSP is used in lieu of an IEP, the
child continues to receive FAPE. This would not be the case under
section 635(c) of the Act. Under section 635(c) of the Act, parents of
children with disabilities who are eligible for preschool services
under section 619 of the Act and previously received early intervention
services under Part C of the Act, may choose to continue early
intervention services until the child enters, or is eligible under
State law to enter, kindergarten. The option to continue early
intervention services is available only in States where the lead agency
under Part C of the Act and the SEA have developed and implemented a
State policy to provide this option. This option will be detailed in
the Part C regulations, and not the Part B regulations, as it permits a
continuation of eligibility and coverage under Part C of the Act,
rather than FAPE under Part B of the Act.
Parental consent is required under Sec. 300.323(b), when the IFSP
is used in lieu of an IEP, and under section 635(c) of the Act, when a
parent opts to continue early intervention services.
Changes: None.
Initial IEPs; Provision of Services (Sec. 300.323(c))
Comment: One commenter recommended removing the requirement for an
IEP Team meeting to be conducted within 30 days of determining that the
child needs special education and related services. Another commenter
recommended extending the time to 60 days. A few commenters recommended
that the regulations require the meeting to be held no later than 15
days after the eligibility determination.
Discussion: The requirement to conduct a meeting to develop a
child's IEP within 30 days of the determination that a child needs
special education and related services is longstanding, and has been
included in the regulations since they were first issued in final form
in 1977. Experience has shown that many public agencies choose to
conduct the meeting to develop the child's IEP well before the 30-day
timeline. Reducing the timeline to 15-days, as some commenters suggest,
would be impractical, because there are situations when both public
agencies and parents need additional time to ensure that appropriate
individuals can be present at the meeting. Experience has demonstrated
that the 30-day timeline for conducting a meeting to develop an IEP is
a reasonable time to provide both public agencies and parents the
opportunity to ensure that required participants can be present at the
IEP Team meeting. Therefore, we decline to alter this longstanding
regulatory provision.
Changes: None.
Accessibility of Child's IEP to Teachers and Others (Sec. 300.323(d))
Comment: Many commenters recommended retaining current Sec.
300.342(b)(3)(i) and (b)(3)(ii), which require teachers and providers
to be informed of their specific responsibilities for implementing an
IEP, and the specific accommodations, modifications, and supports that
must be provided to the child in accordance with the child's IEP.
Several
[[Page 46681]]
commenters stated that a child's IEP should be readily accessible and
all those involved in a child's education should be required to read
and understand it.
Discussion: Section 300.323(d) requires that the child's IEP be
accessible to each regular education teacher, special education
teacher, related services provider, and any other service provider who
is responsible for its implementation. The purpose of this requirement
is to ensure that teachers and providers understand their specific
responsibilities for implementing an IEP, including any accommodations
or supports that may be needed. We agree with the commenters'
recommendation and believe retaining current Sec. 300.342(b)(3)(i) and
(b)(3)(ii) is necessary to ensure proper implementation of the child's
IEP and the provision of FAPE to the child. However, the mechanism that
the public agency uses to inform each teacher or provider of his or her
responsibilities is best left to the discretion of the public agency.
Changes: We have restructured Sec. 300.323(d) and added a new
paragraph (d)(2) to include the requirements in current Sec.
300.342(b)(3)(i) and (b)(3)(ii).
IEPs for Children Who Transfer Public Agencies in the Same State (Sec.
300.323(e), IEPs for Children Who Transfer From Another State Sec.
300.323(f), and Transmittal of Records Sec. 300.323(g)) (Proposed
Program for Children Who Transfer Public Agencies (Sec. 300.323(e))
Comment: None.
Discussion: Several technical changes are needed in proposed Sec.
300.323(e) for clarity and improved readability. We believe that
readability will be improved by reorganizing this provision into three
separate paragraphs--paragraph (e), which will address transfers within
the same State, paragraph (f), which will address transfers from
another State, and paragraph (g), which will address the transmittal of
records.
In addition, clarity will be improved by changing certain terms to
align with terms that are more commonly used in this part. For example,
while the Act uses the term ``Program'' in the title of this
requirement (referring to an ``individualized education program''), we
believe it would be clearer to use ``IEP'' throughout this provision.
In addition, as noted in the discussion of Sec. 300.304(c)(5), we
believe that it is important to include language stating that the
requirements in Sec. 300.323 are applicable to children with
disabilities who have an IEP in effect in a previous public agency and
who transfer to a new school within the same ``school year,'' rather
than the same ``academic year,'' because ``school year'' is the term
most commonly understood by parents and school officials. Further, it
is important that the regulations clearly and consistently
differentiate between the responsibilities of the ``new'' public agency
and the ``previous'' public agency.
Changes: We have restructured proposed Sec. 300.323(e) into three
separate paragraphs, and each paragraph has been re-named to comport
with the three concepts in the statutory requirement. Proposed Sec.
300.323(e)(1)(i) has been changed to new Sec. 300.323(e), ``IEPs for
children who transfer public agencies in the same State.'' Proposed
Sec. 300.323(e)(1)(ii) has been changed to new Sec. 300.323(f),
``IEPs for children who transfer from another State.'' Proposed Sec.
300.323(e)(2) has been changed to new Sec. 300.323(g), ``Transmittal
of records.''
We have substituted ``IEP'' for ``program'' in new Sec. 300.323(e)
(proposed Sec. 300.323(e)(1)(i)), and have made the following changes
to new Sec. 300.323(e) (proposed Sec. 300.323(e)(1)(i)) and new Sec.
300.323(f) (proposed Sec. 300.323(e)(1)(ii)): (1) added language to
clarify that the requirements apply to a child with a disability who
has an IEP in effect in a previous public agency and transfers to a new
school within the same school year; (2) replaced the term ``is
consistent with Federal and State law'' with ``meets the applicable
requirements in Sec. Sec. 300.320 through 300.324;'' and (3) clarified
when a requirement applies to the ``new'' public agency to which the
child transfers versus the ``previous'' public agency.
Comment: Several commenters requested that the regulations clarify
the meaning of ``comparable services.''
Discussion: We do not believe it is necessary to define
``comparable services'' in these regulations because the Department
interprets ``comparable'' to have the plain meaning of the word, which
is ``similar'' or ``equivalent.'' Therefore, when used with respect to
a child who transfers to a new public agency from a previous public
agency in the same State (or from another State), ``comparable''
services means services that are ``similar'' or ``equivalent'' to those
that were described in the child's IEP from the previous public agency,
as determined by the child's newly-designated IEP Team in the new
public agency.
Changes: None.
IEPs for Children Who Transfer From Another State (New Sec.
300.323(f)) (Proposed Sec. 300.323(e)(1)(ii))
Comment: One commenter requested clarification regarding the
responsibilities of LEAs who receive a child transferring from out of
State.
Discussion: When a child transfers from another State, new Sec.
300.323(f) (proposed Sec. 300.323(e)(1)(ii)), consistent with section
614(d)(2)(C)(i)(II) of the Act, requires the LEA, in consultation with
the parents, to provide the child with FAPE, including services
comparable to those in the IEP from the previous public agency, until
such time as the new public agency conducts an evaluation (if
determined to be necessary) and adopts a new IEP.
Changes: None.
Comment: Several commenters requested that the regulations clarify
what happens when a child transfers to a State with eligibility
criteria that are different from the previous public agency's criteria.
Discussion: Under Sec. 300.323(f)(1), if the new public agency
determines that an evaluation of the child is necessary to determine
whether the child is a child with a disability under the new public
agency's criteria, the new public agency must conduct the evaluation.
Until the evaluation is conducted, Sec. 300.323(f) requires the new
public agency, in consultation with the parent, to provide the child
with FAPE, including services comparable to those described in the IEP
from the previous public agency. The specific manner in which this is
accomplished is best left to State and local officials and the parents
to determine. We do not believe that any further clarification is
necessary.
Changes: None.
Comment: One commenter requested clarification about whether
parental consent must be obtained for the new public agency to evaluate
a child with an IEP who transfers from another State. Another commenter
requested that the regulations clarify that an evaluation of a child
who transfers from another State is considered a reevaluation.
One commenter requested that the regulations address circumstances
in which comparable services are considered unreasonable in the State
receiving the child. Some commenters stated that the stay-put provision
should be imposed by the new State if the parent disagrees with the new
public agency about the comparability of services.
Discussion: New Sec. 300.323(f) (proposed Sec.
300.323(e)(1)(ii)), consistent with section 614(d)(2)(C)(i)(II) of the
[[Page 46682]]
Act, states that, in the case of a child with a disability who enrolls
in a new school in another State, the public agency, in consultation
with the parents, must provide FAPE to the child, until such time as
the public agency conducts an evaluation pursuant to Sec. Sec. 300.304
through 300.306, if determined necessary by the public agency, and
develops a new IEP, if appropriate, that is consistent with Federal and
State law. The evaluation conducted by the new public agency would be
to determine if the child is a child with a disability and to determine
the educational needs of the child. Therefore, the evaluation would not
be a reevaluation, but would be an initial evaluation by the new public
agency, which would require parental consent. If there is a dispute
between the parent and the public agency regarding what constitutes
comparable services, the dispute could be resolved through the
mediation procedures in Sec. 300.506 or, as appropriate, the due
process hearing procedures in Sec. Sec. 300.507 through 300.517. We
believe these options adequately address circumstances in which
comparable services are considered unreasonable.
With regard to the comment that the stay-put provisions should be
imposed by the new State if the parent disagrees with the new public
agency about the comparability of services, stay-put would not apply,
because the evaluation is considered an initial evaluation and not a
reevaluation.
Changes: None.
Comment: A few commenters requested clarification regarding the
responsibilities of the new public agency for a child with a disability
who moves during the summer.
Discussion: Section 614(d)(2)(a) is clear that at the beginning of
each school year, each LEA, SEA, or other State agency, as the case may
be, must have an IEP in effect for each child with a disability in the
agency's jurisdiction. Therefore, public agencies need to have a means
for determining whether children who move into the State during the
summer are children with disabilities and for ensuring that an IEP is
in effect at the beginning of the school year.
Changes: None.
Comment: Some commenters requested clarification regarding what a
new public agency should do when a child's IEP is developed (or
revised) by the child's previous public agency at the end of a school
year (or during the summer), for implementation during the next school
year, and the child moves to the new public agency before the next
school year begins (e.g., during the summer).
Discussion: This is a matter to be decided by each individual new
public agency. However, if a child's IEP from the previous public
agency was developed (or reviewed and revised) at or after the end of a
school year for implementation during the next school year, the new
public agency could decide to adopt and implement that IEP, unless the
new public agency determines that an evaluation is needed. Otherwise,
the newly designated IEP Team for the child in the new public agency
could develop, adopt, and implement a new IEP for the child that meets
the applicable requirements in Sec. Sec. 300.320 through 300.324.
Changes: None.
Transmittal of Records (New Sec. 300.323(g)) (Proposed Sec.
300.323(e)(2))
Comment: Several commenters recommended that the regulations
require the previous public agency to transmit a child's records to the
new public agency within 15 business days after receiving the request.
Other commenters recommended that the regulations require a specific
timeframe for the school to obtain and review the previous educational
placement and services of the transfer child.
Discussion: New Sec. 300.323(g) (proposed Sec. 300.323(e)(2))
follows the language in section 614(d)(2)(C)(ii) of the Act, and
requires the new public agency to take reasonable steps to promptly
obtain the child's records from the previous public agency in which the
child was enrolled. New Sec. 300.323(g) (proposed Sec. 300.323(e)(2))
also requires the previous public agency to take reasonable steps to
promptly respond to the request from the new public agency. There is
nothing in the Act that would prevent a State from requiring its public
agencies to obtain a child's records or respond to requests for a
child's records within a specific timeframe. This is an issue
appropriately left to States to determine.
Changes: None.
Development of IEP
Development, Review, and Revision of IEP (Sec. 300.324)
Comment: A few commenters recommended requiring all IEP members to
sign the IEP.
Discussion: There is nothing in the Act that requires IEP members
to sign the IEP and we believe it would be overly burdensome to impose
such a requirement.
Changes: None.
Comment: A few commenters requested that the regulations require
the IEP Team to consider the social and cultural background of the
child in the development, review, or revision of the child's IEP.
Discussion: Under Sec. 300.306(c)(1)(i), a child's social or
cultural background is one of many factors that a public agency must
consider in interpreting evaluation data to determine if a child is a
child with a disability under Sec. 300.8 and the educational needs of
the child. We do not believe it is necessary to repeat this requirement
in Sec. 300.324.
Changes: None.
Comment: A few commenters recommended retaining current Sec.
300.343(a), regarding the public agency's responsibility to initiate
and conduct meetings to develop, review, and revise a child's IEP.
Discussion: It is not necessary to retain Sec. 300.343(a) because
the requirements for the public agency to initiate and conduct meetings
to develop, review, and revise a child's IEP are covered in Sec.
300.112 and Sec. 300.201. Section 300.112, consistent with section
614(a)(4) of the Act, requires the State to 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.
Section 300.201, consistent with section 613(a)(1) of the Act, requires
LEAs to 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, which include the requirements related to developing,
reviewing, and revising an IEP for each child with a disability.
Changes: None.
Comment: A few commenters recommended retaining current Sec.
300.346(a)(1)(iii), regarding the IEP Team's consideration of the
results of the child's performance on any general State or districtwide
assessment programs in developing the child's IEP. The commenter stated
that it is important to retain this requirement because such testing
informs the IEP Team of the child's success in the general education
curriculum.
Discussion: The Department agrees that State and districtwide
assessments provide important information concerning the child's
academic performance and success in the general education curriculum.
However, current Sec. 300.346(a)(1)(iii) was removed, consistent with
section 614(d)(3)(A)(iv) of the Act. Because the language from current
Sec. 300.346(a)(1)(iii) was specifically excluded from the Act, we do
not believe it is appropriate to retain it in the regulations. We do
not believe
[[Page 46683]]
that an explicit regulation is needed, however, because Sec.
300.324(a)(1)(iv) requires the IEP Team, in developing each child's
IEP, to consider the academic, developmental, and functional needs of
the child. A child's performance on State or districtwide assessments
logically would be included in the IEP Team's consideration of the
child's academic needs. In addition, as a part of an initial evaluation
or reevaluation, Sec. 300.305(a) requires the IEP Team to review
existing evaluation data, including data from current classroom based,
local, and State assessments.
Changes: None.
Consideration of Special Factors (Sec. 300.324(a)(2))
Comment: Many commenters recommended changing Sec.
300.324(a)(2)(i) to require that the positive behavioral interventions
and supports for a child whose behavior impedes the child's learning or
that of others be based on a functional behavioral assessment.
Discussion: Section 300.324(a)(2)(i) follows the specific language
in section 614(d)(3)(B)(i) of the Act and focuses on interventions and
strategies, not assessments, to address the needs of a child whose
behavior impedes the child's learning or that of others. Therefore,
while conducting a functional behavioral assessment typically precedes
developing positive behavioral intervention strategies, we do not
believe it is appropriate to include this language in Sec.
300.324(a)(2)(i).
Changes: None.
Comment: A few commenters recommended that Sec. 300.324(a)(2)(i)
refer specifically to children with internalizing and externalizing
behaviors.
Discussion: We do not believe it is necessary to make the
recommended change because Sec. 300.324(a)(2)(i) is written broadly
enough to include children with internalizing and externalizing
behaviors.
Changes: None.
Comment: Many commenters expressed concern that the consideration
of special factors in Sec. 300.324(a)(2)(i) is not sufficient to
address the behavioral needs of children with disabilities in the IEP
process and recommended strengthening the regulations by encouraging
school districts to utilize research-based positive behavioral supports
and systematic and individual research-based interventions. One
commenter recommended training teachers regarding the use of positive
behavioral interventions and supports.
Discussion: We do not believe that the changes recommended by the
commenters need to be made to Sec. 300.324(a)(2)(i). Whether a child
needs positive behavioral interventions and supports is an individual
determination that is made by each child's IEP Team. Section
300.321(a)(2)(i) requires the IEP Team, in the case of a child whose
behavior impedes the child's learning or that of others, to consider
the use of positive behavioral supports, and other strategies to
address that behavior. We believe that this requirement emphasizes and
encourages school personnel to use positive behavioral interventions
and supports.
In addition, the regulations reflect the Department's position that
high-quality professional development, including the use of
scientifically based instructional practices, is important to ensure
that personnel have the skills and knowledge necessary to improve the
academic achievement and functional performance of children with
disabilities. Section 300.207, consistent with section 613(a)(3) of the
Act, requires each LEA to ensure that all personnel necessary to carry
out Part B of the Act are appropriately and adequately prepared,
subject to the requirements in Sec. 300.156 and section 2122 of the
ESEA.
Section 300.156(a), consistent with section 612(a)(14) of the Act,
clearly states that each State must establish and maintain
qualifications to ensure that personnel are appropriately and
adequately prepared and trained, and have the content knowledge and
skills to serve children with disabilities. Further, section
2122(b)(1)(B) of the ESEA requires an LEA's application to the State
for title II funds (Preparing, training, and recruiting high quality
teachers and principals) to address how the LEA's activities will be
based on a review of scientifically based research.
In addition, the implementation of early intervening services in
Sec. 300.226 specifically focuses on professional development for
teachers and other school staff to enable such personnel to deliver
scientifically based academic and behavioral interventions, and
providing educational and behavioral evaluations, services, and
supports. We expect that the professional development activities and
the services authorized under Sec. 300.226(b)(1) will be derived from
scientifically based research.
Finally, because the definition of scientifically based research is
important to the implementation of Part B of the Act, a reference to
section 9101(37) of the ESEA has been added in new Sec. 300.35, and
the full definition of the term has been included in the discussion to
the new Sec. 300.35. Under the definition, scientifically based
research must be accepted by a peer-reviewed journal or approved by a
panel of independent experts through a comparably rigorous, objective,
and scientific review. In short, we believe that the Act and the
regulations place a strong emphasis on research based supports and
interventions, including positive behavioral interventions and
supports.
Changes: None.
Comment: One commenter recommended requiring positive behavioral
interventions and supports for all children identified as having an
emotional disturbance.
Discussion: Section 300.324(a)(2)(i), consistent with section
614(d)(3)(B)(i) of the Act, requires the IEP Team to consider the use
of positive behavioral interventions and supports, and other strategies
to address the behavior of a child whose behavior impedes the child's
learning or that of others. We do not believe there should be a
requirement that the IEP Team consider such interventions, supports,
and strategies for a particular group of children, or for all children
with a particular disability, because such decisions should be made on
an individual basis by the child's IEP Team.
Changes: None.
Comment: A few commenters expressed concern that the regulations
regarding special factors for the IEP Team to consider in developing
IEPs imply that particular methods, strategies, and techniques should
be used.
Discussion: The requirements in Sec. 300.324 are not intended to
imply that a particular method, strategy, or technique should be used
to develop a child's IEP. For example, while Sec. 300.324(a)(2)(i)
requires the IEP Team to consider the use of positive behavioral
interventions and supports, and other strategies, it does not specify
the particular interventions, supports, or strategies that must be
used.
Changes: None.
Comment: Some commenters recommended that the special factors for a
child who is blind or visually impaired include a requirement for a
clinical low vision evaluation to determine whether the child has the
potential to utilize optical devices for near and distance information
before providing instruction in Braille and the use of Braille.
Discussion: Section 614(d)(3)(B)(iii) of the Act requires
instruction in Braille to be provided unless the IEP Team
[[Page 46684]]
determines that instruction in Braille or in the use of Braille is not
appropriate for the child. However, the Act does not require a clinical
low vision evaluation, and we do not believe it would be appropriate to
include such a requirement in the regulations. Whether a clinical low
vision evaluation is conducted is a decision that should be made by the
child's IEP Team.
Changes: None.
Comment: Some commenters recommended that the regulations include
language requiring that instruction in Braille be considered at all
stages of IEP development, review, and revision. These commenters also
stated that consideration should be given to providing services and
supports to improve a child's skills in the areas of socialization,
independent living, orientation and mobility, and the use of assistive
technology devices.
Discussion: The issues raised by the commenters are already covered
in the regulations. Section 300.324(a)(2)(iii), consistent with section
614(d)(3)(B)(iii) of the Act, requires the IEP Team, in the case of a
child who is blind or visually impaired, to 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) that instruction in Braille or
the use of Braille is not appropriate. As noted earlier, a new
paragraph (b)(2) has been added to Sec. 300.324 to require the IEP
Team to consider the special factors in Sec. 300.324(a)(2) when the
IEP is reviewed and revised. This includes considering instruction in
Braille and the use of Braille for a child who is blind or visually
impaired.
In addition, Sec. 300.324(a)(1)(iv) requires the IEP Team to
consider, for all children with disabilities, the academic,
developmental, and functional needs of the child, which could include,
as appropriate, the child's need to develop skills in the areas of
socialization, independent living, and orientation and mobility.
Consideration of a child's needs for assistive technology devices and
services is required by Sec. 300.324(a)(2)(v).
Changes: None.
Comment: Several commenters recommended that the regulations
require IEP Teams, for a child who is deaf, to consider the child's
communication abilities, ensure that the child can access language and
communicate with peers and adults, and ensure that the child has an
educational placement that will meet the child's communication needs.
The commenters also recommended that the IEP Team be required to
consider the qualifications of the staff delivering the child's
educational program.
Discussion: The commenters' concerns are already addressed in the
regulations. Section 300.324(a)(2)(iv), consistent with section
614(d)(3)(B)(iv) of the Act, requires the IEP Team to 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.
With respect to the commenters' recommendation regarding qualified
staff to deliver the child's educational program, Sec. 300.156,
consistent with section 612(a)(14) of the Act, requires the SEA to
establish and maintain qualifications to ensure that personnel
necessary to carry out the purposes of the Act are appropriately and
adequately prepared and trained to serve children with disabilities.
Changes: None.
Comment: Some commenters suggested that Sec. 300.324(a)(2)(iv)
explain that: (a) a primary language assessment and assessment of
communication abilities may be required to determine the child's most
effective language; (b) program and placement decisions must be based
on such assessments; (c) a child must be in an educational placement
where the child may communicate with peers and adults; and (d) a deaf
child's educational placement must include a sufficient number of peers
and adults who can communicate fluently in the child's primary
language.
Discussion: It is not necessary to include in the regulations the
additional language recommended by the commenters. Section
300.324(a)(1)(iii), consistent with section 614(d)(3)(A)(iii) of the
Act, requires the IEP Team to consider, among other things, the results
of the initial or most recent evaluation of the child, which for a
child who is deaf, may include an assessment of a child's communication
abilities. Further, Sec. 300.324(a)(2)(iv), consistent with section
614(d)(3)(B)(iv) of the Act, requires the IEP Team to consider
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. We believe
this adequately addresses the commenters' concerns.
Changes: None.
Comment: One commenter requested that emotional issues be
considered an additional special factor that can impede learning. The
commenter stated that emotional issues can be addressed through
individual interventions focused on the child's needs and systemic
interventions to improve the overall school climate.
Discussion: Section 614(d)(3)(B) of the Act does not include
emotional issues as a special factor to be considered by the IEP Team.
We decline to add it to the regulations because there are already many
opportunities for the IEP Team to consider the affect of emotional
issues on a child's learning. For example, Sec. 300.324(a)(1),
consistent with section 614(d)(3)(A) of the Act, requires the IEP Team
to consider the strengths of the child; the concerns of the parents for
enhancing the education of their child; the results of the initial
evaluation or most recent evaluation of the child; and the academic,
developmental, and functional needs of the child, all of which could be
affected by emotional issues and would, therefore, need to be
considered by the IEP Team.
Changes: None.
Comment: A few commenters requested that children with medical
conditions that are degenerative be added to the list of special
factors considered by the IEP Team. The commenters stated that the IEP
Team should consider the need for children with degenerative conditions
to maintain their present levels of functioning by including related
therapeutic services prior to the loss of their abilities, such as
occupational and physical therapy, and other services to address the
child's needs in the areas of self-help, mobility, and communication.
Discussion: Section 614(d)(3)(B) of the Act does not include
consideration of children with degenerative conditions as a special
factor. We decline to add it to the regulations because we believe that
the regulations already address the commenters' concerns. As with any
child with a disability, the child's IEP Team, which includes the
parent, determines the special education and related services that are
needed in order for the child to receive FAPE. For children with
degenerative diseases, this may include related services such as
physical and occupational therapy (or other services to address the
child's needs in the areas of self-help, mobility, and communication)
to help maintain the child's present levels of functioning for as long
as possible in order for the
[[Page 46685]]
child to benefit from special education. In addition, as part of an
evaluation or reevaluation, Sec. 300.305 requires the IEP Team and
other qualified professionals, as appropriate, to review existing
evaluation data on the child to determine the child's needs, which may
include evaluations and information from parents, as well as medical
professionals who know the child and the child's specific medical
condition.
S. Rpt. No. 108-185, p. 33, and H. Rpt. No. 108-77, p. 112,
recognized the special situations of children with medical conditions
that are degenerative (i.e., diseases that result in negative
progression and cannot be fully corrected or fully stabilized). For
children with degenerative diseases who are eligible for services under
the Act, both reports state that special education and related services
can be provided to help maintain the child's present levels of
functioning for as long as possible in order for the child to fully
benefit from special education services. The reports also state, ``The
IEP Team can include related services designed to provide therapeutic
services prior to loss of original abilities to extend current skills
and throughout the child's enrollment in school. These services may
include occupational and physical therapy, self-help, mobility, and
communication, as appropriate.''
Changes: None.
Comment: Some commenters stated that the IEP Team's review of the
special factors in Sec. 300.324(a)(2) is duplicative and should be
eliminated.
Discussion: The requirements in Sec. 300.324(a)(2) are directly
from section 614(d)(3)(B) of the Act and cannot be removed.
Changes: None.
Comment: Many commenters recommended that the regulations retain
current Sec. 300.346(b) and require the IEP Team to consider the
special factors in Sec. 300.324(a)(2) when the IEP is reviewed and
revised. The commenters stated that these special factors may affect a
child's instructional needs and ability to obtain FAPE beyond the
period when an IEP is initially developed.
Discussion: The Department agrees that the IEP Team should consider
the special factors in Sec. 300.324(a)(2) when an IEP is reviewed and
revised. We will, therefore, add this requirement to the regulations.
Changes: A new paragraph (b)(2) has been added to Sec. 300.324 to
require the IEP Team to consider the special factors in Sec.
300.324(a)(2) when the IEP is reviewed and revised. Proposed Sec.
300.324(b)(2) has been redesignated accordingly.
Comment: One commenter requested changing Sec. 300.324(a)(2)(v),
regarding the IEP Team's consideration of a child's need for assistive
technology devices and services, to require assistive technology
devices and services that are needed for a child to be included in the
child's IEP.
Discussion: Section 300.320(a)(4) requires the IEP to include a
statement of the special education and related services and
supplementary aids and services to be provided to the child, or on
behalf of the child. This would include any assistive technology
devices and services determined by the IEP Team to be needed by the
child in order for the child to receive FAPE. Therefore, it is
unnecessary to repeat this in Sec. 300.324(a)(2)(v).
Changes: None.
Agreement (Sec. 300.324(a)(4))
Comment: Many commenters expressed concern that permitting changes
to a child's IEP without an IEP Team meeting will be detrimental to the
child's overall education. Several commenters requested that Sec.
300.324(a)(4) clarify whether such changes to the IEP can only be made
between the annual IEP Team meetings to review the IEP and not in place
of an annual IEP Team meeting. These commenters also requested
clarification regarding the types of revisions that could be made
without an IEP Team meeting. A few commenters recommended limiting the
circumstances under which an IEP may be revised without convening an
IEP Team meeting. One commenter requested that the regulations include
safeguards to ensure that key elements of a child's IEP are not altered
without a discussion of the changes with the parent.
Discussion: Section 300.324(a)(4), consistent with section
614(d)(3)(D) of the Act, allows a parent and a public agency to agree
not to convene an IEP Team meeting to make changes to the child's IEP,
and instead, to develop a written document to amend or modify the
child's current IEP. The Act does not place any restrictions on the
types of changes that may be made, so long as the parent and the public
agency agree. Accordingly, we do not believe it would be appropriate to
include restrictions on such changes in the regulations.
We do not believe that an amendment to an IEP can take the place of
an annual IEP Team meeting. It is unnecessary to regulate on this issue
because section 614(d)(4)(A)(i) of the Act clearly requires the IEP
Team to review the child's IEP annually to determine whether the annual
goals for the child are being achieved. We believe that the procedural
safeguards in Sec. Sec. 300.500 through 520 are sufficient to ensure
that a child's IEP is not changed without prior notice by a public
agency and an opportunity to discuss any changes with the public
agency.
Changes: None.
Comment: Several commenters asked whether the agreement to make
changes to a child's IEP without an IEP Team meeting must be in
writing. Many commenters recommended requiring informed written consent
to amend an IEP without an IEP Team meeting.
Discussion: Section 614(d)(3)(D) of the Act does not require the
agreement between the parent and the public agency to be in writing. In
addition, the parent is not required to provide consent, as defined in
Sec. 300.9, to amend the IEP without an IEP Team meeting. However, it
would be prudent for the public agency to document the terms of the
agreement in writing, in the event that questions arise at a later
time. Of course, changes to the child's IEP would have to be in
writing.
Changes: None.
Comment: One commenter requested that the regulations include
safeguards to ensure that key elements of a child's prior IEP program
are not altered without discussion of the change with parents, and that
parents are provided with information that will allow them to fully
consider the alternatives.
Discussion: Section 300.324(a)(4), consistent with section
614(d)(3)(D) of the Act, permits the public agency and the parent to
agree to amend the child's IEP without an IEP Team meeting. If the
parent needs further information about the proposed change or believes
that a discussion with the IEP Team is necessary before deciding to
change the IEP, the parent does not have to agree to the public
agency's request to amend the IEP without an IEP Team meeting.
Changes: None.
Comment: A few commenters recommended that when an IEP is changed
without an IEP Team meeting, all personnel with responsibility for
implementing the revised IEP should be informed of the changes with
respect to their particular responsibilities and have access to the
revised IEP. Some commenters recommended that once the parent has
approved the IEP changes, the IEP Team members should be notified and
trained on the amended IEP within one calendar week of the changes.
Discussion: We agree that when the parent and the public agency
agree to change the IEP without an IEP Team meeting, it is important
that the personnel responsible for implementing
[[Page 46686]]
the revised IEP be notified and informed of the changes with respect to
their particular responsibilities. We will add language to address this
in Sec. 300.324(a)(4). We do not believe that it is necessary to
regulate on the timeframe within which a public agency must make the
IEP accessible to the service providers responsible for implementing
the changes, or otherwise notify them of the changes, as this will vary
depending on the circumstances (e.g., whether the changes are minor or
major changes) and is, therefore, best left to State and local public
agency officials to determine.
Changes: We have restructured Sec. 300.324(a)(4) and added a new
paragraph (a)(4)(ii) to require a public agency to ensure that the
child's IEP Team is informed of changes made to a child's IEP when
changes to the IEP are made without an IEP Team meeting.
Comment: One commenter asked whether States must allow parents and
school districts to agree to change the IEP without an IEP Team
meeting.
Discussion: The provisions in section 614(d)(3)(D) of the Act are
intended to benefit parents by providing the flexibility to amend an
IEP without convening an IEP Team meeting. Therefore, a State must
allow changes to an IEP without an IEP Team meeting when a parent and
public agency agree not to convene an IEP Team meeting, and instead
develop a written document to amend or modify a child's current IEP,
consistent with Sec. 300.324(a)(4) and section 614(d)(3)(D) of the
Act.
Changes: None.
Amendments (Sec. 300.324(a)(6))
Comment: Many commenters requested revising Sec. 300.324(a)(6) to
require public agencies to provide a copy of a revised IEP to the
parent without requiring the parent to request the copy when amendments
are made to the IEP. The commenters stated that this safeguard is
needed to ensure that negotiated amendments are actually instituted.
Some commenters recommended that, at a minimum, the parent should be
provided with notice that they have the right to receive a copy of the
revised IEP.
Discussion: The requirement for a public agency to provide a parent
with a revised copy of the IEP upon the request of a parent is in
section 614(d)(3)(F) of the Act. There is nothing in the Act that would
prevent a school from providing a copy of a revised IEP to a parent
whenever amendments are made. However, under the Act, the school is not
required to provide the parent a copy of the revised IEP absent the
parent's request for a copy. It would be inconsistent with the Act to
include such a requirement in the regulations.
Changes: None.
Comment: Some commenters recommended that changes to the IEP should
not take effect until a notice has been sent to the parent explaining
the changes and written consent from the parent has been obtained. One
commenter recommended that the regulations require a core group of the
IEP Team to meet and address any changes to the IEP.
Discussion: To implement the commenters' recommendations would be
inconsistent with the Act. Section 614(d)(3)(F) of the Act cross-
references section 614(d)(3)(D) of the Act, which provides that changes
to the IEP may be made either by the entire IEP Team, which includes
the parent, at an IEP Team meeting, or amended without an IEP Team
meeting when the parent and public agency agree. The phrase ``at an IEP
Team meeting'' following ``by the entire IEP Team'' was inadvertently
omitted in Sec. 300.324(a)(6). We will, therefore, add the phrase to
clarify that changes to an IEP may be made by the entire IEP Team at an
IEP Team meeting, or amended without an IEP Team meeting when the
parent and public agency agree.
Changes: We have added the phrase ``at an IEP Team meeting''
following ``by the entire IEP Team.''
Failure To Meet Transition Objectives (Sec. 300.324(c))
Comment: One commenter recommended that Sec. 300.324(c) emphasize
collaboration between public agencies providing education and
transportation in order to resolve problems concerning a child's
transportation IEP objectives related to transition.
Discussion: Section 300.321(b)(3) requires the IEP Team to invite a
representative of any agency that is likely to be responsible for
providing or paying for transition services, when appropriate, and with
the consent of the parent (or a child who has reached the age of
majority). In addition, Sec. 300.154(a), consistent with section
612(a)(12) of the Act, requires each State to ensure that an
interagency agreement or other mechanism for interagency coordination
is in effect between each non-educational public agency and the SEA, in
order to ensure that services needed to ensure FAPE are provided.
Section 300.154(b) and section 612(a)(12)(B)(i) of the Act specifically
refer to interagency agreements or other mechanisms for interagency
coordination with agencies assigned responsibility under State policy
to provide special education or related services relating to
transition. This would include a public agency that is responsible for
transportation under State policy. We believe this is sufficient to
address the commenter's concern.
Changes: None.
Comment: A few commenters requested that Sec. 300.324(c)(1)
clarify that public agencies are under a legal obligation to provide
services related to the transition objectives in a child's IEP.
Discussion: It is not necessary to include additional language in
Sec. 300.324(c)(1). Section 300.101, consistent with section
612(a)(1)(A) of the Act, requires each SEA to ensure that the special
education and related services that are necessary for the child to
receive FAPE are provided in conformity with the child's IEP. If an
agency, other than the public agency, fails to provide the transition
services described in the IEP, the public agency must reconvene the IEP
Team to develop alternative strategies to meet the transition
objectives for the child set out in the child's IEP, consistent with
section 614(d)(6) of the Act and Sec. 300.324(c)(1).
Changes: None.
Children With Disabilities in Adult Prisons (Sec. 300.324(d))
Comment: A few commenters stated that guidance is needed regarding
what requirements apply when serving incarcerated children with
disabilities. One commenter recommended requiring that children with
disabilities incarcerated in local jails continue with their
established school schedules and IEP services, which States may provide
directly or through an LEA.
Discussion: No change to the regulations is needed. Section
300.324(d)(1), consistent with section 614(d)(7) of the Act, specifies
the requirements of the Act that do not apply to children with
disabilities who are convicted as adults under State law and
incarcerated in adult prisons. If a child with a disability is
incarcerated, but is not convicted as an adult under State law and is
not incarcerated in an adult prison, the requirements of the Act apply.
Whether the special education and related services are provided
directly by the State or through an LEA is a decision that is best left
to States and LEAs to determine.
Changes: None.
Comment: One commenter stated that SEAs and LEAs should not be
allowed to restrict the types of services provided to children with
disabilities simply because they are incarcerated.
[[Page 46687]]
Discussion: We disagree with the commenter. The Act allows services
to be restricted for a child with a disability who is convicted as an
adult under State law and incarcerated in an adult prison. Section
614(d)(7)(B) of the Act states that 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. Further,
the LRE requirements in Sec. 300.114 and the requirements related to
transition services in Sec. 300.320 do not apply.
Changes: None.
Private School Placements by Public Agencies (Sec. 300.325)
Comment: One commenter stated that Sec. 300.325, regarding private
school placements by public agencies, is not in the Act and should be
removed.
Discussion: We disagree with the commenter. Section 612(a)(10)(B)
of the Act provides that children with disabilities who are placed in
private schools and facilities are provided special education and
related services, in accordance with an IEP, and have all the rights
the children would have if served by a public agency. In order to
comply with this statutory requirement, Sec. 300.325 explains the
responsibilities of the public agency that places a child with a
disability in a private school or facility with respect to developing,
reviewing, and revising the child's IEP.
Changes: None.
Comment: A few commenters requested clarifying Sec. 300.325(b)(1),
which allows the private school or facility to initiate and conduct IEP
Team meetings to review and revise the child's IEP at the discretion of
the public agency. The commenters stated that this should be changed to
``only with the consent of the public agency.''
Discussion: We do not believe the suggested change is necessary.
Section 300.325(c) is clear that for publicly-placed children with
disabilities, even if a private school or facility implements a child's
IEP, responsibility for compliance with Part B of the Act remains with
the public agency and the SEA. Therefore, it is up to the public agency
to determine whether the private school or facility can initiate and
conduct an IEP Team meeting to review and revise a child's IEP.
Changes: None.
Educational Placements (Sec. 300.327)
Comment: A few commenters stated that the terms ``educational
placement'' and ``placement'' are used throughout the regulations and
recommended that only one of the terms be used to avoid confusion. A
few commenters suggested that the term ``educational placement'' be
defined to include location, supports, and services provided.
Discussion: The terms ``educational placement'' and ``placement''
are used throughout the Act, and we have followed the language of the
Act whenever possible. We do not believe it is necessary to define
``educational placement.'' Section 300.116, consistent with section
612(a)(5) of the Act, states that the determination of the educational
placement of a child with a disability must be based on a child's IEP.
The Department's longstanding position is that placement refers to the
provision of special education and related services rather than a
specific place, such as a specific classroom or specific school.
Changes: None.
Alternative Means of Meeting Participation (Sec. 300.328)
Comment: One commenter requested that electronic mail be used as an
alternative means of communication for administrative matters if the
parents and the public agency agree.
Discussion: There is nothing in the Act or these regulations that
prohibits the use of electronic mail to carry out administrative
matters under section 615 of the Act, so long as the parent of the
child with a disability and the public agency agree.
Changes: None.
Comment: A few commenters recommended that the regulations clarify
that video conferences may be used to allow general education teachers
to participate in IEP Team meetings.
Discussion: The regulations already address the use of video
conferences. Section 300.328, consistent with section 614(f) of the
Act, allows the use of video conferences and other alternative means of
meeting participation if the parent of the child with a disability and
the public agency agree.
Changes: None.
Comment: One commenter recommended that the regulations specify
that the cost of using alternative means of meeting participation shall
be borne by the LEA and not the parent.
Discussion: If a public agency uses an alternative means of meeting
participation that results in additional costs, the public agency is
responsible for paying the additional costs. We do not believe it is
necessary to include this additional language in the regulations.
Section 300.101, consistent with section 612(a)(1)(A) of the Act,
requires that the public education provided to children with
disabilities must be free and appropriate. The benefits of including
parents in the IEP process by providing alternative means by which
parents can participate is an important part of ensuring that a child
receives FAPE and far outweighs any additional costs for the
alternative means of participation that a public agency may incur.
Changes: None.
Comment: A few commenters recommended requiring the parent's
agreement to use alternative means of meeting participation to conform
to the consent requirements in Sec. 300.9.
Discussion: Section 614(f) of the Act allows the parent and a
public agency to agree to use alternative means of meeting
participation. Consent, as defined in Sec. 300.9 is not required by
the Act. Therefore, we do not believe it should be required by
regulation.
Changes: None.
Comment: One commenter recommended that there be additional
requirements when using alternative means of meeting participation. The
commenter stated that parents should be informed of their right to
refuse a telephone conference and should be required to provide consent
at least seven days prior to the meeting. Another commenter recommended
clarifying that alternative means of meeting should only be used when
necessary.
Discussion: Section 614(f) of the Act allows a parent and a public
agency to agree to use alternative means of meeting participation. The
Act does not specify any additional requirements or restrictions. We
view this provision as providing flexibility for parents and public
agencies in arranging convenient meetings and believe that additional
requirements would be inconsistent with that purpose.
Changes: None.
Comment: One commenter recommended that the regulations require
LEAs to provide the parent with an IEP in a timely manner (within five
business days) when alternative means of meeting participation are used
for an IEP Team meeting. The commenter stated this was necessary so
that the parent can verify the contents of the IEP.
Discussion: New 300.322(f) (proposed Sec. 300.322(e)) requires the
public agency to give the parent a copy of the child's IEP at no cost
to the parent. We believe the specific timeframe in which the public
agency provides a copy of the IEP to the parent is best left to the
public agency to determine.
Changes: None.
[[Page 46688]]
Comment: One commenter stated that the requirements for alternative
means of meeting participation in Sec. 300.328 should be placed in the
regulations following Sec. 300.321, because the requirements add
flexibility to the special education process.
Discussion: The requirements in Sec. 300.328, regarding
alternative means of meeting participation, apply to IEP Team meetings
as well as placement meetings, and carrying out administrative matters
under section 615 of the Act. Therefore, it would not be appropriate to
move Sec. 300.328 to the location in the regulations suggested by the
commenter.
Changes: None.
Subpart E--Procedural Safeguards
Due Process Procedures for Parents and Children
Opportunity To Examine Records; Parent Participation in Meetings (Sec.
300.501)
Comment: One commenter recommended adding language in Sec.
300.501(a) stating that parents have the right to obtain a free copy of
all education records.
Discussion: Section 300.501(a), consistent with section 615(b)(1)
of the Act, affords parents an opportunity to inspect and review all
education records with respect to the identification, evaluation, and
educational placement of the child, and the provision of FAPE to the
child. Specific procedures for access to records are contained in the
confidentiality provisions in Sec. Sec. 300.613 through 300.621. A
participating agency, consistent with Sec. 300.613(b)(2), however,
must provide copies of a child's education records to a parent, if
failure to do so would effectively prevent a parent from exercising the
right to inspect and review the records, such as if a parent lives
outside of commuting distance of the agency. This provision is
consistent with the access rights afforded under FERPA in 34 CFR
99.10(d)(1).
We decline to make the change requested by the commenter because
such a change would impose a significant new burden on public agencies
that is not necessary. Public agencies, however, are free to provide
copies whenever requested by the parent, if they choose to do so. We
have, however, made a change to this section to correct the cross-
references to the procedures for inspection and review of records.
Changes: We have corrected the cross-references to the procedures
for inspection and review of records to Sec. Sec. 300.613 through
300.621.
Comment: One commenter recommended adding a provision to Sec.
300.501 that would give parents the opportunity to prepare their own
reports and provide information that would become part of the child's
education record.
Discussion: The Act and these regulations encourage parental input
and involvement in all aspects of a child's educational program, and
provide many opportunities for parents to provide information that
becomes part of the child's education record. For example, Sec.
300.304(a)(1), consistent with section 614(b)(2)(A) of the Act,
requires any evaluation to include information provided by the parent;
Sec. 300.305(a)(2), consistent with section 614(c)(1)(B) of the Act,
requires the review of existing data for evaluations and reevaluations
to include input from the child's parents; Sec. 300.306(a)(1),
consistent with section 614(b)(4) of the Act, requires the parent to be
part of the group that determines whether the child is a child with a
disability and the educational needs of the child; and Sec.
300.321(a)(1), consistent with section 614(d)(1)(B)(i) of the Act,
requires the IEP Team that is responsible for developing, reviewing and
revising the child's IEP to include the parent. In addition, Sec.
300.322(a) specifies the steps a public agency must take to ensure that
one or both parents are present at the IEP Team meeting and afforded
the opportunity to participate in the meeting. Therefore, we do not
believe that it is necessary to regulate on this issue. However, if a
parent provides a report for the child's education record and the
public agency chooses to maintain a copy of the written report, that
report becomes part of the child's education record and is subject to
the confidentiality of information requirements in Sec. Sec. 300.610
through 300.627, and FERPA and its implementing regulations in 34 CFR
part 99.
Changes: None.
Comment: Many commenters suggested adding language in Sec.
300.501(b)(2) requiring the public agency to take whatever action is
necessary to ensure that parents understand the proceedings at any of
the meetings described in this section. The commenters stated that this
requirement is not unnecessarily duplicative and removing it gives the
impression that interpreters are no longer required. Several commenters
recommended that if school staff determines that a parent has
difficulty understanding the procedural safeguards, the public agency
must explain the parent's rights at any time that a change in services
is contemplated.
Discussion: It is not necessary to add language to Sec.
300.501(b)(2) to require a public agency to take whatever action is
necessary to ensure that parents understand the proceedings at any of
the meetings described in this section. 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 any of the meetings described in this
section. 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), 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).
As noted in the Analysis of Comments and Changes section to subpart
D, we have retained the requirements in current Sec. 300.345(e), which
require the public agency to take whatever action is necessary to
ensure that the parent understands the proceedings at an IEP Team
meeting, including arranging for an interpreter for parents with
deafness or whose native language is other than English. This
requirement is in new Sec. 300.322(e). We have also included a cross
reference to new Sec. 300.322(e) in Sec. 300.501(c)(2) to clarify
that.
It is not necessary to include regulations to require a public
agency to explain the procedural safeguards to parents any time that a
change in services is contemplated. Section 300.503 already requires
prior written notice to be given to the parents of a child with a
disability a reasonable time before the public agency proposes (or
refuses) to initiate or change the identification, evaluation, or
educational placement of the child, or the provision of FAPE to the
child. As required in Sec. 300.503(b)(4), the prior written notice
must include a statement that the parents have protections under the
procedural safeguards of this part. Consistent with Sec. Sec.
300.503(c) and 300.504(d), the prior written notice and the procedural
safeguards notice, respectively, must be written in language
understandable to the general
[[Page 46689]]
public and provided in the native language or other mode of
communication of the parent, unless it is clearly not feasible to do
so. 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
that the notice is translated orally or by other means to the parent in
his or her native language or other mode of communication and that the
parent understands the content of the notice.
Changes: None.
Comment: Several commenters stated that Sec. 300.501(b)(3) implies
that teaching methodologies and lesson plans must be included in the
IEP, which exceeds the requirements of the Act. The commenters
recommended removing ``if those issues are not addressed in the child's
IEP'' from Sec. 300.501(b)(3).
Discussion: We agree that the phrase referred to by the commenters
is confusing and open to misinterpretation and are removing it from
Sec. 300.501(b)(3).
Changes: We have removed the phrase ``if those issues are not
addressed in the child's IEP'' from Sec. 300.501(b)(3) for clarity.
Comment: Many commenters recommended requiring a public agency to
make several attempts to involve parents in placement decisions and
requested that Sec. 300.501 be changed to require a public agency to
maintain: (1) Detailed records of telephone calls made or attempted and
the results of those calls; (2) copies of correspondence sent to
parents and any responses received; and (3) detailed records of visits
made to a parent's home or place of employment and the results of those
visits.
Discussion: We do not believe the additional language requested by
the commenters is necessary. Section 300.501(c)(4) requires a public
agency to maintain a record of its attempts to contact parents prior to
making a placement decision without parent participation. We believe
this requirement is sufficient to ensure that a public agency holding a
placement meeting with neither parent in attendance takes the necessary
steps to contact parents and maintain appropriate documentation of its
attempts to ensure parent participation. As a matter of practice,
public agencies use a variety of methods to contact parents depending
on the ways they find to be most efficient and effective for a
particular situation. Public agencies take seriously their obligation
to include parents in placement decisions and are in the best position
to determine the records they need to demonstrate that they have taken
appropriate steps to include parents in placement decisions before
holding a placement meeting without a parent in attendance.
Changes: None.
Comment: A few commenters recommended that placement meetings not
be held, or decisions made, without a representative of the child. The
commenters recommended appointing a surrogate parent when the
biological or adoptive parent refuses to attend, or is unable to
participate, in the placement meeting.
Discussion: There is no statutory authority to permit the
appointment of a surrogate parent when a parent is either unable or
unwilling to attend a meeting in which a decision is made relating to a
child's educational placement. In section 615(b)(2) of the Act, a
public agency does not have the authority to appoint a surrogate parent
where a child's parent is available or can be identified and located
after reasonable efforts, but refuses, or is unable, to attend a
meeting or otherwise represent the child.
Changes: None.
Independent Educational Evaluation (Sec. 300.502)
Comment: One commenter suggested adding language to Sec. 300.502
requiring evaluators who conduct independent educational evaluations
(IEEs) to be licensed by the State.
Discussion: We are not changing the regulations in the manner
requested by the commenter because the regulations already require that
the standards be the same for all evaluators, as long as the agency's
criteria for evaluators do not prohibit a parent from obtaining an IEE.
An IEE is defined in Sec. 300.502(a)(3)(i) as an evaluation conducted
by a qualified examiner who is not employed by the public agency
responsible for the education of the child in question. Section
300.502(e) provides that in order for an IEE to be 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 IEE. Except for these criteria, Sec.
300.502(e)(2) provides that a public agency may not impose conditions
or timelines related to obtaining an IEE at public expense. Consistent
with applicable agency criteria, it would be appropriate for a public
agency to require an IEE examiner to hold, or be eligible to hold, a
particular license when a public agency requires the same licensure for
personnel who conduct the same types of evaluations for the agency. In
contrast, it would be inconsistent with a parent's right to an IEE for
a public agency to require all evaluators to be licensed, if only
individuals employed by a public agency may obtain a license.
Changes: None.
Comment: One commenter requested clarification regarding parental
rights to an IEE when a public agency is using a response to
intervention process to determine whether a child has SLD.
Discussion: If a parent disagrees with the results of a completed
evaluation that includes a review of the results of a child's response
to intervention process, the parent has a right to an IEE at public
expense, subject to the conditions in Sec. 300.502(b)(2) through
(b)(4). The parent, however, would not have the right to obtain an IEE
at public expense before the public agency completes its evaluation
simply because the parent disagrees with the public agency's decision
to use data from a child's response to intervention as part of its
evaluation to determine if the child is a child with a disability and
the educational needs of the child.
Changes: None.
Comment: One commenter requested clarification regarding a public
agency's right to limit the amount it pays for an IEE and asked whether
a public agency can place limits on the frequency of an IEE (e.g., a
single IEE in an evaluation cycle or in a child's school career).
Discussion: It is the Department's longstanding position that
public agencies should not be required to bear the cost of unreasonably
expensive IEEs. This position is reflected in the regulatory
provisions. Section 300.502(a)(2) provides that if a parent requests an
IEE at public expense, the public agency must provide the parent with
information about where an IEE may be obtained and the agency criteria
applicable for IEEs. In order for an evaluation to be at public
expense, Sec. 300.502(e)(1) requires that the criteria under which an
IEE is obtained, including the location of the IEE and the
qualifications of the examiner, be the same as the criteria that the
public agency uses when it initiates an evaluation, to the extent that
those criteria are consistent with a parent's right to an IEE. In
addition, Sec. 300.502(e)(2) states that, except for the criteria
described above, a public agency may not impose conditions or timelines
related to obtaining an IEE at public expense.
Although it is appropriate for a public agency to establish
reasonable cost containment criteria applicable to
[[Page 46690]]
personnel used by the agency, as well as to personnel used by parents,
a public agency would need to provide a parent the opportunity to
demonstrate that unique circumstances justify selection of an evaluator
whose fees fall outside the agency's cost containment criteria. Section
300.502(b)(2) provides that if the parent requests an IEE at public
expense, the public agency either must ensure that the IEE is provided
at public expense or file a due process complaint notice to request a
hearing to demonstrate that the agency's evaluation is appropriate.
We do not, however, believe that the parent should be limited to
one IEE at public expense in a child's school career. In the school
career of a child, there could be more than one point when there is a
legitimate disagreement between a parent and the public agency over
evaluations of the child. Nevertheless, we do believe that it is
important to clarify that a parent is not entitled to more than one IEE
at public expense when the parent disagrees with a specific evaluation
or reevaluation conducted or obtained by the public agency. Therefore,
we are adding a new paragraph (b)(5) in Sec. 300.502 to clarify that a
parent is entitled to only one IEE each time the public agency conducts
an evaluation with which the parent disagrees. This regulatory
provision is consistent with a parent's statutory right to an IEE at
public expense, while recognizing that public agencies should not be
required to bear the cost of more than one IEE when a parent disagrees
with an evaluation conducted or obtained by the public agency.
Changes: We have added a new paragraph (b)(5) in Sec. 300.502 to
clarify that a parent is entitled to only one IEE at public expense
each time the public agency conducts an evaluation with which the
parent disagrees.
Comment: Some commenters suggested adding language allowing an
evaluator conducting an IEE the opportunity to review existing data,
receive input from the child's parents, determine what additional data
are needed to determine the scope of the evaluation, and select the
instruments appropriate to evaluate the child. The commenters also
stated that the public agency should not restrict the scope of the
evaluation.
Discussion: We do not believe it is necessary to add language to
the regulations regarding the review of existing data, input from the
child's parents, the scope of the evaluation, or the instruments used
to evaluate the child, because an IEE must meet the agency criteria
that the public agency uses when it initiates an evaluation, consistent
with Sec. 300.502(e).
Section 300.305(a) provides that, 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 review
existing evaluation data on the child, including input from the child's
parents. Since the review of existing evaluation data and input from
the child's parents are part of the public agency's evaluation, they
would also be appropriate elements in an IEE.
Similarly, Sec. 300.304(b)(1) provides that an evaluation
conducted by a public agency must 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 whether the child is a child
with a disability under Sec. 300.8, and the content of the child's
IEP, including information related to enabling the child to be involved
in and progress in the general education curriculum (or for a preschool
child to participate in appropriate activities). These requirements
also apply to an IEE conducted by an independent evaluator, since these
requirements will be a part of the agency's criteria.
Generally, the purpose of an evaluation under the Act is to
determine whether the child is a child with a disability, and in the
case of a reevaluation, whether the child continues to have a
disability, and the educational needs of the child. It would be
inconsistent with the Act for a public agency to limit the scope of an
IEE in a way that would prevent an independent evaluator from
fulfilling these purposes.
Changes: None.
Comment: Some commenters recommended adding language to the
regulations requiring a parent to provide consent for release of
education records when a hearing officer orders an LEA to provide an
IEE at public expense.
Discussion: Consistent with Sec. 300.622(b), parental consent is
not required for a public agency to release education records to a
hearing officer because a hearing officer is an official of a
participating agency, as defined in Sec. 300.611(c). However, when a
hearing officer orders an IEE, parental consent would be required under
Sec. 300.622(a) for a public agency to release education records to
the independent evaluator who will conduct the IEE, since in these
situations, the independent evaluator is not an official of a
participating agency. If a parent refuses to consent to the release of
education records to an independent evaluator, a hearing officer could
decide to dismiss the complaint. Therefore, we are not changing the
regulations in the manner suggested by the commenter.
Changes: None.
Comment: A few commenters requested clarification regarding what an
LEA must do to satisfy the requirement in Sec. 300.502(c)(1) that a
public agency consider the results of an evaluation obtained by a
parent at private expense. The commenters stated that public agencies
often ignore the results of an IEE and recommended requiring public
agencies to explain why an IEE was rejected.
Discussion: Section 300.502(c)(1) imposes an affirmative obligation
on a public agency to consider the results of a parent-initiated
evaluation at private expense in any decision regarding the provision
of FAPE to the child, if that evaluation meets agency criteria. The
requirement, however, does not mean that the public agency is compelled
to consider the parent-initiated evaluation at private expense in its
decision regarding the provision of FAPE, if it does not meet agency
criteria. If the agency believes that the parent-initiated evaluation
does not meet agency criteria, it would be appropriate for the agency
to explain to the parent why it believes that the parent-initiated
evaluation does not meet agency criteria.
Changes: None.
Comment: Several commenters indicated that permitting any party to
use the results from a privately-funded IEE as evidence at a due
process hearing may discourage parents from initiating and paying for
evaluations of their child.
Discussion: If a parent obtains an evaluation at private expense,
there is nothing in the Act or these regulations that requires a parent
to share that evaluation with the public agency. A privately-funded
evaluation that is not shared with a public agency would not be
considered an IEE under this regulation. If, however, the parent
chooses to share the evaluation with the public agency, that evaluation
may be presented by any party as evidence in a due process hearing, in
accordance with Sec. 300.502(c)(2). Similarly, if a public agency
reimburses a parent for an IEE, and the parent disagrees with the
results of the IEE, there is nothing in the Act or these regulations
that would prevent a public agency from introducing that evaluation in
a due process hearing over the parent's objection. We disagree with the
commenters to the extent that they believe that parents should have an
[[Page 46691]]
expectation of privacy regarding an evaluation that is publicly-funded
or for which they seek public funding. We believe it is necessary to
change Sec. 300.502(c)(2) to ensure that public agencies have the
opportunity to introduce the results of publicly-funded IEEs at due
process hearings.
Changes: We have added language in Sec. 300.502(c) to permit any
party to present the results of a publicly-funded IEE. We have also
clarified that if a parent shares a privately-funded IEE with the
public agency, the privately-funded IEE may be used as evidence in a
due process hearing.
Comment: One commenter recommended that the regulations prohibit
the testimony of experts who did not evaluate the child before the due
process hearing, unless the other party has an equal opportunity to
evaluate the child at public expense, both parties consent to such
testimony, or the hearing officer or judge orders the evaluation.
Discussion: It would be inappropriate to regulate in the manner
recommended by the commenter. Such determinations are made on a case-
by-case basis in light of the specific facts of each case at the
discretion of the hearing officer. We believe that the hearing officer,
as the designated trier of fact under the Act, is in the best position
to determine whether expert testimony should be admitted and what
weight, if any, should be accorded that expert testimony. We would
expect that these decisions will be governed by commonly applied State
evidentiary standards, such as whether the testimony is relevant,
reliable, and based on sufficient facts and data.
Changes: None.
Prior Notice by the Public Agency; Content of Notice (Sec. 300.503)
Comment: One commenter stated that the prior written notice be
given to parents as soon as possible, but no later than 15 days before
the public agency proposes to initiate or refuse a change. Another
commenter recommended requiring IEP Teams to carefully consider all the
data and options before making a decision to change a child's placement
or refuse the parent's request for services.
Discussion: Section 300.503(a) incorporates section 615(b)(3) of
the Act and requires a public agency to provide parents with written
notice that meets the requirements in Sec. 300.503(b) a reasonable
time before the public agency proposes or refuses to initiate or change
the identification, evaluation, or educational placement of the child,
or the provision of FAPE to the child. We do not believe that it is
necessary to substitute a specific timeline to clarify what is meant by
the requirement that the notice be provided within a reasonable period
of time, because we are not aware of significant problems in the timing
of prior written notices. In addition, prior written notice is provided
in a wide variety of circumstances for which any one timeline would be
too rigid and, in many cases, might prove unworkable.
We do not believe that it is necessary to add a requirement that
IEP Teams carefully consider all the data and options before making a
decision to change a child's placement or refuse the parent's request
for services. Section 300.306(c) already requires the group of
professionals and the parent of the child to carefully consider
information from a variety of sources before determining a child's
eligibility and placement. Furthermore, the requirements for
developing, reviewing, and revising a child's IEP in Sec. 300.324,
ensure that IEP Teams carefully consider all available information in
developing an IEP, including information from the child's parents.
Changes: None.
Comment: One commenter suggested permitting the prior written
notice to be the IEP itself, rather than requiring a separate document.
Discussion: There is nothing in the Act or these regulations that
would prohibit a public agency from using the IEP as part of the prior
written notice so long as the document(s) the parent receives meet all
the requirements in Sec. 300.503.
Changes: None.
Comment: One commenter asked how a parent would know that the
public agency is refusing to initiate or change the identification,
evaluation, or placement of a child without an IEP Team meeting.
Another commenter stated that prior written notice should be provided
in advance of an IEP Team meeting, not at the IEP Team meeting, so that
parents could prepare for the meeting. The commenter suggested adding
language to the regulations requiring that the notice be given a
reasonable time before an IEP Team meeting.
Discussion: The commenter confuses the Act's prior written notice
requirements with the requirements governing IEP Team meetings. Section
300.503(a), consistent with section 615(b)(3) of the Act, requires
prior written notice whenever a public agency proposes to initiate or
change (or refuses to initiate or change) the identification,
evaluation, or educational placement of a child, or the provision of
FAPE to a child. A public agency meets the requirements in Sec.
300.503 so long as the prior written notice is provided a reasonable
time before the public agency implements the proposal (or refusal)
described in the notice. A public agency is not required to convene an
IEP Team meeting before it proposes a change in the identification,
evaluation, or educational placement of the child, or the provision of
FAPE to the child. The proposal, however, triggers the obligation to
convene an IEP Team meeting. Providing prior written notice in advance
of meetings could suggest, in some circumstances, that the public
agency's proposal was improperly arrived at before the meeting and
without parent input. Therefore, we are not changing Sec. 300.503 to
require the prior written notice to be provided prior to an IEP Team
meeting.
Changes: None.
Comment: A few commenters recommended retaining current Sec.
300.503(a)(2), which provides that if the prior written notice relates
to an action that also requires parental consent, the agency may give
notice at the same time it requests parental consent.
Discussion: It is not necessary to explain in the regulations that
prior written notice can be provided at the same time as parental
consent is requested, because parental consent cannot be obtained
without the requisite prior written notice. The removal of this
regulatory provision, however, is not intended to prohibit a public
agency from giving prior written notice at the same time that parental
consent is sought, should the agency choose to do so.
Changes: None.
Comment: One commenter asked that the public agency be required to
provide a description of all the proposals made by anyone on the IEP
Team and the reasons why one proposal was chosen over another.
Discussion: Section 300.503(b)(1) and (b)(2) require the prior
written notice to include a description of the action proposed or
refused by the agency and an explanation of why the agency proposes or
refuses to take the action. We do not believe that the change suggested
by the commenter is needed because Sec. 300.503(b)(6) and (b)(7)
already require that the prior written notice include a description of
the other options that the IEP Team considered, the reasons why those
options were rejected, and a description of other factors that are
relevant to the agency's proposal or refusal.
Changes: None.
[[Page 46692]]
Comment: One commenter suggested requiring the SEA to provide a
list of resources for parents to obtain assistance in understanding the
requirements of the Act, including providing easy access to the
information on the State's Web site.
Discussion: Section 300.503(b)(5), consistent with section
615(c)(1)(D) of the Act, already requires the prior written notice to
include sources for parents to contact to obtain assistance in
understanding the provisions of this part. The Department believes that
parents should have easy access to information regarding resources to
understand the provisions of the Act. For many parents, this may
include accessing such information on the State's Web site. Each State
is in the best position to determine whether including this information
on its Web site would be helpful for parents. Therefore, we decline to
add this requirement to the regulations.
Changes: None.
Comment: One commenter recommended removing Sec. 300.503(c)(2),
regarding the public agency's responsibilities when the parent's native
language or other mode of communication is not a written language. The
commenter recommended, instead, requiring a public agency to use
procedures that involve little or no cost. One commenter stated that
Sec. 300.503(c)(2) should be removed because all but paragraph
(c)(2)(ii), regarding ensuring that the parent understands the content
of the prior written notice, exceed statutory requirements.
Discussion: For parents whose mode of communication is not a
written language, Sec. 300.503(c)(2) requires the public agency to
ensure that the notice is translated orally or by other means to the
parent and that the parent understands the content of the notice. We
decline to remove Sec. 300.503(c) because we believe that these
rights, as well as the other rights enumerated in Sec. 300.503(c), are
essential to ensure that public agencies provide all parents the
requisite prior written notice in a meaningful and understandable
manner.
Changes: None.
Procedural Safeguards Notice (Sec. 300.504)
Comment: Many comments were received regarding when the procedural
safeguards notice must be provided to parents. One commenter stated
that these requirements add paperwork and procedural burdens. Several
commenters expressed concern that parents will have knowledge of their
procedural safeguards only when they file a State complaint or request
a due process hearing. Some commenters recommended deleting the
requirement in Sec. 300.504(a)(2) for the public agency to give
parents the procedural safeguards notice upon receipt of the first
State complaint or due process hearing in the school year. Other
commenters suggested amending Sec. 300.504(a)(2) to require that the
procedural safeguards notice be provided to parents upon receipt of the
first due process complaint in that school year. Some commenters asked
whether parents would receive a copy of the procedural safeguards
notice only upon the first filing of a State complaint or a due process
complaint, but not twice, if a parent submits a complaint and also a
request for a due process hearing in the same school year.
One commenter was concerned that the parents of a child with a
disability who transfers into a new school will not be notified of
their procedural rights in a timely manner.
Discussion: Section 300.504(a) reflects the new statutory language
in section 615(d)(1) of the Act, regarding the timing of the procedural
safeguards notice. Section 300.504(a)(1) and (4), consistent with
section 615(d)(1)(A) of the Act, states that a copy of the procedural
safeguards must be given to parents one time a year, except that a copy
must also be given to parents upon initial referral or parent request
for evaluation; upon receipt of the first State complaint and due
process complaint in that school year; and upon request by a parent.
There is no longer a requirement that the procedural safeguards notice
be given to parents upon notification of each IEP Team meeting, as in
current Sec. 300.504(a).
We disagree that Sec. 300.504(a)(2) should be removed. The
Department intends for parents to receive a copy of the procedural
safeguards notice upon receipt of the first State complaint under
Sec. Sec. 300.151 through 300.153 and upon receipt of the first due
process complaint under Sec. 300.507 in a school year because we
believe that parents particularly need a clear understanding of their
rights when they embark on these processes and might not have available
copies of the procedural safeguards notice provided earlier in the
year, or the notice they previously received may be outdated. We are
changing Sec. 300.504(a)(2) to make this clear. We also are changing
Sec. 300.504(a) to specify that the statutory phrase ``one time a
year'' refers to ``one time a school year.''
Regarding the concern that a parent whose child transfers to a new
school district might not receive appropriate notice of the Act's
procedural safeguards, we do not believe that additional clarification
is necessary. We believe that these regulatory provisions are
sufficient to ensure that the parent of a child who changes school
districts receives the requisite notice in a timely manner. When the
child with a disability transfers to a new school district, that school
district would have an obligation to ensure that the child's parents
are provided notice at least once in that school year and at the other
times specified in Sec. 300.504(a).
We believe that the requirements in Sec. 300.504(a) are necessary
to ensure that parents have information about the due process
procedures when they are most likely to need them and do not view these
requirements as unduly burdensome.
Changes: Section 300.504(a)(2) has been changed to require public
agencies to provide parents with a copy of the procedural safeguards
notice upon receipt of the first State complaint under Sec. Sec.
300.151 through 300.153 in a school year and upon receipt of the first
due process complaint under Sec. 300.507 in a school year. We have
also changed paragraph (a) in Sec. 300.504 to clarify that the
statutory phrase ``one time a year'' refers to a ``school'' year.
Comment: Several commenters recommended that the procedural
safeguards notice be given to parents when a decision has been made to
take disciplinary action. Another commenter recommended that the
procedural safeguards notice be given at the time a manifestation
determination is reviewed.
Discussion: Section 615(k)(1)(H) of the Act requires public
agencies to provide parents with a copy of the procedural safeguards
notice not later than the date on which the decision to take
disciplinary action is made. Therefore, we are adding this requirement
in Sec. 300.504(a). We will not add a requirement for public agencies
to provide parents with a copy of the procedural safeguards notice
following the manifestation determination conducted under Sec.
300.530(e), because it would be unnecessarily duplicative to require a
procedural safeguards notice to be provided both prior to and after a
decision to take disciplinary action has been made.
Changes: A new paragraph (3) has been added in Sec. 300.504(a) to
require the procedural safeguards notice to be provided to parents in
accordance with the discipline procedures in Sec. 300.530(h). The
subsequent paragraph has been renumbered, consistent with this change.
[[Page 46693]]
Comment: Some commenters requested that public agencies inform
parents when the procedural safeguards notice has been revised, so that
parents can request the updated version.
Discussion: Section 300.504(c), consistent with section 615(d) of
the Act, lists the required contents of the procedural safeguards
notice. If these requirements change because of changes made to the
Act, public agencies would be required to change their procedural
safeguards notice accordingly. Such changes, along with any additional
changes to a State's rules, would be subject to the public
participation requirements in Sec. 300.165 and section 612(a)(19) of
the Act.
Changes: None.
Comment: One commenter recommended requiring that the procedural
safeguards notice include a parent's right to request the credentials
of any teacher who supports the child in the educational environment,
as well as documentation regarding the type of supervision provided for
any teacher who is supervised by a highly qualified teacher.
Discussion: The content of the procedural safeguards notice is
based on the items listed in section 615(d)(2) of the Act, which do not
include providing information about teachers' credentials and personnel
qualifications in a procedural safeguards notice, as requested by the
commenter. Nor is there any requirement elsewhere in the Act for public
agencies to provide information about teachers' credentials and
personnel qualifications.
Section 1111(h)(6) of the ESEA, however, requires LEAs to inform
parents about the quality of a school's teachers in title I schools.
Under the ESEA, an LEA that accepts title I, part A funding must notify
parents of students in title I schools that they can request
information regarding their child's teacher, including, at a minimum:
(1) whether the teacher has met State requirements for licensure and
certification for the grade level(s) and subject-matter(s) in which the
teacher provides instruction; (2) whether the teacher is teaching under
emergency or other provisional status through which State qualification
or licensing criteria has been waived; (3) the college major and any
other graduate certifications or degrees held by the teacher, and the
field of discipline of the certifications or degrees; and (4) whether
the child is provided services by paraprofessionals, and if so, their
qualifications. In addition, each title I school must provide each
parent timely notice that the parent's child has been assigned, or has
been taught for four or more consecutive weeks, by a teacher who is not
highly qualified. These requirements also apply to special education
teachers who teach core academic subjects in title I schools.
Changes: None.
Comment: Numerous commenters expressed concern with allowing LEAs
to post the procedural safeguards notice on the school's Web site.
Several commenters asked whether directing a parent to the Web site
constitutes distribution of the notice under the Act. One commenter
suggested adding specific language to the regulations stating that
posting the notice on the school Web site does not replace other Part B
requirements regarding distribution of the notice.
Discussion: Section 300.504(b), incorporates section 615(d)(1)(B)
of the Act, and permits, but does not require, a public agency to post
a current copy of the procedural safeguards notice on its Web site, if
one exists. The public agency would not meet its obligation in Sec.
300.504(a) by simply directing a parent to the Web site. Rather, a
public agency must still offer parents a printed copy of the procedural
safeguards notice. If, however, a parent declines the offered printed
copy of the notice and indicates a clear preference to obtain the
notice electronically on their own from the agency's Web site, it would
be reasonable for the public agency to document that it offered a
printed copy of the notice that the parent declined. Posting the
procedural safeguards notice on a public agency's Web site is clearly
optional and for the convenience of the public and does not replace the
distribution requirements in the Act. We do not believe it is necessary
to add a regulation to clarify this.
Changes: None.
Comment: None.
Discussion: As noted in the Analysis of Comments and Changes
section for subpart B, Sec. 300.152(c)(1) has been amended to require
that States set aside any part of a State complaint filed under
Sec. Sec. 300.151 through 300.153 that is being addressed in a due
process hearing until the conclusion of the hearing, and resolve any
issue that is not a part of the due process hearing decision within the
60-day timeline for State complaints (unless the timeline is extended,
consistent with Sec. 300.152(b)). This change was made to address
those limited occasions when a parent files both a State complaint and
a due process hearing on the same or similar issues. While the
Department does not encourage the dual filing of complaints, we are
aware that this occasionally occurs and it is important for the
regulations to be clear as to how such situations should be handled. In
light of this change, we are amending the requirement in Sec.
300.504(c)(5), regarding the contents of the procedural safeguards
notice, to inform parents of the opportunity to present and resolve
complaints through the due process complaint and the State complaint
procedures.
Changes: We have removed the ``or'' in Sec. 300.504(c)(5) and
replaced it with ``and'' to require that the procedural safeguards
notice include a full explanation of the opportunity to present and
resolve complaints through the due process complaint and the State
complaint procedures.
Comment: None.
Discussion: We are aware of the fact that over the years there has
been much confusion about exactly what must be included in the
procedural safeguards notice. To help clear up this confusion, the
Department is publishing a model procedural safeguards notice on its
Web site today in accordance with section 617(e) of the Act. In
addition to making this model procedural safeguards notice available on
the Department's Web site, we also are amending the cross-references in
Sec. 300.504(c) to identify the specific regulatory provisions that
include procedural safeguards for which an explanation must be provided
in the procedural safeguards notice.
Changes: We have revised the cross-references to specific
regulatory sections in the introductory paragraph of Sec. 300.504(c),
consistent with the content listed in Sec. 300.504(c)(1) through (13).
Comment: A few commenters asked that the regulations require a
State to develop its procedural safeguards notice with the State's PTIs
and CPRCs to ensure that it is appropriate for parents. One commenter
recommended including contact information for PTIs and CPRCs in the
notice.
Discussion: Section 300.165 and section 612(a)(19) of the Act
require each State to 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, prior to adopting any policies and
procedures to comply with Part B of the Act. There is nothing in the
Act or these regulations that would prevent a public agency from
consulting representatives of PTIs, CPRCs, or other advocacy
organizations for assistance in developing the procedural safeguards
notice so that it is appropriate for parents and the general public.
It would be unnecessarily prescriptive to require States to consult
with representatives from particular
[[Page 46694]]
organizations in developing their procedural safeguards notice or to
require that a State's procedural safeguards notice include contact
information for particular organizations. We believe that such
decisions are best left to States.
Changes: None.
Comment: Several commenters suggested requiring the procedural
safeguards notice to explain how a resolution meeting works and the
responsibilities of parents who participate in a resolution meeting.
Some commenters recommended requiring public agencies to inform parents
in writing about the differences between mediation and resolution
meetings including the differences in confidentiality rules; whether
attorneys' fees may be reimbursed; the effect of resolution and
mediation sessions on due process hearing timelines; and the
requirements governing the execution of resolution and mediation
agreements.
Discussion: Section 300.504(c)(6), consistent with section
615(d)(2)(E)(iii) of the Act, requires the procedural safeguards notice
to include a full explanation regarding the availability of mediation
to resolve complaints. In addition, Sec. 300.504(c)(5) requires the
procedural safeguards notice to provide a full explanation of the
opportunity for parents to present and resolve complaints through the
due process complaint and State complaint procedures, including the
time period in which to file a complaint, the opportunity for the
agency to resolve the complaint, and the differences 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. Because resolution
meetings are part of the due process procedures, consistent with Sec.
300.510 and section 615(f)(1)(B) of the Act, the explanation of due
process procedures would necessarily include information about how the
resolution meeting works and the responsibilities of the parties in the
resolution meeting.
We do not believe it is necessary to require the procedural
safeguards notice to explain the differences between mediation and
resolution meetings because the differences will be apparent from the
clear explanations of the respective procedures that are already
required in the notice. However, there is nothing in the Act or these
regulations that would prohibit a State from describing the differences
between mediation and resolution meetings in its procedural safeguards
notice, if it chose to do so.
Changes: None.
Comment: Several commenters requested clarification regarding the
differences between the State complaint and due process complaint
procedures that are required to be included in the procedural
safeguards notice. Some commenters requested clarification regarding
the meaning of the phrases ``jurisdiction of each procedure'' and
``what issues may be raised'' in State complaints versus due process
complaints.
Discussion: It is important for public agencies to include an
explanation of the State complaint procedures in Sec. Sec. 300.151
through 300.153 and the due process complaint procedures in Sec.
300.507 in the procedural safeguards notice to assist parents in
understanding the differences between these procedures. The reference
to ``jurisdictional issues'' addresses the scope of the State complaint
and due process complaint procedures. An organization or individual may
file a State complaint under Sec. Sec. 300.151 through 300.153
alleging that a public agency has violated a requirement of the Act for
a violation that occurred not more than one year prior to the date on
which the complaint is received, unless one of the exceptions in Sec.
300.153(c) is applicable. The Department's longstanding position is
that a State must resolve any complaint, and may not remove from the
jurisdiction of its State complaint procedures complaints regarding the
identification, evaluation, or educational placement of the child, or
the provision of FAPE to the child simply because those issues also
could be the subject of a due process complaint. We view the State
complaint procedures as a very important tool in a State's exercise of
its general supervision responsibilities, consistent with sections
612(a)(11) and 616(a) of the Act, to monitor LEA implementation of the
requirements in Part B of the Act. These responsibilities extend to
both systemic and child-specific issues.
A parent or a public agency may file a due process complaint under
Sec. 300.507 on any matter relating to the identification, evaluation,
or educational placement of the child, or the provision of FAPE to such
child for an alleged violation that occurred not more than two years
(or, within the timeframe established by the State) before the date the
parent or public agency knew or should have known about the alleged
action that forms the basis of the complaint.
Changes: None.
Electronic Mail (Sec. 300.505)
Comment: One commenter requested that the regulations clarify that
a parent who elects to receive notices by electronic mail must do so in
writing.
Discussion: Section 300.505, which incorporates section 615(n) of
the Act, permits public agencies to make the electronic mail option
available for notices required in section 615 of the Act, including the
prior written notice, procedural safeguards notice, and due process
complaint notice. It would be an unnecessary paperwork burden to
require a parent who elects to receive notices by electronic mail to do
so in writing, particularly when there are other methods available to
document such a request, for example, by the LEA making a notation of
the parent's verbal request. We believe public agencies should have the
flexibility to determine whether and how to document that a parent
elects to receive these notices by electronic mail.
Changes: None.
Mediation (Sec. 300.506)
Comment: Several commenters stated that the S. Rpt. No. 108-185
expressed Congressional intent for a hearing officer to have the same
plenary power over a due process hearing as a Federal or State judge.
The commenters, therefore, recommended permitting a hearing officer to
require mediation.
Discussion: Section 300.506(a) incorporates section 615(e)(1) of
the Act and requires public agencies to establish and implement
procedures to allow parties to resolve disputes involving any matter
under Part B of the Act, including matters arising prior to the filing
of a due process complaint, to resolve disputes through a mediation
process. Section 615(e)(2)(A)(i) of the Act requires the public agency
to ensure, among other things, that the mediation process is voluntary
on the part of the parties. In light of these explicit statutory
requirements, we do not believe that a hearing officer can order that
the parties to a due process complaint engage in mediation.
Changes: None.
Comment: One commenter suggested that the regulations include
language to ensure that the mediation process is not used to deny or
delay a parent's right to have a State complaint investigated.
Discussion: We do not believe that additional language is necessary
to address the commenter's concern. Section 300.506(a) requires each
public agency to ensure that procedures are established and implemented
to allow parties to resolve disputes involving any matter under Part B
of the Act,
[[Page 46695]]
including matters arising prior to the filing of a due process
complaint, to resolve disputes through mediation. We believe that
parties could use mediation prior to, or after, filing a State
complaint.
Section 300.506(b)(1)(ii), consistent with section 615(e)(2)(A)(ii)
of the Act, is clear that mediation cannot be used to deny or delay a
parent's right to a hearing on the parent's due process complaint, or
to deny other rights afforded under Part B of the Act. ``Other rights
under Part B of the Act'' include a parent's right to file a State
complaint and to have that complaint resolved within applicable
timelines. If the parties involved voluntarily wish to engage in
mediation once the complaint is filed, and the mediation is not
successful in resolving the dispute, the entity responsible for
resolving the complaint at the State level must ensure that the
complaint is resolved within the applicable timelines in Sec. 300.152.
Mediation is not an exceptional circumstance that would justify
extension of the 60-day timeline for issuing the final decision in a
State complaint, unless the parties agree otherwise. However, as
provided in Sec. 300.152(b)(1)(ii), the parent and the public agency
involved can agree to extend the time limit to engage in mediation to
resolve the complaint.
Changes: None.
Comment: One commenter recommended allowing parties in a dispute to
engage in mediation and have the mediator facilitate the IEP Team
meeting to incorporate the terms of the mediation agreement into the
child's IEP.
Discussion: Although not required by the Act, there is nothing in
the Act that would prohibit the parties in a dispute to agree during
mediation to have the mediator facilitate an IEP Team meeting and to
incorporate the terms of the mediation agreement into the child's IEP.
Changes: None.
Comment: Some commenters suggested defining ``effective mediation
techniques'' as techniques recognized by any State or national
accreditation or professional mediation association. The commenters
also recommended requiring a formal training and certification process
for mediators, which is created and paid for by the SEA.
Discussion: We decline to define ``effective mediation techniques''
in the manner suggested by the commenters. States have used a number of
successful techniques over the years to resolve disputes between
parents and public agencies, and we do not want to restrict a State's
discretion by providing a particular definition. Whether formal
training and certification for mediators is required is a decision best
left to each State, depending on State policy.
Changes: None.
Comment: A few commenters recommended requiring mediators to be
unbiased and knowledgeable in laws, regulations, and best practices
related to children with disabilities. Some commenters recommended
requiring the list of mediators to include information on the
mediator's qualifications. Other commenters recommended that the list
of mediators and their qualifications be provided to parents and the
public.
Discussion: We do not believe additional regulations regarding the
qualifications of mediators are necessary. Section 300.506(b)(3),
consistent with section 615(e)(2)(C) of the Act, requires States to
maintain a list of individuals who are qualified mediators and
knowledgeable in the laws and regulations relating to the provision of
special education and related services. In addition, Sec.
300.506(c)(1)(ii) requires impartial mediators who do not have a
personal or professional interest that would conflict with the person's
objectivity.
Parents do not select the mediator to mediate a particular case.
Rather, Sec. 300.506(b)(3)(ii) requires that the process for selecting
mediators be impartial. Therefore, we do not believe that public
agencies should be required to provide the list of mediators and their
qualifications to parents and the public. However, there is nothing in
the Act that would prohibit a State from making this information
available to parents and the public, if it chooses to do so.
Changes: None.
Comment: One commenter recommended that the regulations clarify
whether the public agency is required to offer parents who choose not
to use the mediation process an opportunity to meet with a
disinterested party.
Discussion: We believe the regulations are clear. Section
300.506(b)(2), consistent with section 615(e)(2)(B) of the Act, states
that a public agency may establish procedures to offer parents and
schools that choose not to use mediation, an opportunity to meet with a
disinterested party who would explain the benefits of, and encourage
the use of, mediation. Therefore, States may establish such procedures,
but are not required to do so. No further clarification is necessary.
Changes: None.
Comment: One commenter objected to the requirement in Sec.
300.506(b)(3)(ii) that States select mediators on a random, rotational,
or other impartial basis, and requested retaining current Sec.
300.506(b)(2)(ii), which permits the parties to agree on a mediator
when the mediator is not selected on a random basis.
Discussion: Section 300.506(b)(3)(ii) replaces current Sec.
300.506(b)(2)(ii) and requires the State to select mediators on a
random, rotational, or other impartial basis. These provisions are
sufficient to ensure that the selection of the mediator is not biased,
while providing SEAs additional flexibility in selecting mediators.
Selecting mediators on an impartial basis would include permitting the
parties involved in a dispute to agree on a mediator.
Changes: None.
Comment: One commenter requested a definition of ``timely manner''
in Sec. 300.506(b)(5), regarding the scheduling of mediation sessions.
Discussion: Section 300.506(b)(5) incorporates section 615(e)(2)(E)
of the Act and requires that the scheduling of each session in the
mediation process be completed in a timely manner. It is not necessary
to define ``timely manner'' because this requirement must be read
consistent with the State's responsibility to ensure that the mediation
process does not operate to deny or delay a parent's right to a hearing
on a due process complaint, or to deny other rights afforded under Part
B of the Act.
Changes: None.
Comment: Many commenters stated that mediation discussions should
remain confidential and not be used in any subsequent due process
hearings or proceedings. The commenters recommended that the phrase
``arising from that dispute'' in Sec. 300.506(b)(6)(i) and Sec.
300.506(b)(8) be removed. The commenters viewed these provisions as
permitting confidentiality to apply only to the current issue in
dispute, and not in other subsequent actions. Some commenters expressed
concern that mediation could be used as ``discovery'' for some future
dispute between parties, or for a simultaneous dispute between the same
public agency and some other children, or disputes involving the same
lawyers but different parties.
Discussion: We agree with the commenters that the phrase ``arising
from that dispute'' should be removed in Sec. 300.506(b)(6)(i) or
Sec. 300.506(b)(8). We believe that it is important to preserve the
integrity of the mediation process to ensure that mediation discussions
remain confidential and not be used in subsequent due process hearings
or civil proceedings. To ensure that we do not interfere with the
evidentiary privilege laws of States that might not participate in the
Part B
[[Page 46696]]
program (a possibility, but not a current actuality), we are adding new
language that limits the confidentiality provision to apply to due
process hearings and proceedings in any Federal court and any State
court of a State participating in Part B of the Act.
Changes: We have removed the phrase ``arising from that dispute''
from Sec. 300.506(b)(6)(i). We also have removed the phrase
``proceedings arising from that dispute'' and replaced it with
``proceeding of any Federal court or State court of a State receiving
assistance under this part'' from Sec. 300.506(b)(8).
Comment: None.
Discussion: Following the publication of the NPRM, the Department
reconsidered the subject of confidentiality pledges prior to the
commencement of mediation. Section 300.506(b)(9) was included in the
NPRM in light of note 208 of Conf. Rpt. No. 108-779, p. 216, which
indicates 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. However, Sec. 300.506(b)(8), already requires that
discussions that occur during the mediation process be confidential and
not be used as evidence in any subsequent due process hearing or civil
proceeding. Therefore, we are removing Sec. 300.506(b)(9). Removing
Sec. 300.506(b)(9), however, is not intended to prevent States from
allowing parties to sign a confidentiality pledge to ensure that
discussions during the mediation process remain confidential,
irrespective of whether the mediation results in a resolution.
Changes: Paragraph (b)(9) in Sec. 300.506 has been removed.
Comment: A few commenters expressed concern regarding the
requirement in Sec. 300.506(c)(1)(ii) that mediators must not have a
personal or professional interest that conflicts with ``the person's
objectivity.'' The commenters stated that disputes will arise and
compromise the integrity of the proceedings without a mechanism to
determine whether a conflict exists.
Discussion: Section 300.506(c)(1)(ii) incorporates section 615(e)
of the Act, and provides that mediators must not have a personal or
professional interest that would conflict with the person's
objectivity. SEAs have an interest in ensuring that their mediators are
seen as impartial persons so that the parties to disputes will be
willing to use mediation to resolve those disputes. We do not believe
that further regulation is needed, as the SEAs' interest in ensuring
that mediators are seen as impartial should be sufficient to provide
for mechanisms to resolve conflicts to the extent needed in that State.
Changes: None.
Comment: One commenter recommended that the regulations clarify
that a mediator cannot be employed simultaneously as a hearing officer.
Discussion: Case-by-case determinations would need to be made as to
whether there is a conflict of interest in the situation that the
commenter describes. For example, we believe that a conflict would
arise if a mediator was subsequently assigned as a hearing officer for
the same matter. We believe that the requirements in Sec.
300.506(c)(1)(ii), applicable to mediators, and the corresponding
requirements in Sec. 300.511(c)(1)(i)(B), applicable to hearing
officers, which prohibit a mediator and a hearing officer from having a
personal or professional interest that would conflict with the person's
objectivity at the mediation or the hearing, are sufficient to ensure
that mediators and hearing officers are fair and unbiased.
Changes: None.
Filing a Due Process Complaint (Sec. 300.507)
Comment: Some commenters recommended changing the section heading
in Sec. 300.507 from ``Filing a due process complaint'' to
``Requesting a due process hearing'' to avoid confusion with the State
complaint process. A few commenters requested that the regulations
clarify that a request for due process hearing may be made regarding
any matter pertaining to the identification, evaluation, educational
placement, or provision of FAPE for a child.
Discussion: We do not believe that changing the heading to this
section is necessary or that further clarification is needed regarding
the matters about which a due process complaint can be filed. Section
300.507(a) and section 615(b)(6)(A) of the Act are clear that a parent
or public agency may file a due process complaint on any matter
relating to the identification, evaluation, or educational placement of
the child, or the provision of FAPE to the child. A party must file a
due process complaint in accordance with Sec. Sec. 300.507 through
300.508 prior to the opportunity for a due process hearing under this
part. If the LEA does not resolve the complaint to the satisfaction of
the parents during the resolution process, the disputed issues that
were raised in the due process complaint would be the subject of a due
process hearing.
Changes: None.
Comment: Several commenters objected to the removal of current
Sec. 300.507(a)(2), which requires the public agency to inform the
parent about the availability of mediation when a hearing is initiated.
The commenters stated that the notice about the availability of
mediation should be expanded, not eliminated.
Discussion: Section 615(e)(1) of the Act expands the availability
of mediation by requiring public agencies to offer mediation to resolve
disputes about any matter under this part. Current Sec. 300.507(a)(2)
was replaced by Sec. 300.506(a), which incorporates section 615(e)(1)
of the Act, and requires mediation to be available to resolve disputes
involving any matter under this part, including matters arising prior
to the filing of a due process complaint. Section 300.506(a),
therefore, expands the availability of mediation beyond that required
in current Sec. 300.507(a)(2). Therefore, there is no need to add the
provision requested by the commenter.
Changes: None.
Comment: A few commenters stated that the requirement in Sec.
300.507(a) places the burden on the parent to file a due process
complaint.
Discussion: Section 300.507(a), consistent with section 615(b)(6)
of the Act, permits either a parent or a public agency to file a due
process complaint. Section 615(b)(7) of the Act is clear that a parent
or a public agency must file a due process complaint notice before a
due process hearing may commence.
Changes: None.
Comment: Many commenters supported the time limit for submitting a
due process complaint. Some commenters stated that the regulations
should clarify that, while States may adopt an explicit statute of
limitations that is shorter than two years, they may not adopt a time
period that is longer than two years. Other commenters recommended that
the regulations clarify that if a State has an explicit time limit for
requesting a due process hearing the State time limit must be
reasonable. A few commenters recommended requiring States to conduct
public hearings and provide an opportunity for public comment before
the State establishes a reasonable time limit for filing a due process
complaint. Still other commenters stated that the regulations should
include a statement that common-law directives regarding statutes of
limitations should not override the Act or State regulatory time
limits.
[[Page 46697]]
Some commenters expressed concern that reducing the statute of
limitations from three years to two years makes it impossible to
protect the rights of children. The commenters stated that parents and
school districts will be discouraged from participating in alternative
dispute resolution options because of the short timeframe for filing a
due process complaint.
Discussion: Section 300.507(a)(2) and section 615(b)(6)(B) of the
Act are clear that a 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 limit for filing a due process complaint, in the time allowed by
that State law.
There is nothing in the Act that would preclude a State from having
a time limit for filing a complaint that is shorter or longer than two
years. We believe that the Act leaves this decision to the States. A
State choosing to adopt a time limit for requesting a hearing, other
than the two year time limit in the Act, must comply with the public
participation requirements in Sec. 300.165 and section 612(a)(19) of
the Act, which require that prior to the adoption of any policies and
procedures needed to comply with Part B of the Act (including any
amendments to such policies and procedures), the State must ensure that
there are public hearings, adequate notice of the hearings, and an
opportunity for public comment. However, if a State already has an
explicit time limit in statute or regulation, and has met the
requirements in Sec. 300.165 and section 612(a)(19) of the Act in
establishing that requirement, new public hearings and public comment
periods are not required.
It is not necessary to clarify that common-law directives regarding
statutes of limitations should not override the Act or State regulatory
timelines, as the commenters recommended, because the Act and these
regulations prescribe specific limitation periods which supersede
common law directives in this regard.
Changes: None.
Comment: One commenter suggested that the regulations allow
extensions of the statute of limitations when a violation is continuing
or the parent is requesting compensatory services for a violation that
occurred not more than three years prior to the date the due process
complaint is received.
Discussion: Section 615(f)(3)(D) of the Act provides explicit
exceptions to the timeline for requesting a due process hearing.
Section 300.511(f) incorporates these provisions. These exceptions do
not include when a violation is continuing or where a parent is
requesting compensatory services for a violation that occurred not more
than three years from the date that the due process complaint was
filed. Therefore, we do not believe that the regulations should be
changed.
Changes: None.
Comment: One commenter suggested removing Sec. 300.507(b), which
requires a public agency to inform parents of any free or low-cost
legal and other relevant services in the area. The commenter stated
that schools should voluntarily provide this information to parents.
One commenter requested clarification regarding the meaning of ``other
relevant services'' about which the public agency must inform parents.
Another commenter requested that public agencies post information about
free or low-cost legal services on their Web sites.
Discussion: The provisions in Sec. 300.507(b) are protected by
section 607(b) of the Act and require the public agency to inform
parents about the availability of free or low-cost legal and other
relevant services, if the parent requests such information or the
parent or the agency requests a due process hearing. Generally, ``other
relevant services'' refers to other sources that parents could consult
for information, such as parent centers.
The Department believes that parents should have easy access to
information about any free or low-cost legal and other relevant
services in the area. Making the information available on the State's
Web site may be a good way of providing parents easily accessible
information, but it may not be effective in all cases. Each State is in
the best position to determine whether including this information on
its Web site would be helpful for parents. Therefore, we decline to add
this as a requirement in these regulations, as recommended by the
commenter.
Changes: None.
Comment: None.
Discussion: Upon internal review, we determined that it would be
clearer for Sec. 300.507(b)(2) to state that the parents or the agency
files a due process complaint, rather than request a hearing under
Sec. 300.507.
Changes: We have amended the language of Sec. 300.507(b)(2) to
refer to filing a due process complaint rather than requesting a
hearing.
Due Process Complaint (Sec. 300.508)
Comment: A few commenters expressed concern regarding the use of
similar terminology for due process complaints and State complaints.
Some commenters stated that the State complaint procedures may
mistakenly be considered a pre-requisite to commencing a due process
hearing. A few commenters requested changing the heading in Sec.
300.508 from ``Due process complaint'' to ``Requesting a due process
hearing'' to avoid unnecessary confusion.
Discussion: Section 615(b)(7)(B) of the Act states that a party may
not have a hearing on a due process complaint or engage in a resolution
meeting until the party, or the attorney representing the party, files
a due process complaint that meets the requirements in Sec.
300.508(b). There is no requirement that a party file a State complaint
prior to filing a due process hearing, and we believe that the
regulation is sufficiently clear about this point. Renaming this
section ``Requesting a due process hearing'' could incorrectly suggest
that there is no requirement to file a due process complaint prior to a
due process hearing. Therefore, we decline to change the name of the
heading, as requested by the commenters.
Changes: None.
Comment: A few commenters requested clarification regarding when a
determination about the sufficiency of a due process complaint must be
made and who makes the determination. One commenter stated that any
party who alleges that a notice is insufficient should be required to
state in writing the basis for that belief, including the information
that is missing or inadequate.
Many commenters recommended removing the phrase ``or engage in a
resolution meeting'' in Sec. 300.508(c). The commenters expressed
concern that requiring parties to engage in a resolution meeting before
a due process hearing will delay the due process hearing, particularly
when the parties must wait for a hearing officer to determine the
sufficiency of a due process complaint before holding a resolution
meeting. One commenter requested that the regulations state that the
public agency may not deny or delay a parent's right to a due process
hearing. A few commenters recommended that the regulations clarify that
a resolution meeting cannot be held until the complaint is deemed
sufficient.
Some commenters questioned the appropriateness of requiring a
substantive response to a due process complaint during a resolution
meeting
[[Page 46698]]
before the complaint is determined to be sufficient. Other commenters
asked whether the 10-day timeline for the party receiving the complaint
to respond to the due process complaint resets when a party deems a due
process complaint to be insufficient or when a hearing officer rules
that the complaint is insufficient.
One commenter asked whether two resolution meetings are required
when the sufficiency of the complaint is challenged, and whether the
30-day resolution period is reset by an insufficient complaint. The
same commenter asked whether the resolution meeting should be scheduled
within 50 days of receiving the parent's original due process
complaint, if insufficiency has been determined or is pending.
Discussion: Section 300.510(a), consistent with section
615(f)(1)(B) of the Act, requires the LEA, within 15 days of receiving
notice of the parent's due process complaint, and prior to the
initiation of a hearing, to convene a meeting with the parent and the
relevant members of the IEP Team to discuss the parent's due process
complaint so that the LEA has an opportunity to resolve the dispute.
Section 300.508(d)(1), consistent with section 615(c)(2)(A) and (D) of
the Act, provides that the due process complaint 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 due process
complaint does not meet the requirements in Sec. 300.508(b). If the
party receiving the due process complaint notice believes the complaint
is insufficient, the hearing officer determines the sufficiency of the
complaint. There is no requirement that the party who alleges that a
notice is insufficient state in writing the basis for the belief.
Section 300.508(d)(2), consistent with section 615(c)(2)(D) of the
Act, states that the hearing officer must make a determination within
five days of receiving notice that the party believes the complaint is
insufficient and immediately notify the parties in writing of that
determination.
If the hearing officer determines that the notice is not
sufficient, the hearing officer's decision will identify how the notice
is insufficient, so that the filing party can amend the notice, if
appropriate. We are not further regulating on how the sufficiency claim
is raised, however, as we believe that this matter is more
appropriately addressed by each State, in light of their other hearing
procedures.
Section 615(b)(7)(B) of the Act, provides that a party may not have
a hearing on a due process complaint until the party or the party's
attorney files a due process complaint that meets the content standards
in section 615(b)(7)(A) of the Act, which are reflected in Sec.
300.508(b). If the complaint is determined to be insufficient and is
not amended, the complaint could be dismissed.
We agree with S. Rpt. No. 108-185, p. 38, which states that the
resolution meeting should not be postponed when the LEA believes that a
parent's complaint is insufficient. While the period to file a
sufficiency claim is the same as the period for holding the resolution
meeting, parties receiving due process complaint notices should raise
their sufficiency claims as early as possible, so that the resolution
period will provide a meaningful opportunity for the parties to resolve
the dispute.
In order to resolve ambiguity on the relationship of a sufficiency
claim to the resolution meeting, we are revising Sec. 300.508(c) to
remove the reference, which is not statutory, to the resolution
meeting. There is no need to hold more than one resolution meeting,
impose additional procedural rules, or otherwise adjust the resolution
timeline.
We do not believe it is necessary to add language to the
regulations stating that a public agency may not deny or delay a
parent's right to a due process hearing. We believe that the timelines
and requirements for filing a due process complaint, and the timelines
for hearing officer decisions regarding the sufficiency of a complaint
will safeguard against due process hearings being unfairly or
unnecessarily delayed.
Changes: We have removed the words ``or engage in a resolution
meeting'' in Sec. 300.508(c) for clarity.
Comment: One commenter stated that the timeline for filing a due
process hearing should begin when the due process complaint is deemed
sufficient. However, some commenters stated that the timeline should
begin when a party files a due process complaint notice. Several
commenters stated that a hearing officer should be allowed to determine
whether an amended complaint relates to the original complaint for
purposes of determining the time limit for filing a due process
complaint.
Discussion: We do not believe that a separate filing of a due
process complaint notice and due process complaint, with separate
timelines, is required by the Act, as those distinctions would be
unnecessarily burdensome and cumbersome. Section 615(b)(7)(A)(i) of the
Act describes the due process complaint notice as being filed ``in the
complaint,'' and we have organized our regulation consistent with this
provision.
Section 300.507(a)(2), consistent with section 615(b)(6)(B) of the
Act, states that a due process complaint must allege a violation that
occurred not more than two years (or the time allowed by State law),
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. Section 615(f)(3)(D) of the Act provides exceptions to the
timeline if a parent was prevented from filing a due process complaint,
which are reflected in Sec. 300.511(f). It is up to hearing officers
to determine whether a specific complaint is within the allowable
timeline, including whether an amended complaint relates to a previous
complaint.
Changes: None.
Comment: Many commenters stated that the process for amending a due
process complaint is complex and unnecessarily complicated, and will
force parents to seek the services of an attorney and make the
relationship between parties more adversarial. One commenter
recommended allowing a hearing request to be amended up to five days
before the parties meet to set a hearing schedule, rather than five
days before the hearing.
Discussion: We do not agree that the process for amending a due
process complaint is complex and unnecessarily complicated. Section
300.508(d)(3) and section 615(c)(2)(E) of the Act allow the party
filing the due process complaint an opportunity to amend the complaint
to ensure that the complaint accurately sets out their differences with
the other party. The complaint can be amended only if the parties
mutually agree in writing to the amendment and are given the
opportunity for a resolution meeting, or the hearing officer grants
permission to amend the complaint at any time not later than five days
before the due process hearing begins. This process ensures that the
parties involved understand and agree on the nature of the complaint
before the hearing begins. We, therefore, decline to change these
regulations, and see no reason to change the timeline for amending a
complaint in the manner suggested by the commenter.
Section 300.508(d)(4) and section 615(c)(2)(E)(ii) of the Act
provide that when a due process complaint is amended, the timelines for
the resolution meeting and the time period for resolving the complaint
begin again
[[Page 46699]]
with the filing of the amended due process complaint.
Changes: None.
Comment: Some commenters stated that parents who are filing a due
process complaint without the assistance of an attorney should have
more flexibility when the sufficiency of the complaint is determined.
The commenters stated that parents should be able to receive assistance
from their State's due process office to complete the due process
complaint so that it meets the standard for sufficiency.
Discussion: To assist parents in filing a due process complaint,
Sec. 300.509 and section 615(b)(8) of the Act require each State to
develop a model due process complaint form. While there is no
requirement that States assist parents in completing the due process
complaint form, resolution of a complaint is more likely when both
parties to the complaint have a clear understanding of the nature of
the complaint. Therefore, the Department encourages States, to the
extent possible, to assist a parent in completing the due process
complaint so that it meets the standards for sufficiency. However,
consistent with section 615(c)(2)(D) of the Act, the final decision
regarding the sufficiency of a due process complaint is left to the
discretion of the hearing officer.
Changes: None.
Comment: One commenter stated that parents who file a due process
complaint without the assistance of an attorney should be allowed to
amend their complaint without having to start the process all over
again, as long as their statement provides the information LEAs need to
proceed toward resolution. A few commenters stated that a formal
amendment should not be required for minor insufficiencies, such as
leaving out the child's address or name of the child's school,
especially if the LEA already has this information.
Many commenters recommended that a hearing officer be allowed to
permit a party to amend the due process complaint, unless doing so
would prejudice the opposing party. The commenters stated that, at a
minimum, the regulations should state that hearing officers must follow
the standard that permits them to freely grant amendments, regardless
of timelines, when justice so requires.
Discussion: Section 300.508(d)(3), consistent with section
615(c)(2)(E) of the Act, provides that a party may only amend its
complaint in two circumstances: (1) if the other party consents in
writing to the amendment and is given the opportunity to resolve the
complaint in a resolution meeting convened under Sec. 300.510, or (2)
if the hearing officer grants permission for the amendment, but only at
a time not later than five days before the hearing begins. Therefore,
we do not believe further clarification is necessary. With regard to
parents who file a due process complaint without the assistance of an
attorney or for minor deficiencies or omissions in complaints, we would
expect that hearing officers would exercise appropriate discretion in
considering requests for amendments.
Changes: None.
Comment: One commenter suggested adding language to the regulations
stating that an LEA may request and, as a matter of right, be granted
one 10-day extension to respond to a parent's due process complaint.
Discussion: Section 615(c)(2)(B)(ii) of the Act provides that the
receiving party must provide the party that filed the complaint a
response to the complaint within 10 days of receiving the complaint.
The Act makes no provision for extending this time period, and we do
not believe it would be appropriate to amend the regulations in this
manner. Allowing an LEA additional time to respond to a parent's due
process complaint could be used to unduly delay the due process
hearing, to the detriment of the interests of the child.
Changes: None.
Comment: A few commenters expressed concern that the regulations
appear to require parents to be represented by an attorney in due
process proceedings and requested that the regulations permit a party
in a due process hearing to be represented by a non-attorney advocate.
The commenters stated that this would allow more uniform access to
assistance across all socio-economic groups and decrease the formality
of hearings.
Discussion: We are considering the issue of non-attorney
representation of parties in a due process hearing under the Act, in
light of State rules concerning the unauthorized practice of law. We
anticipate publishing a notice of proposed rulemaking in the near
future seeking public comment on this issue.
Changes: None.
Comment: One commenter requested clarification regarding whether
there is legal significance or consequence to a responding party who
fails to file the required response to a due process complaint or to an
LEA that fails to send both the prior written notice and the due
process complaint notice.
Discussion: The Act does not establish consequences for parents who
are the receiving parties to complaints if they fail to respond to a
due process complaint notice. However, either party's failure to
respond to, or to file, the requisite notices could increase the
likelihood that the resolution meeting will not be successful in
resolving the dispute and that a more costly and time-consuming due
process hearing will occur.
Changes: None.
Comment: One commenter recommended that the regulations
specifically state that a party has a right to seek immediate
intervention from a hearing officer to resolve pre-hearing issues and
disputes.
Discussion: Section 300.508, consistent with section 615(b) and (c)
of the Act, sets out the requirements and timelines for filing a due
process complaint. We do not believe the further clarification
requested by the commenter is necessary because the due process
complaint procedures are intended to resolve pre-hearing issues and
disputes and allow parties to seek immediate resolution by a hearing
officer, when necessary, regarding the sufficiency of a due process
complaint and amendments to a complaint.
Changes: None.
Comment: One commenter requested that the regulations require a
hearing officer to dismiss a complaint when the hearing officer
determines that all issues and allegations are insufficient to go
forward.
Discussion: We do not believe that Federal regulations on this
matter are required, as we believe that States and individual hearing
officers are in a better position to decide on the utility of, or need
for, dismissals.
Changes: None.
Model Forms (Sec. 300.509)
Comment: None.
Discussion: In reviewing this section, we realized that the
language in paragraph (a) might incorrectly be read to suggest that
parties other than parents and public agencies could file due process
complaints.
Changes: We have amended the language of Sec. 300.509(a) to
clarify that only parents and public agencies can file due process
complaints, while parents, public agencies, and other parties can file
State complaints.
Comment: One commenter suggested including a statement in Sec.
300.509 clarifying that parents can use a model form, create their own
form, or use a form created by their attorney, as long as it meets the
requirements of the Act.
Discussion: We agree that the use of the model forms should not be
required by an SEA or LEA, and that parents (or other parties filing a
State complaint) may use some other form of notice, so long as their
notice meets the content
[[Page 46700]]
requirements of the Act. We are clarifying this in Sec. 300.509.
Changes: We have restructured Sec. 300.509 and clarified that SEAs
or LEAs cannot require the use of the model forms. We have added a new
paragraph (b) to Sec. 300.509 to provide that parents and other
parties may use another form, so long as the form that is used meets
the content requirements in Sec. 300.508(b) for filing a due process
complaint, or the requirements in Sec. 300.153(b) for filing a State
complaint.
Comment: A few commenters requested language requiring the State to
work with the State PTI and CPRC to develop the model forms so that
they are written in a manner that parents can understand.
Discussion: It would be over-regulating to require a State to work
with a particular group or groups to develop their model forms. We
believe that such decisions are best made by each State and, therefore,
decline to require a State to work with the State PTI and CPRC to
develop the model forms. However, States must comply with the public
participation requirements in Sec. 300.165 and section 612(a)(19) of
the Act prior to adopting a model form. To meet the public
participation requirements, the State must ensure that there are public
hearings and an opportunity for comment available to the general
public, including individuals with disabilities and parents of children
with disabilities.
Changes: None.
Comment: A few commenters recommended that the regulations clarify
that a hearing officer may not determine that a due process complaint
is insufficient in any State that has not developed the model forms
required in Sec. 300.509.
Discussion: It would be inappropriate to prohibit a hearing officer
from finding that a complaint is insufficient if the receiving party
properly challenges the sufficiency of the complaint in accordance with
Sec. 300.508(d)(1) because the State has failed to develop the model
forms in accordance with Sec. 300.509 and section 615(b)(8) of the
Act. Development of the model forms is a State responsibility and
parties to a due process hearing should not be penalized because a
State fails to meet the requirements in section 615(b)(8) of the Act.
The Department is authorized to impose sanctions on a State, in
accordance with section 616(d), (e), and (g) of the Act, if it fails to
develop the model forms required in Sec. 300.509.
Changes: None.
Comment: One commenter recommended that model forms should be
developed to assist education agencies in filing a due process
complaint.
Discussion: We disagree with the commenter. We believe that the due
process complaint requirements in Sec. 300.508 provide sufficient
information for education agencies that wish to file a due process
complaint.
Changes: None.
Resolution Process (Sec. 300.510)
Resolution Meeting (Sec. 300.510(a))
Comment: One commenter expressed concern that the resolution
process under the due process complaint procedures could limit the
State complaint procedures as a means of resolving disputes.
Discussion: The due process complaint procedures and the State
complaint procedures are separate and distinct. The State complaint
procedures remain a viable alternative to the due process procedures
for parents to resolve disputes with public agencies in a less formal
and more cost-effective manner.
Changes: None.
Comment: Several commenters recommended that the regulations
require an LEA to notify the parent, within five days of receiving a
due process complaint, whether the LEA intends to convene a resolution
meeting or waive the session. The commenters recommended that the
notice include a signature line for a parent to indicate an agreement
to waive the resolution meeting.
Discussion: Section 615(f)(1)(B) of the Act requires an LEA to
convene a resolution meeting with the parent and the relevant member(s)
of the IEP Team within 15 days of receiving notice of the parent's due
process complaint. The purpose of the meeting is for the parent to
discuss the due process complaint and the facts that form the basis of
the due process complaint so that the LEA has an opportunity to resolve
the dispute. We do not believe it is necessary to require an LEA to
notify the parent within five days of receiving a due process complaint
about the LEA's intention to convene or waive the resolution process.
An LEA that wishes to engage in a resolution meeting will need to
contact the parent to arrange the meeting soon after the due process
complaint is received in order to ensure that the resolution meeting is
held within 15 days.
Section 300.510(a)(3) provides that the resolution meeting does not
need to be held if the parent and the LEA agree in writing to waive the
meeting, or if the parent and LEA agree to use the mediation process to
resolve the complaint. The manner in which the LEA and parent come to
an agreement to waive the resolution meeting is left to the discretion
of States and LEAs. We do not believe that there is a need to regulate
further in this area.
Changes: None.
Comment: Some commenters asked whether the requirements for
resolution meetings apply when an LEA initiates a due process hearing.
A few commenters recommended that the requirements for resolution
meetings should not apply when an LEA initiates a due process hearing.
Discussion: Section 615(f)(1)(B)(i) of the Act requires an LEA to
convene a resolution meeting when a parent files a due process
complaint. Consistent with section 615(f)(1)(B)(i)(IV) of the Act, the
resolution meeting provides an opportunity for the parents of the child
to discuss their complaint, and the facts that form the basis of the
complaint, so that the LEA has an opportunity to resolve the complaint.
There is no provision requiring a resolution meeting when an LEA is the
complaining party. The Department's experience has shown that LEAs
rarely initiate due process proceedings.
Changes: None.
Comment: Some commenters recommended that the regulations clarify
that, in addition to their attorney, parents may bring other
participants to the resolution meeting, such as an advocate or family
friend. Other commenters recommended that neither party should be
permitted to bring an attorney to the resolution meeting. Some
commenters recommended requiring parents to notify the LEA at least one
day before the resolution meeting whether their attorney will be
participating in the resolution meeting. Other commenters, however,
stated that parents should not be required to notify the LEA in advance
of the meeting whether the parent plans to bring anyone to the meeting.
Discussion: Section 615(f)(1)(B)(i) of the Act states that an LEA
must convene a resolution meeting with the parents and the relevant
members of the IEP Team who have specific knowledge of the facts
identified in the due process complaint that includes a representative
of the public agency who has decision-making authority on behalf of
that agency, and may not include the LEA's attorney unless the parent
is accompanied by an attorney.
Section 300.510(a)(4) states that the parent and the LEA determine
the relevant members of the IEP Team to attend the resolution meeting.
We do not believe it is necessary to clarify that
[[Page 46701]]
a parent may bring other participants, such as an advocate or family
friend, to the resolution meeting because section 614(d)(1)(B)(vi) of
the Act and Sec. 300.321(a)(6) are clear that the IEP Team may
include, at the discretion of the parent or the agency, other
individuals who have knowledge or special expertise regarding the
child. Therefore, such individuals could attend the resolution meeting
if the LEA or parent determined that such individuals are relevant
members of the IEP Team.
We do not believe it is necessary to regulate on whether a parent
must provide advance notice to the LEA that the parent intends to bring
an attorney to the resolution meeting because we expect that it would
not be in the interest of the parent to withhold such information prior
to a resolution meeting so as to appear at the resolution meeting with
an attorney without advance notice to the public agency. In such cases,
the public agency could refuse to hold the resolution meeting until it
could arrange the attendance of its attorney (within the 15-day
period). The parent would incur additional expenses from having to
bring their attorney to two resolution meetings.
Changes: None.
Comment: Some commenters requested clarification regarding whether
the parent and the LEA must agree to the parties who will attend the
resolution meeting, or whether the parent and the LEA can decide
independently who will attend the meeting. The commenters recommended
that any disputes regarding who should attend the resolution meeting
should be resolved in a timely manner and the meeting should proceed
with all the disputed participants when there is no agreement within
the 15-day period. Some commenters stated that allowing parents to
determine which members of the IEP Team should attend the resolution
meeting exceeds statutory authority.
Discussion: Section 615(f)(1)(B)(i) of the Act requires the LEA to
convene a resolution meeting with the parent and the relevant member(s)
of the IEP Team who have specific knowledge of the facts identified in
the complaint. Section 300.510(a)(4) requires the parent and the LEA to
determine the relevant members of the IEP Team who will attend the
meeting. We urge LEAs and parents to act cooperatively in determining
who will attend the resolution meeting, as a resolution meeting is
unlikely to result in any resolution of the dispute if the parties
cannot even agree on who should attend. The parties should keep in mind
that the resolution process offers a valuable chance to resolve
disputes before expending what can be considerable time and money in
due process hearings. We decline to regulate further on how to resolve
disputes about who should attend these meetings in the absence of
information about specific problems in the process.
Changes: None.
Comment: Some commenters recommended that the regulations provide
information on how a resolution meeting should proceed. Several
commenters expressed concern that the regulations offer no guidance on
the protocol or structure of resolution meetings, and do not specify
whether an impartial mediator or facilitator should conduct the
meeting.
Discussion: Section 615(f)(1)(B)(i)(IV) of the Act states that the
purpose of a resolution meeting is for parents to discuss their due
process complaint and the facts that form the basis of the due process
complaint so that the LEA has an opportunity to resolve the dispute. We
do not believe that it is necessary or appropriate to regulate on the
specific structure or protocol for resolution meetings as doing so
could interfere with the LEA and the parent in their efforts to resolve
the complaint in the resolution meeting.
Changes: None.
Comment: A few commenters recommended that the regulations address
the need for families to receive training in dispute resolution.
Discussion: There is nothing in the Act that would prevent a public
agency from offering training in dispute resolution or referring
parents to organizations that provide training in dispute resolution.
Such matters are best left to local and State officials to determine,
based on the training needs of parents and families. Therefore, we
decline to regulate on this matter.
Changes: None.
Comment: One commenter recommended allowing parents to participate
in resolution meetings through alternative means (e.g.,
teleconferences) and alternative procedures (e.g., participation by a
child's court-appointed advocate) when parents are unavailable (e.g.,
military service, hospitalization).
Discussion: We understand that circumstances beyond a parent's
control (e.g., military service, hospitalization) may prevent a parent
from attending a resolution meeting in person. If the LEA notifies the
parent of its intent to schedule a resolution meeting within 15 days of
receiving notice of the parent's due process complaint, and the parent
informs the LEA in advance of the meeting that circumstances prevent
the parent from attending the meeting in person, it would be
appropriate for an LEA to offer to use alternative means to ensure
parent participation, such as those described in Sec. 300.328,
including videoconferences or conference telephone calls, subject to
the parent's agreement.
There is no authority in the Act for an LEA to permit a court-
appointed advocate to attend the resolution meeting in place of a
parent, unless the public agency has appointed that individual as a
surrogate parent in accordance with Sec. 300.519, or the agency
determines that the person is a person acting in the place of the
biological or adoptive parent of the child in accordance with Sec.
300.30(a)(4).
Changes: None.
Resolution Period (Sec. 300.510(b))
Comment: One commenter noted that Sec. 300.510(b)(1) states that
if an LEA has not resolved a due process complaint within 30 days of
the receipt of the complaint, the due process hearing ``must'' occur,
which is inconsistent with section 615(f)(1)(B)(ii) of the Act, which
states that the due process hearing ``may'' occur. However, another
commenter recommended retaining the language in Sec. 300.510(b), in
lieu of the permissive statutory language.
Discussion: We believe that Sec. 300.510(b)(1) should be changed
to be consistent with section 615(f)(1)(B)(ii) of the Act. A
requirement that a due process hearing must occur when the resolution
period is not successful in resolving the underlying dispute could
prove unduly restrictive for the parties, particularly in situations
where the parties agree to an extension of the resolution period or
reach a settlement after the resolution period has expired. Therefore,
we are changing Sec. 300.510(b)(1) to state that a due process hearing
``may'' occur if the parties have not resolved the dispute that formed
the basis for the due process complaint by the end of the resolution
period.
Changes: Section 300.510(b)(1) has been changed by removing the
word ``must'' and replacing it with ``may'' prior to the word ``occur''
to reflect the language in section 615(f)(1)(B)(ii) of the Act.
Comment: Some commenters recommended requiring LEAs to waive the
resolution period when a parent can show that, prior to the filing of
the complaint, the LEA had specific knowledge of the facts later
identified in the complaint and had a reasonable time to resolve the
issue, or did not notify the parent within five days of the resolution
[[Page 46702]]
meeting or inform the parent of their options.
Discussion: Section 615(f)(1)(B)(i) of the Act provides two
occasions when a resolution meeting need not occur: (1) when the parent
and LEA agree in writing to waive the meeting; and (2) when the parent
and LEA agree to use the mediation process in Sec. 300.506. There are
no provisions that allow a parent or an LEA to unilaterally waive the
resolution meeting. In the circumstances mentioned by the commenter,
the resolution meeting still is a required vehicle for the parent and
the LEA to attempt to resolve their differences prior to initiating a
due process hearing.
Changes: None.
Comment: We received numerous comments expressing concern about the
resolution process and requesting changes to the regulations to ensure
that the resolution process is used effectively to resolve disputes and
not to delay or deny the right to a due process hearing. Some
commenters requested that Sec. 300.510(b)(3) be removed because it
allows a public agency to delay the due process hearing by scheduling
resolution meetings at times or places that are inconvenient for the
parent. Many commenters recommended that if an LEA fails to convene a
resolution meeting within the required 15 days, bring the required
personnel to a resolution meeting, or participate in a resolution
meeting in good faith, the 45-day timeline for a hearing decision
should begin on the date that the due process complaint notice was
filed.
Several commenters requested clarification on what is considered
``participation'' or ``good faith'' participation in a resolution
meeting and who decides if participation has occurred. A number of
commenters recommended that the regulations permit a hearing officer to
determine whether a parent or LEA has participated in the resolution
meeting and whether the due process hearing can proceed. Another
commenter requested clarification on when the 45-day timeline for a due
process hearing begins when a hearing officer determines that a parent
has participated.
Several commenters asked how long a due process complaint remains
open if the parent does not participate during the 30-day resolution
period. A number of commenters requested clarification as to whether
and how an LEA can dismiss a due process complaint when a parent
refuses to participate in a resolution meeting. One commenter
recommended that the regulations clarify the consequences of
indefinitely delaying a due process hearing.
Discussion: We do not agree that Sec. 300.510(b)(3) should be
removed. This provision is based on H. Rpt. No. 108-77, p. 114, that
provides:
[If] the parent and the LEA mutually agree that the meeting does
not need to occur, the resolution meeting does not need to take
place. However, unless such an agreement is reached, the failure of
the party bringing the complaints to participate in the meeting will
delay the timeline for convening a due process hearing until the
meeting is held.
We fully expect that only in very rare situations will an LEA fail
to meet its obligation to convene a resolution meeting within 15 days
of receiving notice of the parent's due process complaint, delay the
due process hearing by scheduling meetings at times or places that are
inconvenient for the parent, or otherwise not participate in good faith
in the resolution process. However, in instances of noncompliance, we
believe parents should be able to request a hearing officer to allow
the due process hearing to proceed.
In situations where an LEA convenes a meeting with the parent and
the relevant member or members of the IEP Team who have specific
knowledge of the facts identified in the due process complaint, and the
parent fails to participate in the resolution meeting, the LEA would
need to continue to make diligent efforts throughout the remainder of
the 30-day resolution period to convince the parent to participate in
the resolution meeting. If, however, at the end of the 30-day
resolution period, the LEA is still unable to convince the parent to
participate in the resolution meeting, we believe that an LEA should be
able to seek intervention by a hearing officer to dismiss the
complaint.
Therefore, we are adding language to the regulations to allow the
parents to seek a hearing officer's intervention in cases where an LEA
fails to convene a resolution meeting within 15 days of receiving
notice of a parent's due process complaint or fails to participate in
the resolution meeting. We also are adding language to allow an LEA, at
the conclusion of the 30-day resolution period, to request a hearing
officer to dismiss a complaint when the LEA is unable to obtain the
participation of a parent in a resolution meeting despite making
reasonable efforts to do so during the 30-day resolution period.
Changes: We have added a new paragraph (b)(4) in Sec. 300.510 to
allow an LEA, at the conclusion of the 30-day resolution period to seek
the intervention of a hearing officer to dismiss the parent's
complaint, if the LEA is unable to obtain the participation of the
parent in the resolution meeting, after reasonable efforts have been
made.
We have also added a new paragraph (b)(5) to allow a parent to seek
the intervention of a hearing officer to begin the due process hearing,
if the LEA fails to hold the resolution meeting within 15 days of
receiving notice of a parent's due process complaint or fails to
participate in the resolution meeting.
Comment: Some commenters stated that the 45-day timeline for a due
process hearing should begin when both parties agree that the complaint
will not be resolved in a resolution meeting or mediation session.
Other commenters suggested that when a resolution meeting or mediation
session is held and it is clear before the end of the 30-day resolution
period that the LEA and the parent cannot resolve the dispute, the 45-
day timeline should be allowed to begin prior to the end of the 30-day
resolution period. A few commenters requested further clarification
regarding how the timeline is counted once the parent participates in a
resolution meeting. A few commenters recommended that the 45-day
timeline for the hearing commence once both parties agree that the
issue will not be resolved without a due process hearing. One commenter
recommended that the regulations require the waiver to be in writing so
that hearing officers have a specific point in time to know when they
should be counting the 45 days.
Discussion: We agree that the due process hearing should be allowed
to proceed if the LEA and parent agree in writing to waive the
resolution meeting. We also believe that the due process hearing should
be allowed to proceed when an LEA and the parent agree to waive the
remainder of the 30-day resolution period when it becomes apparent that
the LEA and the parent will be unable to reach agreement through
resolution or mediation. There may also be situations in which both
parties agree to continue the mediation session beyond the 30-day
resolution period. Therefore, we are adding language to the regulations
to clarify these exceptions to the 30-day resolution period.
The new language specifies that the 45-day timeline for the due
process hearing starts the day after one of the following events: (a)
both parties agree in writing to waive the resolution meeting; (b)
after either the mediation or resolution meeting starts, but before the
end of the 30-day resolution period, both parties agree in writing that
no agreement is possible; and (c) if both
[[Page 46703]]
parties agree in writing to continue the mediation at the end of the
30-day resolution period, but later the parent or public agency
withdraws from the mediation process.
Changes: We have added a new paragraph (c) in Sec. 300.510 that
specifies adjustments to the 30-day resolution period. Subsequent
paragraphs have been renumbered accordingly.
Comment: Some commenters recommended that the regulations require
public agencies to document their attempts to ensure parent
participation in resolution meetings, and to do so in the same manner
that they are required to document their attempts to involve parents in
IEP Team meetings.
Discussion: We agree with the commenters and will add language to
Sec. 300.510(b)(4) to make this clear.
Changes: We have added language in Sec. 300.510(b)(4) to require
an LEA to use the same procedures it uses in Sec. 300.322(d) to
document its efforts to obtain the participation of a parent in a
resolution meeting. We also have amended Sec. 300.510(b)(4) to refer
to ``due process complaints,'' for clarity.
Written Settlement Agreement (New Sec. 300.510(d)) (Proposed Sec.
300.510(c))
Comment: One commenter asked whether decisions agreed to in
resolution meetings supersede previous IEP decisions and whether the
IEP Team must reconvene to sanction the decisions made in a resolution
meeting. One commenter recommended that if the resolution agreement
includes IEP-related matters, the agreement must state that the LEA
will convene an IEP Team meeting within a specific number of days to
revise the IEP accordingly or develop an IEP addendum, as appropriate.
Discussion: Unless the agreement specifically requires that the IEP
Team reconvene, there is nothing in the Act or these regulations that
requires the IEP Team to reconvene following a resolution agreement
that includes IEP-related matters. We do not believe that it is
necessary or appropriate to anticipate the elements of a particular
settlement agreement, which may supersede an existing IEP. The contents
of settlement agreements are left to the parties who execute a
settlement agreement.
Changes: None.
Comment: One commenter recommended that the regulations clarify
whether the SEA, a hearing officer, or an administrative law judge has
the authority to enforce a written resolution agreement. A few
commenters recommended permitting a parent to seek assistance from the
SEA to compel a school district to abide by a resolution agreement. The
commenters stated that many families cannot afford legal representation
and, in jurisdictions in which parents cannot represent themselves at
the Federal district court level, this would, in essence, leave such
parents without meaningful redress, except through the State court
system.
One commenter recommended that the regulations specify that a
resolution agreement is enforceable in court without exhausting
administrative remedies. The commenter stated that unless this is
clearly stated, parents may be forced to proceed through a two-tier due
process system, rather than proceed directly to court, which would be
counter to the purpose of a resolution agreement.
Several commenters suggested adding language in Sec. 300.506(b)(7)
clarifying that a written, signed mediation agreement can be enforced
through a State's administrative complaint process, as well as in State
and Federal court. The commenters stated that such a provision would be
consistent with Congressional intent to reduce litigation and permit
parties to resolve disagreements in a more positive, less costly
manner. The commenters also suggested permitting State- or circuit-
based variation in enforcement mechanisms.
Discussion: Section 615(f)(1)(B)(iii) of the Act provides that if
an agreement is reached in a resolution meeting, the parties must
execute a legally binding agreement that is signed by both the parent
and a representative of the agency who has the authority to bind the
agency, and is enforceable in any State court of competent jurisdiction
or in a district court of the United States. These same requirements
apply to agreements reached through mediation sessions, pursuant to
section 615(e)(2)(F)(iii) of the Act. The Act is clear that exhaustion
of administrative remedies is not required since the Act provides that
the agreement is enforceable in a State court of competent jurisdiction
or in a district court of the United States.
If a party to a resolution agreement or a mediation agreement
believes that the agreement has been breached, we believe that, in
addition to enforcement in a State court of competent jurisdiction or
district court of the United States, States should be able to offer the
option of using other available State mechanisms (e.g., State complaint
procedures) to enforce resolution agreements and mediation agreements,
as long as those other enforcement mechanisms are voluntary.
Therefore, we are adding a new regulation on State enforcement
mechanisms to clarify that States have the option of allowing
resolution agreements and mediation agreements to be enforced through
other mechanisms, provided that the other enforcement mechanisms do not
operate to deny or delay the right of any party to the agreement to
seek enforcement in an appropriate State or Federal court.
Regarding the commenters' suggestion of allowing State and circuit
variations in enforcement mechanisms, we do not believe the Department
has the authority to regulate in this area because doing so would
interfere with matters reserved for State and Federal courts. In
general, a written resolution or mediation agreement is a binding
contract between the parties, and therefore, the validity and
enforceability of that agreement would be reviewed in light of
applicable State and Federal laws, including State contract laws.
Changes: We have added a new Sec. 300.537 on State enforcement
mechanisms to clarify that, notwithstanding Sec. Sec. 300.506(b)(7)
and new Sec. 300.510(d)(2) (proposed Sec. 300.510(c)(2)), nothing in
this part prevents a State from providing parties to a written
agreement reached as a result of a mediation or resolution meeting
other mechanisms to enforce that agreement, provided that such
mechanisms are not mandatory and do not deny or delay the right of the
parties to seek enforcement of the written agreement in a State court
of competent jurisdiction or in a district court of the United States.
We have also added a cross reference to new Sec. 300.537 in new Sec.
300.510(d) (proposed Sec. 300.510(c)), regarding written settlement
agreements.
Agreement Review Period (New Sec. 300.510(e)) (Proposed Sec.
300.510(d))
Comment: Many commenters recommended including language in the
regulations to ensure that parents are informed orally and in writing
that either party to a resolution agreement may reconsider and void the
resolution agreement within three business days. One commenter
expressed concern that some parents lack the education or legal
expertise of school districts, and will miss this important right
unless informed both orally and in writing. A few commenters stated
that this notice must be provided to parents in their native language
or primary mode of communication.
Discussion: Section 300.504(a), consistent with section
615(d)(1)(A) of the Act, requires a public agency to provide parents
with a copy of the
[[Page 46704]]
procedural safeguards notice at least one time in a school year and
under the exceptional circumstances specified in Sec. 300.504(a),
which includes the first occurrence of the filing of a due process
complaint in a school year. The procedural safeguards notice, which
must be written in language understandable to the general public and in
the native language of the parent, unless clearly not feasible to do
so, must include a full explanation of the Act's procedural safeguards.
If the native language or other mode of communication of the parent is
not a written language, Sec. 300.503(c)(2) requires the public agency
to take steps to ensure that the notice is translated orally or by
other means for the parent in his or her native language or other mode
of communication and that the parent understands the content of the
notice. Under Sec. 300.504(c)(5)(ii), the notice must inform parents
about the opportunity to present and resolve a due process complaint in
accordance with the resolution process required in Sec. 300.510 and
section 615(f)(1)(B) of the Act, including a party's right to void the
resolution agreement within three business days of execution. We
believe it would be overly burdensome to require public agencies to
provide the procedural safeguards notice both orally and in writing to
an individual parent, and, therefore, decline to change the regulation.
Changes: None.
Comment: Several commenters recommended that the regulations
clarify whether discussions during the resolution meeting remain
confidential.
Discussion: We decline to regulate on this matter because the Act
is silent regarding the confidentiality of resolution discussions.
However, there is nothing in the Act or these regulations that would
prohibit the parties from entering into a confidentiality agreement as
part of their resolution agreement. A State could not, however, require
that the participants in a resolution meeting keep the discussions
confidential or make a confidentiality agreement a condition of a
parent's participation in the resolution meeting.
Changes: None.
Comment: One commenter recommended that the regulations require
each SEA to develop a model settlement agreement form with appropriate
release language, a withdrawal form to be filed with the hearing
officer, and a confidentiality agreement.
Discussion: The terms of settlement agreements will necessarily
vary based on numerous factors, including the nature of the dispute and
the specific resolution agreed to by the parties involved. Therefore,
we do not believe it is practical or useful to require SEAs to develop
a model settlement agreement form.
Changes: None.
Comment: A few commenters recommended that the regulations define
``days'' in this section to mean ``business days.''
Discussion: Under Sec. 300.11(a), day means calendar day, unless
otherwise indicated as a business day or school day. All references to
day in Sec. 300.510 are calendar days, except for new Sec. 300.510(e)
(proposed Sec. 300.510(d)), which specifies that the parties may void
a resolution agreement within three business days of the agreement's
execution.
Changes: None.
Impartial Due Process Hearing (Sec. 300.511)
Comment: One commenter stated that section 615(f)(1)(A) of the Act
refers to when a due process complaint is ``received'' and recommended
using this language in Sec. 300.511(a), which refers to when a due
process complaint is ``filed.'' The commenter stated that LEAs are more
likely to understand and relate to when a due process complaint is
``received'' versus when a due process complaint is ``filed.''
Discussion: We agree with the commenter and are changing Sec.
300.511(a) to be consistent with section 615(f)(1)(A) of the Act, which
provides that a parent or the LEA must have the opportunity for an
impartial due process hearing under this part when a due process
complaint is received under section 615(b)(6) or (k) of the Act.
Changes: For consistency with statutory language, we have changed
the first clause in the first sentence of Sec. 300.511(a) by removing
the words ``filed under Sec. 300.507'' and adding in their place the
words ``received under Sec. 300.507 or Sec. 300.532''.
Comment: Some commenters recommended that the regulations clarify
that a party has a right to seek immediate intervention from a hearing
officer to resolve pre-hearing issues and disputes. One commenter
recommended that the regulations clarify that hearing officers are
empowered and obligated to promptly hear and decide all pre-hearing
issues and disputes so that decisions can be made about whether to
proceed to a hearing, as well as to focus and streamline the
evidentiary hearing process. The commenter provided the following
examples of pre-hearing issues that should be resolved prior to a
hearing: the sufficiency of the complaint; the sufficiency of the
response and notice pursuant to Sec. 300.508(e); the sufficiency of
the response pursuant to Sec. 300.508(f); motions for stay-put; the
hearing schedule; the order of witnesses; the burden of proof; the
burden of going forward; witness testimony by telephone or video
conference; production of records; exchange of evidence; admissibility
of evidence; and issuance and enforcement of subpoenas and subpoenas
duces tecum.
Discussion: Section 615(c)(2)(D) and (E) of the Act, respectively,
address situations where it is necessary for hearing officers to make
determinations regarding the sufficiency of a complaint and amendments
to a complaint before a due process hearing. We do not believe it is
necessary to regulate further on the other pre-hearing issues and
decisions mentioned by the commenters because we believe that States
should have considerable latitude in determining appropriate procedural
rules for due process hearings as long as they are not inconsistent
with the basic elements of due process hearings and rights of the
parties set out in the Act and these regulations. The specific
application of those procedures to particular cases generally should be
left to the discretion of hearing officers who have the knowledge and
ability to conduct hearings in accordance with standard legal practice.
There is nothing in the Act or these regulations that would prohibit a
hearing officer from making determinations on procedural matters not
addressed in the Act so long as such determinations are made in a
manner that is consistent with a parent's or a public agency's right to
a timely due process hearing.
Changes: None.
Comment: One commenter stated that the Act does not provide
adequate guidance on the specific set of legal procedures that must be
followed in conducting a due process hearing and recommended that the
regulations include guidance regarding the following: Limiting the use
of hearsay testimony; requiring all testimony to be subject to cross-
examination; the order of testimony; timelines; and the statute of
limitations. The commenter stated that while timelines and the statute
of limitations are addressed in the Act, there are no consequences for
failure to comply.
Discussion: In addition to addressing timelines, hearing rights,
and statutes of limitations, the Act and these regulations also address
a significant due process right relating to the impartiality and
qualifications of
[[Page 46705]]
hearing officers. Under Section 615(f)(3) of the Act and Sec.
300.511(c), a hearing officer must possess the knowledge and ability to
conduct hearings in accordance with appropriate, standard legal
practice. Hearing officers consider failure to comply with timelines
and statutes of limitations on a case-by-case basis, depending on the
specific circumstances in each case. We believe that the requirements
for hearing officers are sufficient to ensure that proper legal
procedures are used and that it is not appropriate to regulate on every
applicable legal procedure that a hearing officer must follow, because
those are matters of State law.
Changes: None.
Agency Responsible for Conducting the Due Process Hearing (Sec.
300.511(b))
Comment: One commenter noted that Sec. 300.511(b) refers to the
State or a public agency holding a hearing, whereas the Act refers to
the State or an LEA holding a hearing. The commenter requested
clarification regarding whether any agency, other than an LEA, is
permitted to hold a hearing under the Act.
Discussion: The term ``public agency'' in these regulations is
intended to address situations where an entity might satisfy the
definition of public agency in Sec. 300.33, but would not satisfy the
definition of LEA in Sec. 300.28. As set forth in Sec. 300.33, a
public agency may be responsible for the education of a child with a
disability. In these circumstances, the public agency would hold the
due process hearing.
Changes: None.
Impartial Hearing Officer (Sec. 300.511(c))
Comment: A few commenters recommended revising Sec.
300.511(c)(1)(i)(B) to state that a hearing officer must not have a
personal or professional conflict of interest.
Discussion: Section 300.511(c)(1)(i)(B) incorporates the language
in section 615(f)(3)(A)(i)(II) of the Act and provides that a hearing
officer must not be a person having a personal or professional interest
that conflicts with the person's objectivity in the hearing. The
meaning of this requirement is clear and we do not believe it is
necessary to change it to ensure continued compliance with this
longstanding requirement.
Changes: None.
Comment: One commenter recommended that the regulations require the
conduct of impartial hearing officers to be addressed by the State
judicial code of conduct.
Discussion: Under section 615(f)(3) of the Act and Sec.
300.511(c), a hearing officer must possess the knowledge and ability to
conduct hearings and to render and write decisions in accordance with
appropriate, standard legal practice. We believe that this provides
sufficient guidance. The application of State judicial code of conduct
standards is a State matter.
Changes: None.
Comment: One commenter noted that Sec. 300.511(c)(1)(iii) and (iv)
require a hearing officer to possess the knowledge and ability to
conduct hearings and render and write decisions in accordance with
appropriate, standard legal practice, and recommended that the
regulations outline standard legal practice so that parents without
attorney representation will have this information.
Discussion: The requirements in Sec. 300.511(c)(1)(iii) and (iv)
incorporate the requirements in section 615(f)(3)(A)(iii) and (iv) of
the Act. These requirements are general in nature and appropriately
reflect the fact that standard legal practice will vary depending on
the State in which the hearing is held. Accordingly, it would not be
feasible to outline standard legal practice in these regulations, as
recommended by the commenter.
Changes: None.
Comment: Some commenters recommended that the regulations require
hearing officers to receive ongoing, periodic professional development
regarding new regulations and court decisions so that their decisions
reflect the latest developments and interpretations. A few commenters
recommended requiring SEAs to provide training for hearing officers by
trainers who are experienced in conducting hearings and writing
decisions in accordance with standard legal practice. A few commenters
recommended that the regulations require hearing officers to be
informed that they are bound by the decisions of courts that govern
their jurisdiction.
Discussion: It is not necessary to regulate in the manner
recommended by the commenters because this is a responsibility of each
State. The Act prescribes minimum qualifications for hearing officers,
which are reflected in Sec. 300.511(c). Pursuant to its general
supervisory responsibility, each State must ensure that individuals
selected to conduct impartial due process hearings meet the
requirements in Sec. 300.511(c)(1)(ii) through (iv). States are in the
best position to determine the required training and the frequency of
the required training, consistent with State rules and policies.
Changes: None.
Comment: One commenter noted that the Act does not include the
provision in Sec. 300.511(c)(2), which provides that a person who
otherwise qualifies to conduct a hearing is not an employee of the
agency solely because he or she is paid by the agency to serve as a
hearing officer. The commenter, therefore, recommended removing Sec.
300.511(c)(2).
Discussion: We do not agree that the provision should be removed.
This provision is longstanding. Although the Act prohibits an
individual who is employed by a public agency involved in the education
or care of the child to be a hearing officer, we believe that it is
important to continue to clarify that a person's payment for serving as
a hearing officer does not render that individual a public agency
employee who is excluded from serving as a hearing officer. In many
instances, public agencies retain hearing officers under contract. The
fact that an individual is hired by a public agency solely for the
purpose of serving as a hearing officer does not create an excluded
employee relationship. Public agencies need to ensure that hearing
officers conduct due process hearings and it is only reasonable that
those persons are paid for their work as hearing officers.
Changes: None.
Comment: Some commenters requested that the regulations require
SEAs to make the list of hearing officers and their qualifications
available to the public.
Discussion: Public agencies must maintain a list of persons who
serve as hearing officers and a statement of their qualifications.
However, there is nothing in the Act that requires a public agency to
make information regarding the qualifications of hearing officers
available to the public. Parents do not select the hearing officer to
hear their complaints. Therefore, we do not believe that it is
necessary to require public agencies to provide information regarding
the qualifications of hearing officers to the public, and we decline to
regulate in this regard. The commenter's recommendation would impose an
additional burden on public agencies that is not required by the Act.
Changes: None.
Subject Matter of Due Process Hearings (Sec. 300.511(d))
Comment: A few commenters requested that the regulations clarify
that the party requesting the due process hearing may raise issues that
are included in any amendments to the complaint. One commenter
requested clarification regarding whether the party that the complaint
is against can raise
[[Page 46706]]
other issues. A few commenters recommended that the regulations clarify
that hearing officers may raise and resolve issues concerning
noncompliance even if the party requesting the hearing does not raise
the issues.
Discussion: Section 300.508(d)(4) and section 615(c)(2)(E)(ii) of
the Act provide that the applicable timeline for a hearing shall begin
at the time that a party files an amended complaint, and makes clear
that after the party files an amended complaint, timelines for the
resolution meeting and the opportunity to resolve the complaint begin
again. The issues raised in the amended complaint would be the subjects
of the resolution meeting, and these issues also would be addressed in
a due process hearing, if the LEA does not resolve the dispute to the
satisfaction of the parent through the resolution process.
The Act does not address whether the non-complaining party may
raise other issues at the hearing that were not raised in the due
process complaint, and we believe that such matters should be left to
the discretion of hearing officers in light of the particular facts and
circumstances of a case. The Act also does not address whether hearing
officers may raise and resolve issues concerning noncompliance even if
the party requesting the hearing does not raise the issues. Such
decisions are best left to individual State's procedures for conducting
due process hearings.
Changes: None.
Comment: One commenter recommended that the Department include in
the regulations language that allocates the burden of proof to the
moving party.
Discussion: Although the Act does not address allocation of the
burden of proof in due process hearings brought under the Act, the U.S.
Supreme Court recently addressed the issue. In Schaffer v. Weast, 546
U.S. --, 126 S. Ct. 528 (2005) (Schaffer), the Court first noted that
the term ``burden of proof'' is commonly held to encompass both the
burden of persuasion (i.e., which party loses if the evidence is
closely balanced) and the burden of production (i.e., the party
responsible for going forward at different points in the proceeding).
In Schaffer, only the burden of persuasion was at issue. The Court held
that the burden of persuasion in a hearing challenging the validity of
an IEP is placed on the party on which this burden usually falls--on
the party seeking relief--whether that is the parent of the child with
a disability or the school district. Since Supreme Court precedent is
binding legal authority, further regulation in this area is
unnecessary. In addition, we are not aware of significant questions
regarding the burden of production that would require regulation.
Changes: None.
Timeline for Requesting a Hearing (Sec. 300.511(e)) and Exceptions to
the Timeline (Sec. 300.511(f))
Comment: Some commenters stated that exceptions to the timeline in
Sec. 300.511(f) should include situations in which a parent is unable
to file a due process complaint because the parent is not literate or
cannot write in English. One commenter recommended considering the
parent's degree of English fluency and other factors in determining the
parent's ability to have knowledge about the alleged action that is the
basis for the due process complaint.
Discussion: Section 300.511(f), consistent with section
615(f)(3)(D) of the Act, provides explicit exceptions to the statute of
limitations for filing a due process complaint. These exceptions
include situations in which the parent is prevented from filing a due
process complaint because the LEA withheld from the parent information
that is required to be provided to parents under these regulations,
such as failing to provide prior written notice or a procedural
safeguards notice that was not in the parent's native language, as
required by Sec. Sec. 300.503(c) and 300.504(d), respectively.
Additionally, in States using the timeline in Sec. 300.511(e) (i.e.,
``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
complaint''), hearing officers will have to make determinations, on a
case-by-case basis, of factors affecting whether the parent ``knew or
should have known'' about the action that is the basis of the
complaint. Therefore, we decline to add additional exceptions to Sec.
300.511(f).
Changes: None.
Comment: Some commenters requested that the regulations clarify
whether the statute of limitations in section 615(b)(6)(B) of the Act
is the same statute of limitations in section 615(f)(3)(C) of the Act.
The commenters stated that the Act and regulations are confusing
because the statute of limitations is mentioned twice and implies that
the timeline for filing a complaint and filing a request for a due
process hearing are different.
Discussion: The statute of limitations in section 615(b)(6)(B) of
the Act is the same as the statute of limitations in section
615(f)(3)(C) of the Act. Because we are following the structure of the
Act, we have included this language in Sec. Sec. 300.507(a)(2) and
300.511(e).
Changes: None.
Comment: Some commenters recommended that the regulations clarify
that ``misrepresentations'' by an LEA in Sec. 300.511(f)(1) include
misleading, as well as false, statements. The commenters stated that
misleading statements create the same obstacle for parents as false
statements in terms of when parents know about an alleged violation.
One commenter recommended that ``misrepresentations'' include both
intentional and unintentional misrepresentations.
Discussion: We do not believe it is appropriate to define or
clarify the meaning of ``misrepresentations,'' as requested by the
commenters. Such matters are within the purview of the hearing officer.
If the complaining party believes that the timeline in Sec. 300.511(e)
should not apply, the complaining party would need to ask the hearing
officer to determine whether an untimely due process complaint can
proceed to hearing based on misrepresentations by an LEA. The hearing
officer would then determine whether the party's allegation constitutes
an exception to the applicable timeline.
Changes: None.
Additional Disclosure of Information (Sec. 300.512(b))
Comment: One commenter recommended that the regulations permit
parties to mutually consent to waive the five-day timeline and exchange
documents closer to the hearing date.
Discussion: There is nothing in the Act or these regulations that
would prevent the parties from agreeing to disclose relevant
information to all other parties less than five business days prior to
a due process hearing.
Changes: None.
Hearing Decisions (Sec. 300.513)
Decision of Hearing Officer (Sec. 300.513(a))
Comment: Some commenters requested that the regulations clarify
that LRE is a substantive, not a procedural, issue and that a hearing
officer can base relief on the failure of an LEA to provide FAPE in the
LRE to the maximum extent possible. A few commenters recommended that
the regulations allow a hearing officer to dismiss a complaint or to
rule on summary judgment if there is no claim or controversy to be
adjudicated. The commenters stated that hearing officers
[[Page 46707]]
should be allowed to dismiss cases when the alleged violation does not
focus on a substantive issue.
Discussion: Section 300.513(a)(1) and section 615(f)(3)(E) of the
Act provide that, in general, a decision made by a hearing officer must
be made on substantive grounds based on a determination of whether the
child received FAPE. Furthermore, Sec. 300.513(a)(3), consistent with
section 615(f)(3)(E)(iii) of the Act, allows a hearing officer to order
an LEA to comply with procedural requirements under Sec. Sec. 300.500
through 300.536.
Although the Act and these regulations require that hearing
officers base determinations of whether a child received FAPE on
substantive grounds, hearing officers also may find that a child did
not receive FAPE based on the specific procedural inadequacies set out
in Sec. 300.513(a)(2), consistent with section 615(f)(3)(E)(ii) of the
Act.
Hearing officers continue to have the discretion to dismiss
complaints and to make rulings on matters in addition to those
concerning the provision of FAPE, such as the other matters mentioned
in Sec. 300.507(a)(1). To clarify this point, we are revising the
heading of Sec. 300.513(a) to refer to decisions of hearing officers
about FAPE, and are revising Sec. 300.513(a)(1). The requirements in
Sec. Sec. 300.507 through 300.508 governing the content of the due
process complaint, including requirements for sufficiency and complaint
amendment, and requirements governing the resolution process in Sec.
300.510 should help to ensure that due process complaints that are the
subject of a due process hearing under this part contain claims that
are appropriate for a hearing officer's decision.
Changes: We have reworded Sec. 300.513(a)(1) and revised the
heading of Sec. 300.513(a) to refer to decisions regarding FAPE.
Construction Clause (Sec. 300.513(b))
Comment: Some commenters recommended that the construction clause
in Sec. 300.513(b) include that nothing in Sec. Sec. 300.507 through
300.513 shall be construed to affect the right of a parent to file a
complaint with the SEA under Sec. Sec. 300.151 through 300.153 for a
procedural violation that does not meet the requirements in Sec.
300.513(a)(2).
Discussion: We decline to make the change requested because we
think that these matters are already addressed in the regulations.
Section 300.507(a) describes the matters on which a party can request a
due process hearing. Section 300.151(a) provides that an organization
or individual may file a signed written complaint alleging that a
public agency has violated a requirement of Part B of the Act, which
would include procedural violations that would not meet the standard in
Sec. 300.507(a)(1).
Changes: None.
Finality of Hearing Decision; Appeal; Impartial Review (Sec. 300.514)
Comment: One commenter recommended clarifying that Sec. 300.514(b)
applies only to States with a two-tier due process system.
Discussion: We believe that Sec. 300.514(b)(1) is clear that a
State-level appeal of a due process decision is available only in
States that have a two-tiered due process system. This is a
longstanding provision, which is consistent with section 615(g) of the
Act. We do not believe further clarification in the text of the
regulations is necessary.
Changes: None.
Timelines and Convenience of Hearings and Reviews (Sec. 300.515)
Comment: One commenter recommended that the regulations clarify
when the various timelines for resolution meetings and due process
hearings start and stop. One commenter disagreed with Sec. 300.515(a),
stating that the 45-day timeline should begin when the public agency
receives a request for a due process hearing.
Discussion: We agree that clarification is needed regarding the
various timelines for resolution meetings and due process hearings. As
stated earlier in the Analysis of Comments and Changes in Sec.
300.510, we have added a new paragraph (c) in Sec. 300.510 to specify
adjustments to the 30-day resolution period and when the 45-day
timeline for due process hearings begins for these exceptions. In order
to be consistent with this change, we are changing the introductory
language in Sec. 300.515(a).
Changes: We have changed the introductory language in Sec.
300.515(a) to reference the adjustments to the 30-day timeline in new
Sec. 300.510(c).
Comment: A few commenters recommended that the hearings and reviews
be conducted at a time and place that are ``mutually convenient'' to
the parent and child involved, rather than ``reasonably convenient,''
as required in Sec. 300.515(d). Another commenter recommended that the
hearings and reviews be conducted at a time and place that is
reasonably convenient to ``all parties involved.''
Discussion: The Department believes that every effort should be
made to schedule hearings at times and locations that are convenient
for the parties involved. However, given the multiple individuals that
may be involved in a hearing, it is likely that hearings would be
delayed for long periods of time if the times and locations must be
``mutually convenient'' for all parties involved. Therefore, we decline
to change this regulation.
Changes: None.
Civil Action (Sec. 300.516)
Comment: Several commenters recommended that the regulations
clarify that the 90-day timeline for a party aggrieved by the findings
and decision of a due process hearing to file a civil action begins
either from the date of a hearing officer's decision or from the date
of a State review officer's decision, if the State has a two-tiered due
process system. One commenter stated that many cases would be
inappropriately dismissed if this regulation is not clarified.
Discussion: We agree with the commenters and are clarifying that
the party bringing the action has 90 days from the date of the decision
of the hearing officer or the decision of the State review official to
file a civil action, or, if the State has an explicit time limitation
for bringing civil actions under Part B of the Act, in the time allowed
by that State law. This change is needed to ensure that the applicable
time limitation does not penalize parties in States with two-tier due
process systems that require a party aggrieved by the due process
hearing officer's decision to file a State-level appeal prior to
bringing a civil action in State or Federal court.
Changes: We have added ``or, if applicable, the decision of the
State review official,'' in Sec. 300.516(b) to clarify the timeline
for bringing a civil action in States that have a two-tiered due
process system.
Comment: Some commenters recommended that the regulations clarify
that the State time limit for bringing a civil action under Part B of
the Act can only be used if it is longer than 90 days. One commenter
recommended that the regulations clarify whether State law may
establish a time limit of less than the 90 days for filing a civil
action.
Discussion: Section 300.516(b) and section 615(i)(2)(B) of the Act
provide that the party bringing the action shall have 90 days from the
date of the decision of the hearing officer or the decision of the
State review official to file a civil action or, if the State has an
explicit time limitation for bringing civil actions under Part B of the
Act, in the time allowed by that State law. There is
[[Page 46708]]
no requirement that would limit the State's authority to set a time
limit longer than or shorter than 90 days and we believe that the
regulations are clear that a State may set a longer or shorter time
limit under State law.
Changes: None.
Comment: One commenter recommended that the regulations require an
LEA, at the conclusion of a due process hearing, to provide a parent
who is not represented by counsel, a written notice regarding the time
limit for filing a civil action.
Discussion: Parents involved in a due process hearing would already
have received information about the availability of a civil action and
the timeline for filing a civil action when they received the
procedural safeguards notice, in accordance with Sec. 300.504. We
decline to require an additional notice at the conclusion of a due
process hearing, because this would impose an additional paperwork
burden on public agencies.
Changes: None.
Attorneys' Fees (Sec. 300.517)
Comment: We received a number of comments seeking clarification of,
or modifications to, the statutory language governing the award of
attorneys' fees. Some commenters recommended that the regulations
require the SEA or LEA to affirmatively prove that the parent's intent
was improper in order to be awarded attorneys' fees under this
provision. A few commenters recommended modifying the regulations to
expressly require a determination by a court that the complaint or
cause of action was frivolous, unreasonable, or without foundation,
before an award of attorneys' fees can be considered.
One commenter requested that the regulations clarify that section
615(i)(3)(B)(i) of the Act seeks to codify the standards set forth in
Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), and that the
principles set forth in this action (that attorneys' fees may only be
awarded to defendants in actions where the plaintiffs' claims are
frivolous, without foundation, or brought in bad faith) should apply in
favor of school districts and parents, since either party can bring
complaints.
One commenter recommended that Sec. 300.517(a)(1)(ii) and (iii) be
revised to refer to an attorney of a parent or a parent because there
are many parents who are attorneys representing their children in due
process hearings. Another commenter recommended including language that
the parent must be the prevailing party on substantive grounds in order
to claim an award of attorneys' fees.
Discussion: Section 300.517(a) incorporates the language in section
615(i)(3)(B) of the Act. Further guidance on the interpretation of this
statutory language is not appropriate since judicial interpretations of
statutory provisions will necessarily vary based upon case-by-case
factual determinations, consistent with the requirement that the award
of reasonable attorneys' fees is left to a court's discretion.
With regard to the recommendation that we include language that the
parent must be the prevailing party on substantive grounds, we decline
to regulate because we believe that the statutory provisions regarding
attorneys' fees are appropriately described in Sec. 300.517.
Furthermore, section 615(f)(3)(E) of the Act, reflected in Sec.
300.513, recognizes both that hearing officer determinations that a
child did not receive FAPE, in some circumstances, may be based on
procedural violations, and that hearing officers may order LEAs to
comply with procedural requirements. Either of these circumstances, in
appropriate cases, might result in a parent being determined to be a
prevailing party for purposes of claiming attorneys' fees.
We decline to add language to Sec. 300.517(a)(1)(ii) to refer to a
parent who is an attorney, because the reference to ``an attorney of a
parent'' would include anyone serving as an attorney.
Changes: None.
Comment: One commenter recommended that Sec. 300.517(a)(1)(iii),
regarding attorneys' fees, be changed to include non-attorney advocates
who are acting on behalf of parents and provide that these individuals
be held to the same standard as attorneys. Another commenter expressed
concern regarding circuit court rulings that require SEAs to pay for
expert witnesses for parents who cannot afford them. The commenter
recommended that the regulations permit SEAs to establish a list of
private experts who are willing to testify at due process hearings and
to use funds provided under Part B of the Act to pay such experts when
either party uses them.
Discussion: Section 615(i)(3)(B) of the Act allows a court to award
reasonable attorneys' fees as a part of the costs to a parent who is
the prevailing party. Although the Act also provides parents with the
right to be accompanied and advised by individuals with special
knowledge or training with respect to the problems of children with
disabilities at a due process hearing, it does not provide for awarding
attorneys' fees to these other individuals. Lay advocates are, by
definition, not attorneys and are not entitled to compensation as if
they were attorneys. In addition, consistent with the Supreme Court's
recent decision in Arlington Central Sch. Dist. Bd. of Educ. v. Murphy,
No. 05-18, U.S., 2006 U.S. LEXIS 5162 (June 26, 2006), if Congress
wishes to allow recovery of experts' fees by prevailing parents, it
must include explicit language authorizing that recovery, which was not
done in the Act. This would apply whether the expert was seeking
payment for testifying or advocating.
Changes: None.
Comment: One commenter stated that attorneys' fees should be
available for resolution meetings because parents are required to
attend these meetings before a due process hearing can begin. Another
commenter recommended that the regulations clarify that the prohibition
on attorneys' fees for resolution activities applies to the resolution
meeting, as well as any resolution agreement. One commenter requested
that the regulations clarify that attorneys' fees for resolution
meetings will not be paid until a compromise is reached, and will be
based on the resolution meeting itself and not the work that the
attorney puts into preparing for the resolution meeting.
Discussion: Section 300.517(c)(2)(iii) of the regulations,
consistent with section 615(i)(3)(D)(iii) of the Act, specifies that
the resolution meeting is not considered to be a meeting convened as a
result of an administrative hearing or judicial action or an
administrative hearing or judicial action for purposes of the
attorneys' fees provision. Accordingly, such fees may not be awarded
for resolution meetings.
While it is clear that attorneys' fees may not be awarded for
resolution meetings, the Act is silent as to whether attorneys' fees
are available for activities that occur outside the resolution meeting
conducted pursuant to section 615(f)(1)(B)(i) of the Act and Sec.
300.510(a). We decline to regulate on this issue because we believe
these determinations will be fact-specific and should be left to the
discretion of the court.
Changes: None.
Comment: A few commenters asked whether attorneys' fees can be
awarded for attending an IEP Team meeting that is convened as a result
of a mediation session conducted prior to the filing of a due process
complaint or for attending an IEP Team meeting that is convened as a
result of a mediation session conducted at any time.
[[Page 46709]]
Discussion: Section 615(i)(3)(D)(ii) of the Act permits States to
determine whether attorneys' fees may be awarded for an IEP Team
meeting that results from a mediation session described in Sec.
300.506. Section 300.517(c)(2)(ii), as proposed, inadvertently, limited
States to considering awarding attorneys' fees for an IEP Team meeting
conducted as the result of a mediation arising prior to the filing of a
due process request. This was an error and has been corrected to allow
States the discretion to award attorneys' fees for a meeting of the IEP
Team conducted as a result of any mediation described in Sec. 300.506.
Changes: In order to be consistent with section 615(i)(3)(D)(ii) of
the Act, we have revised Sec. 300.517(c)(2)(ii) by placing a period
after the reference to Sec. 300.506 and removing the rest of the
sentence.
Comment: One commenter recommended that attorneys' fees should also
apply to due process complaints brought by private schools or agencies,
not just families.
Discussion: Section 300.507(a)(1) permits a parent or a public
agency to file a due process complaint under the Act. Private schools
or agencies are not permitted to file a due process complaint under the
Act. Under section 615(f)(1)(A) of the Act, only the parents and public
agency are authorized to request a due process hearing.
Changes: None.
Comment: One commenter requested that the regulations clarify in
Sec. 300.517(c)(3) what standard will be used to determine whether a
parent was substantially justified in rejecting a settlement offer.
Discussion: It would be inappropriate to include a standard for
determining whether a parent is substantially justified in rejecting a
settlement offer because such matters will depend on the specific facts
and circumstances in each case. The hearing officer, as the designated
trier of fact under the Act, is in the best position to determine
whether a parent was substantially justified in rejecting a settlement
offer. We would expect that a hearing officer's decision will be
governed by commonly applied State evidentiary standards, such as
whether the testimony is relevant, reliable, and based on sufficient
facts and data.
Changes: None.
Child's Status During Proceedings (Sec. 300.518)
Comment: A few commenters requested clarification regarding whether
the current educational placement is the last agreed-upon placement.
One commenter requested clarification as to whether the pendent
placement is the regular education class or a class or program selected
by the child's IEP Team.
Discussion: We believe that there is no need for further
regulations in this area. The current educational placement during the
pendency of any administrative or judicial proceeding described in
Sec. 300.518 and section 615(j) of the Act, refers to the setting in
which the IEP is currently being implemented. The child's current
placement is generally not considered to be location-specific.
Changes: None.
Comment: One commenter recommended clarifying that an IFSP is not a
child's pendent placement as the child transitions from a Part C early
intervention program to a Part B preschool program.
Discussion: The programs under Parts B and C of the Act differ in
their scope, eligibility, and the services available. Services under
Part B of the Act are generally provided in a school setting. By
contrast, services under Part C of the Act are provided, to the maximum
extent appropriate, in the natural environment, which is often the
infant or toddler's home or other community program designed for
typically developing infants or toddlers. The Department has long
interpreted the current educational placement language in the stay-put
provisions in section 615(j) of the Act and Sec. 300.518(a) as
referring only to the child's placement under Part B of the Act and not
to the early intervention services received by the child under Part C
of the Act. We believe that a child who previously received services
under Part C of the Act, but has turned three and is no longer eligible
under Part C of the Act, and is applying for initial services under
Part B of the Act, does not have a ``current educational placement.''
We are adding language to clarify that if the complaint involves an
application for initial services under Part B of the Act from a child
who has turned three and is no longer eligible under Part C of the Act,
the public agency is not required to continue providing the early
intervention services on the child's IFSP. The provision clarifies that
a public agency must obtain parental consent prior to the initial
provision of special education and related services, consistent with
Sec. 300.300(b), and if a child is eligible under Part B of the Act
and the parent provides consent under Sec. 300.300(b), the public
agency must provide those special education and related services that
are not in dispute between the parent and the public agency.
Changes: We have added a new paragraph (c) in Sec. 300.518 to
clarify the Department's longstanding policy that if a complaint
involves an application for initial services under Part B of the Act
from a child who has turned three and is no longer eligible under Part
C of the Act, the public agency is not required to continue providing
the early intervention services on the child's IFSP. Proposed Sec.
300.518(c) has been redesignated as new Sec. 300.518(d).
Comment: One commenter recommended revising Sec. 300.518 to
clearly state that during the pendency of any administrative or
judicial proceeding, LEAs are not absolved of their obligation to fully
comply with all substantive and procedural requirements in Part B of
the Act, with the exception of requirements that are impossible to
fulfill because of the stay put order or because of a parent's refusal.
Discussion: We do not agree that the change requested by the
commenter is necessary. Section 615(j) of the Act and Sec. 300.518
provide that during the pendency of any administrative or judicial
proceeding regarding a due process complaint under Sec. 300.507,
except as provided in Sec. 300.533, unless the parent and the SEA or
LEA agree to a proposed change in the educational placement of the
child, the child remains in the current educational placement. Implicit
in maintaining a child's current educational placement is the
requirement that the public agency must ensure that FAPE continues to
be made available to the child.
Changes: None.
Comment: A few commenters recommended that stay put not apply to a
child if the child's parent fails to participate in a resolution
meeting. Another commenter expressed concern about the applicability of
the stay put provision when resolution meetings are delayed.
Discussion: The Act now makes the resolution process a prerequisite
to an impartial due process hearing. Under section 615(j) of the Act, a
child must be maintained in the current educational placement while
proceedings under the Act are pending, and paragraph (a) of Sec.
300.518 clarifies that unless the parent and the public agency agree
otherwise, the child involved in the complaint must remain in his or
her current educational placement during the pendency of any
administrative or judicial proceeding regarding a due process complaint
under Sec. 300.507. Thus, the Act is clear that the public agency must
maintain the child's current educational placement during the pendency
of the
[[Page 46710]]
30-day resolution process, which is triggered once the parent files a
due process complaint under this part, regardless of whether the due
process complaint is resolved prior to a due process hearing. We
believe it is important for this to be clear in the procedural
safeguards notice. Therefore, we are changing Sec. 300.504(c)(7) to
clarify that the notice must inform parents about the child's placement
during the pendency of any due process complaint.
Since a party must file a due process complaint as the first step
in the hearing process, we also are making a change in Sec. 300.518(a)
to refer to a due process complaint, rather than a request for a due
process hearing. This change is needed to clarify that a child's right
to remain in the current educational placement attaches when a due
process complaint is filed, regardless of whether the due process
complaint results in a request for a due process hearing.
Changes: We have removed the reference in Sec. 300.504(c)(7) to
due process ``hearings'' and added ``any due process complaint'' to
clarify that the procedural safeguards notice must include information
regarding the child's placement during the pendency of any due process
complaint. We also have changed Sec. 300.518 by removing the words
``request for a due process hearing'' prior to the reference to Sec.
300.507 and adding, in their place, the words ``due process
complaint.''
Comment: One commenter recommended including language to invalidate
the stay put agreement if the original decision is reversed at the
second tier hearing or in a judicial appeal. One commenter recommended
providing interim financial relief for parents if an LEA appeals the
decision of a due process hearing officer to maintain a child with a
disability in a private school setting.
Discussion: We are maintaining the provisions in proposed Sec.
300.518(c), (new Sec. 300.518(d)), but with one modification. The
basis for this regulation is the longstanding judicial interpretation
of the Act's pendency provision that when a hearing officer's decision
is in agreement with the parent that a change in placement is
appropriate, that decision constitutes an agreement by the State agency
and the parent for purposes of determining the child's current
placement during subsequent appeals. See, e.g., Burlington School
Committee v. Dept. of Educ., 471 U.S. 359, 372 (1985); Susquenita
School District v. Raelee S., 96 F.3d 78, 84 (3rd Cir. 1996); Clovis
Unified Sch. Dist. v. Cal. Office of Administrative Hearings, 903 F.2d
635, 641 (9th Cir. 1990). To clarify that new Sec. 300.518(d)
(proposed Sec. 300.518(c)) does not apply to a first-tier due process
hearing decision in a State that has two tiers of administrative
review, but only to a State-level hearing officer's decision in a one-
tier system or State review official's decision in a two-tier system
that is in favor of a parent's proposed placement, we are removing the
reference to ``local agency'' in new Sec. 300.518(d). This change is
made to align the regulation more closely with case law.
With regard to the concern about providing financial relief for
prevailing parents when an LEA appeals the decision of a due process
hearing to maintain a child with a disability in a private school
setting, we decline to regulate on this issue because such decisions
are matters best left to State law, hearing officers, and courts.
Changes: We have removed ``or local agency'' in new Sec.
300.518(d) (proposed Sec. 300.518(c)) because a decision by a hearing
officer or a State review official in favor of a parent's proposed
placement is an agreement between the parent and the State, not the
local agency.
Comment: One commenter recommended clarifying that any agreement by
a parent to waive the stay put protection must comply with the
requirements for consent in Sec. 300.9.
Discussion: Consent is required when a pending complaint involves
an application for initial admission to public school. In this case,
parental consent is required for the child to be placed in the public
school until the completion of all proceedings, consistent with Sec.
300.518(b) and section 615(j) of the Act. Other waivers of the stay put
protections while an administrative or judicial proceeding is pending,
need only be by agreement between the parent and the public agency.
Changes: None.
Surrogate Parents (Sec. 300.519)
Comment: A few commenters asked whether a student in the penal
system has a right to a surrogate parent.
Discussion: Students with disabilities in State correctional
facilities do not have an automatic right to a surrogate parent solely
by reason of their confinement at a correctional facility. Public
agencies must make case-by-case determinations in accordance with the
requirements in Sec. 300.519, regarding whether a student with a
disability in a State correctional facility needs a surrogate parent.
Whether a student with a disability confined in a State correctional
facility is considered a ward of the State, as defined in new Sec.
300.45 (proposed Sec. 300.44) whose rights must be protected through
the appointment of a surrogate parent, is a matter that must be
determined under State law.
Changes: None.
Comment: One commenter recommended defining the term ``locate'' as
used in Sec. 300.519.
Discussion: ``Locate,'' as used in Sec. 300.519(a)(2), regarding a
public agency's efforts to locate a child's parent, means that a public
agency makes reasonable efforts to discover the whereabouts of a
parent, as defined in Sec. 300.30, before assigning a surrogate
parent. We do not believe that it is necessary to define ``locate'' in
these regulations because it has the same meaning as the common meaning
of the term.
Changes: None.
Duties of Public Agency (Sec. 300.519(b))
Comment: A number of comments were received regarding the
procedures for assigning surrogate parents. One commenter recommended
requiring LEAs to appoint a surrogate parent unless the juvenile court
has already appointed one. The commenter stated that this would avoid
situations in which the LEA and juvenile court each believe that the
other is assuming this responsibility and a surrogate parent is never
appointed.
A few commenters recommended that the process for assigning
surrogate parents within the 30-day timeframe be developed in
collaboration with judges and other child advocates. Some commenters
recommended that the regulations require the involvement of child
welfare agencies, homeless liaisons, and any other party who has
knowledge about the needs of homeless children or children in foster
care in determining whether a surrogate parent is needed.
Discussion: It is not necessary to amend the regulations in the
manner recommended by the commenters. To ensure that the rights of
children with disabilities are protected, Sec. 300.519(b) requires
public agencies to have a method for determining whether a child needs
a surrogate parent and for assigning a surrogate parent to a child.
Such methods would include determining whether a court has already
appointed a surrogate parent, as provided under Sec. 300.519(c).
Therefore, it is unnecessary to add language requiring LEAs to appoint
a surrogate parent unless the juvenile court has already appointed one,
as requested by a commenter. Section 300.519(d)(1) allows a public
agency to select a surrogate parent in any way permitted
[[Page 46711]]
under State law, and Sec. 300.519(h) requires the SEA to make
reasonable efforts to ensure the assignment of a surrogate parent not
more than 30 days after a public agency determines that the child needs
a surrogate parent.
We believe that the determination of whether public agencies
collaborate with other parties, such as child welfare agencies or
homeless liaisons, in appointing surrogate parents is best left to
State discretion. There is nothing in the Act that would prohibit a
public agency from collaborating with judges and child advocates in
establishing a process for assigning surrogate parents, as recommended
by the commenter. However, in situations where a public agency involves
other parties in determining whether a surrogate parent is needed, the
public agency must ensure that the confidentiality of personally
identifiable data, information, and records collected or maintained by
SEAs and LEAs is protected in accordance with Sec. Sec. 300.610
through 300.627, and that the privacy of education records is protected
under FERPA and its implementing regulations in 34 CFR part 99.
Changes: None.
Comment: One commenter recommended retaining current Sec.
300.370(b)(2), which specifically mentions the recruitment and training
of surrogate parents as a State-level activity for which funds provided
under Part B of the Act may be used. One commenter requested
clarification as to who should provide training for surrogate parents.
A few commenters recommended that PTIs in each State be responsible for
training surrogate parents.
Discussion: It is not necessary to retain current Sec.
300.370(b)(2) in order to permit the continued use of funds provided
under Part B of the Act for the recruitment and training of surrogate
parents. Section 300.704(b) and section 611(e)(2)(C)(i) of the Act
provide that funds reserved for other State-level activities may be
used for support and direct services, including technical assistance,
personnel preparation, and professional development and training. This
would include the recruitment and training of surrogate parents.
Determinations regarding who should conduct the training for
surrogate parents are best left to the discretion of State and local
officials. There is nothing in the Act or these regulations that
requires or prohibits surrogate parent training to be conducted by
PTIs.
Changes: None.
Comment: A few commenters recommended that a child have the same
surrogate parent for each IEP Team meeting, eligibility meeting, and
other meetings in which a parent's presence is requested by the public
agency.
Discussion: The Act and these regulations do not address the length
of time that a surrogate parent must serve. Nor do we believe that it
would be appropriate to impose a uniform rule in light of the wide
variety of circumstances that might arise related to a child's need for
a surrogate parent. Even so, to minimize disruption for the child,
public agencies should take steps to ensure that the individual
appointed as a surrogate parent can serve in that capacity over the
period of time that the child needs a surrogate.
Changes: None.
Wards of the State (Sec. 300.519(c))
Comment: Many commenters stated that the requirements for a
surrogate parent for public wards of the State (when a judge overseeing
a case appoints a surrogate parent) are less stringent than the
requirements for surrogate parents for other children. The commenters
stated that the requirements that surrogate parents have no personal or
professional interest that conflicts with the interest of the child,
and have knowledge and skills that ensure adequate representation of
the child, as required in Sec. 300.519(d)(2)(ii) and (iii),
respectively, should be required for surrogate parents for children who
are wards of the State. One commenter recommended that court-appointed
surrogate parents should have to meet Federal requirements for
surrogate parents, not the requirements promulgated by LEAs. The
commenter stated that courts may have jurisdiction over cases from more
than one school district and should not have to apply different
standards depending on which school district is involved.
Discussion: The criteria for selecting surrogate parents in Sec.
300.519(d)(2)(ii) and (iii), which apply to surrogate parents appointed
by a public agency for children with disabilities under Part B of the
Act, do not apply to the selection of surrogate parents for children
who are wards of the State under the laws of the State. Section
615(b)(2)(A)(i) of the Act provides that, in the case of a child who is
a ward of the State, a surrogate parent may alternatively be appointed
by the judge overseeing the child's care, provided that the surrogate
parent is not an employee of the SEA, the LEA, or any other agency that
is involved in the education or care of the child. We decline to impose
additional requirements for surrogate parents for children who are
wards of the State beyond what is required in the Act, so as to
interfere as little as possible with State practice in appointing
individuals to act for the child. However, we would expect that in most
situations, the court-appointed individuals will not have personal or
professional interests that conflict with the interests of the child
and will have the knowledge and skills to adequately represent the
interests of the child.
Changes: None.
Comment: One commenter recommended that the regulations clarify
that if a parent under Sec. 300.30 is known and the child is a ward of
the State, the public agency must appoint a surrogate parent only if
the public agency determines that a surrogate parent is needed to
protect the educational interests of the child. The commenter stated
that the public agency should not appoint a surrogate parent without
approval of a court of competent jurisdiction if the parent is the
biological or adoptive parent whose rights to make educational
decisions for the child have not been terminated, suspended, or
limited.
Discussion: The commenters' concern is already addressed in the
regulations. Section 300.30(b)(1) provides that when there is more than
one party attempting to act as a parent, the biological or adoptive
parent must be presumed to be the parent, unless the biological or
adoptive parent does not have legal authority to make educational
decisions for the child.
Changes: None.
Comment: Some commenters noted that the regulations do not protect
a child who is a ward of the tribe in the same manner as a child who is
a ward of the State. The commenters stated that this means that
American Indian children have less protection than children of other
ethnicities and recommended that the regulations clarify that wards of
the State include children who are wards of a tribe of competent
jurisdiction.
Discussion: The definition of State in new Sec. 300.40 (proposed
Sec. 300.39) is based on section 602(31) of the Act, which does not
include an Indian tribe or tribal governing body. Therefore, the
Department does not have the authority to interpret ward of the State
to include children who are wards of a tribe of competent jurisdiction.
However this does not relieve States or the BIA of their responsibility
to ensure that the rights of a child who is a ward of a tribe are
protected through the appointment of a surrogate parent under Sec.
300.519 when no parent can be identified; when the agency cannot, after
reasonable efforts, locate a parent; or when the
[[Page 46712]]
child is an unaccompanied homeless youth.
Changes: None.
Criteria for Selection of Surrogates (Sec. 300.519(d))
Comment: Many commenters recommended that the regulations require
public agencies to develop procedures to terminate the appointment of a
surrogate parent if the person does not perform the duties of a
surrogate parent. The commenters stated that such procedures should be
developed in collaboration with the child welfare agency, as well as
any other party knowledgeable about a child's need for surrogate
assignments, including homeless liaisons, court-appointed special
advocates, guardians ad litem, attorneys, or judges.
Discussion: If a public agency learns that an individual appointed
as a surrogate parent is not carrying out the responsibilities of a
surrogate parent in Sec. 300.519(g), the public agency, consistent
with its obligation to protect the rights of children with disabilities
under the circumstances set out in Sec. 300.519(a), would need to take
steps to terminate the appointment of a surrogate parent. It is up to
each State to determine whether procedures to terminate surrogate
parents are needed and whether to collaborate with other agencies as
part of any procedures they may choose to develop.
Changes: None.
Comment: A few commenters stated that the regulations should
specify that an LEA cannot replace a surrogate parent simply because
the surrogate parent disagrees with an LEA.
Discussion: As noted in the response to the prior comment, public
agencies have a responsibility to ensure that a surrogate parent is
carrying out their responsibilities, so there are some circumstances
when removal may be appropriate. A mere disagreement with the decisions
of a surrogate parent about appropriate services or placements for the
child, however, generally would not be sufficient to give rise to a
removal, as the role of the surrogate parent is to represent the
interests of the child, which may not be the same as the interests of
the public agency. We do not think a regulation is necessary, however,
as we believe that the rights of the child with a disability are
adequately protected under Section 504 of the Rehabilitation Act
(Section 504) and Title II of the Americans with Disabilities Act
(Title II), which prohibit retaliation or coercion against any
individual who exercises their rights under Federal law for the purpose
of assisting children with disabilities by protecting rights protected
under those statutes. See, 34 CFR 104.61, referencing 34 CFR 100.7(e);
28 CFR 35.134. These statutes generally prohibit discrimination against
individuals on the basis of disability by recipients of Federal
financial assistance (Section 504) and prohibit discrimination against
individuals on the basis of disability by State and local governments
(Title II).
Changes: None.
Non-Employee Requirement; Compensation (Sec. 300.519(e))
Comment: A few commenters recommended that the regulations state
that a foster parent is not prohibited from serving as a surrogate
parent for a child solely because the foster parent is an employee of
the SEA, LEA, or other agency that is involved in the education or care
of the child.
Discussion: A child with a foster parent who is considered a
parent, as defined in Sec. 300.30(a), does not need a surrogate parent
unless State law, regulations, or contractual obligations with a State
or local entity prohibit a foster parent from acting as a parent,
consistent with Sec. 300.30(a)(2). Therefore, there is no need to
change the regulations in the manner suggested by the commenters.
Changes: None.
Unaccompanied Homeless Youth (Sec. 300.519(f))
Comment: A few commenters requested clarification on how long the
appointment should be for a temporary surrogate for an unaccompanied
homeless youth. A few commenters also requested clarification on how
the conflict of interest, and knowledge and skills requirements for
surrogate parents apply to temporary surrogate parents for
unaccompanied homeless youth.
Discussion: Section 300.519(f) allows LEAs to appoint a temporary
surrogate parent for a child who is an unaccompanied homeless youth,
without regard to the requirement in Sec. 300.519(d)(2)(i) that a
surrogate parent not be an employee of any agency involved in the
education or care of the child. Thus, a temporary surrogate parent for
an unaccompanied homeless youth may include State, LEA, or agency staff
that is involved in the education or care of the child.
The Act does not specify how long a temporary surrogate parent can
represent the child. Nor do we believe it is necessary or appropriate
to specify a time limit for a temporary surrogate parent, as the need
for a temporary surrogate parent will vary depending on the specific
circumstances and unique problems faced by each unaccompanied homeless
youth.
Section 300.519(f) specifically allows the appointment of a
temporary surrogate parent without regard to the non-employee
requirements in Sec. 300.519(d)(2)(i). There are no similar exceptions
for the requirements in Sec. 300.519(d)(2)(ii) and (iii). Therefore,
temporary surrogate parents for unaccompanied homeless youth must not
have a personal or professional interest that conflicts with the
interest of the child the surrogate parent represents, and must have
the knowledge and skills that ensure adequate representation of the
child, consistent with Sec. 300.519(d)(2)(ii) and (iii), respectively.
Changes: None.
Surrogate Parent Responsibilities (Sec. 300.519(g))
Comment: A few commenters requested a definition of ``surrogate
parent.'' Some commenters stated that Sec. 300.519(g) provides only
general parameters regarding the responsibilities of surrogate parents
and does not provide guidance on specific duties or responsibilities of
surrogate parents. The commenters stated that, at a minimum, the
regulations should require that States develop duties and
responsibilities for surrogate parents, such as meeting with the child,
participating in meetings, and reviewing the child's education record.
Discussion: We do not believe that it is necessary to define
``surrogate parent'' because Sec. 300.519(g), consistent with section
615(b)(2) of the Act, clarifies that a surrogate parent is an
individual who represents the child in all matters related to the
identification, evaluation, and educational placement of the child, and
the provision of FAPE to the child. This is a longstanding provision
and is intended to describe the areas in which a surrogate parent may
represent the child.
We believe that the provisions in Sec. 300.519 are sufficient to
ensure that public agencies fulfill their obligation to ensure that the
rights of children are protected in the circumstances in Sec.
300.519(a). Therefore, we believe it is unnecessary, and would be over
regulating, to specify in these regulations requirements for surrogate
parents to meet and get to know the child prior to meetings, as
recommended by one commenter. Likewise, we do not believe that it is
necessary to require public agencies to develop specific duties and
responsibilities for surrogate parents because public agencies already
must ensure that a surrogate parent has the
[[Page 46713]]
knowledge and skills that ensure adequate representation of the child,
consistent with Sec. 300.519(d). However, if a public agency
determined there was a need to specify the duties and responsibilities
for surrogate parents, there is nothing in the Act or these regulations
that would prohibit them from doing so.
Changes: None.
SEA Responsibility (Sec. 300.519(h))
Comment: Some commenters recommended requiring LEAs to report to
the SEA when a child needs a surrogate parent so that the SEA can
fulfill its obligation to ensure that surrogate parents are assigned
within the 30-day timeframe required in Sec. 300.519(h). Some
commenters requested clarification regarding what it means for the SEA
to make ``reasonable efforts'' to appoint surrogate parents within the
30-day timeframe. The commenters recommended that SEAs track whether
LEAs or courts appoint surrogate parents in a timely manner and provide
technical assistance to LEAs and courts that fail to meet the 30-day
timeframe.
Some commenters stated that LEAs spend too much time determining
that a surrogate parent is needed and prolong the decision that a
surrogate parent is needed until the LEA is ready to appoint the
surrogate parent. One commenter stated that children in residential
care facilities often have an immediate need for a surrogate parent and
waiting 30 days to appoint a surrogate parent could cause lasting
damage to a child.
Discussion: It would be over-regulating to specify the specific
``reasonable efforts'' that a State must take to ensure that a
surrogate parent is appointed within the 30-day timeframe required in
Sec. 300.519(h), because what is considered a ``reasonable effort''
will vary on a case-by-case basis. We do not believe we should require
LEAs to report to the State when a child in their district needs a
surrogate parent or to require SEAs to track how long it takes LEAs and
courts to appoint surrogate parents because to do so would be
unnecessarily burdensome. States have the discretion to determine how
best to monitor the timely appointment of surrogate parents by their
LEAs. States also have discretion to use funds reserved for other
State-level activities to provide technical assistance to LEAs and
courts that fail to meet the 30-day timeframe, as requested by the
commenters.
Under their general supervisory authority, States have
responsibility for ensuring that LEAs appoint surrogate parents for
children who need them, consistent with the requirements in Sec.
300.519 and section 615(b)(2) of the Act. Therefore, if an LEA
consistently fails to meet the 30-day timeframe or unnecessarily delays
the appointment of a surrogate parent, the State is responsible for
ensuring that measures are taken to remedy the situation.
Changes: None.
Transfer of Rights at Age of Majority (Sec. 300.520)
Comment: A few commenters recommended clarifying Sec.
300.520(a)(2) to mean that all rights transfer to children who have
reached the age of majority under State law.
Discussion: To change the regulation in the manner suggested by the
commenters would be inconsistent with the Act. Section 615(m)(1)(D) of
the Act allows, but does not require, a State to transfer all rights
accorded to parents under Part B of the Act to children who are
incarcerated in an adult or juvenile, State or local correctional
institution when a child with a disability reaches the age of majority
under State law.
Changes: None.
Comment: A few commenters stated that families are often unaware of
the transfer of rights at the age of majority and recommended requiring
schools to inform parents and students in writing of the transfer of
rights one year prior to the day the student reaches the age of
majority.
Discussion: The commenters' concerns are addressed elsewhere in the
regulations. Section 300.320(c), consistent with section
614(d)(1)(A)(VIII)(cc) of the Act, requires that, 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. Section
300.322(f) (proposed Sec. 300.322(e)) requires the public agency to
give a copy of the child's IEP to the parent, and, therefore, parents
are informed as well.
Changes: None.
Comment: One commenter recommended that the regulations allow
parents to continue to serve as the decision-maker and to retain the
rights under the Act even in situations where the child is not
determined to be incompetent under State law, if the student and parent
agree in writing that the parent retains such rights. The commenter
stated that a State may not have a mechanism to determine that the
child does not have the ability to provide informed consent, as
required in Sec. 300.520(b), and if a State does have such a
mechanism, it may be costly and time consuming for a parent to go to
court to retain such rights. The commenter stated that an agreement
between the parent and student should be a simple process whereby the
student and parent both sign a form stating their agreement.
Discussion: Section 300.520(b) recognizes that some States have
mechanisms to determine that a child with a disability who has reached
the age of majority under State law does not have the ability to
provide informed consent with respect to his or her educational
program, even though the child has not been determined incompetent
under State law. In such States, 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
child throughout the remainder of the child's eligibility under Part B
of the Act. Whether parents may retain the ability to make educational
decisions for a child who has reached the age of majority and who can
provide informed consent is a matter of State laws regarding
competency. That is, the child may be able to grant the parent a power
of attorney or similar grant of authority to act on the child's behalf
under applicable State law. We believe that the rights accorded
individuals at the age of majority, beyond those addressed in the
regulation, are properly matters for States to control.
To ensure that this provision is clear, we are making minor changes
to the language. These changes are not intended to change the meaning
of Sec. 300.520(b) from the meaning in current Sec. 300.517(b).
Changes: We have changed Sec. 300.520(b) for clarity.
Discipline Procedures (Sec. Sec. 300.530 through 300.536)
Authority of School Personnel (Sec. 300.530)
Case-by-Case Determination (Sec. 300.530(a))
Comment: Many commenters requested clarifying the phrase ``consider
any unique circumstances on a case-by-case basis'' in Sec. 300.530(a)
and what, if any, unique circumstances should be considered. A few of
these commenters requested that the regulations include specific
criteria to be used when making a case-by-case determination. Other
commenters suggested clarifying that the purpose of a case-by-case
determination is to not allow school personnel to remove a
[[Page 46714]]
child to an interim alternative educational setting for violating a
code of student conduct when to do so would seem unjust under the
circumstances. Some commenters suggested clarifying that the purpose of
a case-by-case determination is to limit, not expand, disciplinary
actions for a child with a disability. One commenter expressed concern
that permitting school personnel to consider any unique circumstances
on a case-by-case basis when determining a change in placement may
result in schools applying this provision to cases for which it was not
intended, potentially resulting in a denial of FAPE. Other commenters
requested clarifying that a child's disciplinary history, ability to
understand consequences, and expression of remorse should be factors
considered when making a case-by-case determination. A few commenters
requested school personnel document any supports provided to a child
with a disability prior to the child's violation of a code of student
behavior when making a case-by-case determination.
Discussion: We believe that the regulations do not need to be
amended to clarify ``consider any unique circumstances on a case-by-
case basis'' because what constitutes ``unique circumstances'' is best
determined at the local level by school personnel who know the
individual child and all the facts and circumstances regarding a
child's behavior. We believe it would impede efforts of school
personnel responsible for making a determination as to whether a change
in placement for disciplinary purposes is appropriate for a child if
the Department attempted to restrict or limit the interpretation of
``consider any unique circumstances on a case-by-case-basis.'' Factors
such as a child's disciplinary history, ability to understand
consequences, expression of remorse, and supports provided to a child
with a disability prior to the violation of a school code could be
unique circumstances considered by school personnel when determining
whether a disciplinary change in placement is appropriate for a child
with a disability. We believe providing school personnel the
flexibility to consider whether a change in placement is appropriate
for a child with a disability on a case-by-case basis and to determine
what unique circumstances should be considered regarding a child who
violates a code of conduct, as provided for under section 615(k)(1)(A)
of the Act, will limit the inappropriate removal of a child with a
disability from his or her current placement to an interim alternative
educational setting, another setting, or suspension. We also decline
the commenters' suggestion to regulate further about the case-by-case
determination in light of the discretion granted under the Act to
school personnel in making this determination.
Changes: None.
Comment: Several commenters expressed concern that Sec. 300.530(a)
could be used to justify ignoring a manifestation determination when
determining whether a change in placement is appropriate for a child.
These commenters stated that the authority of school personnel to
consider any unique circumstances on a case-by-case basis could be used
to usurp the authority of the group making the manifestation
determination and the IEP Team. Some commenters recommended removing
the phrase ``consistent with the requirements of this section'' in
Sec. 300.530(a) because it is not included in the Act and limits the
individualized disciplinary options that might arise under this
authority.
Discussion: Section 300.530(a), consistent with section
615(k)(1)(A) of the Act, clarifies that, on a case-by-case basis,
school personnel may consider whether a change in placement, that is
otherwise permitted under the disciplinary procedures, is appropriate
and should occur. It does not independently authorize school personnel,
on a case-by-case basis, to institute a change in placement that would
be inconsistent with Sec. 300.530(b) through (i), including the
requirement in paragraph (e) of this section regarding manifestation
determinations. We are revising Sec. 300.530(a) to clarify that any
consideration regarding a change in placement under paragraph (a) of
this section must be consistent with all other requirements in Sec.
300.530.
Changes: We have revised Sec. 300.530(a) to refer to the other
requirements of Sec. 300.530.
Comment: One commenter recommended changing Sec. 300.530(a) to
include the role of the IEP Team when determining whether a change in
placement is appropriate for a child with a disability who violates a
code of student conduct.
Discussion: We believe Sec. 300.530(a), which follows the language
in section 615(k)(1)(A) of the Act, appropriately gives school
personnel the authority to determine, on a case-by-case basis, whether
a change in placement that is consistent with the other requirements of
Sec. 300.530, would be appropriate for a child with a disability who
violates a code of student conduct and, therefore, we do not believe it
is appropriate to define a role for the IEP Team in this paragraph.
There is nothing, however, in the Act or these regulations that would
preclude school personnel from involving parents or the IEP Team in
making this determination.
Changes: None.
Comment: Some commenters requested clarifying who constitute
``school personnel'' as used in Sec. 300.530(a).
Discussion: We do not believe it is necessary or appropriate to
clarify in these regulations the ``school personnel'' that may consider
whether a change in placement for disciplinary reasons is appropriate
for a child because such decisions are best made at the local school or
district level and based on the circumstances of each disciplinary
case.
Changes: None.
Comment: Several commenters requested that the regulations clarify
the meaning of ``violates a code of student conduct.'' The commenters
expressed concern that school personnel could use any minor infraction
to remove a child.
Discussion: Local school personnel have the necessary authority to
protect the safety and well-being of all children in their school and,
therefore, are in the best position to determine a code of student
conduct that is uniform and fair for all children in their school. We,
therefore, do not believe it is necessary or appropriate to clarify in
Sec. 300.530(a) the meaning of ``violates a code of student conduct.''
Changes: None.
General (Sec. 300.530(b))
Comment: Several commenters requested removing ``consecutive'' from
Sec. Sec. 300.530 and 300.536 because there is no reference to
consecutive school days in the Act.
Discussion: We are not removing ``consecutive'' from Sec. Sec.
300.530 through 300.536, as recommended by the commenters, because the
Department has long interpreted the Act to permit children with
disabilities who violate a code of student conduct to be removed from
their current educational placement for not more than 10 consecutive
school days at a time, and that additional removals of 10 consecutive
school days or less in the same school year would be possible, as long
as any removal does not constitute a change in placement. We do not
believe the changes to section 615(k) of the Act justify any change in
this position. Further, the Department's position is consistent with S.
Rpt. No. 108-185, p. 43, which states that ``a school may order a
change in placement for a child who violates a code of student conduct
to an appropriate interim educational setting, another
[[Page 46715]]
setting, or suspension, for 10 consecutive school days or less, to the
same extent that it would apply such a discipline measure to a child
without a disability.''
Changes: None.
Comment: One commenter recommended replacing ``school days'' with
``calendar days'' in Sec. 300.530 because using ``school days'' in the
regulations might create a disincentive for school personnel to find
solutions and develop an appropriate IEP in a timely manner.
Discussion: Section 615(k)(1)(B) of the Act clearly states that
school personnel may remove a child with a disability who violates a
code of student conduct from their current placement to an appropriate
alternative education setting, other setting, or suspension, for not
more than 10 ``school days;'' therefore, it would be inconsistent with
section 615(k)(1)(B) of the Act to change ``school days'' to ``calendar
days'' as suggested by the commenter.
Changes: None.
Comment: One commenter requested that Sec. 300.530 and all
sections that pertain to discipline stipulate that children with
disabilities must not be disciplined more severely than non-disabled
children and disciplinary measures applied to them must not be longer
in duration than those applied to non-disabled students.
Discussion: We do not believe that it is necessary to change the
regulations to state that children with disabilities must not be
disciplined more severely than non-disabled children because Sec.
300.530(b)(1), consistent with section 615(k)(1)(B) of the Act, is
sufficiently clear that disciplinary measures are to be applied to
children with disabilities to the extent they are applied to children
without disabilities. Further, the manifestation determination
provision in paragraph (e) of this section, and the right of a parent
to request an expedited due process hearing in Sec. 300.532, regarding
the disciplinary placement or manifestation determination, are
sufficient to ensure that schools implement disciplinary policies that
provide for a uniform and fair way of disciplining children with
disabilities in line with the discipline expectations for non-disabled
students. A primary intent of Congress in revising section 615(k) of
the Act was to provide for a uniform and fair way of disciplining all
children--both for those children with disabilities and those children
without disabilities. (S. Rpt. No. 108-185, p. 43; H. Rpt. No. 108-77,
pp. 116-119).
Changes: None.
Comment: A few commenters requested clarifying the Department's
basis for the general authority of school personnel to remove a child
with a disability for up to 10 consecutive school days, so as not to
preclude subsequent short-term removals in the same school year. Many
commenters expressed concern that permitting subsequent removals of up
to 10 consecutive school days in the same school year could be
misapplied and result in a denial of services. Several commenters
stated that Sec. 300.530 is not clear as to whether students who are
removed for more than 10 school days in a school year must continue to
receive services.
Discussion: The Department has long interpreted the Act to permit
schools to remove a child with a disability who violates a code of
student conduct from his or her current placement for not more than 10
consecutive school days, and that additional removals of 10 consecutive
school days or less in the same school year would be possible, as long
as those removals do not constitute a change in placement. The
requirements in Sec. 300.530(b) do not permit using repeated
disciplinary removals of 10 school days or less as a means of avoiding
the change in placement options in Sec. 300.536. We believe it is
important for purposes of school safety and order to preserve the
authority that school personnel have to be able to remove a child for a
discipline infraction for a short period of time, even though the child
already may have been removed for more than 10 school days in that
school year, as long as the pattern of removals does not itself
constitute a change in placement of the child.
On the other hand, discipline must not be used as a means of
disconnecting a child with a disability from education. Section
300.530(d) clarifies, in general, that the child must continue to
receive educational services so that the child can continue to
participate in the general curriculum (although in another setting),
and progress toward meeting the goals in the child's IEP.
Changes: None.
Comment: Several commenters recommended retaining the Department's
long term policy that an in-school suspension would not be considered a
part of the days of suspension as long as the child is afforded the
opportunity to continue to appropriately progress in the general
curriculum, continue to receive services specified on the child's IEP,
and continue to participate with nondisabled children to the extent
they would have in their current placement. Other commenters
recommended including in the regulations the commentary from the March
12, 1999 Federal Register (64 FR 12619) regarding whether an in-school
suspension or a bus suspension constitutes a day of removal.
Discussion: It has been the Department's long term policy that an
in-school suspension would not be considered a part of the days of
suspension addressed in Sec. 300.530 as long as the child is afforded
the opportunity to continue to appropriately participate in the general
curriculum, continue to receive the services specified on the child's
IEP, and continue to participate with nondisabled children to the
extent they would have in their current placement. This continues to be
our policy. Portions of a school day that a child had been suspended
may be considered as a removal in regard to determining whether there
is a pattern of removals as defined in Sec. 300.536.
Whether a bus suspension would count as a day of suspension would
depend on whether the bus transportation is a part of the child's IEP.
If the bus transportation were a part of the child's IEP, a bus
suspension would be treated as a suspension under Sec. 300.530 unless
the public agency provides the bus service in some other way, because
that transportation is necessary for the child to obtain access to the
location where services will be delivered. If the bus transportation is
not a part of the child's IEP, a bus suspension is not a suspension
under Sec. 300.530. In those cases, the child and the child's parent
have the same obligations to get the child to and from school as a
nondisabled child who has been suspended from the bus. However, public
agencies should consider whether the behavior on the bus is similar to
behavior in a classroom that is addressed in an IEP and whether the
child's behavior on the bus should be addressed in the IEP or a
behavioral intervention plan for the child.
Because the determination as to whether an in-school suspension or
bus suspension counts as a day of suspension under Sec. 300.530
depends on the unique circumstances of each case, we do not believe
that we should include these policies in our regulations.
Changes: None.
Services (Sec. 300.530(d))
Comment: Many commenters expressed concern that the change from
``continue to progress in the general curriculum'' in current Sec.
300.522(b)(1) to ``continue to participate in the
[[Page 46716]]
general education curriculum'' in Sec. 300.530(d)(1)(i) is a lower
standard. They requested that we use the language from current Sec.
300.522(b)(1).
Discussion: Section 615(k)(1)(D)(i) of the Act and Sec.
300.530(d)(1) provide that a child must continue to receive educational
services so as to enable the child ``to continue to participate in the
general educational curriculum, although in another setting, and to
progress toward meeting the goals set out in the child's IEP.'' We
believe that using the statutory language in the regulation is
appropriate because the Act specifically uses different language to
describe a child's relationship to the general education curriculum in
periods of removal for disciplinary reasons than for services under the
child's regular IEP in section 614(d)(1)(A)(i)(IV) of the Act. Based on
this difference, we decline to make the change requested.
We caution that we do not interpret ``participate'' to mean that a
school or district must replicate every aspect of the services that a
child would receive if in his or her normal classroom. For example, it
would not generally be feasible for a child removed for disciplinary
reasons to receive every aspect of the services that a child would
receive if in his or her chemistry or auto mechanics classroom as these
classes generally are taught using a hands-on component or specialized
equipment or facilities.
Changes: None.
Comment: Many commenters recommended Sec. 300.530(d) clarify that
children with disabilities who violate a code of student conduct and
are removed from their current placement to an interim alternative
educational setting or another setting, or are suspended, are entitled
to FAPE in accordance with section 612(a)(1) of the Act. Several
commenters recommended revising Sec. 300.530(d)(1)(i) to explicitly
state that the educational services provided to a child removed for
disciplinary reasons must include all the special education services,
related services, supplementary aids and services, and accommodations
required by the child's IEP to ensure the child receives FAPE. Many
commenters requested that the regulations clarify that LEAs must
continue to implement a child's IEP as written, including related
services, while the child is in an interim alternative educational
setting.
Discussion: Section 612(a)(1)(A) of the Act provides that FAPE must
be made available to all children with disabilities ages 3 through 21,
inclusive, including children with disabilities who have been suspended
or expelled from school. Further, section 615(k)(1)(D)(i) of the Act
provides that if school personnel seek to order a change in placement
of a child with a disability who violates a code of student conduct,
the child must continue to receive education services (as provided in
section 612(a)(1) of the Act) so as to enable him or her to continue to
participate in the general curriculum, although in another setting
(which includes an interim alternative education setting), and to
progress toward meeting the goals set out in the child's IEP. In other
words, while children with disabilities removed for more than 10 school
days in a school year for disciplinary reasons must continue to receive
FAPE, we believe the Act modifies the concept of FAPE in these
circumstances to encompass those services necessary to enable the child
to continue to participate in the general curriculum, and to progress
toward meeting the goals set out in the child's IEP. An LEA is not
required to provide children suspended for more than 10 school days in
a school year for disciplinary reasons, exactly the same services in
exactly the same settings as they were receiving prior to the
imposition of discipline. However, the special education and related
services the child does receive must enable the child to continue to
participate in the general curriculum, and to progress toward meeting
the goals set out in the child's IEP.
Section 300.530(d) clarifies that decisions regarding the extent to
which services would need to be provided and the amount of services
that would be necessary to enable a child with a disability to
appropriately participate in the general curriculum and progress toward
achieving the goals on the child's IEP may be different if the child is
removed from his or her regular placement for a short period of time.
For example, a child who is removed for a short period of time and who
is performing at grade level may not need the same kind and amount of
services to meet this standard as a child who is removed from his or
her regular placement for 45 days under Sec. 300.530(g) or Sec.
300.532 and not performing at grade level.
We believe it is reasonable for school personnel (if the child is
to be removed for more than 10 school days in the same school year and
not considered a change in placement) and the IEP Team (if the child's
removal is a change in placement under Sec. 300.536 and not a
manifestation of the child's disability or a removal pursuant to Sec.
300.530(g)) to make informed educational decisions about the extent to
which services must be provided for a child with a disability placed in
an interim alternative educational setting, another setting, or
suspension to enable the child to participate in the general education
curriculum and make progress toward the goals of the child's IEP.
As stated above, we read the Act as modifying the concept of FAPE
in circumstances where a child is removed from his or her current
placement for disciplinary reasons. Specifically, we interpret section
615(k)(1)(D)(i) of the Act to require that the special education and
related services that are necessary to enable the child to continue to
participate in the general education curriculum and to progress toward
meeting the goals set out in the child's IEP, must be provided at
public expense, under public supervision and direction, and, to the
extent appropriate to the circumstances, be provided in conformity with
the child's IEP. We, therefore, believe Sec. 300.530(d)(1) should be
amended to be consistent with the Act by adding the reference to the
FAPE requirements in Sec. 300.101(a), and to ensure it is understood
that the educational services provided to a child removed for
disciplinary reasons are consistent with the FAPE requirements in
section 612(a)(1) of the Act.
We are making additional technical changes to paragraph (d)(1) to
eliminate cross-references, where appropriate, and to provide greater
clarity that children with disabilities removed for disciplinary
reasons pursuant to paragraphs (c) and (g) of this section must
continue to receive services and receive, as appropriate, a functional
behavior assessment and behavior intervention services and
modifications. We are, therefore, removing from paragraph (d)(1) of
this section the phrase ``except as provided in paragraphs (d)(3) and
(d)(4)'' and removing the reference to paragraph (b) of this section,
which references the general authority for removing a child who
violates a code of student conduct, as it is unnecessary.
Changes: Section 300.530(d)(1)(i) has been amended to be consistent
with section 615(k)(1)(D)(i) of the Act by cross-referencing the FAPE
requirement in Sec. 300.101(a). We have also revised paragraph (d)(1)
by removing the reference to the exceptions for paragraph (d)(3) and
(d)(4) of this section and removing the reference to paragraph (b) of
this section.
Comment: None.
Discussion: In light of the changes made to proposed paragraph
(d)(1) of this section by removing the phrase regarding the exceptions
for paragraph (d)(3) and (d)(4) of this section, it is necessary to
revise Sec. 300.530(d)(2) to
[[Page 46717]]
accurately reflect when services may be provided in an interim
alternative educational setting.
Changes: We have modified Sec. 300.530(d)(2) to clarify that
services required by paragraph (d)(1), (d)3), (d)(4), and (d)(5) of
this section may be provided in an interim alternative educational
setting.
Comment: Several commenters stated that Sec. 300.530(d)(3) is not
clear and requested clarification as to whether children who are
removed for more than 10 school days in the same school year must
continue to receive services. One commenter expressed concern that
Sec. 300.530(d)(3), which clarifies that a public agency is only
required to provide services to a child with a disability who is
removed from his or her current placement for 10 school days or less in
that school year if it provides services to a child without
disabilities who is similarly removed, is unsupported by the Act and
substantially undermines the rights afforded to children with
disabilities removed from their current placement for disciplinary
reasons. The commenter wanted this provision removed from the
regulations. Other commenters requested clarifying the authority of
school personnel with respect to the procedures in Sec. 300.530(d)(3).
Discussion: The Act and the regulations recognize that school
officials need some reasonable degree of flexibility when disciplining
children with disabilities who violate a code of student conduct.
Interrupting a child's participation in education for up to 10 school
days over the course of a school year, when necessary and appropriate
to the circumstances, does not impose an unreasonable limitation on a
child with a disability's right to FAPE. Section 300.530(d)(3) is
consistent with section 612(a)(1)(A) of the Act and current Sec.
300.121(d) and reflects the Department's longstanding position that
public agencies need not provide services to a child with a disability
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 position was
affirmed by the Supreme Court in Honig v. Doe, 484 U.S. 305 (1988). We
are amending Sec. 300.530(d)(3) to replace ``need not'' with ``is only
required to'' for greater clarity. We also are amending paragraph
(d)(3) of this section to write it in active voice and in the positive
and removed the cross-reference to the general provision in paragraph
(b) of this section, as it is not necessary.
Changes: Technical changes have been made to Sec. 300.530(d)(3) to
remove the cross-reference to paragraph (b) of this section. We also
amended this paragraph as stated above to provide greater clarity.
Comment: Many commenters wanted us to remove the words ``if any''
from Sec. 300.530(d)(4). Several commenters thought that Sec.
300.530(d)(4), which allows school personnel to determine the extent to
which services are needed, ``if any,'' gives public agencies the
authority to deny special education services to students who have been
suspended or expelled for more than 10 school days in a school year.
Other commenters also thought that including the phrase ``if any''
implies that special education services are not mandatory for a child
who has been removed for 10 or more non-consecutive days and do not
constitute a change in placement.
Discussion: We believe Sec. 300.530(d)(4) ensures that children
with disabilities removed for brief periods of time 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. Paragraph (d)(4) of this section is not intended to
imply that a public agency may deny educational services to children
with disabilities who have been suspended or expelled for more than 10
school days in a school year, nor is Sec. 300.530(d)(4) intended to
always require the provision of services when a child is removed from
school for just a few days in a school year. We believe the extent to
which educational services need to be provided and the type of
instruction to be provided would depend on the length of the removal,
the extent to which the child has been removed previously, and the
child's needs and educational goals. For example, a child with a
disability who is removed for only a few days and is performing near
grade level would not likely need the same level of educational
services as a child with a disability who has significant learning
difficulties and is performing well below grade level. The Act is clear
that the public agency must provide services to the extent necessary to
enable the child to appropriately participate in the general curriculum
and appropriately advance toward achieving the goals in the child's
IEP.
We recognize the concern of the commenters that the phrase ``if
any'' could imply that school personnel need not provide educational
services to these children. Therefore, we are removing the phrase ``if
any'' from paragraph (d)(4). For clarity, we are replacing the cross-
reference to Sec. 300.530(d)(1) with the language from Sec.
300.530(d)(1)(i) and restructure the paragraph.
Changes: The phrase ``if any'' has been removed from Sec.
300.530(d)(4). For clarity, we have removed a cross reference in Sec.
300.530(d)(4) and replaced it with the language from Sec.
300.530(d)(1)(i) and made technical edits to restructure the paragraph.
Comment: One commenter questioned whether the ability of school
personnel to remove a child from his or her current placement for
disciplinary reasons means, if a child's current placement is a special
education classroom setting, school personnel may remove the child from
special education services.
Discussion: If the child's current placement is a special education
setting, the child could be removed from the special education setting
to another setting for disciplinary reasons. Similarly, if the child
with a disability who violated a school code of conduct receives
services in a regular classroom, the child could be removed to an
appropriate interim alternative educational setting, another setting,
or suspension. Section 300.530(b), consistent with section 615(k)(1)(B)
of the Act, provides that school personnel may remove a child with a
disability who violates a code of student conduct from his or her
current placement to an appropriate interim alternative educational
setting, another setting, or suspension. However, Sec. 300.530(d) is
clear that the child who is removed for more than 10 school days in the
same school year must continue to receive educational services, 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 his or her IEP.
Changes: None.
Comment: One commenter requested clarifying how many days a child
with a disability may be placed in an interim alternative educational
setting before the public agency must provide services.
Discussion: School personnel may remove a child with a disability
from his or her current placement to an interim alternative educational
setting, another setting, or suspension for up to 10 school days in the
same school year without providing educational services. Beginning,
however, on the eleventh cumulative day in a school year that a child
with a disability is removed from the child's current placement, and
for any subsequent removals, educational services must be provided to
the extent required in Sec. 300.530(d), while the removal continues.
[[Page 46718]]
Changes: None.
Comment: Numerous commenters recommended revising Sec.
300.530(d)(4) to require that the parent be included in the
consultation school personnel must have with at least one of the
child's teachers to determine the extent to which services are needed
for a child with a disability who has been removed from his or her
current placement for more than 10 school days (if the current removal
is for not more than 10 consecutive school days and is not a change in
placement under Sec. 300.536).
Discussion: The provisions in Sec. 300.530(d)(4) only address the
provision of services in those situations where a removal of a child
with a disability from the child's current placement is for a short
period of time and the removal does not constitute a change in
placement. In many instances, these short-term removals are for one or
two days. We believe that, in these instances, it is reasonable for
appropriate school personnel, in consultation with at least one of the
teachers of a child, to determine how best to address the child's needs
during these relatively brief periods of removal. We believe it would
place an unreasonable burden on school personnel to require that the
parent be involved in making the determination of the extent to which
services are needed for a child removed for such a short period of
time. We do not believe requiring school personnel to make these
decisions under these circumstances imposes an unreasonable limitation
on a child with a disability's right to FAPE. For these reasons, we do
not believe Sec. 300.530(d)(4) should be revised to require that the
parent be included in the consultation. However, there is nothing in
these regulations that would prohibit school personnel, if they choose
to do so, from including parents in the consultation.
Changes: None.
Comment: One commenter requested that Sec. 300.530(d)(4) be
modified to include the requirement in current Sec. 300.121(d)(3)(i)
that school personnel consult with the child's special education
teacher as opposed to any of the child's teachers. The commenter stated
that it makes sense that the special education teacher be considered
the first choice for this role given that the special education teacher
generally has the most knowledge of the child and the student's
educational needs.
Discussion: The determination of which teacher school personnel
should consult should be based on the facts and circumstances of each
case, the needs of the child and the expertise of the child's teachers.
We agree that, in many cases, the special education teacher may be the
most appropriate teacher with whom school personnel should consult.
This, however, is not always the case. In light of the short-term
nature of the removals under paragraph (d)(4) of the section and the
need for school personnel to make quick decisions regarding services,
we believe local school personnel need broad flexibility in making such
decisions and are in the best position to determine the appropriate
teacher with whom to consult. For these reasons, we are not amending
Sec. 300.530(d)(4) to require consultation with the child's special
education teacher as in current Sec. 300.121(d)(3)(i). There is
nothing, however, in the Act or these regulations that would prohibit
school personnel from consulting with one of the child's special
education teachers.
Changes: None.
Comment: Several commenters recommended the regulations clarify
that a child placed in an appropriate interim alternative educational
setting will participate in all State and districtwide assessments.
Discussion: It is not necessary to include the language recommended
by the commenters as section 612(a)(16)(A) of the Act is clear that 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 each child's respective IEP. This requirement applies
to children with disabilities who have been placed in an appropriate
interim alternative education setting or another setting, or who are
suspended.
Changes: None.
Comment: One commenter requested specifying in Sec. 300.530(d)
that LEAs must include children with disabilities placed in interim
alternative educational settings in their determination of AYP. The
writer expressed concern that LEAs may try to avoid accountability by
placing children with disabilities in interim alternative educational
settings.
Discussion: The Act does not address the issue of AYP. However,
title 1 of the ESEA is clear that children who are enrolled within a
district for a full academic year must be included in the AYP reports
of an LEA. (20 U.S.C. 7325) Title 1 of the ESEA does not provide an
exception for children with disabilities placed in interim alternative
educational settings. In addition, State agencies, LEAs, and schools
must assess all children, regardless of whether a child is to be
included for reporting or accountability purposes and regardless of the
amount of time the child has been enrolled in the State agency, LEA, or
school. The only public school children with disabilities enrolled in
public settings who are exempted from participation in State and
districtwide assessment programs under the Act are children with
disabilities convicted as adults under State law and incarcerated in
adult prisons (Sec. 300.324(d)(1)(i)). As AYP is addressed under title
1 of the ESEA, we do not need to regulate on this matter.
Changes: None.
Comment: A few commenters stated that Sec. 300.530(d)(5) is
inconsistent with section 615(k)(1)(E) of the Act, which requires that
within 10 school days of any decision to change a child's placement
because of a violation of a code of conduct, the LEA, parent, and
relevant members of the IEP Team (as determined by the parent and the
LEA) shall consider whether the conduct was caused by or had a direct
and substantial relationship to the disability or whether the conduct
was caused by the failure of the LEA to implement the IEP. These
commenters stated that Sec. 300.530(d)(5) gives the IEP Team control
over determinations regarding services and placement, regardless of
manifestation, and does not give control to the LEA, parent and
relevant members of the IEP Team as provided in the Act.
Discussion: We disagree with the commenters that Sec.
300.530(d)(5) is inconsistent with section 615(k)(1)(E) of the Act
because paragraph (d)(5) of this section describes who is responsible
for determining the appropriate services for a child with a disability
whose disciplinary removal is a change in placement under Sec.
300.536, while section 615(k)(1)(E) of the Act describes who is
responsible for making a manifestation determination. These are very
different and distinct provisions. Further, section 615(k) of the Act
does not specifically address who is responsible for determining the
educational services to be provided a child with a disability whose
disciplinary removal is a change in placement. Section 615(k)(1)(E) of
the Act, consistent with Sec. 300.530(e), provides that, 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 IEP Team (as determined by
the parent and the LEA) shall determine whether the child's conduct was
a manifestation of the child's disability. We believe that in
[[Page 46719]]
instances where a child's disciplinary removal constitutes a change in
placement, and given the length of time of such removals, the IEP Team
is the appropriate entity to determine the educational services
necessary 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. Section
300.530(d)(5) is clear that whenever a removal constitutes a change in
placement under Sec. 300.536, the child's IEP Team determines the
services the child will be provided.
Changes: None.
Comment: One commenter stated that the phrase ``location in which
services will be provided'' as used in Sec. 300.530(d)(5) is not
included in the Act. The commenter pointed out that section 615(k)(2)
of the Act refers to the IEP Team's ``determination of setting.'' The
commenter stated that using the statutory language will make it less
likely the IEP Team will interpret the regulations to require the IEP
Team to determine the specific location of the services to be provided
to a child removed from his or her current placement to an interim
alternative educational setting. Several other commenters stated that
the use of the phrase ``location in which services will be provided''
in paragraph (d)(5) of this section is confusing and recommended
limiting the IEP Team responsibility to determining the setting (as
required under section 615(k)(2) of the Act) and the services and not
the specific location.
Discussion: Section 615(k)(2) of the Act provides that the IEP Team
is responsible for determining the interim alternative educational
setting for a child with a disability for certain removals that are a
change of placement. In Sec. 300.531, for reasons described elsewhere
in this preamble, we interpret this obligation to apply to all removals
that constitute a change of placement for disciplinary reasons, as
defined in Sec. 300.536. We interpret ``setting'' in this context to
be the environment in which the child will receive services, such as an
alternative school, alternative classroom, or home setting. In many
instances, the location and the setting or environment in which the
child will receive services are the same. It is possible, however, that
a school may have available more than one location that meets the
criteria of the setting chosen by the IEP Team. For example, an LEA may
have available two alternative schools that meet the criteria of the
interim alternative educational setting chosen by the IEP Team. In
those cases school personnel would be able to assign the child to
either of these locations, if the IEP Team has not specified a
particular one.
We are persuaded by the commenters and, therefore, are removing the
reference to ``location in which services will be provided'' in
paragraphs (d)(4) and (d)(5) of this section. We are also removing the
phrase ``is for more than 10 consecutive school days or'' from
paragraphs (d)(5) of this section because it is unnecessary since such
a removal is a change in placement under Sec. 300.536.
Changes: We have amended paragraphs (d)(4) and (d)(5) of this
section by removing the phrase ``location in which services will be
provided.'' We also have amended paragraph (d)(5) of this section by
removing the phrase ``is for more than 10 consecutive school days or.''
Manifestation Determination (Sec. 300.530(e))
Comment: Several commenters requested including in Sec. 300.530(e)
the following measures when determining the relationship between a
behavior and a disability: (1) whether the child's disability impaired
the ability of the child to control the behavior; (2) whether the child
understood the impact and consequences of the behavior; (3) whether the
placement was appropriate; or (4) whether the IEP, the identified
services, and their implementation were appropriate.
Another commenter recommended clarifying that when a determination
is made that a child's behavior is not a manifestation of his or her
disability, if the group does not consider whether the IEP and
placement were appropriate, the parents have the right to file a
complaint.
Discussion: The language requested by the commenters was included
in section 615(k)(4) of the Individuals with Disabilities Education Act
Amendments of 1997, Public Law 105-17. Congress later removed the
requirements mentioned by the commenters for conducting a review to
determine whether a child's behavior was a manifestation of the child's
disability and it would be beyond the authority of the Department to
include the language in these regulations. Section 615(k)(1)(E) of the
Act now requires the LEA, the parent, and relevant members of the IEP
Team (as determined by the parent and the LEA), to determine whether a
child's behavior was a manifestation of the child's disability based on
two inquiries: (1) was the conduct caused by, or did it have a direct
and substantial relationship to the child's disability; or (2) was the
conduct the direct result of the LEA's failure to implement the child's
IEP?
It is not necessary to clarify that a parent has the right to file
a complaint, as the commenters suggest. Section 300.532, consistent
with section 615(k)(3) of the Act, provides that a 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), may request an expedited due
process hearing, which must occur within 20 school days of the date the
complaint requesting the hearing is filed, and the determination by the
hearing officer must be rendered within 10 school days after the
hearing.
Changes: None.
Comment: Several commenters recommended that the observations used
for the manifestation determination review be from both teachers and
related service personnel. Some commenters requested Sec. 300.530(e)
clarify that the phrase ``all relevant information in the child's
file'' includes a review of the child's IEP, placement appropriateness,
special education services, supplementary aids and services, and if the
behavior intervention strategies were appropriate and consistent with
the IEP. One commenter recommended documents and discussions at IEP
Team meetings referencing the child's behavior should be maintained and
considered at a manifestation determination.
Discussion: Section 300.530(e)(1), which tracks section
615(k)(1)(E) of the Act, requires a review of all relevant information
in the child's file, including the child's IEP, any teacher
observations, and any relevant information provided by the parents. We
believe this clearly conveys that the list of relevant information in
paragraph (e)(1) of the section is not exhaustive and may include other
relevant information in the child's file, such as the information
mentioned by the commenters. It would be impractical to list all the
possible relevant information that may be in a child's file and,
therefore, it is not necessary to further regulate on this matter.
Changes: None.
Comment: Several commenters requested clarifying that a
manifestation determination under Sec. 300.530(e) would not need to be
conducted for removals of not more than 10 consecutive days or for
removals that otherwise do not constitute a change in placement.
Discussion: By including an introductory phrase to proposed Sec.
300.530(e)(1) we intended to clarify
[[Page 46720]]
that a manifestation determination need not be conducted for removals
that will be for not more than 10 consecutive school days and will not
constitute a change in placement under Sec. 300.536. In other words,
manifestation determinations are limited to removals that constitute a
change in placement under Sec. 300.536. Upon further consideration, we
believe the phrase ``except for removals that will be for not more than
10 consecutive school days and will not constitute a change in
placement under Sec. 300.536'' is unnecessary and confusing. We
believe limiting Sec. 300.530(e)(1) to the statutory language in
section 615(k)(1)(E)(i) of the Act makes it sufficiently clear that
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 a manifestation determination must be conducted and, therefore,
we are removing the introductory phrase as it is unnecessary.
Changes: We have revised Sec. 300.530(e) by removing the
introductory phrase ``except for removals that will be for not more
than 10 consecutive school days and will not constitute a change in
placement under Sec. 300.536.''
Comment: A few commenters expressed concern that the manifestation
determination is too narrow and does not account for the spectrum of
inter-related and individual challenges associated with many
disabilities.
Discussion: We believe the criteria in Sec. 300.530(e)(1) that the
LEA, parent, and relevant members of the IEP Team must determine
whether a child's conduct is a manifestation of the child's disability
is broad and flexible, and would include such factors as the inter-
related and individual challenges associated with many disabilities.
The revised manifestation provisions in section 615 of the Act provide
a simplified, common sense manifestation determination process that
could be used by school personnel. The basis for this change is
provided in note 237-245 of the Conf. Rpt., pp. 224-225, which states,
``the Conferees intend to assure that the manifestation determination
is done carefully and thoroughly with consideration of any rare or
extraordinary circumstances presented.'' The Conferees further intended
that ``if a change in placement is proposed, the manifestation
determination will analyze the child's behavior as demonstrated across
settings and across time when determining whether the conduct in
question is a direct result of the disability.'' No further
clarification is necessary.
Changes: None.
Comment: A few commenters recommended that the manifestation
determination in Sec. 300.530(e) include a case-by-case analysis of
the disability of the child involved compared with the child's conduct
as many children with disabilities display behaviors that can be
disruptive to a classroom, but these behaviors should not be considered
a current disciplinary issue when the behaviors are characteristic of
the disability.
Discussion: We believe that it is not necessary to modify the
regulations to include a requirement that a manifestation determination
include a case-by-case analysis of the disability of the child because
section 615(k)(1)(E) of the Act and Sec. 300.530(e) are sufficiently
clear that decisions regarding the manifestation determination must be
made on a case-by-case basis. We believe the Act recognizes that a
child with a disability may display disruptive behaviors characteristic
of the child's disability and the child should not be punished for
behaviors that are a result of the child's disability. The intent of
Congress in developing section 615(k)(1)(E) was that, in determining
that a child's conduct was a manifestation of his or her disability, it
must be determined that ``the conduct in question was caused by, or had
a direct and substantial relationship to, the child's disability, and
was not an attenuated association, such as low self-esteem, to the
child's disability.'' (Note 237-245 of the Conf. Rpt., p. 225). The
regulation, which follows the statutory language, thus accurately
reflects the manner in which the Act describes the behavior of the
child is to be considered in the manifestation determination.
Further, section 615(k)(1)(F) of the Act and Sec. 300.530(f)
provide that if the LEA, the parent, and relevant members of the IEP
Team make the determination that the behavior resulting in the removal
was a manifestation of the child's disability, the following actions
must be implemented: (1) the IEP Team must conduct a functional
behavioral assessment, unless the LEA had conducted a functional
behavioral assessment before the behavior that resulted in the change
in placement occurred, and implement a behavioral intervention plan for
the child; (2) or if a behavioral intervention plan already has been
developed, review the behavioral intervention plan, and modify it, as
necessary, to address the behavior; and (3) return the child to the
placement from which the child was removed (other than a 45-day
placement under Sec. 300.530(g)), unless the parent and the LEA agree
to a change in placement as part of the modification of the behavioral
intervention plan.
Changes: None.
Comment: One commenter recommended clarifying that when a
determination is made that a child's behavior is not a manifestation of
his or her disability, if the group does not consider whether the
placement was appropriate, the parents have the right to file a
complaint.
Discussion: The Act no longer requires that the appropriateness of
the child's IEP and placement be considered when making a manifestation
determination. The Act now requires that the LEA, the parent, and
relevant members of the IEP Team must, when making a manifestation
determination, determine whether (1) the conduct in question was caused
by, or had a direct and substantial relationship to, the child's
disability; or (2) the conduct in question was the direct result of the
LEA's failure to implement the IEP. However, Sec. 300.532, consistent
with section 615(k)(3) of the Act, does provide that a 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), may request an expedited due
process 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.
Changes: None.
Comment: Several commenters requested clarification on the
potential range of consequences when a disciplinary change in placement
has occurred for a child with a disability and the child's behavior is
determined to be a manifestation of his or her disability.
Discussion: Under section 615(k)(1)(F) of the Act and section 504
of the Rehabilitation Act of 1973, if the behavior that resulted in the
change of placement is determined to be a manifestation of a child's
disability, the child must be returned to the placement from which the
child was removed (other than a 45-day placement under Sec. Sec.
300.530(g), 300.532(b)(2), and 300.533), unless the public agency and
the parents otherwise agree to a change of placement.
When the behavior is related to the child's disability, proper
development of the child's IEP should include development of
strategies, including positive behavioral interventions, supports, and
other strategies to address that behavior, consistent with Sec.
300.324(a)(2)(i) and (a)(3)(i). When the behavior is determined to be a
[[Page 46721]]
manifestation of a child's disability but has not previously been
addressed in the child's IEP, the IEP Team must review and revise the
child's IEP so that the child will receive services appropriate to his
or her needs. Implementation of the behavioral strategies identified in
a child's IEP, including strategies designed to correct behavior by
imposing disciplinary consequences, is appropriate under the Act and
section 504, even if the behavior is a manifestation of the child's
disability. A change in placement that is appropriate and consistent
with the child's needs may be implemented subject to the parent's
procedural safeguards regarding prior notice (Sec. 300.503), mediation
(Sec. 300.506), due process (Sec. Sec. 300.507 through 300.517) and
pendency (Sec. 300.518).
Changes: None.
Comment: Many commenters requested modifying Sec. 300.530(e) to
require that, if it is determined that the child's behavior was a
direct result of the LEA's failure to implement the child's IEP, it
must take immediate steps to remedy those deficiencies.
Discussion: If the LEA, the parent, and the relevant members of the
IEP Team determine that the child's conduct is a manifestation of the
child's disability because the child's behavior was the direct result
of the LEA's failure to implement the IEP, the LEA has an affirmative
obligation to take immediate steps to ensure that all services set
forth in the child's IEP are provided, consistent with the child's
needs as identified in the IEP. We agree with the commenters that these
regulations should require that, if it is determined that the child's
behavior was a direct result of the LEA's failure to implement the
child's IEP, the LEA must take immediate steps to remedy those
deficiencies. Therefore, we are adding a new paragraph (e)(3) to this
section, consistent with this obligation.
Changes: We have added a new paragraph (3) to Sec. 300.532(e)
which provides that, if the LEA, the parent, and relevant members of
the child's IEP Team determine that the child's behavior was a direct
result of the LEA's failure to implement the child's IEP, the LEA must
take immediate steps to remedy those deficiencies.
Comment: A few commenters expressed concern that the absence of
short-term objectives in the IEP hampers the ability to determine if
the child's conduct was the direct result of the LEA's failure to
implement the IEP.
Discussion: We disagree with the commenters that the absence of
short-term objectives in the IEP will hinder the ability of the LEA,
the parent, and relevant members of the IEP Team to determine whether a
child's conduct is the direct result of the LEA's failure to implement
the child's IEP. The group members making the manifestation
determination are required to review not only the IEP of the child, but
all relevant information in the child's folder, any teacher
observations of the child, and any relevant information provided by the
parents. We believe the information available to the group making the
manifestation determination, when reviewed in its totality, is
sufficient to make a manifestation determination.
Changes: None.
Determination That Behavior Was a Manifestation (Sec. 300.530(f))
Comment: Some commenters recommended requiring that, even if a
child's conduct is determined not to be a manifestation of the child's
disability pursuant to Sec. 300.530(e), the IEP Team, in determining
how the child will be provided services, must, at a minimum, consider
whether to conduct a functional behavioral assessment and implement a
behavior plan. One commenter requested that the requirement in Sec.
300.530(f) for conducting a functional behavioral assessment be removed
from this section and added to Sec. Sec. 300.320 through 300.324,
regarding IEPs.
Discussion: Section 300.530(f), consistent with section
615(k)(1)(F) of the Act, requires that a child with a disability
receive, as appropriate, a functional behavioral assessment, and
behavioral intervention plan and modifications, that are designed to
address the child's behavior if the child's behavior that gave rise to
the removal is a manifestation of the child's disability. As provided
in Sec. 300.530(e), a manifestation determination is only required for
disciplinary removals that constitute a change of placement under Sec.
300.536. However, we must recognize that Congress specifically removed
from the Act a requirement to conduct a functional behavioral
assessment or review and modify an existing behavioral intervention
plan for all children within 10 days of a disciplinary removal,
regardless of whether the behavior was a manifestation or not.
We also recognize, though, that as a matter of practice, it makes a
great deal of sense to attend to behavior of children with disabilities
that is interfering with their education or that of others, so that the
behavior can be addressed, even when that behavior will not result in a
change in placement. In fact, the Act emphasizes a proactive approach
to behaviors that interfere with learning by requiring that, for
children with disabilities whose behavior impedes their learning or
that of others, the IEP Team consider, as appropriate, and address in
the child's IEP, ``the use of positive behavioral interventions, and
other strategies to address the behavior.'' (See section
614(d)(3)(B)(i) of the Act). This provision should ensure that children
who need behavior intervention plans to succeed in school receive them.
For these reasons, we decline to make the changes suggested.
Changes: None.
Comment: Many commenters requested requiring that a functional
behavioral assessment older than one year be considered invalid in a
manifestation determination review. One commenter suggested that the
regulations include language that requires the agency to conduct a new
functional behavioral assessment when the child's most recent
functional assessment is not current.
Discussion: We believe it would be inappropriate to specify through
regulation what constitutes a ``current'' or ``valid'' functional
behavioral assessment as such decisions are best left to the LEA, the
parent, and relevant members of the IEP Team (as determined by the LEA
and the parent) who, pursuant to section 615(k)(1)(E) of the Act, are
responsible for making the manifestation determination. As a policy
matter, a previously conducted functional behavioral assessment that is
valid and relevant should be included in the information reviewed by
the LEA, the parent, and relevant members of the IEP Team when making a
manifestation determination.
Changes: None.
Special Circumstances (Sec. 300.530(g))
Comment: Some commenters recommended requiring that an appropriate
permanent placement be in effect at the beginning of the next school
year to ensure that a child is not held in the 45-school day interim
alternative educational setting for a period that extends into the new
academic year.
Discussion: Interim alternative educational settings under section
615(k)(1)(G) of the Act and Sec. 300.530(g) are limited to not more
than 45 school days, unless extended by the hearing officer under Sec.
300.532(b)(3) because returning the child to his or her original
placement would be substantially likely to cause injury to him or
herself or to others. The 45-school day placement in an interim
alternative educational setting, unless extended by Sec.
300.532(b)(3), is a maximum time limit for a change in placement to an
[[Page 46722]]
appropriate interim alternative educational setting. We decline to
change the regulations as suggested by the commenters based on the
school year ending before a child completes the ordered school day
placement in an interim alternative educational setting (in this
example 45 school days). There is nothing in the Act or these
regulations that precludes the public agency from requiring the child
to fulfill the remainder of the placement when a new school year begins
as agency personnel have this flexibility under section 615(k)(1)(G) of
the Act.
Changes: None.
Comment: Some commenters requested that the regulations clarify
that a child's home is not a suitable placement setting for an interim
alternative educational setting for a child with a disability removed
pursuant to Sec. 300.530 for disciplinary reasons.
Discussion: While the Act does not specify the alternative setting
in which educational services must be provided, the Act is clear that
the determination of an appropriate alternative educational setting
must be selected ``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.'' (See
section 615(k)(1)(D)(i) of the Act). Further, section 615(k)(2) of the
Act provides that the interim alternative educational setting must be
determined by the IEP Team. What constitutes an appropriate interim
alternative educational setting will depend on the circumstances of
each individual case.
Whether a child's home would be an appropriate interim alternative
educational setting under Sec. 300.530 would depend on the particular
circumstances of an individual case such as the length of the removal,
the extent to which the child previously has been removed from his or
her regular placement, and the child's individual needs and educational
goals. In general, though, because removals under Sec. Sec. 300.530(g)
and 300.532 will be for periods of time up to 45 days, care must be
taken to ensure that if home instruction is provided for a child
removed under Sec. 300.530, the services that are provided will
satisfy the requirements for services for a removal under Sec.
300.530(d) and section 615(k)(1)(D) of the Act. We do not believe,
however, that it is appropriate to include in the regulations that a
child's home is not a suitable placement setting for an interim
alternative educational setting as suggested by the commenter. As
stated above, the Act gives the IEP Team the responsibility of
determining the alternative setting and we believe the IEP Team must
have the flexibility to make the setting determination based on the
circumstances and the child's individual needs.
Changes: None.
Comment: One commenter expressed concern that the high standard of
``serious bodily injury'' is unreasonable. The commenter states that
school personnel should be given discretion to remove children for a 45
school-day period who have committed assault or otherwise acted
dangerously. The commenter stated that the standard for having
inflicted ``serious bodily injury'' would seldom be met without a child
being incarcerated. Another commenter stated that the statutory
definition of serious bodily injury is too narrow to have much
practical value for school purposes since most injuries on school
grounds are not related to the use of dangerous weapons. This commenter
recommended expanding the definition to include more typical injuries
that occur on school property, and not limiting the definition by the
language in section 1365(3)(h) of title 18, United States Code.
Discussion: Section 300.530(g)(3) incorporates the new provision in
section 615(k)(1)(G)(iii) of the Act that permits school personnel to
remove a child to an interim alternative educational setting for not
more than 45 school days without regard to whether the behavior is a
manifestation of the child's disability if the child has inflicted
serious bodily injury upon another person while at school, on school
premises, or at a school function. Section 615(k)(7)(D) of the Act is
clear that the term serious bodily injury has the meaning given the
term in section 1365(3)(h) of title 18, United States Code. That
provision defines serious bodily injury as bodily injury, which
involves substantial risk of death; extreme physical pain; protracted
and obvious disfigurement; or protracted loss or impairment of the
function of a bodily member, organ, or mental faculty. Nothing in the
Act permits the Department to expand the definition of serious bodily
injury, as used in Sec. 300.530(g), to include a bodily injury beyond
that included in 18 U.S.C. 1365(3)(h). Therefore, we are not amending
Sec. 300.530(g)(3).
Changes: None.
Comment: One commenter recommended clarifying the distinction
between the removal of a child to an interim alternative educational
setting by school personnel for inflicting ``serious bodily injury upon
another person'' (Sec. 300.530(g)(3)) and the removal of the child by
a hearing officer because maintaining the child's current placement is
``substantially likely to result in injury to the child or others''
(Sec. 300.532(b)(2)(ii)).
Discussion: The provision in Sec. 300.530(g)(3), consistent with
section 615(k)(1)(G)(iii) of the Act, indicates that school personnel
have the discretion to remove a child with a disability who inflicts
``serious bodily injury upon another person'' from his or her current
placement to an interim alternative educational setting for up to 45
school days (defined in 18 U.S.C. 1365(3)(h) as bodily injury), which
involve substantial risk of death; extreme physical pain; protracted
and obvious disfigurement; or protracted loss or impairment of the
function of a bodily member, organ, or mental faculty. Section
300.530(g)(3) applies to school personnel's unilateral removal of a
child from the current educational placement. School officials must
seek permission from the hearing officer under Sec. 300.532 to order a
change of placement of the child to an appropriate interim alternative
educational setting. Hearing officers have the authority under Sec.
300.532 to exercise their judgments after considering all factors and
the body of evidence presented in an individual case when determining
whether a child's behavior is substantially likely to result in injury
to the child or others. Given that the phrase ``serious bodily
injury,'' as used in Sec. 300.530(g), has a definitive meaning and the
meaning of ``substantially likely to result in injury to the child or
others'' is left to the judgment of the hearing officer, we do not
believe further clarification is needed.
Changes: None.
Notification (Sec. 300.530(h))
Comment: Some commenters recommended clarifying that parental
notification in Sec. 300.530(h) must take place following disciplinary
action proposing a removal of a child for more than 10 consecutive days
or when there is a disciplinary change in placement. One commenter
suggested that, to be consistent with the Act, the parental
notification requirement should only pertain to disciplinary decisions
made pursuant to Sec. 300.530(g).
Discussion: We agree with the commenters that the meaning of the
term ``disciplinary action'' in section 615(k)(1)(H) of the Act,
regarding parental notification, is unclear. We believe that, on the
one hand, it would be unreasonably burdensome to read the term as
applying to every imposition of discipline, including those that might
[[Page 46723]]
not result in the child being removed from the regular educational
environment at all. On the other hand, we think the suggestion that the
term be applied only to removals under Sec. 300.530(g) would
inappropriately narrow the application of the notification provision
and result in parents not being notified for removals that could
reasonably have a significant impact on a child's education, such as a
removal for 10 school days or more. Therefore, we agree with those
commenters who suggested that paragraph (h) of this section should be
amended to clarify that the requirement for parental notification
applies to a removal that constitutes a change in placement of a child
with a disability for a violation of a code of student conduct.
Changes: Section 300.530(h) has been amended to clarify that on the
date on which the decision is made to make a removal that constitutes a
change in the placement of a child with a disability because of a
violation of a code of student conduct, the LEA must notify the parents
of that decision, and provide the parents the procedural safeguards
notice described in Sec. 300.504.
Comment: One commenter stated that the requirement in Sec.
300.530(h), which requires the LEA to provide the parents the
procedural safeguards notice described in Sec. 300.504 whenever the
decision to take disciplinary action is made, is inconsistent with the
Act and recommended revising Sec. 300.530(h) to be consistent with
section 615(k)(1)(H) of the Act. The commenter stated that section
615(k)(1)(H) of the Act requires the LEA to ``notify'' the parents of
the decision to take disciplinary action and of all the procedural
safeguards. The commenter stated that the statutory language implies
that the LEA simply needs to remind (notify) the parent of the
procedural safeguards given to them for the school year as required in
section 615(d)(1)(A)(i) through (iii) of the Act, not to ``provide''
the parents with the procedural safeguards notice as required in Sec.
300.530(h).
Discussion: The commenter is correct that section 615(k)(1)(H) of
the Act does not specifically state that the LEA must ``provide a
copy'' of the procedural safeguards notice but, that the LEA must
``notify'' the parent of the LEA's decision to take disciplinary action
and of all procedural safeguards accorded under section 615 of the Act.
We believe, however, that implicit in the Act is a much higher standard
for ``notify'' than ``remind'' parents as suggested by the commenter.
Further, in other places where ``notify'' is used in the Act, it is
clear the meaning of the term is ``to provide notice `` (for example,
section 615(c)(2)(A) and (D) of the Act). We believe Sec. 300.530(h),
which requires the LEA to notify the parents of its decision to change
the placement of their child with a disability because of a violation
of a code of student conduct and provide the parents the procedural
safeguards notice described in Sec. 300.504, is reasonable and
consistent with the Act.
Changes: None.
Definitions (Sec. 300.530(i))
Comment: Many commenters stated that the definitions for serious
bodily injury, controlled substance, and weapon are not readily
available to school personnel and parents and requested that the full
definitions be included in Sec. 300.530(i) and not only referenced.
Discussion: As we stated in the Analysis of Comments and Changes
discussion for subpart A of this part, including the actual definitions
of terms that are defined in statutes other than the Act is problematic
because these definitions may change over time and the Department would
need to amend the regulations each time an included definition that is
defined in another statute changes. However, we are including the
definitions of serious bodily injury from section 1365(h)(3) of title
18, United States Code, and dangerous weapon from section 930(g)(2) of
title 18, United States Code, here for reference. We are not including
the definition of controlled substance from section 202(c) of the
Controlled Substances Act because the definition is lengthy and
frequently changes.
The term serious bodily injury means bodily injury that involves--
1. A substantial risk of death;
2. Extreme physical pain;
3. Protracted and obvious disfigurement; or
4. Protracted loss or impairment of the function of a bodily
member, organ, or mental faculty.
The term dangerous weapon means a weapon, device, instrument,
material, or substance, animate or inanimate, that is used for, or is
readily capable of, causing death or serious bodily injury, except that
such term does not include a pocket knife with a blade of less than
2\1/2\ inches in length.
Changes: None.
Determination of Setting (Sec. 300.531)
Comment: None.
Discussion: In light of the restructuring of Sec. 300.530 and the
elimination of cross-references in that section, we are revising Sec.
300.531 to include a cross-reference to paragraph (d)(5) of Sec.
300.530 to make clear that, for a removal that is a change of placement
under Sec. 300.536, the child's IEP Team must determine the
appropriate interim alternative educational setting for the child.
Changes: We have revised Sec. 300.531 to include a cross-reference
to paragraph (d)(5) of Sec. 300.530.
Appeal (Sec. 300.532)
Comment: Numerous commenters requested clarifying in the
regulations that the public agency has the burden to prove to a hearing
officer that removing the child is necessary because maintaining the
current placement is substantially likely to result in injury to self
or others.
Discussion: Although the Act does not address allocation of the
burden of proof in due process hearings brought under the Act, the U.S.
Supreme Court recently addressed the issue. In Schaffer, the Court
first noted that the term ``burden of proof'' is commonly held to
encompass both the burden of persuasion (i.e., which party loses if the
evidence is closely balanced) and the burden of production (i.e., the
party responsible for going forward at different points in the
proceeding). In Schaffer, only the burden of persuasion was at issue.
The Court held that the burden of persuasion in a hearing challenging
the validity of an IEP is placed on the party on which this burden
usually falls--on the party seeking relief--whether that is the parent
of the child with a disability or the LEA. Where the public agency has
requested that a hearing officer remove a child to an interim
alternative educational setting, the burden of persuasion is on the
public agency. Since Supreme Court precedent is binding legal
authority, further regulation in this area is unnecessary.
Changes: None.
Comment: Many commenters requested that the regulations clarify
that the LEA has the burden of proof in determining whether the child's
behavior was or was not a manifestation of the child's disability and
that the IEP was appropriate and properly implemented. Other commenters
expressed concern that the regulations, as written, put the burden on
the parent to prove either that the conduct was caused by or had a
direct and substantial relationship to the child's disability or that
the IEP was not being implemented.
Discussion: The concept of burden of proof is not applicable to the
manifestation determination, which does not occur in a hearing under
the Act. Under Sec. 300.530(e), the LEA, the
[[Page 46724]]
parent, and relevant members of the IEP Team (as determined by the
parent and the LEA) are responsible for determining whether the child's
behavior is a manifestation of the child's disability, by conducting a
fair inquiry into the issues posed by Sec. 300.530(e)(1)(i) and (ii).
If the parent disagrees with the manifestation determination, they have
the right to appeal that decision by requesting a due process hearing
under Sec. 300.532. At the point a due process hearing is requested,
the concept of burden of proof would be applicable. As stated above,
the Supreme Court determined in Schaffer that the burden of proof
ultimately is allocated to the moving party.
Changes: None.
Comment: A few commenters recommended requiring that the hearing
officer must consider the appropriateness of the child's current
placement; consider whether the public agency has made reasonable
efforts to minimize the risk of harm in the child's current placement,
including the use of supplementary aids and services; and determine
that the interim alternative educational setting meets specified
requirements.
Discussion: We are not making changes to the regulations, regarding
a hearing officer's decision-making, to require a hearing officer to
consider such factors as those suggested by the commenters because a
hearing officer must have the ability to conduct hearings and render
and write decisions in accordance with appropriate, standard legal
practice and exercise his or her judgment in the context of all the
factors involved in an individual case.
Changes: None.
Comment: Some commenters recommended clarifying the reference to a
``hearing'' in Sec. 300.532(a) and an ``expedited hearing'' in Sec.
300.532(c). Some of these commenters stated that there seems to be a
conflict between the two hearings. Other commenters questioned whether
the hearing referenced in paragraphs (a) and (c) of this section must
be conducted consistent with all the impartial due process hearing
requirements. Another commenter suggested that a hearing requested
pursuant to Sec. 300.532 may be contrary to section 615(h) of the Act,
which provides for the right to counsel, to cross-examine witnesses,
and to present evidence and receive the record of due process hearings.
Discussion: The hearing referenced in Sec. 300.532(a) and (c) is
the same hearing and not separate hearings. Paragraph (a) in this
section states that a parent of a child with a disability who disagrees
with any decision regarding a placement, or the manifestation
determination, or an LEA that believes that maintaining the current
placement of the child is substantially likely to result in injury to
the child or to others, may request a hearing. Paragraph (c) of this
section clarifies that a hearing requested under paragraph (a) of this
section is an impartial due process hearing consistent with the due
process hearing requirements of Sec. Sec. 300.510 through 300.514
(including hearing rights, such as a right to counsel, presenting
evidence and cross-examining witnesses, and obtaining a written
decision), except that the timelines for the hearing are expedited and
a State may establish different procedural rules for expedited due
process hearings as long as the rules ensure the requirements in
Sec. Sec. 300.510 through 300.514 are met. We believe these
regulations will ensure that the basic protections regarding hearings
under the Act are met, while enabling States to adjust other procedural
rules they may have superimposed on due process hearings in light of
the expedited nature of these hearings. Further, we believe it is
important that all the due process protections in Sec. Sec. 300.510
through 300.514 are maintained because of the importance of the rights
at issue in these hearings.
Changes: None.
Comment: One commenter recommended the regulations clarify that a
placement determination made by a hearing officer pursuant to his or
her authority under Sec. 300.532(b), regarding an appeal requested by
a parent who disagrees with the placement of a child, is final and
cannot be augmented by the SEA or LEA.
Discussion: Section 300.514, consistent with section 615(i)(1)(A)
of the Act, is clear that a hearing officer's decision made in a
hearing conducted pursuant to Sec. Sec. 300.530 through 300.534 is
final, except that a party may appeal the decision under the provisions
in Sec. 300.514(b). Absent a decision upon appeal, the SEA or the LEA
may not augment or alter the hearing officer's decision. We do not
believe that the regulations need to be clarified.
Changes: None.
Comment: One commenter recommended clarifying whether there is a
difference between ``likely to result in injury to child or others'' as
used in Sec. 300.532(b)(2)(ii) and ``child would be dangerous'' as
used in Sec. 300.530(b)(3). The commenter suggested that Sec.
300.532(b)(3), which permits the LEA to return to the hearing officer
to request continuation of an interim alternative education placement
if the LEA believes the child would be dangerous if returned to the
original placement, is a lesser standard than that required of the
hearing officer in Sec. 300.532(b)(2)(ii), which permits a hearing
officer to order a change in placement to an appropriate interim
alternative education setting 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.
Discussion: There is no intended difference between the phrase
``likely to result in injury to the child or others'' as used in Sec.
300.532(b)(2)(ii) and ``child would be dangerous'' as used in Sec.
300.532(b)(3). Section 300.532(b)(2)(ii) clarifies that the hearing
officer can order a change in placement of a child with a disability to
an 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 others. To avoid confusion, the term ``dangerous'' is
replaced with ``substantially likely to result in injury to the child
or to others.''
Changes: We have replaced the term ``dangerous'' in Sec.
300.532(b)(3) with ``substantially likely to result in injury to the
child or to others.''
Comment: A few commenters questioned whether the change from the
heading ``expedited due process hearings'' in current Sec. 300.528 to
``expedited hearing'' in Sec. 300.532(c) represents a change in the
hearings that are available under Sec. 300.532.
Discussion: The removal of ``due process'' from the heading in
current 300.528 does not represent a substantive change. The change was
made to track the statutory requirements in the Act. However, we
believe it is important to clarify that an expedited hearing under
Sec. 300.532(c) is a due process hearing and the heading to paragraph
(c) has been amended to retain the heading in current Sec. 300.528. We
also have made additional technical and clarifying changes to
paragraphs (c)(2) and (c)(3) of Sec. 300.532. In paragraph (c)(2) of
this section, we are clarifying that an expedited hearing must occur
within 20 school days of the date the complaint requesting the hearing
is filed and restructuring the paragraph for clarity. In paragraph
(c)(3) of this section, we are clarifying that the meeting referenced
in this paragraph is a resolution meeting.
Changes: The heading in Sec. 300.532(c) has been revised to
clarify that a hearing under paragraph (c) of this section is an
``expedited due process hearing.'' We have also made technical and
clarifying
[[Page 46725]]
changes to paragraphs (c)(2) and (c)(3) of this section.
Comment: Many commenters requested clarifying whether the
requirements in Sec. 300.508(d), regarding sufficiency of the
complaint, apply to the expedited hearing requested under Sec.
300.532(c), pertaining to disagreements with a decision regarding
disciplinary placements.
Discussion: In light of the shortened timelines for conducting an
expedited due process hearing under Sec. 300.532(c), it is not
practical to apply to the expedited due process hearing the sufficiency
provision in Sec. 300.508(d), which requires that the due process
complaint 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 include
all the necessary content of a complaint as required in Sec.
300.508(b).
To identify the provisions that do apply when a parent requests a
hearing under Sec. 300.532(a), we have changed Sec. 300.532(a) to
clarify that parents and the LEA may request a hearing under Sec.
300.532(a) by filing a complaint pursuant to Sec. Sec. 300.507 and
300.508(a) and (b).
Changes: We have changed Sec. 300.532(a) to provide that the
parent and the LEA may request a hearing under this section by filing a
complaint pursuant to Sec. Sec. 300.507 and 300.508(a) and (b).
Comment: Several commenters stated that section 615(k) of the Act
does not require a resolution meeting as part of an expedited hearing
and recommended removing the requirement in Sec. 300.532(c)(3)(i) that
a resolution meeting must occur within seven days of the date an
expedited hearing is requested under Sec. 300.532(a). One commenter
stated that, given the expedited timelines for the hearing and the
decision, Congress did not intend for the resolution meeting to apply
to an expedited hearing under section 615(k)(4) of the Act.
Discussion: We are not removing the requirement in Sec. 300.532(c)
requiring a resolution meeting because an expedited hearing under
section 615(k)(3) of the Act is a due process hearing subject to the
provisions in section 615(f) of the Act, including the requirement that
the LEA convene a resolution meeting when the parent files a due
process complaint. Recognizing the need to promptly resolve a
disagreement regarding a disciplinary decision, we believe the
resolution meeting provides an opportunity for an LEA and parents to
resolve a disagreement regarding a disciplinary placement or
manifestation determination before the timeframe for conducting a due
process hearing begins. In light of the requirement in section
615(k)(4)(B) of the Act that an expedited hearing must occur within 20
school days of the date the complaint requesting the hearing is filed
and a determination must be made within 10 school days after the
hearing, which is a much shorter time frame than the one for a due
process complaint filed pursuant to 615(f) of the Act, we shortened the
resolution meeting timeline to fit into the expedited hearing timeline.
Recognizing the need to ensure that the resolution meeting does not
delay the expedited hearing if an agreement is not reached, Sec.
300.532(c)(3) provides that the resolution meeting must occur within
seven days of receiving notice of the parent's due process complaint
regarding a disciplinary placement under Sec. Sec. 300.530 and
300.531, or the manifestation determination under Sec. 300.530(e), and
the hearing may proceed unless the matter is resolved within 15 days of
the receipt of the parent's due process complaint requesting the
expedited due process hearing, and all the applicable timelines for an
expedited due process hearing under paragraph (c) of this section
commence. However, the parties may agree to waive the resolution
meeting or agree to use the mediation process.
Changes: None.
Comment: Several commenters noted that Sec. 300.532(c)(3)(i)
states that a resolution meeting must occur within seven days of the
date the ``hearing is requested,'' while Sec. 300.510(a)(1),
consistent with section 615(f)(1)(B)(i)(I) of the Act, states that the
resolution meeting must occur within 15 days of ``receiving notice of
the due process complaint.'' The commenters recommended that the
Department amend Sec. 300.532(c)(3)(i) to be consistent with Sec.
300.510(a)(1).
Discussion: We agree with the commenters that the language in Sec.
300.532(c)(3)(i) should be consistent with Sec. 300.510(a)(1) and are
amending Sec. 300.532(c)(3)(i) to state that a resolution meeting must
occur within seven days of ``receiving notice of the parent's due
process complaint'' to be consistent with Sec. 300.510(a)(1). In
addition, for consistency, we are amending Sec. 300.532(c)(3)(ii) to
state that the due process hearing may proceed unless the matter has
been resolved to the satisfaction of both parties within 15 days of
``the receipt of the parent's due process complaint.''
Changes: Paragraphs (c)(3)(i) and (ii) of Sec. 300.532 have been
amended as stated above. Paragraph (c)(3) of this section has also been
amended to remove the cross-reference to Sec. 300.510(a)(3) and
specific explanatory language has been inserted.
Comment: One commenter asked whether the intent of Sec.
300.532(c)(3)(ii) is to allow the expedited hearing to go forward if
the parent fails to participate in the resolution meeting within 15
days of receipt of a hearing request or whether the resolution meeting
and hearing would be indefinitely delayed in the context of the
expedited hearing for the failure of a parent to participate in the
resolution meeting.
Discussion: Section 300.532(c)(3)(i) clearly states that the
resolution meeting must occur within seven days of a public agency's
receiving notice of the parent's due process complaint. It is not
expected that parties will necessarily reach agreement during the
resolution meeting; the parties often need time to consider the
resolution options offered at the meeting. The intent of Sec.
300.532(c)(3)(ii) is to allow parties sufficient time to consider the
resolution options discussed in the resolution meeting. However, if the
parties do not reach agreement within 15 days of receipt of the
parent's due process complaint, the expedited hearing may proceed and
all the applicable timelines for an expedited due process hearing under
paragraph (c) commence. Lack of parent participation in the resolution
meeting would be addressed the same way it is in a regular due process
hearing under Sec. 300.510(b), except that the timeframes will differ.
For these reasons, we believe it is unnecessary to clarify the
regulations.
Changes: None.
Comment: Several commenters recommended removing proposed Sec.
300.532(c)(4), which allows a State to shorten the time periods for the
disclosure of evidence, evaluations, and recommendations for expedited
due process hearings to two business days, because it will not give a
parent adequate time to prepare for hearings, especially when a parent
doesn't have a lawyer. One commenter stated that because LEAs have
possession and control of education records, a reduction to two days
for disclosure is unfair and creates a hardship on a parent in
preparing for the hearing. Other commenters stated that this provision
is inconsistent with section 615(f)(2) of the Act, which requires that
not less than five business days prior to a hearing, parties must
disclose all
[[Page 46726]]
evaluations and recommendations that parties intend to use at a
hearing. A few commenters stated that proposed Sec. 300.532(c)(4)
diminishes the protections for children with disabilities and their
parents found in the July 20, 1983 regulations, and, therefore,
violates section 607(b)(1) and (b)(2) of the Act.
Discussion: We are persuaded by the commenters that limiting the
disclosure time to two days would significantly impair the ability of
the parties to prepare for the hearing, since one purpose of the
expedited hearing is to provide protection to the child. We are
removing proposed Sec. 300.532(c)(4), which provides an exception to
the normal five day disclosure requirement.
Changes: We have removed proposed Sec. 300.532(c)(4) for the
reason stated above. In addition, proposed paragraphs (c)(5) and (c)(6)
of this section have been redesignated as paragraphs (c)(4) and (c)(5),
respectively. A technical edit has been made to paragraph (c)(1) of
this section to ensure the reference to proposed paragraphs (c)(2)
through (5) of this section now reference paragraphs (c)(2) through (4)
consistent with these changes.
Comment: Numerous commenters expressed concern that proposed Sec.
300.532(c)(5) (new Sec. 300.532(c)(4)), which permits States to
establish a different set of procedural rules for expedited due process
hearings, could permit States to re-write rules regarding basic
procedural safeguards. One commenter expressed concern that proposed
Sec. 300.532(c)(5) may lead to abuse if the rules from Sec. Sec.
300.511 through 300.514 regarding complaints, sufficiency, raising new
issues, losing on procedural grounds, and appeals are not part of the
expedited due process hearing requirements.
Discussion: We agree with the commenters that proposed Sec.
300.532(c)(5), as written, could be interpreted to give States
authority to change due process rules provided for in the Act.
Therefore, we are amending new Sec. 300.532(c)(4) (proposed Sec.
300.532(c)(5)) to clarify that while a State may establish different
State-imposed procedural rules for expedited due process hearings
conducted under this section than it has established for other due
process hearings, the State must ensure that the requirements in
Sec. Sec. 300.510 through 300.514 are met. This will ensure that the
basic protections regarding expedited hearings under the Act are met,
while enabling States, in light of the expedited nature of these
hearings, to adjust other procedural rules they have established for
due process hearings.
Changes: New Sec. 300.532(c)(4) (proposed Sec. 300.532(c)(5)) has
been amended to clarify that a State may establish different State
imposed rules for expedited due process hearings under Sec. 300.532(c)
than it has established for other due process hearings but, except for
the timelines modified as in paragraph (c)(3) of Sec. 300.532, the
State must ensure that the requirements in Sec. Sec. 300.510 through
300.514 are met.
Placement During Appeals (Sec. 300.533)
Comment: One commenter recommended retaining the ``stay-put''
requirement in current Sec. 300.526(b). This section provides that if
a child is placed in an interim alternative education setting and
school personnel propose to change the child's placement after
expiration of the interim alternative educational placement, during the
pendency of any proceeding to challenge the proposed change in
placement, the child must remain in the child's placement prior to the
interim alternative educational setting. One commenter requested
clarification as to whether the removal of current Sec. 300.526(b)
represents a substantive change in the Department's policy. Other
commenters requested clarifying what the child's placement would be
after the 45-day interim alternative educational setting if the LEA
requests another hearing under Sec. 300.532(b)(3).
Discussion: The Act changed the stay-put provision applying to
disciplinary actions. The provisions regarding stay-put in current
Sec. 300.527(b) are not included in these regulations because the
provisions upon which Sec. 300.527(b) were based, were removed by
Congress from section 615(k)(4) of the Act. We, therefore, are not
revising the regulations in light of Congress' clear intent that, when
there is an appeal under section 615(k)(3) of the Act by the parent or
the public agency, the child shall remain in the interim alternative
educational setting chosen by the IEP Team pending the hearing
officer's decision or until the time period for the disciplinary action
expires, whichever occurs first, unless the parent and the public
agency agree otherwise.
Section 300.533 reflects the statutory requirements in section
615(k)(4)(A) of the Act. For example, consistent with Sec. 300.533, if
a child's parents oppose a proposed change in placement at the end of a
45-day interim alternative educational placement, during the pendency
of the proceeding to challenge the change in placement, the child
remains in the interim alternative educational setting pending the
decision of the hearing officer or until the expiration of the time
period for the disciplinary action, whichever occurs first, unless the
parent and the public agency agree otherwise.
Changes: None.
Comment: One commenter recommended that LEAs and SEAs not be
allowed to have a policy prohibiting the IEP Team from deciding where
the child would ``stay-put'' during an appeal under Sec. 300.532. The
commenter stated that the IEP Team should have the authority to
maintain a child in his or her current placement when appropriate.
Discussion: Section 300.531, consistent with section 615(k)(2) of
the Act, provides that the IEP Team determines the interim alternative
educational setting for removals that constitute a change in placement
under Sec. 300.536. Additionally, section 615(k)(4)(A) of the Act is
clear that, during an appeal under section 615(k)(3) of the Act, the
child must remain in the interim alternative education setting pending
the decision of the hearing officer or until the expiration of the time
period for the disciplinary action expires, whichever comes first,
unless the parent and the LEA agree otherwise. Thus, under the Act,
whenever a hearing is requested under section 615(k)(3) of the Act by
the parent or the LEA, it is the parties involved in the hearing (i.e.,
the parent and the LEA), not the IEP Team, that may agree to change the
time period of the removal or the interim setting for the child. We,
therefore, do not believe it is necessary or appropriate to regulate as
suggested by the commenter. There is nothing in the Act or these
regulations, however, which would prohibit the parents and the LEA from
agreeing to involve the IEP Team in any decision to change the time
period of the removal or interim alternative educational setting.
Changes: None.
Protections of Children Not Determined Eligible for Special Education
and Related Services (Sec. 300.534)
Comment: A few commenters requested including in Sec.
300.534(b)(1) language allowing the parent of the child to express
concerns about his or her child orally to supervisory or administrative
personnel, rather than requiring written notification. Other commenters
requested clarifying what it means for parents to ``express concern''
to school personnel.
Discussion: Section 615(k)(5)(B)(i) of the Act clearly states that
parents must express concern ``in writing'' to supervisory or
administrative personnel, or a teacher of the child, that their child
[[Page 46727]]
is in need of special education and related services. To include the
language recommended by the commenters in Sec. 300.534(b)(1) to allow
the parent of the child to orally express their concerns (as opposed to
doing so in writing) is inconsistent with and would impermissibly
broaden the requirements in the Act. We do not believe it is necessary
to clarify the phrase ``express concern'' in Sec. 300.534(b) because
we believe that, in the context of this section, it is understood to
mean that a parent is concerned that his or her child is in need of
special education and related services and expresses that concern in
writing to the child's teacher or administrative personnel.
Changes: None.
Comment: One commenter recommended adding to the basis of knowledge
criteria in Sec. 300.534(b) that if the child were currently receiving
early intervening services under Sec. 300.226 the LEA would be deemed
to have knowledge that a child is a child with a disability.
Discussion: A public agency will not be considered to have a basis
of knowledge under Sec. 300.534(b) merely because a child receives
services under the coordinated, early intervening services in section
613(f) of the Act and Sec. 300.226 of these regulations. The basis of
knowledge criteria is clearly stated in section 615(k)(5)(B) of the Act
and Sec. 300.534. We do not believe that expanding the basis of
knowledge provision, as recommended by the commenter, would be
appropriate given the specific requirements in the Act. However, if a
parent or a teacher of a child receiving early intervening services
expresses a concern, in writing, to appropriate agency personnel, that
the child may need special education and related services, the public
agency would be deemed to have knowledge that the child is a child with
a disability under this part.
Changes: None.
Comment: A few commenters recommended removing the requirement in
Sec. 300.534(b)(3) that the teacher of the child must express specific
concerns regarding a child's pattern of behavior directly to the
director of special education of the LEA or to other supervisory
personnel of the LEA ``in accordance with the agency's established
child find or special education referral system.'' One of the
commenters stated that this language is confusing and is not required
by the Act. One commenter requested clarifying whether the LEA would be
deemed to have knowledge if the information was relayed by a child's
teacher in a written manner not consistent with the LEA's referral
system.
Discussion: Since not all child find and referral processes in
States and LEAs would necessarily meet the requirement in section
615(k)(5)(B)(iii) of the Act that the teacher of the child, or other
personnel of the LEA, must express specific concerns about a pattern of
behavior demonstrated by the child ``directly to the director of
special education of such agency or to other supervisory personnel of
the agency,'' we are removing from Sec. 300.534(b)(3) the requirement
that concerns be expressed in accordance with the agency's established
child find or special education referral system.
We continue to believe the child find and special education
referral system is an important function of schools, LEAs, and States.
School personnel should refer children for evaluation through the
agency's child or special education referral system when the child's
behavior or performance indicates that they may have a disability
covered under the Act. Having the teacher of a child (or other
personnel) express his or her concerns regarding a child in accordance
with the agency's established child find or referral system helps
ensure that the concerns expressed are specific, rather than casual
comments, regarding the behaviors demonstrated by the child and
indicate that the child may be a child with a disability under the Act.
For these reasons, we would encourage those States and LEAs whose child
find or referral processes do not permit teachers to express specific
concerns directly to the director of special education of such agency
or to other supervisory personnel of the agency, to change these
processes to meet this requirement.
Changes: In light of some State child find procedures, we have
removed from Sec. 300.534(b)(3) the requirement that the teacher or
other LEA personnel must express concerns regarding a child's pattern
of behavior in accordance with the agency's established child find or
special education referral system.
Comment: Several commenters recommended clarifying that a child who
was evaluated and determined ineligible for special education and
related services years ago would not be an exception under Sec.
300.534(c) to the basis of knowledge requirement in paragraph (b) of
this section. Many commenters recommended that an evaluation and
eligibility determination that is more than three years old not prevent
deeming an LEA to have a basis of knowledge. One of these commenters
specifically recommended revising Sec. 300.534(c)(1)(i) to clarify
that a public agency would not be deemed to have knowledge that a child
is a child with a disability if the parent of the child has not allowed
an evaluation of the child pursuant to Sec. Sec. 300.300 through
300.311 ``within three years prior to the incident.''
Discussion: The exceptions included in Sec. 300.534(c) track the
statutory requirements in section 615(k)(5)(C) of the Act. The intent
of Congress in revising section 615(k)(5) of the Act was to ``ensure
that schools can appropriately discipline students, while maintaining
protections for students whom the school had valid reason to know had a
disability'' and that the provisions in the Act should not have the
``unintended consequence of providing a shield against the ability of a
school district to be able to appropriately discipline a student.'' (S.
Rpt. No. 108-185, p. 46). We are not including time restrictions, as
suggested by the commenters, to the exceptions in paragraph (c) of this
section because we believe such restrictions are unnecessary and could
have the unintended consequence of hindering the school's ability to
appropriately discipline a child. We believe the basis of knowledge
provision in Sec. 300.534(b) is sufficient to ensure that a school had
valid reason to know that a child may need special education and
related services.
Changes: None.
Comment: A few commenters recommended removing Sec.
300.534(c)(1)(i), which states that a public agency would not be deemed
to have knowledge that a child is a child with a disability if the
parent has not allowed an evaluation of the child pursuant to
Sec. Sec. 300.300 through 300.311. The commenters stated that this
would deny children with disabilities FAPE and the procedural
protections granted children with disabilities removed from their
educational placement for disciplinary reasons.
Discussion: The requirement in Sec. 300.534(c)(1)(i), regarding
the exception to the basis of knowledge if a parent refuses to consent
to an evaluation, is statutory. Further, Sec. 300.300(a)(3),
consistent with section 614(a)(1)(D)(ii)(I) of the Act, clearly states
that the public agency may, but is not required to, pursue an initial
evaluation of a child if the parents refuse to provide consent, or fail
to respond to a request to provide consent, for the initial evaluation,
by utilizing the Act's due process procedures. If a public agency
chooses not to utilize the Act's due process procedures, the LEA
[[Page 46728]]
is not considered in violation of the requirement to provide FAPE.
Changes: None.
Comment: A few commenters recommended retaining in Sec.
300.534(c)(2) the language in current Sec. 300.527(c)(1)(i) to clarify
that the evaluation used to determine whether a child is a child with a
disability under this part must be conducted pursuant to Sec. Sec.
300.300 through 300.311.
Discussion: It is accurate that the evaluation referenced in Sec.
300.534(c)(2) must be conducted consistent with the evaluation
requirements in Sec. Sec. 300.300 through 300.311. We agree with the
commenters that paragraph (c)(2) of this section should be amended to
make clear that the evaluation conducted under this paragraph must be
conducted consistent with the evaluation requirements in Sec. Sec.
300.300 through 300.311.
Changes: We have amended paragraph (c)(2) to make clear that the
evaluation under this provision must be conducted in accordance with
Sec. Sec. 300.300 through 300.311.
Comment: A few commenters recommended amending Sec. 300.534(d)(2)
to require that if a request is made for an evaluation of a child
during the time period in which the child is subjected to a
disciplinary removal under Sec. 300.530, the evaluation must be
completed within ten days of the parent's request and that an
eligibility determination be made within five days of the completion of
the evaluation.
Discussion: We do not believe a specific timeline for an expedited
evaluation or an eligibility determination should be included in these
regulations. What may be required to conduct an evaluation will vary
widely depending on the nature and extent of a child's suspected
disability and the amount of additional information that would be
necessary to make an eligibility determination. However, Sec.
300.534(d)(2)(i), consistent with section 615(k)(5)(D)(ii) of the Act,
specifies that the evaluation in these instances be ``expedited'',
which means that an evaluation should be conducted in a shorter period
of time than a typical evaluation conducted pursuant to section 614 of
the Act, which must be conducted within 60 days of receiving parental
consent for the evaluation. (See section 614(a)(1)(C)(i)(I) of the
Act). Further, we believe it would be inappropriate to specify the
timeframe from the completion of an evaluation to the determination of
eligibility when there is no specific statutory basis to do so. The
Department has long held that eligibility decisions should be made
within a reasonable period of time following the completion of an
evaluation.
Changes: None.
Comment: A few commenters stated that Sec. 300.534(d)(2) seems to
imply that when a request is made for an expedited evaluation of a
child subjected to a disciplinary removal, the child would receive an
educational placement and services pending the results of the
evaluation.
Discussion: We believe that Sec. 300.534(d) is clear. Section
300.534(d) does not require the provision of services to a child while
an expedited evaluation is being conducted, if the public agency did
not have a basis of knowledge that the child was a child with a
disability. An educational placement under Sec. 300.534(d)(2)(ii) may
include a suspension or expulsion without services, if those measures
are comparable to disciplinary measures applied to children without
disabilities who engage in comparable behavior. Of course, States and
LEAs are free to choose to provide services to children under Sec.
300.534(d).
Changes: None.
Referral to and Action by Law Enforcement and Judicial Authorities
(Sec. 300.535)
Comment: One commenter stated that the requirement in Sec.
300.535(b)(2), which requires a public agency reporting a crime to
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 (FERPA), is beyond the scope
of the Act and should be removed.
Discussion: We do not believe that Sec. 300.535(b)(2) goes beyond
the scope of the Act as sections 612(a)(8) and 617(c) of the Act direct
the Secretary to take appropriate action, in accordance with FERPA, to
assure the confidentiality of personally identifiable information
contained in records collected or maintained by the Secretary and by
SEAs and LEAs. We therefore are not removing this provision. We
maintain that the provisions in section 615(k)(6)(B) of the Act, as
reflected in Sec. 300.535(b)(2), must be read consistent with the
disclosures permitted under FERPA for the education records of all
children. Under FERPA, personally identifiable information (such as the
child's status as a special education child) can only be released with
parental consent, except in certain very limited circumstances.
Therefore, the transmission of a child's special education and
disciplinary records under paragraph (b)(2) of this section without
parental consent is permissible only to the extent that such
transmission is permitted under FERPA.
Changes: None.
Change of Placement Because of Disciplinary Removals (Sec. 300.536)
Comment: A few commenters expressed concern that the requirements
in Sec. 300.536 do not account for schools with zero tolerance
policies.
Discussion: We believe the provisions in Sec. Sec. 300.530 through
300.536 do account for zero tolerance policies by providing public
agencies the flexibility to implement discipline policies as they deem
necessary to create safe classrooms and schools for teachers and
children as long as those policies are fair and equitable for all
children and protect the rights of children with disabilities. If a
child with a disability is removed from his or her current placement
and placed in an interim alternative educational setting, another
setting, or suspended or expelled under the public agency's zero
tolerance policy, the disciplinary requirements in Sec. Sec. 300.530
through 300.536 apply. Therefore, we do not believe it is necessary to
include language in Sec. 300.536 regarding a public agency's zero
tolerance policy as such policies are irrelevant to what constitutes a
change in placement for disciplinary removals under the Act.
Changes: None.
Comment: Many commenters recommended removing proposed Sec.
300.536(b) (new Sec. 300.536(a)(2)) regarding a series of removals
that constitute a change in placement stating it has no statutory
basis.
Discussion: We believe section 615(k)(1)(B) of the Act regarding
the authority of school personnel to remove children with disabilities
for not more than 10 school days, to the same extent as nondisabled
children, provides the statutory basis for proposed Sec. 300.536(b)
(new Sec. 300.536(a)(2)). This section of the Act does not permit
using repeated disciplinary removals of 10 school days or less as a
means of avoiding the normal change in placement protections under Part
B of the Act.
Changes: None.
Comment: Numerous commenters recommended removing the reference to
manifestation determination in proposed Sec. 300.536(b)(2) (new Sec.
300.536(a)(2)(ii)). Several of these commenters stated that it is
unnecessary since the manifestation determination is reserved for
removals longer than 10 school days. Some commenters stated if the
language in proposed paragraph (b)(1) of this section (new paragraph
(a)(2)(i) of this section) that a series of removals constitutes a
pattern because
[[Page 46729]]
the series of removals total more than 10 school days in a school year
is going to be retained, proposed paragraph (b)(2) of this section (new
paragraph (a)(2)(ii) of this section) should be eliminated because it
is excessive and has no basis in the Act. Other commenters found the
manifestation determination requirement in proposed paragraph (b)(2) of
this section ``circular'' because requiring a child's behavior to be a
manifestation of his or her disability before determining that a change
in placement has occurred under proposed paragraph (b)(2) of this
section (new paragraph (a)(2)(ii) of this section) and then requiring
that a manifestation determination be conducted under Sec. 300.530(e),
whenever a child's removal constitutes a change in placement, is
redundant and confusing.
Discussion: We agree with the commenters that requiring that a
child's behavior must be a manifestation of the child's disability
before determining that a series of removals constitutes a change in
placement under proposed paragraph (b) of this section (new paragraph
(a)(2) of this section) should be removed. We believe it is sufficient
for the public agency to conclude that a change in placement has
occurred if a child has been subjected to a series of removals that
total more than 10 school days in a school year, the behaviors are
substantially similar in nature, and 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 support the
premise that the series of removals constitute a pattern. However, our
removal of the manifestation determination under proposed paragraph
(b)(2) of this section (new paragraph (a)(2) of this section) does not
eliminate the obligation to conduct a manifestation determination under
Sec. 300.530(e) if the public agency's determination is that the
series of removals constitutes a change in placement. Section
300.530(e) requires that a manifestation determination be conducted
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.
Changes: We have restructured proposed Sec. 300.536(b) as follows:
Proposed paragraph (b)(1) of this section is redesignated as new
paragraph (a)(2)(i); proposed paragraph (b)(2) of this section is
redesignated as new paragraph (a)(2)(ii); proposed paragraph (b)(3) of
this section is redesignated as paragraph (a)(2)(iii). We also removed
from new paragraph (a)(2)(ii) of this section (proposed paragraph
(b)(2) of this section) the requirement that a child's behavior must
have been a manifestation of the child's disability before determining
that a series of removals constitutes a change in placement under Sec.
300.536.
Comment: One commenter recommended revising proposed Sec.
300.536(b)(2) (new Sec. 300.536(a)(2)(ii)) to clarify that the child's
behavior must be substantially similar to the child's behavior in
``previous'' incidents that resulted in the series of removals.
Discussion: Our intent in including new Sec. 300.536(a)(2)(ii)
(proposed Sec. 300.536(b)(2)) to these regulations is to assist in the
appropriate application of the change in placement provisions in
paragraph (a)(2) of this section. We concur with the commenter and
believe adding the reference to ``previous'' incidents provides clarity
to the provision that, when determining whether a child has been
subjected to a series of removals that constitute a pattern under Sec.
300.536(a)(2), school personnel should determine whether the child's
behavior that resulted in the removal is substantially similar to the
previous incidents that resulted in the series of removals.
Changes: New Sec. 300.536(a)(2)(ii) (proposed Sec. 300.536(b)(2))
has been amended to reference the child's behavior in ``previous''
incidents that resulted in the series of removals.
Comment: Many commenters requested the regulations define
``substantially similar behavior.'' Many commenters expressed concern
that there is no precedent or statutory support for the use of
``substantially similar behavior'' and requested explaining the
statutory basis for including the provision. One commenter suggested
including a provision in proposed Sec. 300.536(b)(2) that
substantially similar behaviors must have been recognized by the IEP
Team or be included in the IEP as related to the child's disability.
One commenter stated that what constitutes ``substantially similar
behavior'' is highly subjective, prone to overuse, and likely to lead
to litigation.
Discussion: We are not changing the regulations because, in light
of the Department's longstanding position that a change in placement
has occurred if a child has been subjected to a series of disciplinary
removals that constitute a pattern, we believe requiring the public
agency to carefully review the child's previous behaviors to determine
whether the behaviors, taken cumulatively, are substantially similar is
an important step in determining whether a series of removals of a
child constitutes a change in placement, and is necessary to ensure
that public agencies appropriately apply the change in placement
provisions. Whether the behavior in the incidents that resulted in the
series of removals is ``substantially similar'' should be made on a
case-by-case basis and include consideration of any relevant
information regarding the child's behaviors, including, where
appropriate, any information in the child's IEP. However, we do not
believe it is appropriate to require in these regulations that the
``substantially similar behaviors'' be recognized by the IEP Team or
included in the child's IEP as recommended by the commenter. The
commenter is correct that what constitutes ``substantially similar
behavior'' is a subjective determination. However, we believe that when
the child's behaviors, taken cumulatively, are objectively reviewed in
the context of all the criteria in paragraph (a)(2) of this section for
determining whether the series of behaviors constitutes a change in
placement, the public agency will be able to make a reasonable
determination as to whether a change in placement has occurred. Of
course, if the parent disagrees with the determination by the public
agency, the parent may request a due process hearing pursuant to Sec.
300.532.
Changes: None.
Comment: One commenter requested an explanation of what recourse
parents have if they disagree with the public agency's change in
placement decision for a child who violates a code of student conduct.
Discussion: If a parent of a child with a disability disagrees with
any decision regarding a disciplinary change in placement of a child
under Sec. Sec. 300.530 and 300.531, or the manifestation
determination under Sec. 300.530(e), the parent may request a due
process hearing pursuant to Sec. 300.532.
Changes: None.
Comment: Several commenters requested clarifying who determines
whether a series of removals under proposed Sec. 300.536(b) (new
paragraph (a)(2) of this section) constitutes a change in placement.
One commenter recommended adding in proposed paragraph (b) language
from the Analysis of Comments and Changes to current Sec. 300.520
clarifying that any decision regarding whether a pattern of removals
constitutes a change in placement must be made on a case-by-case basis
by the public agency. (March 12, 1999 (64 FR 12618)).
Discussion: Whether a pattern of removals constitutes a ``change in
placement'' under new paragraph (a)(2) of this section (proposed Sec.
300.536(b)) must be determined on a case-by-case
[[Page 46730]]
basis by the public agency. We agree it is important to clarify this
position in these regulations and is necessary to ensure proper
implementation of this section. We are including the language from the
Federal Register of March 12, 1999 (64 FR 12618), (as suggested by the
commenter.
Changes: A new paragraph (b) has been added to Sec. 300.536 to
clarify that the public agency (subject to review through the due
process and judicial proceedings) makes the determination, on a case-
by-case basis, whether a pattern of removals constitutes a change in
placement.
State Enforcement Mechanisms (Sec. 300.537)
Comment: None.
Discussion: New Sec. 300.537 is addressed under the Analysis of
Comments and Changes section for this subpart in response to comments
on Sec. 300.510(d).
Changes: We have added a new Sec. 300.537 on State enforcement
mechanisms to clarify that, notwithstanding Sec. Sec. 300.506(b)(7)
and new 300.510(d)(2)(proposed Sec. 300.510(c)(2)), nothing in this
part prevents a State from providing parties to a written agreement
reached as a result of a mediation or resolution process other
mechanisms to enforce that agreement, provided that such mechanisms are
not mandatory and do not deny or delay the right of the parties to seek
enforcement of the written agreement in a State court of competent
jurisdiction or in a district court of the United States. We have also
added a cross reference to new Sec. 300.573 in new Sec. 300.510(d)
(proposed Sec. 300.510(c)), regarding written settlement agreements.
Subpart F--Monitoring, Enforcement, Confidentiality, and Program
Information
Monitoring, Technical Assistance, and Enforcement
State Monitoring and Enforcement (Sec. 300.600)
Comment: Several commenters recommended modifying Sec. 300.600 to
include language from section 616(a)(1) and (a)(3) of the Act to
clarify that the Department, like the States, has the authority and
obligation to monitor and enforce Part B of the Act. The commenters
recommended that the requirements in section 616(a)(1) of the Act be
included in the regulations because improving accountability is one of
the most important goals of this reauthorization and the Act mandates
the Secretary to monitor and enforce the Act.
Discussion: We take the responsibility to monitor and enforce
compliance with the Act seriously, but that responsibility comes from
the Act, and from the Department's inherent authority to ensure that
the laws it is charged with implementing are carried out, and not from
these regulations. In general, we do not believe that it is necessary
to include language on the responsibility of the Secretary in the
regulations, as, under Sec. 300.2, the regulations apply to States
that receive payments under Part B of the Act and public agencies of
those States, but not to the Department. Information on our monitoring
and enforcement activities is available on the Department's Web site
at: http://www.ed.gov/policy/speced/guid/idea/monitor/index.html.
Changes: None.
Comment: Several commenters stated that the monitoring priority
areas in section 616(a)(3) of the Act should be included in Sec.
300.600.
Discussion: We agree that the monitoring priority areas in section
616(a)(3) of the Act related to State responsibilities should be
included in the regulations because these provisions require each State
to monitor its LEAs in each of the monitoring priority areas specified
in the Act. Accordingly, we will add further clarification regarding
the monitoring priority areas from section 616(a)(3) of the Act in
Sec. 300.600.
Changes: A new paragraph (d) has been added to Sec. 300.600 to
include the State monitoring priority areas in section 616(a)(3) of the
Act.
Comment: One commenter expressed concern that there will be no
accountability on the part of States and the Department for complying
with the requirements in section 616(a)(1) and (a)(3) of the Act
because the regulations do not reflect these requirements.
Discussion: The requirements in section 616(a)(1) of the Act,
relating to a State's monitoring responsibilities, are included in the
regulations in Sec. 300.600(a). Further, as indicated in the response
to the previous comment, a provision regarding the State's
responsibility to monitor LEAs located in the State using the
indicators in the monitoring priority areas in section 616(a)(3) of the
Act has been added in new Sec. 300.600(d). Regarding the Secretary's
monitoring responsibility, section 616(a)(1) of the Act is clear that
the Secretary must monitor implementation of Part B of the Act through
the oversight of States' exercise of general supervision and through
the State performance plans. Sections 616(a)(3) and 616(b) further
describe the Secretary's responsibilities to monitor States'
implementation of Part B of the Act. In addition, note 253-258 of the
Conf. Rpt. No. 108-779, p. 232, provides that the Secretary must
request such information from States and stakeholders as is necessary
to implement the purposes of the Act, including the use of on-site
monitoring visits and file reviews to enforce the requirements of the
Act. We continue to believe it is unnecessary to include the
Secretary's obligations in the regulations. We also do not believe
further clarification regarding State accountability is necessary in
Sec. 300.600.
Changes: None.
Comment: One commenter noted that Sec. 300.600(c) requires States
to use quantifiable indicators and such qualitative indicators as are
needed to adequately measure performance in the monitoring priority
areas identified in section 616(a)(3) of the Act. The commenter
expressed concern that this requirement expands the data collection
burden on States and focuses on inputs, processes, and whether certain
procedural rights are met, rather than focusing on educational results
and outcomes for children with disabilities.
Discussion: Section 300.600 reflects the requirements in the Act
and Congress' determination that collection of this data is necessary
to fulfill the purposes of the Act. Specifically, section 616(b)(2) of
the Act requires each State to develop a State performance plan that
includes measurable and rigorous targets for the indicators established
under the monitoring priority areas. As directed by section 616(a)(3)
of the Act, the Secretary also has established quantifiable indicators
in each of the monitoring priority areas listed in the Act and these
regulations. These indicators focus on improving educational results
and functional outcomes for children with disabilities, and include
issues such as the provision of services in the LRE, participation and
performance on Statewide assessments, and graduation and dropout rates.
In addition, important systemic indicators, such as monitoring,
mediation, and child find, are included. More information about State
performance plans, the indicators, and the Department's review of the
State performance plans is available on the Department's Web site at:
http://www.ed.gov/policy/speced/guid/idea/bapr/index.html.
Changes: None.
Comment: One commenter recommended changing Sec. 300.600 to
require States to develop policies and procedures to analyze the
performance
[[Page 46731]]
of each public agency; develop written policies and procedures to guide
monitoring activities; and develop and maintain a stakeholder group,
which would include public school administrators, advocates, family
members, and others, to guide monitoring and enforcement activities.
Discussion: Section 300.149(b), consistent with section 612(a)(11)
of the Act, already requires States to have policies and procedures in
effect to ensure compliance with the monitoring and enforcement
requirements in Sec. Sec. 300.600 through 300.602 and Sec. Sec.
300.606 through 300.608. Sections 300.167 through 300.169, consistent
with section 612(a)(21) of the Act, require States to establish and
maintain an advisory panel with broad and diverse representation to
advise States on, among other things, developing evaluations and
corrective action plans to address findings identified in Federal
monitoring reports. Accordingly, we do not believe any modification of
Sec. 300.600, regarding State monitoring procedures, is necessary.
Changes: None.
Comment: Several commenters recommended modifying Sec. 300.600 to
require States to establish a committee, which includes advocates to
oversee monitoring and enforcement activities. A number of commenters
suggested that this group, at a minimum, include representatives of
PTIs; protection and advocacy groups; and parent, disability advocacy,
and education organizations.
Several commenters also recommended requiring the advisory
committee to provide advice on the development of the State's
performance goals and indicators required in Sec. 300.157, the State's
performance plan, including measurable and rigorous targets required in
Sec. 300.601(a)(1) and (a)(3), the State's report to the public
required in Sec. 300.602(b)(2), the State's corrective action or
improvement plan under Sec. 300.604(b)(2)(i), and other State
monitoring, improvement, and enforcement activities.
Discussion: The State advisory panel, required in Sec. Sec.
300.167 through 300.169, consistent with section 612(a)(21)(A) of the
Act, addresses many of the commenters' suggestions. The purpose of the
State advisory panel, as stated in Sec. 300.167 and section
612(a)(21)(A) of the Act, is to provide policy guidance to the SEA with
respect to special education and related services for children with
disabilities. Pursuant to Sec. 300.168 and section 612(a)(21)(B) of
the Act, a broad membership is required. The duties of the panel are,
among other things, to advise the SEA on unmet needs, evaluations, and
corrective action plans to address findings identified in Federal
monitoring reports, consistent with Sec. 300.169 and section
612(a)(21)(D) of the Act. However, although we believe that broad
stakeholder involvement in the development of the State performance
plans and annual performance reports is very important, we decline to
regulate that a specific group be involved in their development. We
have, however, provided guidance in OSEP's August 9, 2005 memorandum to
States, Submission of Part B State Performance Plans and Annual
Performance Reports, (OSEP Memo 05-12), located at http://www.ed.gov/policy/speced/guid/idea/bapr/index.html, which directs States to
provide information in their State performance plans on how they
obtained broad input from stakeholders on the State performance plan.
Accordingly, we find it unnecessary to add any further clarification in
Sec. 300.600.
Changes: None.
Comment: Some commenters recommended modifying Sec. 300.600(b)(2)
to clarify that monitoring and enforcement activities also apply to
programs under Part C of the Act. A few commenters suggested clarifying
that Part C of the Act should be monitored to evaluate how well it
serves infants and toddlers with disabilities and their families.
Discussion: Section 300.600 applies only to Part B of the Act.
However, the commenters are correct that the monitoring and enforcement
activities in section 616 of the Act also apply to Part C of the Act,
as provided in section 642 of the Act. The Department will address this
recommendation in the promulgation of regulations implementing Part C
of the Act.
Changes: None.
Comment: A few commenters recommended clarifying that the
monitoring priority in section 616(a)(3)(A) of the Act, relating to the
provision of FAPE in the LRE, should be based on the unique needs of
the individual child. One commenter stated that the regulations should
stress individualization when determining LRE. This commenter
recommended including language from note 89 of the Conf. Rpt. No. 108-
779, p. 186, which highlights Congress' intent 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.''
Discussion: Section 300.115, consistent with section 612(a)(5) of
the Act, requires each public agency to ensure that a continuum of
alternative placements (including 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 LRE
provisions are intended to ensure that a child with a disability is
served in a setting where the child can be educated successfully and
that placement decisions are individually determined based on each
child's abilities and needs. We do not believe that the change
recommended by the commenter is needed.
Changes: None.
Comment: One commenter recommended changing Sec. 300.600 to
specify that the Department's monitoring of States for compliance with
the LRE requirements in Sec. Sec. 300.114 through 300.117 include a
review of IEPs to determine if: (1) Placements were based on the
individual unique needs of each child; (2) placements were requested by
parents; (3) IEP Teams followed the IEP requirements in Sec. Sec.
300.320 through 300.328; (4) children received the services required to
participate and progress in the general curriculum; (5) children are in
appropriate environments; and (6) the educational and emotional
advancements of children were considered. The commenter recommended
adding language to direct individuals who monitor the implementation of
the Act to look further than ``numbers'' when monitoring the LRE
requirements.
Discussion: As noted in section 616(a)(1) of the Act, the Secretary
monitors implementation of the Act through oversight of States'
exercise of general supervision and States' performance plans. Section
616(a)(1) of the Act further states that the Secretary requires States
to monitor and enforce the implementation of the Act by LEAs. The
activities listed by the commenter are not the type of monitoring
activities the Act requires the Secretary to undertake. The commenter's
listed activities are more appropriately the responsibilities of States
as they monitor the implementation of the Act in their LEAs.
Changes: None.
Comment: One commenter recommended avoiding references to the Act
in Sec. Sec. 300.600 through 300.609 when references to the
regulations could accomplish the same result.
[[Page 46732]]
Discussion: We agree with the commenter and will revise Sec. Sec.
300.600 through 300.609 accordingly.
Changes: We have revised Sec. Sec. 300.600 through 300.609 by
replacing statutory citations with relevant regulatory citations, where
appropriate.
Comment: One commenter recommended clarifying that racial
disproportionality in educational placements falls within the
monitoring priority areas for monitoring and enforcement.
Discussion: New Sec. 300.600(d), consistent with section 616(a)(3)
of the Act, includes disproportionate representation of racial and
ethnic groups in special education and related services (to the extent
the representation is the result of inappropriate identification) as a
monitoring priority. Because the monitoring priority area clearly
refers to disproportionate representation to the extent the
representation is a result of inappropriate identification of children
with disabilities, and not placement, we do not believe we can include
disproportionate representation resulting from educational placement
within the scope of this monitoring priority area.
Changes: None.
Comment: One commenter recommended including a requirement in Sec.
300.600(c) that States develop corrective action plans for each LEA
monitored to improve performance in the monitoring priority areas. The
commenter also suggested requiring that corrective action plans be
completed by the State within one year of the monitoring report.
Discussion: Section 300.600(a), consistent with section
616(a)(1)(C) of the Act, requires States to monitor implementation and
enforcement of the Act. As discussed elsewhere in this section in
response to comments regarding Sec. 300.604 (Enforcement), we have
revised Sec. 300.600(a) to identify the specific enforcement actions
included in Sec. 300.604 that are appropriate for States to use with
LEAs. The new Sec. 300.600(a) identifies specific methods that must be
used to ensure correction when an LEA has been determined to need
assistance for two consecutive years or to need intervention for three
or more consecutive years. For example, Sec. 300.600(a) refers to
Sec. 300.604(b)(2)(i), which discusses the preparation of a corrective
action or improvement plan. In addition, new Sec. 300.608(b) clarifies
that States can use other authority available to them to monitor and
enforce the Act. States need the flexibility to select the most
appropriate mechanism to ensure correction in a timely manner.
Requiring that corrective action plans be developed in every instance
is overly prescriptive when there are multiple methods that can be
used. Accordingly, we do not think it is necessary to make the change
suggested by the commenter.
Changes: None.
State Performance Plans and Data Collection (Sec. 300.601)
Comment: One commenter expressed concern that Sec. 300.601(a)(3)
and (b)(1) over-regulate by requiring measurable and rigorous targets
beyond those established in the Act. The commenter expressed concern
that this would result in additional data collection and analyses and
require substantial administrative staff time and additional costs at
the State and local levels. The commenter stated that, while the
Department may monitor any area and review any data, it is unnecessary
to establish additional non-statutory indicators and targets.
Discussion: Section 300.601(a)(3), consistent with section
616(a)(3) of the Act, requires the Secretary to establish indicators to
adequately measure performance in the monitoring priority areas. Under
section 616(b)(2)(A) of the Act, States are required to establish
measurable and rigorous targets for the indicators established under
the monitoring priority areas described in section 616(a)(3). The
Department established indicators only in the three monitoring priority
areas listed in new Sec. 300.600(d), consistent with section 616(a)(3)
of the Act. Given that States are required to establish targets for
indicators established under the monitoring priority areas and
indicators were established only under the three statutory monitoring
priority areas, the Secretary is not requiring measurable and rigorous
targets in areas beyond those established in the Act. We disagree with
the commenter and do not believe the Department has over-regulated in
this area.
Changes: None.
Comment: A few commenters recommended changing Sec. 300.601 to
specify that States must provide an opportunity for public comment in
developing the State performance plan.
Discussion: We agree that the public should be represented in
developing State performance plans. In note 253-258 of the Conf. Rpt.
No. 108-779, p. 232, Congress stated its expectation that State
performance plans, indicators, and targets be developed with broad
stakeholder input and public dissemination. OSEP Memo 05-12 requires
States to provide information in the overview section of the State
performance plan, clarifying how the State obtained broad input from
stakeholders on the State performance plan. Furthermore, Sec. Sec.
300.167 through 300.169 clarify the State's responsibility to establish
and maintain an advisory panel, whose membership consists of broad and
diverse representation, to advise States on many issues, including
developing evaluations and reporting on data to the Secretary.
Accordingly, we believe that no additional clarification is needed.
Changes: None.
Comment: One commenter expressed concern that the requirement in
Sec. 300.601(a)(3) reflects a ``one-size-fits-all'' approach that is
not in the Act because it requires the Secretary to establish
indicators for the State performance plan and annual performance
reports and requires States to collect data on each of the indicators.
Discussion: Section 616(a)(3) of the Act requires the Secretary to
establish quantifiable indicators in each of the monitoring priority
areas, and qualitative indicators, as needed, to adequately measure
performance. Section 300.601(a) reflects this requirement. The
requirement that each State establish measurable and rigorous targets
for the indicators established by the Secretary and collect relevant
data is set forth in section 616(b)(2)(B) of the Act. We do not agree
that this presents a one-size-fits-all approach because States set
their own targets for indicators such as graduation, dropout, and
performance on assessments, and identify improvement strategies
specific to the unique circumstances of their State. In addition, OSEP
Memo 05-12 includes the indicators established by the Secretary and
also indicates that States have the flexibility to establish their own
indicators, in addition to the indicators established by the Secretary.
Changes: None.
Comment: One commenter recommended amending Sec. 300.601 to
specify that, as part of the State's performance plan, measurable and
rigorous targets are only required for the indicators established by
the Secretary and are not required for any additional indicators
established by the State.
Discussion: Pursuant to the guidance in OSEP Memo 05-12, the
Secretary has established indicators under the three monitoring
priority areas in new Sec. 300.600(d), consistent with section
616(a)(3) of the Act. States may choose to add additional indicators if
there are other areas the State wishes to improve. If the State adds
indicators to the State Performance Plan, the State must include
measurable and rigorous targets for each additional indicator because
the purpose of the State performance
[[Page 46733]]
plan is to evaluate the State's efforts to implement the statutory
requirements and describe how the State will improve. States are free
to have additional indicators that are not included in the State
performance plan and these indicators would not need to have measurable
and rigorous targets.
Changes: None.
State Use of Targets and Reporting (Sec. 300.602)
Comment: A few commenters recommended modifying Sec.
300.602(b)(1)(A) to require each LEA to work with an LEA monitoring
stakeholder advisory committee that would advise the LEA on analyzing
and reporting its performance on the targets in the State performance
plan and on developing LEA plans. The commenters stated that, at a
minimum, the advisory committee should include representatives of
parents, disability advocacy groups, and other organizations.
Discussion: There is nothing in section 616 of the Act that
requires LEAs to establish local stakeholder groups. Given the wide
variation in the size of LEAs across the country and the wide variety
of issues facing those LEAs, we do not believe that a Federal
requirement is appropriate. States have the discretion to establish (or
have their LEAs establish) local advisory groups to advise the LEAs, if
they so choose.
Changes: None.
Comment: One commenter recommended modifying Sec. 300.602 to
require each State to include LEA corrective action plans (including
indicators, targets, findings, and timelines for LEAs to correct any
findings) in the State's report to the public on the performance of
each LEA in the State on the targets in the State's performance plan.
Discussion: Section 300.602, consistent with section 616(b)(2)(C)
of the Act, requires States to report annually on the performance of
each LEA against targets in the State performance plan. We believe
requiring States to include LEAs' corrective action plans in the
States' public reports would create additional burden for States that
is not required by the Act.
Changes: None.
Comment: Several commenters recommended revising Sec. 300.602 to
specify that the State performance plan and the public report on LEAs'
performance must be in language that is accessible to, and
understandable by, all interested parties.
Discussion: The Department expects the information that a State
reports in its annual performance reports and in the public reports on
LEA performance will be made available in an understandable and uniform
format across the State, including alternative formats upon request,
and, to the extent practicable, in a language that parents understand.
We do not believe it is necessary to add a specific requirement to the
regulations because other Federal laws and policies already require
that information to parents be available in alternative formats and to
parents who are limited English proficient. Specifically, Title VI of
the Civil Rights Act of 1964 requires SEAs and LEAs to communicate to
parents with limited English proficiency what is communicated to
parents who are not limited English proficient. Under Title VI, SEAs
and LEAs have flexibility in determining what mix of oral and written
translation services may be necessary and reasonable for communicating
this information. Similarly, Executive Order 13166 requires that
recipients of Federal financial assistance take reasonable steps to
ensure meaningful access by individuals with limited English
proficiency. For individuals with disabilities, title II of the
Americans with Disabilities Act requires that State and local
governments, and Section 504 of the Rehabilitation Act of 1973 requires
that recipients of Federal financial assistance, ensure that their
communications with individuals with disabilities are as effective as
their communications with others, and that appropriate auxiliary aids
and services are available when necessary to ensure effective
communication.
Changes: None.
Comment: One commenter suggested that the annual performance report
include cross-references or links to the State report card and local
report cards on the academic performance of children with disabilities
under the ESEA.
Discussion: States may choose, but are not required, to include in
the annual performance report the cross-references or links suggested
by the commenter. States also may choose, but are not required, to use
their ESEA report cards for reporting annually on the performance of
LEAs on the indicators in the State performance plan. We do not believe
it is appropriate to require States to cross-reference or link to ESEA
report cards because it is overly burdensome and may create confusion
because the indicators and timeframe for reporting may not be the same
between the two reporting systems.
Changes: None.
Comment: One commenter recommended requiring States to post their
monitoring reports of LEAs on the States' Web site and make reports on
monitoring activities for each LEA available to the public in written
format and to the media.
Discussion: States have the discretion to decide how these reports
are made available to the public. There is nothing in the Act that
requires States to post monitoring reports of LEAs on the States' Web
site or through other means. However, States may, if they wish, make
such postings.
Changes: None.
Comment: One commenter suggested removing Sec. 300.602(b)(1)(ii),
which requires a State to include in its report to the public on the
performance of each LEA, the most recent performance data on each
individual LEA and the date the data were obtained, if the State
collects these data through monitoring or sampling.
Discussion: We believe that the data we are requiring the States to
provide under Sec. 300.602(b)(1)(ii) are necessary for the proper
implementation of the Act. Providing the most recent LEA performance
data and the date the data were obtained will reduce data burden while
maintaining the States' accountability for results, specifically
related to indicator data that are more difficult to collect because
those data are not collected through State-reported data collection
systems under section 618 of the Act. However, the proposed regulations
were not as clear as they should have been about the conditions under
which States may use monitoring and sampling data. Therefore, we are
revising Sec. 300.601(b) by adding a new provision that specifies that
if the Secretary permits States to collect data on specific indicators
through State monitoring or sampling, and a State chooses to collect
data on those indicators through State monitoring or sampling, the
State must collect data on those indicators on each LEA at least once
during the period of the State performance plan. This will require that
States collect data to assess each LEA's performance on indicators for
which State monitoring or sampling data are permitted during the period
of the State performance plan, so that the public will receive specific
information about each LEA. We also are revising Sec.
300.602(b)(1)(ii) to make clear that the required information about
specific LEAs would only have to be included in the reports to the
public on LEA performance required by Sec. 300.602(b)(1)(i)(A), which
should prevent this provision from being interpreted to require LEA-
specific reporting to the Secretary.
Changes: We have renumbered Sec. 300.601(b)(2) as Sec.
300.601(b)(3) and
[[Page 46734]]
added a new Sec. 300.601(b)(2) to specify that, if permitted by the
Secretary, if a State collects data on an indicator through State
monitoring or sampling, the State must collect data on the indicator at
least once during the period of the State performance plan. We also
have revised Sec. 300.602(b)(1)(ii) to provide a more specific
reference to the public report required under Sec.
300.602(b)(1)(i)(A).
Comment: One commenter recommended that Sec. 300.602 specify that
data on disproportionality be reported to the public, pursuant to
sections 616(b)(2)(C) and 618 of the Act.
Discussion: The provisions in Sec. 300.602 already include the
requirement suggested by the commenter. Section 300.602, consistent
with section 616(b)(2)(C) of the Act, requires each State to use the
targets established in its State performance plan and the monitoring
priority areas described in Sec. 300.600(d), to analyze the
performance of each LEA in the State, and to report annually to the
public on such performance. As described in new Sec. 300.600(d), the
monitoring priority areas on which the State will report include the
disproportionate representation of racial and ethnic groups in special
education and related services, to the extent the disproportionate
representation is the result of inappropriate identification.
Accordingly, States are required to report this information to the
public. States must establish targets on each of the indicators set by
the Secretary.
We also note that Sec. 300.642(a), consistent with section 618(b)
of the Act, requires that data collected pursuant to section 618 of the
Act be reported publicly. These data will include State-level data on
the number and percentage of children with disabilities by race and
ethnicity on a number of measures, including identification as children
with disabilities, placement, graduation and drop-out, and discipline.
Accordingly, we do not believe any further changes to the regulations
are necessary.
Changes: None.
Secretary's Review and Determination Regarding State Performance (Sec.
300.603)
Comment: One commenter expressed concern that the tone and
substance of the monitoring and enforcement provisions in Sec. Sec.
300.603 through 300.609, related to approval or disapproval by the
Secretary of the State's performance plan and interventions against the
SEA, are overly prescriptive and negative. The commenter stated that
enforcement provisions applicable to all elementary school and
secondary school programs already exist in GEPA.
Discussion: We do not agree that the enforcement provisions are
overly prescriptive. These enforcement provisions simply reflect the
statutory requirements in section 616(d) and (e) of the Act. These
provisions are more specific than the provisions in GEPA.
Changes: None.
Comment: A few commenters recommended including in the regulations
the provisions in section 616(c) of the Act, regarding the process the
Secretary must follow if the Secretary finds that a State performance
plan does not meet the requirements in section 616 of the Act.
Discussion: We believe that the review process spelled out in
section 616(c) of the Act is sufficiently clear and that regulations
are not necessary. Further, under the statutory framework, the State
performance plans were due to the Department by December 3, 2005, and
the Department's review of the State performance plans for the six-year
period of federal fiscal years 2005 through 2011 has already been
completed. Accordingly, we believe it is unnecessary to add further
clarification regarding the Secretary's responsibilities in Sec.
300.603.
Changes: None.
Comment: One commenter recommended that the Department's process
for approval of targets in State performance plans be rational,
consistent, and transparent. For example, the commenter suggested that
as the Department responds to and negotiates with a State regarding the
State's targets, the process should be open so that States can learn
from the Department's discussions with other States.
Discussion: We agree with the commenter. Accordingly, the
Department has posted its analyses of each State's performance plan on
the Department's Web site at: http://www.ed.gov/fund/data/report/idea/partbspap/index.html. In so doing, the Department's analyses are
transparent and provide States with the opportunity to review the
Department's responses to other States' performance plans.
Changes: None.
Enforcement (Sec. 300.604)
Comment: A few commenters recommended changing the enforcement
requirements in Sec. 300.604 to clarify the actions a State must take
relating to enforcement. The commenters stated that it is essential
that States understand their explicit authority under the Act to take
certain enforcement actions against LEAs if the State is identified as
a State that needs assistance, needs intervention, or needs substantial
intervention. The commenters stated that some of the enforcement
mechanisms available to the Secretary in section 616(e) of the Act,
such as requiring entry into a GEPA compliance agreement or referral to
the Office of the Inspector General, may have no direct counterpart
under State law and therefore, would not be available to States.
Discussion: The Department agrees that it is important to clarify
the specific enforcement actions that States must use against an LEA if
the LEA is determined to need assistance, intervention, or substantial
intervention. We are revising Sec. 300.600(a) to identify the specific
enforcement actions identified in Sec. 300.604 that are appropriate
for a State, as opposed to the Federal government, to use if it
determines that an LEA needs assistance or intervention in implementing
the requirements of Part B of the Act.
Changes: We have revised Sec. 300.600(a) to require States to
enforce Part B of the Act in accordance with the enforcement mechanisms
identified in Sec. 300.604(a)(1) and (a)(3), (b)(2)(i) and (b)(2)(v),
and (c)(2).
Comment: One commenter recommended including in Sec. Sec. 300.600
through 300.609 a method for individuals or organizations to inform the
Department about compliance issues in their district or State.
Discussion: The Department is committed to obtaining input from
individuals and organizations as part of its monitoring process, and
has a system for receiving and responding to citizen complaints about
LEA and State compliance. However, detailed operational procedures for
monitoring State activities are not typically included in regulations.
Accordingly, we believe it is unnecessary to provide further
clarification regarding specific monitoring procedures in Sec. Sec.
300.600 through 300.609.
Changes: None.
Comment: One commenter recommended clarifying in Sec. 300.604 that
withholding State administrative funds would only occur following the
Secretary's determination that, for three or more consecutive years,
the State needs intervention in implementing the requirements of Part B
of the Act.
Discussion: Section 300.604(b)(2)(iii), consistent with section
616(e)(2)(iii) of the Act, clearly delineates that consideration of
withholding State administrative funds occurs following a ``needs
intervention'' determination by the Secretary for three or more
consecutive years. Therefore, we do not
[[Page 46735]]
believe it is necessary to add further clarification regarding the
withholding of State administrative funds.
Changes: None.
State Enforcement and Rule of Construction (Sec. Sec. 300.608 and
300.609)
Comment: One commenter recommended including in Sec. 300.608 a
provision that would allow an SEA to use any means authorized by law to
effect compliance when it is determined that an LEA is not meeting the
requirements of Part B of the Act, including the targets in the State's
performance plan.
Discussion: The enforcement scheme outlined in Sec. Sec.
300.600(a), 300.604, and 300.608 represents the minimum steps that a
State must take to enforce compliance with the Act. (The minimum
enforcement steps the Department must take are specified in Sec.
300.604.) However, we believe that the regulations should be clear that
States have the flexibility to use other mechanisms to bring about
compliance, just as section 616(g) of the Act and Sec. 300.609
recognize that the Department needs the flexibility to use the
authority in GEPA to monitor and enforce the Act, in addition to the
enforcement program laid out in section 616(e) of the Act. Therefore,
we will add to Sec. 300.608 a new provision noting that States are not
restricted from using any other authority available to them to monitor
and enforce the Act. Taking steps under any such authority, however,
does not relieve a State from complying with the requirements of
Sec. Sec. 300.600(a), 300.604, and 300.608(a).
Changes: We have designated proposed Sec. 300.608 as Sec.
300.608(a) and added a new paragraph (b) to specify that States are not
restricted from utilizing any other authority available to them to
monitor and enforce the Act. We also have clarified in Sec. 300.609
that the reference to ``authority under GEPA'' includes the provisions
of 34 CFR parts 76, 77, 80, and 81, including the imposition of special
conditions under 34 CFR 80.12.
Confidentiality of Information
Confidentiality (Sec. 300.610) and Definitions (Sec. 300.611)
Comment: None.
Discussion: Both Sec. Sec. 300.610 and 300.611 contained incorrect
references to Sec. 300.628, which does not exist. We have revised
those references.
Changes: We have removed the incorrect references to Sec. 300.628
in Sec. Sec. 300.610 and 300.611 and replaced them with references to
Sec. 300.627 and Sec. 300.625, respectively.
Notice to Parents (Sec. 300.612)
Comment: One commenter stated that Sec. 300.612 exceeds the
authority under sections 612(a)(8) and 617(c) of the Act.
Discussion: Proposed Sec. 300.612 incorrectly referenced the
requirements in Sec. 300.121. The correct reference is Sec. 300.123,
which requires each State to have policies and procedures to ensure
that public agencies in the State protect the confidentiality of
personally identifiable information. We will make this correction in
Sec. 300.612. With this correction, Sec. 300.612 requires the SEA to
give notice to parents that fully informs them about the requirements
regarding the confidentiality of personally identifiable information.
We do not agree that Sec. 300.612 exceeds the authority under
sections 612(a)(8) and 617(c) of the Act. Section 612(a)(8) of the Act
requires agencies in the State to comply with section 617(c) of the
Act, and section 617(c) of the Act gives the Secretary the authority to
take appropriate measures to protect the confidentiality of any
personally identifiable data, information, and records collected or
maintained by the Secretary and by SEAs and LEAs. This is a
longstanding requirement in the regulations that we do not believe
should be changed.
Changes: We have changed Sec. 300.612(a) by removing the incorrect
reference to Sec. 300.121 and replacing it with a reference to Sec.
300.123.
Comment: One commenter expressed concern that summaries of the
policies and procedures that participating agencies must follow
regarding storage, disclosure to third parties, retention, and
destruction of personally identifiable information would not be
adequate to fully inform parents.
Discussion: Section 300.612(a)(3) is a longstanding requirement
that has been in the Part B regulations since they were published in
1977. The Department's experience in administering this program
indicates that the requirement to include a summary of policies that
participating agencies must follow regarding storage, disclosure to
third parties, retention, and destruction of personally identifiable
information is an effective way for parents to be informed about these
requirements. Parents who desire additional information regarding their
rights, consistent with these policies, can request the additional
information from the SEA. SEAs are encouraged to comply with such
requests without undue delay.
Changes: None.
Comment: One commenter recommended requiring the SEA to post its
confidentiality of personally identifiable information notice for
parents on the State's Web site.
Discussion: We believe that it is up to each State to determine
whether posting this notice on the State's Web site will serve the
needs of parents and public agencies in the State. We, therefore,
decline to regulate on this matter.
Changes: None.
Amendment of Records at Parent's Request (Sec. 300.618) and
Opportunity for a Hearing (Sec. 300.619)
Comment: A few commenters requested clarification regarding how
parents can register their disagreement with information in their
child's record and request that their child's record be changed.
Discussion: Sections 300.618, 300.619, and 300.621 all address the
process that parents must use to seek changes in their child's records
if they believe the record is inaccurate, misleading, or otherwise in
violation of the privacy or other rights of the child. When a parent
requests that a change be made in the child's record, under Sec.
300.618, agencies must amend the information within a reasonable time
or inform parents of the agency's refusal to amend the information and
the parent's right to a hearing to challenge the public agency's
determination. If parents want to challenge the accuracy of information
in the child's education records, they may do so by requesting a
hearing under Sec. 300.619 (by contacting the LEA staff member
assigned that responsibility). Section 300.621 specifically provides
that a hearing held under Sec. 300.619 must be conducted according to
the procedures in 34 CFR 99.22. 34 CFR 99.22, in turn, requires a
hearing to meet the following minimum requirements:
(a) The educational agency or institution shall hold the hearing
within a reasonable time after it has received the request for the
hearing from the parent or eligible student.
(b) The educational agency or institution shall give the parent or
eligible student notice of the date, time, and place, reasonably in
advance of the hearing.
(c) The hearing may be conducted by any individual, including an
official of the educational agency or institution, who does not have a
direct interest in the outcome of the hearing.
(d) The educational agency or institution shall give the parent or
eligible student a full and fair opportunity to present evidence
relevant to the issues raised under Sec. 99.21. The parent or eligible
student may, at their own expense, be assisted or represented by one or
more
[[Page 46736]]
individuals of his or her own choice, including an attorney.
(e) The educational agency or institution shall make its decision
in writing within a reasonable period of time after the hearing.
(f) The decision must be based solely on the evidence presented at
the hearing, and must include a summary of the evidence and the reasons
for the decision.
The parent is not required, under the Act and these regulations, to
follow the procedures that are applicable to filing a due process
complaint under Sec. Sec. 300.507 through 300.510. This is because the
hearing authorized under Sec. 300.619 is for the explicit purpose of
giving a parent the opportunity to challenge the information in
education records when a parent believes the information is inaccurate,
misleading, or otherwise in violation of the privacy or other rights of
the child. We do not believe further clarification regarding the
specific procedures in Sec. Sec. 300.618 and 300.619 is necessary. The
procedures used for these hearings vary from State to State, and we
believe it is best to give States the flexibility to develop their own
procedures for such hearings, as long as they meet the requirements in
Sec. 300.621.
Changes: None.
Consent (Sec. 300.622)
Comment: One commenter suggested requiring schools to obtain
parental consent before disclosing personally identifiable information
to any party, unless authorized by 34 CFR part 99. Another commenter
requested clarification regarding the requirements in Sec. 300.622.
Discussion: We agree that Sec. 300.622 should be revised to more
accurately reflect the Department's policies regarding when parental
consent is or is not required for disclosures of personally
identifiable information to officials of participating agencies, and
other individuals and entities. In some instances, current Sec.
300.571 (proposed Sec. 300.622) has been construed to prohibit
disclosures without parental consent under this part that would be
permitted without parental consent under FERPA. Accordingly, when final
regulations for this program were issued in 1999, we amended current
Sec. 300.571(a) (proposed Sec. 300.622(a)) to clarify that the
release of disciplinary records to law enforcement authorities could
occur without parental consent, to the extent that such disclosure was
permitted under FERPA. In order to more clearly state the Department's
longstanding position that consent is required for disclosures of
personally identifiable information to parties, other than officials of
participating agencies collecting or using the information under this
part, unless the information is contained in education records and the
disclosure is allowed without parental consent under 34 CFR part 99, we
are reorganizing Sec. 300.622(a).
Under FERPA and Sec. 300.622(a), schools, generally, must have
written permission from the parent (or child who has reached the age of
majority) in order to release information from a child's education
records. However, there are exceptions to this general rule under FERPA
that also apply to the records of children with disabilities and permit
the release of information from education records without parental
consent. Under 34 CFR 99.31(a), schools can disclose education records
without consent under the circumstances specified in Sec. 99.31
including if the disclosure meets one or more of the following
conditions:
School officials with legitimate educational interests, as
determined by the educational agency or institution;
Other schools where the student seeks or intends to enroll, subject
to the requirements of Sec. 99.34;
Specified authorized representatives, subject to the requirements
of Sec. 99.35, in connection with an audit or evaluation of Federal or
State-supported education programs, or compliance with or enforcement
of Federal legal requirements which relate to those programs;
Appropriate parties in connection with financial aid to a student
for which the student has applied or which the student has received, if
necessary for specified purposes;
Organizations conducting certain studies for or on behalf of the
school;
Accrediting organizations;
To comply with a judicial order or lawfully issued subpoena;
Appropriate officials in cases of health and safety emergencies;
and
State and local authorities, within a juvenile justice system,
pursuant to specific State law.
We believe that the changes to Sec. 300.622(a) state more clearly
that under Sec. 300.622, disclosures of personally identifiable
information from education records of children with disabilities can be
made without parental consent if the disclosure without parental
consent would be permissible under FERPA. For example, in a situation
involving a health emergency, information from a child with a
disability's education records could be released to a hospital without
parental consent in order to ensure that the child received appropriate
emergency health services.
Under proposed Sec. 300.622(b), parental consent is not required
for disclosures of personally identifiable information to officials of
participating agencies for purposes of carrying out a requirement of
this part. This is not a new requirement; proposed Sec. 300.622(b) is
the same as current Sec. 300.571(b). However, we believe the
requirement should be stated more clearly, and therefore, are changing
the language in paragraph (b). We believe that this provision is
particularly important to ensure that participating agencies have the
information they need to carry out the requirements of this part in an
effective manner. For example, if another State agency provides school
health services under the Act, consent would not be required for a
school nurse to have access to personally identifiable information in a
child's education records in order to provide the school health
services that are included on the child's IEP.
However, despite the recognition that officials of participating
agencies need access to records of children with disabilities to carry
out the requirements of this part, there are important privacy concerns
that we feel need to be protected in certain specified situations. We
believe that parental consent should be required before personally
identifiable information can be released to representatives of
participating agencies who are likely to provide or pay for transition
services in accordance with Sec. 300.321(b)(3). Representatives of
these agencies, generally, are invited to participate in a child's IEP
meeting because they may be providing or paying for transition
services. We do not believe that the representatives of these agencies
should have access to all the child's records unless the parent (or the
child who has reached the age of majority) gives consent for the
disclosure. We are, therefore, adding a new paragraph (b)(2) in Sec.
300.622 to make this clear.
We also believe it is important to be clear about the
confidentiality requirements for children who are placed in private
schools by their parents, given the significant change in the child
find requirements for these children. Under section
612(a)(10)(A)(i)(II) of the Act, child find for these children now is
the responsibility of the LEA in which the private school is located
and not the child's LEA of residence. We can anticipate situations in
which there may be requests for information to be exchanged between the
two LEAs, such as when a child is evaluated and
[[Page 46737]]
identified as a child with a disability by the LEA in which the private
school is located and the child subsequently returns to public school
in the LEA of residence. We believe under such circumstances parental
consent should be required before personally identifiable information
is released between officials of the LEA where a private school is
located and the LEA of the parent's residence. We believe that consent
is important in these situations to protect the privacy of the child
and the child's family. Therefore, we are adding a new paragraph (b)(3)
to Sec. 300.622 to make this clear.
We are removing the requirement in proposed Sec. 300.622(c)
(current Sec. 300.571(c)), which requires the SEA to provide policies
and procedures that are used in the event that a parent refuses to
provide consent under this section. This is already included in Sec.
300.504(c)(3), which requires the procedural safeguards notice to
include, among other things, a full explanation of the parental consent
requirements and the opportunity to present and resolve complaints
through the due process or State complaint procedures.
Changes: We have reorganized Sec. 300.622 to more accurately
reflect the Department's policy regarding when parental consent is and
is not required for disclosures of personally identifiable information
to officials of participating agencies, and other individuals and
entities. We made changes to Sec. 300.622(a) and added a new paragraph
(b)(1) to clarify the Department's longstanding policy that consent is
required for disclosures of personally identifiable information to
parties, unless the interested parties are officials of participating
agencies, collecting or using the information under this part, or the
information is contained in education records and the disclosure is
allowed without parental consent under FERPA. We added a new paragraph
(b)(2) to clarify that parental consent is required for the disclosure
of information to participating agencies that likely may provide or pay
for transition services. We also added a new paragraph (b)(3) to
require parental consent for the disclosure of records of parentally
placed private school children between LEAs. Finally, we removed the
requirement in proposed Sec. 300.622(c) (current Sec. 300.571(c)),
because the information is included in Sec. 300.504(c)(3).
Safeguards (Sec. 300.623)
Comment: None.
Discussion: We have corrected the incorrect reference to Sec.
300.121 in the text of this regulation, which should have referred to
the State eligibility requirement concerning confidentiality, and not
the State eligibility requirement regarding procedural safeguards.
Changes: We have removed the incorrect reference to Sec. 300.121
and replaced it with a reference to Sec. 300.123.
Children's Rights (Sec. 300.625)
Comment: One commenter requested clarifying the requirement in
Sec. 300.625(a) that children receive privacy rights similar to those
received by parents.
Discussion: Section 300.625 is the same as current Sec. 300.574
and has been in the regulations since 1977. It provides that States
must have policies and procedures concerning the extent to which
children are afforded rights of privacy similar to those of parents,
taking into consideration the age of the child and type or severity of
disability. It does not require States to grant particular privacy
rights to a child in addition to those that apply when the child
reaches the age of majority, as specified in paragraphs (b) and (c) of
Sec. 300.625. We do not believe further clarification is necessary.
Changes: None.
Comment: A few commenters stated that the notice to transfer
parental rights to a child at the age of majority should be provided to
the child and parents one year before the child reaches the age of
majority.
Discussion: We do not believe this change is necessary because the
regulations in Sec. 300.320(c) already address the notification
requirement. Specifically, Sec. 300.320(c) requires that, beginning no
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. Because the regulations already contain the notice
requirement, we do not believe it is necessary to add further
clarification of this requirement to Sec. 300.625.
Changes: None.
Enforcement (Sec. 300.626)
Comment: None.
Discussion: This provision, concerning State enforcement, should
not refer to Sec. 300.610, which is a requirement that applies to the
Secretary.
Changes: We have removed the incorrect reference to Sec. 300.610
and replaced it with a reference to Sec. 300.611.
Annual report of children served--information required in the report
(Sec. 300.641)
Comment: A few commenters stated that Sec. 300.641 is inconsistent
with the requirement in Sec. 300.111(d), which states that the Act
does not require the classification of children by their disability.
The commenter noted that it is difficult to comply with the
requirements for data collection and analysis without classifying
children by their disability.
Discussion: We do not believe there is any inconsistency between
the requirements in Sec. 300.641(c) and Sec. 300.111, as suggested by
the commenter. Section 300.641(c) addresses counting children who have
already been identified as having a disability and is consistent with
the requirements in section 618 of the Act. Section 300.111 addresses
child find and the determination of a child's eligibility for special
education and related services. The Act does not require children to be
identified with a particular disability category for purposes of the
delivery of special education and related services. In other words,
while the Act requires that the Department collect aggregate data on
children's disabilities, it does not require that particular children
be labeled with particular disabilities for purposes of service
delivery, since a child's entitlement under the Act is to FAPE and not
to a particular disability label.
Changes: None.
Comment: A few commenters recommended removing Sec. 300.641(c)
because States have reporting policies in place that might not be
consistent with these new requirements. Numerous commenters stated that
LEAs often report children with vision and hearing loss who have an
additional disability in the category of multiple disabilities, which
has resulted in under-reporting of children who are deaf-blind. The
commenters stated that an accurate count of children with deaf-
blindness is necessary to ensure that these children receive the
specialized communication services they need, and to ensure that a
sufficient number of specialists are trained to meet the specialized
needs of these children. One commenter stated that a child's secondary
disability should not affect the reporting of the child's primary
disability. Another commenter suggested referring to deaf-blindness as
the primary disability, if a child has multiple disabilities.
Discussion: The reporting requirements in Sec. 300.641(c) are not
new. Section 300.641(c) is the same as
[[Page 46738]]
current Sec. 300.751(e); State reporting policies therefore should
already be consistent with these regulations. Section 300.641(d)
addresses how States must report a child with a disability who has more
than one disability for purposes of the annual report of children
served under the Act. Paragraph (d)(1) states that 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 of deaf-blindness. Paragraph (d)(2)
states that if a child has more than one disability and is not reported
as having deaf-blindness or as having a developmental delay, the child
must be reported under the category of multiple disabilities. We
believe that Sec. 300.641(d) is clear that children with deaf-
blindness who have an additional disability must be included in the
category of multiple disabilities. To designate deaf-blindness as the
primary disability and include children with deaf-blindness who have an
additional disability in the category of deaf-blindness would be
inconsistent with the requirements in Sec. 300.641(d).
Although we do not believe that any changes to the requirements in
Sec. 300.641(d) are necessary, we will review the instructions we
provide to States regarding the reporting of children with deaf-
blindness who have an additional disability and make any needed
clarifications.
Changes: None.
Disproportionality (Sec. 300.646)
Comment: One commenter requested clarification as to whether the
determination of disproportionality is based solely on a numerical
formula or on district policies, procedures, and practices. One
commenter recommended amending the regulations to clarify that the
determination of disproportionality is based on a review of LEA
policies and procedures, and not just a numerical determination.
Another commenter requested a definition of significant
disproportionality. Several commenters requested that the regulations
clarify that States need only address statistically significant
disproportionality based on the use of reliable data.
Discussion: Section 618(d)(1) of the Act is clear that the
determination of significant disproportionality by race or ethnicity is
based on a collection and examination of data and not on a district's
policies, procedures, or practices. This requirement is clearly
reflected in Sec. 300.646. We do not believe it is appropriate to
change Sec. 300.646 because the commenter's suggestion is inconsistent
with the provisions in section 618(d) of the Act.
With respect to the definition of significant disproportionality,
each State has the discretion to define the term for the LEAs and for
the State in general. Therefore, in identifying significant
disproportionality, a State may determine statistically significant
levels. The State's review of its constituent LEAs' policies,
practices, and procedures for identifying and placing children with
disabilities would occur in LEAs with significant disproportionality in
identification, placement, or discipline, based on the examination of
the data. The purpose of this review is to determine if the policies,
practices, and procedures are consistent with the Act. Establishing a
national standard for significant disproportionality is not appropriate
because there are multiple factors at the State level to consider in
making such determinations. For example, States need to consider the
population size, the size of individual LEAs, and composition of State
population. States are in the best position to evaluate those factors.
The Department has provided guidance to States on methods for assessing
disproportionality. This guidance can be found at: http://www.ideadata.org/docs/Disproportionality%20Technical%20Assistance%20Guide.pdf.
Changes: None.
Comment: A few commenters suggested adding gender to the analysis
of disproportionality. The commenters expressed concern that males are
over-identified as children with disabilities.
Discussion: Although States will be collecting data on the gender
of children with disabilities for other purposes, the Act does not
require an analysis for disproportionality on the basis of gender. We
are concerned about increasing the burden on States. Given that there
is no statement of congressional intent indicating the need to do this
analysis, we do not believe it should be included in the regulations.
Changes: None.
Comment: One commenter expressed concern that the regulations are
not consistent with the statutory requirements for data collection on
suspension, expulsion, identification, and placement.
Discussion: We disagree with the commenter. The regulations in
Sec. 300.646 reflect the requirements in section 618(d) of the Act.
Changes: None.
Comment: Several commenters raised concerns and made
recommendations regarding Sec. 300.646(b)(2), which requires the State
to require any LEA identified with significant disproportionality to
reserve the maximum amount under section 613(f) of the Act for
comprehensive, coordinated early intervening services to serve children
in the LEA, particularly, but not exclusively children in those groups
that were significantly overidentified. A few commenters recommended
that LEAs not be required to reserve the maximum amount under section
613(f) of the Act. Several commenters recommended adding language in
Sec. 300.646(b)(2) to require LEAs to monitor the effect of early
intervening services on disproportionate representation.
Discussion: The requirements in Sec. 300.646(b)(2) follow the
specific language in section 616(d) of the Act. To allow LEAs to
reserve less than the maximum amount required in section 613(f) of the
Act when significant disproportionality is identified would be
inconsistent with the Act. Therefore, we do not believe a change in
this requirement is appropriate.
As part of the requirements in Sec. Sec. 300.600 through 300.604,
States must report annually on indicators in three monitoring priority
areas. One of the monitoring priority areas is disproportionality, for
which there are two indicators. In addition to annually reviewing State
performance on each indicator in each monitoring priority area, the
State must review each LEA against indicators established for each
monitoring priority area, so the State will be examining data annually
to identify any disproportionality. If disproportionality is identified
in LEAs, the policies, procedures, and practices of the LEAs will be
examined to determine if they are leading to inappropriate
identification, and, pursuant to section 618(d)(2)(C) of the Act and
Sec. 300.646(b)(3), the LEA will be required to report publicly on the
revision of policies, practices, and procedures used in identification
or placement. It is, therefore, unnecessary to add a requirement that
LEAs monitor the effect of early intervening services on
disproportionality because the LEAS will have to continue to publicly
report on their revision of policies, practices and procedures until
the significant disproportionality in the LEA is eliminated. We believe
that the intent of the suggestion will be accomplished through this
other requirement.
Changes: None.
[[Page 46739]]
Subpart G--Authorization, Allotment, Use of Funds, and Authorization of
Appropriations
Outlying Areas, Freely Associated States, and the Secretary of the
Interior (Sec. 300.701)
Comment: None.
Discussion: The requirements of Part B of the Act that were listed
in the NPRM under Sec. 300.701(a)(1)(ii)(A)(1) through (5) did not
include all of the requirements that apply to freely associated States.
To ensure that freely associated States do not interpret these
regulations as including all of the requirements in Part B of the Act
that apply to them, we are removing these provisions. Section
300.701(a)(1)(ii) and (2) clarifies that, consistent with section
611(b)(1)(A)(ii) of the Act, freely associated States must meet the
applicable requirements that apply to States under Part B of the Act.
Changes: We have removed paragraphs (1) through (5) in Sec.
300.701(a)(1)(ii)(A).
Technical Assistance (Sec. 300.702)
Comment: One commenter requested that the regulations clarify
whether the technical assistance funds referred to in Sec. 300.702 are
available to both SEAs and lead agencies under Part C of the Act.
Discussion: Section 300.702, consistent with section 611(c) of the
Act, allows the Secretary to reserve funds under Part B of the Act to
support technical assistance activities authorized in section 616(i) of
the Act. Under section 642 of the Act, section 616 applies to the early
intervention programs for infants and toddlers with disabilities under
Part C of the Act. Section 616(i) of the Act requires the Secretary to
review the data collection and analysis capacity of States to ensure
that data and information necessary for monitoring the implementation
of Parts B and C of the Act are collected, analyzed, and accurately
reported to the Secretary, and to provide technical assistance, as
needed. Therefore the technical assistance referred to in Sec. 300.702
can be provided to both SEAs and lead agencies under Part C of the Act.
Changes: None.
Allocations to States (Sec. 300.703)
Comment: A few commenters noted that States need additional funding
to comply with these regulations.
Discussion: The Department does not have the authority to allocate
more funds than Congress appropriates. Section 300.703, consistent with
section 611(d) of the Act, describes how the appropriated funds must be
distributed to States.
Changes: None.
State-Level Activities (Sec. 300.704)
Comment: One commenter suggested adding language in the regulations
requiring public agencies to provide technical assistance to personnel
in residential treatment facilities. The commenter stated that this
assistance would help residential treatment facilities meet the
requirements of FAPE for the children they serve.
Discussion: Section 300.704(a)(1), consistent with section
611(e)(1) of the Act, allows, but does not require, States to use funds
reserved for State administration to provide technical assistance to
other programs that provide services to children with disabilities,
which could include residential treatment facilities providing services
to children with disabilities under the Act. Section 300.704(b)(4)(i),
consistent with section 611(e)(2)(C)(i) of the Act, allows, but does
not require, States to use funds reserved for other State-level
activities to provide support and direct services, including technical
assistance, personnel preparation, and professional development and
training, which could include technical assistance to staff who provide
services to children with disabilities at residential treatment centers
and other such facilities. Because the Act gives States the discretion
to determine how to use these funds, so long as they are used in
accordance with the requirements in Part B of the Act, the Department
does not believe it would be appropriate to remove this discretion by
regulation and require States to use these funds to provide technical
assistance to particular types of facilities, as suggested by the
commenter.
Changes: None.
Comment: We received a number of comments requesting that the
regulations require States to use funds reserved for State-level
activities for specific purposes. Some commenters stated that these
funds should be used to find and train surrogate parents. Other
commenters requested that these funds be used to support parent
centers. One commenter requested that these funds be used for programs
that employ well-researched best practices. Another commenter suggested
that the funds be used for family involvement activities. One commenter
requested that the regulations clarify that these funds may be used to
purchase supplemental educational materials.
Discussion: The Act does not require States to use their funds
reserved for other State-level activities for the purposes requested by
the commenters. The Act also does not prohibit the use of funds for
these purposes. Instead, States have discretion in determining how
these funds are used, so long as they are used to carry out the
activities in Sec. 300.704(b)(3) and (4). Therefore, we do not believe
it would be appropriate to regulate as suggested by the commenters.
Changes: None.
Comment: One commenter stated that the term ``maximize'' in Sec.
300.704(b)(4)(v), regarding the use of funds to support the use of
technology to maximize accessibility to the general education
curriculum, was an ``affirmative duty'' and, thus, required more
detailed instruction. This commenter also stated that the term
``improve'' in Sec. 300.704(b)(4)(xi), regarding the use of funds to
provide professional development to teachers who teach children with
disabilities in order to improve academic achievement, was an
``affirmative duty'' and, thus, required more detailed instruction.
Discussion: The language referred to by the commenter is from the
Act. The activities noted by the commenter are authorized under the Act
but are not required. The Department has reviewed Sec.
300.704(b)(4)(v) and (b)(4)(xi) and does not believe that additional
detail is necessary, because States need the flexibility that the Act
provides to appropriately meet the needs within the State.
Changes: None.
Comment: One commenter agreed with the provision in Sec.
300.704(b)(4)(v) that allows States to use funds to support the use of
technology to maximize access to the general education curriculum for
children with disabilities. The commenter stated, however, that SEAs
and LEAs would be unwilling to research and employ new technologies and
asked who would be responsible for conducting this activity.
Discussion: Supporting the use of technology to maximize
accessibility to the general education curriculum is a State-level
activity that States are permitted, but not required, to fund. States
have considerable flexibility in determining what State-level
activities will be funded, provided the requirements of Part B of the
Act are met. How a State implements a particular activity or program is
a matter best left to each State to decide.
Changes: None.
Comment: One commenter stated that Sec. 300.704(b)(4)(v),
regarding the use of technology to maximize accessibility to the
general education curriculum for
[[Page 46740]]
children with disabilities, lacked specificity and asked for
definitions of the terms ``universal design principles,'' ``maximize
accessibility to the general curriculum,'' and ``maximum extent.''
Discussion: The definition of universal design, as used in the
Assistive Technology Act of 1998, as amended, is included in the
Analysis of Comments and Changes section for subpart A. We believe this
will clarify the meaning of ``universal design principles,'' as used in
Sec. 300.704(b)(4)(v). The term ``maximize accessibility to the
general education curriculum'' is sufficiently specific in the context
used and does not need further definition. The term ``maximum extent''
is not used in Sec. 300.704(b)(4)(v).
Changes: None.
Local Educational Agency High Cost Fund (Sec. 300.704(c))
Comment: One commenter expressed concern that the regulations for
the high cost fund, particularly the reference to the cost of room and
board for a residential placement, would discourage educational
placements in the LRE. The commenter stated that many children with
disabilities are sent out of their school districts for special
education and related services and asked that the regulations ensure
that this practice does not increase.
Discussion: The language regarding room and board in Sec.
300.704(c)(4)(ii) was included to clarify that the cost of room and
board for a necessary residential placement could be supported by the
high cost fund. Section Sec. 300.704(c)(4)(ii) clarifies that the cost
of room and board for a residential placement must be determined
necessary and be consistent with the LRE requirements in Sec. 300.114.
We believe this is adequate to ensure that educational placements in
the LRE are not discouraged.
Changes: None.
Comment: One commenter stated that reimbursements from a high cost
fund would be difficult to compute and requested a template to assist
LEAs in their calculations. Another commenter requested a list of
specific procedures that would be excluded from coverage by a high cost
fund.
Discussion: How States implement the high cost fund is a matter
left to the discretion of each State, so long as the State meets the
requirements of Part B of the Act. Accordingly, the Department does not
believe it would be appropriate to develop a template, prepared at the
Federal level, or a list of specific procedures that would be excluded
from coverage. Whether a particular expenditure is appropriate will
vary with the specific facts and circumstances of the situation.
Changes: None.
Comment: One commenter asked whether high cost funds could be used
for court-ordered placements.
Discussion: Nothing in the Act or the regulations prohibits payment
for providing special education and related services to high need
children with disabilities in court-ordered placements, if a State
wishes to fund such placements and the other provisions of Part B of
the Act are met.
Changes: None.
Comment: A few commenters requested that the regulations include
plans for continuing programs funded by high cost funds should these
funds become unavailable.
Discussion: The availability of Federal support for a high cost
fund, as described in Sec. 300.704(c) and section 611(e)(3) of the
Act, is based on a number of factors, including continued Federal
appropriations for the Grants to States program and the continued
authorization for such a fund under the Act. Funding of a high cost
fund in a particular State is dependent on a State's decision to use a
portion of its State-level set-aside for a high cost fund. This is a
matter of State discretion and is not appropriate for regulation at the
Federal level.
Changes: None.
Comment: A few commenters requested an opportunity for public
comment before a State implements a high cost fund.
Discussion: Section 300.704(c)(3)(i), consistent with section
611(e)(3)(C)(ii) of the Act, requires an SEA to develop, annually
review, and amend, as necessary, a State plan for a high cost fund.
Under Sec. 300.704(c)(3)(i)(A), the State plan must, among other
components, establish, in consultation and coordination with
representatives from LEAs, a definition of a high need child with a
disability that meets certain criteria. This plan must be developed no
later than 90 days after the State reserves funds for a high cost fund.
Section 300.704(c)(3)(ii), consistent with section 611(e)(3)(C)(iii) of
the Act, requires a State to make its final State plan for the high
cost fund available to the public not less than 30 days before the
beginning of the school year, including dissemination of such
information on the State's Web site. Although there is nothing in the
Act that requires that the public be given the opportunity to comment
on the State's plan, there also is nothing in the Act that would
prohibit a State from providing an opportunity for public comment prior
to finalizing the State's plan for the high cost fund. We believe the
decision to provide opportunity for public comment is best left to each
State.
Changes: None.
Comment: A few commenters asked if LEAs are obligated to
participate in the State Medicaid program and whether States could
limit the types of reimbursement to LEAs from Medicaid.
Discussion: LEAs are not obligated under the Act to participate in
a State Medicaid program. Title XIX of the Social Security Act of 1965,
as amended, controls Medicaid reimbursement for medical assistance for
eligible individuals and families with low incomes and resources.
Therefore, it would not be appropriate to address in these regulations
whether States, under the Act, could limit the type of Medicaid
reimbursement to LEAs.
Changes: None.
Comment: One commenter asked if there was any intent to develop
criteria for the development of innovative cost sharing consortia, as
stated in Sec. 300.704(c)(1)(i)(B). The commenter stated that there
are no regulations for submitting a State plan for innovative cost-
sharing consortia, similar or parallel to the requirements associated
with the high cost fund.
Discussion: The commenter is correct that the proposed regulations
would not require the development of a State plan for the high cost
fund that includes information or criteria about the development of
innovative cost-sharing consortia. It is important that, if a State
elects to reserve funds for supporting innovative and effective ways of
cost sharing under Sec. 300.704(c)(1)(i)(B), the State, in its State
plan under Sec. 300.704(c)(3)(i), include a description of how those
funds will be used. Therefore, a change will be made to make this
clear.
Changes: A new paragraph (F) has been added to Sec.
300.704(c)(3)(i) to clarify that, if a State elects to reserve funds
for supporting innovative and effective ways of cost sharing, it must
describe in its State plan how these funds will be used.
Comment: One commenter asked whether State administrative funds
could be used for administering the high cost fund.
Discussion: Section 300.704(c)(2) is clear that a State cannot use
any of the funds the State reserves for the high cost fund for costs
associated with establishing, supporting, and otherwise administering
the fund. However, a State may use funds reserved for State
administration under Sec. 300.704(a) for administering the high cost
fund.
[[Page 46741]]
Changes: None.
Comment: One commenter requested that the regulations require an
SEA to describe in its State plan for the high cost fund the ways in
which the SEA will work with State child welfare programs.
Discussion: Section 300.704(c)(3) incorporates the language in
section 611(e)(3)(C) of the Act, regarding a State plan for the high
cost fund. The Act does not require that the State plan include the
ways in which the SEA will work with State child welfare agencies.
However, there is nothing in the Act or these regulations that would
prohibit a State from including such information in its plan if it
chooses to do so. We believe that the decision whether to include this
information in the State plan for the high cost fund is a matter best
left to the State.
Changes: None.
Comment: A few commenters stated that parents, representatives of
the State Advisory Panel, and other stakeholders should participate in
developing the definition of a high need child for the purposes of the
high cost fund.
Discussion: Section 300.704(c)(3)(i)(A), consistent with section
611(e)(3)(C)(i) of the Act, requires the SEA to establish a State
definition of a high need child with a disability in consultation with
LEAs. The Act does not require the involvement of parents,
representatives of the State Advisory panel, or other stakeholders.
However, there is nothing in the Act or these regulations that would
prohibit a State from consulting with these or other groups, if the
State chooses to do so. The Department believes that it would be
inappropriate to require SEAs to consult with specific groups, because
the appropriate groups for consultation will vary from State to State.
Changes: None.
Flexibility in Using Funds for Part C (Sec. 300.704(f))
Comment: A few commenters requested that Sec. 300.704(f) require
States that offer early intervention services to children with
disabilities who are eligible for services under section 619 of the Act
to notify families of the details of this program and a parent's right
to change immediately to special education services should the parent
desire. Another commenter recommended that Sec. 300.704(f) require
LEAs to obtain parental consent before providing early intervention
services to children eligible for services under section 619 of the
Act.
Discussion: Section 300.704(f) adopts the requirements of, and is
consistent with, section 611(e)(7) of the Act. Under section 611(e)(7)
of the Act, funds that are available under Sec. Sec. 300.704(a)(1),
300.705(c), and 300.814(e) may be used to develop and implement a State
policy to provide services under Part C of the Act to children beyond
the age of three. The provisions that authorize such programs are
reflected in Part C of the Act, predominantly in section 635(c) of the
Act, which contains specific notice and consent requirements. The
notice of proposed rulemaking for Part C of the Act will address the
notice, consent, and other requirements that apply to State lead
agencies that elect to offer services to children with disabilities and
their families beyond the age of three under section 635(c) of the Act.
The public will have a separate opportunity to comment on the proposed
regulations for Part C of the Act when they are published in the
Federal Register. Accordingly, it would not be appropriate to include
the requested information in these regulations implementing Part B of
the Act.
Changes: None.
Allocation for State in Which By-Pass Is Implemented for Parentally-
Placed Private School Children With Disabilities (Sec. 300.706)
Comment: None.
Discussion: We have determined that Sec. 300.706 is no longer
applicable. Under section 611(d) of the Act, distribution of funds
under Part B of the Act to States is not based on child count. Section
300.191 details the amount of funds under Part B of the Act that the
Secretary deducts from a State's allocation if a by-pass is
implemented.
Changes: We have removed Sec. 300.706, because it is no longer
applicable.
Use of amounts by Secretary of the Interior (Sec. 300.707)
Definitions (Sec. 300.707(a))
Comment: A few commenters requested that the Department add a new
definition of LEA and SEA for the purposes of regulations related to
schools operated or funded by the Secretary of the Interior. One
commenter stated that the regulations would be clearer if these terms
were defined for BIA-funded schools, because the definition of state
educational agency makes no mention of the BIA. Another commenter
recommended defining LEAs as BIA-funded schools and defining SEA as the
Secretary of the Interior for the purposes of regulations related to
schools operated or funded by the Secretary of the Interior.
Discussion: We believe the definition of local educational agency
in Sec. 300.28, with a specific reference to BIA-funded schools in
Sec. 300.28(c), and the definition of State educational agency in
Sec. 300.41, along with the requirements in Sec. Sec. 300.707 through
300.716, provide sufficient clarity on the Secretary of the Interior's
responsibilities to implement the requirements of the Act. However, we
understand that the definitions of local educational agency and State
educational agency by themselves may not be directly applicable to the
regulations related to schools operated or funded by the Secretary of
the Interior. Therefore, the Department will consider taking action to
clarify the definitions of local educational agency and State
educational agency for the purpose of this regulation in the future.
Changes: None.
Comment: One commenter stated that the definition of tribal
governing body of a school is similar to the definition of ``tribal
governing body'' in the principal statute governing BIA-funded schools
(section 1141 of the Education Amendments of 1978, 25 U.S.C. 2021(19))
and suggested using that definition if the intent was to define
``tribal governing body.'' The commenter also noted that tribal
governing body of a school is not used anywhere in the regulations.
Discussion: The Department agrees that the definition of ``tribal
governing body'' in 25 U.S.C. 2021(19) is a better definition than the
definition of tribal governing body of a school. The definition is more
accurate and defines a term used in these regulations. We are replacing
the definition of tribal governing body of a school with the definition
of tribal governing body, as defined in 25 U.S.C. 2021(19): Tribal
governing body means, with respect to any school, the tribal governing
body, or tribal governing bodies, that represent at least 90 percent of
the children served by such school.
Changes: The definition of tribal governing body of a school in
Sec. 300.707(a)(2) has been replaced with the definition of tribal
governing body from 25 U.S.C. 2021(19).
Provision of Amounts for Assistance (Sec. 300.707(b))
Comment: One commenter suggested adding specific language to the
regulations to require the Secretaries of the Interior and Education to
meet the statutory deadlines for providing and distributing funds under
Part B of the Act.
Discussion: Section 300.707(b), consistent with section
611(h)(1)(A) of the Act, sets specific dates for the Secretary of the
Interior to allocate funds provided to the Secretary of the
[[Page 46742]]
Interior under the Act to elementary schools and secondary schools for
Indian children operated or funded by the Secretary of the Interior.
The Secretary of the Interior must allocate 80 percent of these funds
by July 1 of each fiscal year, and the remaining 20 percent by
September 30 of each fiscal year. The Act does not require the
Secretary of Education to meet any deadline for providing and
distributing funds to the Secretary of the Interior. Provision of funds
under Part B of the Act to the Department of the Interior (DOI) will
always depend on whether the DOI has properly established and
maintained its eligibility. Therefore, we do not believe it would be
appropriate to establish such a deadline.
Changes: None.
Comment: One commenter stated that BIA-funded schools do not
require State accreditation and asked how a program affiliated with a
BIA-funded school could be mandated by the State to be accredited.
Discussion: The commenter appears to be referring to current Sec.
300.715(c), regarding counting children aged three through five who are
enrolled in programs affiliated with BIA-funded schools that are State
accredited. Current Sec. 300.715(c) was removed because a State can no
longer require a BIA-funded school to attain or maintain State
accreditation.
Changes: None.
Comment: A few commenters recommended revising Sec. 300.707(c) to
clarify that, for children living on reservations who do not attend
BIA-funded schools, the SEA in which the reservation is located is
responsible for ensuring that the requirements of Part B of the Act are
implemented, and if the reservation is in more than one State, the SEA
in which the child resides is responsible.
Discussion: The Department agrees that there is a need to clarify
that States are responsible for serving Indian children on reservations
located in their State who are not attending BIA-funded schools. We
will revise Sec. 300.707(c) to clarify that, for children on
reservations who do not attend BIA-funded schools, the State in which
the reservation is located must ensure that all the requirements of
Part B of the Act are implemented.
The Act does not address who is responsible if a reservation is
located in more than one State. Under section 612(a)(1)(A) of the Act,
a State must make FAPE available to all children with disabilities
residing in the State. Therefore, as a general matter, if a reservation
is located in more than one State, the State in which the child resides
would be responsible for ensuring that the requirements of Part B of
the Act are met for that child.
Changes: Section 300.707(c) has been revised to clarify that, for
children on reservations who do not attend BIA-funded schools, the
State in which the reservation is located must ensure that all the
requirements of Part B of the Act are met.
Use of Funds Under Part B of the Act (Sec. 300.710(a))
Comment: One commenter stated that the Secretary of the Interior
has no statutory authority to reserve funds for administration under
section 611(h)(1)(A) of the Act, and therefore, Sec. 300.710 should be
removed from the regulations.
Discussion: The Secretary of the Interior may reserve funds for
administration under Sec. 300.710. Section 300.707(b), consistent with
section 611(h)(1)(A) of the Act, requires the Secretary of Education to
provide 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 such payment for any fiscal
year must be equal to 80 percent of the amount allotted for the
Secretary of the Interior under section 611(b)(2) of the Act for that
fiscal year.
Since the enactment of regulations implementing Pub. L. 94-142 in
1977, the regulations have permitted the Secretary of the Interior to
use five percent of the funds under Part B of the Act allocated for the
education of children with disabilities enrolled in BIA-funded schools
for administration. The Act added the requirement in section
611(h)(1)(A) for 80 percent of the funds to be allocated to BIA-funded
schools by July 1 of each fiscal year, and 20 percent of the funds
allocated by September 30 of each fiscal year. Congress' intent in
adding this requirement was to ensure that the Secretary of the
Interior distributes funds under Part B of the Act quickly and
efficiently to BIA-funded schools to ensure that they have the
resources they need to provide services to children with disabilities.
(See H. Rpt. 108-77, p. 92.) There is no indication that Congress
intended to eliminate the Department's longstanding regulatory
provision permitting the Secretary of the Interior to reserve funds for
administration, which assist the Office of Indian Education Programs in
carrying out its monitoring activities. Section 611(h)(4)(F) of the Act
specifically prohibits the Secretary of the Interior from using any of
the 20 percent of the funds under Part B of the Act allocated for
coordinating services for preschool children with disabilities for
administrative purposes. However, there is no provision that prohibits
the Secretary of the Interior from using any of the 80 percent of funds
under Part B of the Act allocated to provide special education and
related services in BIA-funded schools for administrative purposes.
Changes: None.
Early Intervening Services (Sec. 300.711)
Comment: One commenter supported permitting BIA-funded schools to
use funds under Part B of the Act for early intervening services, but
stated that not all BIA-funded schools receive funds under Part B of
the Act, because the BIA will not provide any such funds until a school
uses 15 percent of its Indian School Equalization Program funds (ISEP).
The commenter requested that the regulations specify that BIA-funded
schools are permitted and encouraged to use their ISEP funds to provide
early intervening services and that schools, upon doing so, would be
eligible for funds under Part B of the Act.
Discussion: While the Act requires that the Secretary of the
Interior allocate funds under Part B of the Act to BIA-funded schools
to meet the educational needs of children with disabilities, the Act
does not establish requirements for how those funds must be distributed
to BIA-funded schools. The Secretary of the Interior requires that BIA-
funded schools use 15 percent of ISEP formula funds for special
education services before receiving funds under Part B of the Act.
While the Department understands the concern that not every BIA-funded
school will have special education needs sufficient to meet the 15
percent threshold and, therefore, may not receive any funds under Part
B of the Act, the Department does not have the authority to permit or
encourage BIA-funded schools to use their 15 percent ISEP threshold
funds to provide early intervening services or to require the Secretary
of the Interior to provide Part B funds to those schools once they have
spent 15 percent of their ISEP funds on early intervening services.
Changes: None.
Plan for Coordination of Services (Sec. 300.713)
Comment: One commenter stated that the requirements in Sec.
303.713 go beyond the legal authority of the Secretary of the Interior.
The commenter stated that the Secretary of the Interior provides
[[Page 46743]]
services only in BIA-funded schools, and the Office of Indian Education
Programs does not have jurisdiction over a State to ensure that the
State is providing services to Indian children under Part B of the Act.
In addition, the commenter stated that the term ``all Indian children''
was too broad, because the Secretary of the Interior is authorized to
provide funding only for programs for children who are at least one-
fourth Indian blood of a federally recognized tribe; residing on or
near a reservation; and enrolled in a BIA-funded school.
Discussion: Section 300.713(a) and section 611(h)(5) of the Act do
not require the Secretary of the Interior to provide services or
funding to Indian children who are not at least one-fourth Indian blood
of a federally recognized tribe, residing on or near a reservation, and
enrolled in a BIA-funded school. These sections require the Secretary
of the Interior to 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. In order to clarify the
Secretary of the Interior's responsibility under this provision, we are
revising Sec. 300.713(a) to clarify that reservations covered under
Part B of the Act means reservations served by elementary schools and
secondary schools for Indian children operated or funded by the
Secretary of the Interior.
Section 300.713(a) and section 611(h)(5) of the Act require that
the plan address the coordination of services for all Indian children
residing on those reservations. This includes Indian children residing
on those reservations that are enrolled in public schools in the local
school district, as well as Indian children that are enrolled in BIA-
funded schools. This also includes Indian students incarcerated in
State, local, and tribal juvenile and adult correctional facilities. We
are revising Sec. 300.713(b) to ensure that the plan provides for
coordination of services benefiting all Indian children with
disabilities, including services provided by SEAs and State, local, and
tribal juvenile and adult correctional facilities.
Changes: Section 300.713(a) has been revised to require the
Secretary of the Interior to develop and implement a plan for the
coordination of services for all Indian children with disabilities
residing on reservations served by elementary schools and secondary
schools for Indian children operated or funded by the Secretary of the
Interior. Section 300.713(b) has been revised to require the plan to
provide for the coordination of services benefiting these children from
whatever source, including SEAs, and State, local, and tribal juvenile
and adult correctional facilities.
Establishment of Advisory Board (Sec. 300.714)
Comment: One commenter requested definitions of ``collaboration''
and ``collaborated teachers.''
Discussion: We do not believe it is necessary to define
``collaboration'' in these regulations, because it is a commonly used
term, which means working jointly with others, especially in an
intellectual endeavor. Although the Act does not prohibit the
Department from regulating on this issue, we do not believe it is
necessary. The term ``collaborated teachers'' is not used in the Act or
these regulations and, thus, is not appropriate for inclusion in the
definitions in these regulations.
Changes: None.
Subpart H--Preschool Grants for Children with Disabilities
Allocation for State in Which By-Pass Is Implemented for Parentally-
Placed Private School Children With Disabilities (Sec. 300.811)
Comment: None.
Discussion: We have determined that Sec. 300.811, regarding
allocation for a State in which by-pass is implemented for parentally-
placed private school children with disabilities, is no longer
applicable. Under section 619(c) of the Act, distribution of Part B
funds to States is not based on child count. Section 300.191 details
the amount of Part B funds the Secretary deducts from a State's
allocation if a by-pass is implemented.
Changes: We are removing Sec. 300.811 from the final regulations.
Subgrants to LEAs (Sec. 300.815)
Comment: One commenter asked whether the base year that applies to
section 611 of the Act also applies to section 619 of the Act.
Discussion: The base year that applies to section 611 of the Act is
not the same as the base year that applies to section 619 of the Act.
The formula for allocating funds to LEAs under sections 611 and 619 of
the Act is based on the amount of program funds received in a prior
year (the base year), the relative numbers of children enrolled in
public and private elementary schools and secondary schools within the
LEA's jurisdiction, and the relative numbers of children living in
poverty. Under section 619(g)(1)(A) of the Act, the base year for
allocating section 619 funds to LEAs under the Preschool Grant program
is Federal fiscal year (FFY) 1997. Under section 611(f)(2)(A) of the
Act, the base year for allocating section 611 funds to LEAs under the
Grants to States for the Education of Children with Disabilities
Program is FFY 1999.
Changes: None.
Executive Order 12866
Costs and Benefits
Under Executive Order 12866, we have assessed the costs and
benefits of this regulatory action.
Summary of Public Comments
The Department received four comments on the role of school
psychologists in administering IQ tests as described in the proposed
analysis of the costs and benefits of this regulatory action. The first
commenter stated that it is inaccurate to conclude that fewer school
psychologists will be needed, and asserted that school psychologists
typically do more than administer IQ tests to students. The second
commenter stated that public agencies could realize savings under the
proposed regulation by reducing the amount of time school psychologists
spend conducting cognitive assessments to document IQ discrepancies.
The third commenter requested that the Department remove all language
suggesting that potential savings may result from the need for fewer
school psychologists to administer IQ tests. The fourth commenter
stated that time saved on formal assessments as a result of the need to
conduct fewer IQ tests could be used by school psychologists to train
school staff in research-validated instructional and behavioral
interventions, and to engage in other pro-active pre-referral policies.
All of these comments were considered in conducting the analysis of
the costs and benefits of the final regulations. All of the
Department's estimates and assumptions on which they are based are
described below.
Summary of 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 final regulations governing the
Assistance to States for the Education of Children with Disabilities
program under Part B of the Act. In conducting this analysis, the
Department examined the extent to which the regulations 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
[[Page 46744]]
this analysis, the Secretary has concluded that the statutory changes
reflected in these final regulations will 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
Section 300.156(c) requires that each person employed as a public
school special education teacher who teaches in an elementary, middle,
or secondary school be highly qualified, as defined in Sec. 300.18, by
the deadline established in section 1119(a)(2) of the ESEA, no later
than the end of the 2005-2006 school year. Section 300.18(b)(1)
requires 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 as a special education teacher. Previously, special
education teachers were not required by Federal law to be certified as
special education teachers in their States. The regulations preclude
teachers for whom the special education certification or licensure
requirements have been 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
are exempt from these requirements and are subject to the requirements
for highly qualified teachers in their State's public charter school
law.
The impact of the requirement in the final regulations that all
special education teachers have full special education certification
depends 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
respond to the statutory change reflected in the final regulations by
hiring certified teachers to fill these positions, it could cost well
over $1 billion to cover the salaries for a single year. (Occupational
Employment and Wages Survey, November 2004, indicates a median national
salary of $44,330 for elementary school teachers and $46,300 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 can 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 their main teaching assignment field 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, it is unlikely
they will be able to obtain certification through coursework in a
timely manner.
States and districts are unlikely to be able to meet these
requirements 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 depends
on State special education certification requirements and the types of
professional development needed to help these teachers meet the
requirements. Most studies in the year 2000 found that district
expenditures for professional development range from one to four
percent of a district's total budget or $2,062 per teacher. 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 is required
to implement these statutory changes 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. Because the highly
qualified teacher requirements in the ESEA, 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
minimal 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
[[Page 46745]]
have full State teacher certification, hold at least a bachelor's
degree, and be able to demonstrate knowledge of the subject matter they
teach. 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.
Section 300.18(c) permits 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)(B) or (C) of the ESEA as applied to an elementary school
teacher, or, in the case of instruction above the elementary level, to
meet the requirements in section 9101(23)(B) or (C) for 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.
The cost of demonstrating subject area competence 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 final
regulations will 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
estimated 2005-2006 school enrollment data compiled by the National
Center for Education Statistics (NCES), 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
would be eligible 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 would 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 savings from these final
regulations, the Secretary expects some savings to be produced because
affected special education teachers are not 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 is needed to
meet State standards. The savings 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 are 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. On balance, the
Secretary concludes that the final regulations 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
Section 300.18(d) permits 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 elementary, middle, and secondary school teachers who
are new to the profession under 34 CFR 200.56(c), including through a
High Objective Uniform State Standards of Evaluation (HOUSSE) covering
multiple subjects. The final regulations 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 subjects that they teach, as required
by 34 CFR 200.56(c). The final regulations also clarify in Sec.
300.18(e) that States have the option of developing separate HOUSSE
standards for special education teachers, including a single HOUSSE for
special education teachers of multiple subjects. States may not
establish lesser standards for content knowledge for special education
teachers, however.
We are unable 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 regulation. However, the extent of savings relates 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.
Since States are not permitted to establish a lesser standard for
the content knowledge requirements for special education teachers, they
are not likely to realize additional savings due to reduced expenses
for coursework or professional development for special education
teachers who have not demonstrated content area knowledge. States may
realize administrative savings, however, by being able to use separate
HOUSSE standards that are both aligned with their licensing or
certification standards for special education teachers and that cover
multiple subjects. The Secretary concludes that the final regulations
could produce administrative savings for States without adversely
affecting the quality of instruction provided to children taught by
special education teachers assessed through a separate mechanism that
upholds the same standards for content knowledge.
[[Page 46746]]
Limitation on Number of Reevaluations in a Single Year
Section 300.303(b)(1) prohibits conducting more than one
reevaluation in a single year without the agreement of the school
district and the parent. The previous regulations required
reevaluations when conditions warranted one or at the request of either
the child's parent or teacher.
Multiple evaluations in a single year are rare and are conducted
when 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 final regulations will 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 requests for due
process hearings, 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 2006-2007 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 2006-2007, 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 final regulations by not
agreeing to more than one evaluation of children in these instances.
Triennial Evaluations
The previous regulations required 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 was still eligible for
special education. The previous regulations also permitted the
evaluation team to dispense with additional tests to determine the
child's continued eligibility if the team concluded that this
information was not needed and the parents provided consent. Section
300.303(b)(2) permits districts to dispense with the triennial
evaluation when the child's parents and the public agency agree that a
reevaluation is unnecessary. The impact of this change depends 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 previous 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 the child's 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 final regulations
could save $19.125 million.
These savings will 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 $25, the cost to public agencies of obtaining
parental consent would be $2.8 million, resulting in estimated net
savings to public agencies from the final regulations of $16.3 million.
IEP Team Attendance
Section 300.321(e)(1) permits certain members of the IEP Team to be
excused from attending an IEP Team 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 previous regulations required that all IEP
Team 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 IEP Team members). The extent to which public
agencies will realize savings from the final regulations depends on
which team members are excused from how much of the meeting. If the
average IEP Team 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 $48) would be $96. If we assume an average of 1.2 IEP Team meetings
are held for each of the 6.947 million children with disabilities, then
8.34 million IEP Team meetings will be held in 2006-2007. If one
teacher could be excused from five percent of these meetings, the final
regulation could result in savings of $40 million.
These savings will 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 Sec. 300.303(b)(2), the Department
estimates that the cost to public agencies of obtaining written consent
from these parents would be $9.1
[[Page 46747]]
million, resulting in net savings to public agencies from the final
regulations of $30.9 million.
Section 300.321(e)(2) permits certain members of an IEP Team to be
excused from attending an IEP Team 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 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 Team 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 (IEP)
Section 300.320(a)(2)(i) requires that each IEP include a statement
of measurable annual goals, including academic and functional goals,
for the child. The previous regulations required 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 final regulations could result in teachers spending less time on
each IEP. Under Sec. 300.320(a)(2)(ii), however, IEPs for the
estimated 486,000 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 $48 per hour, a
reduction in time as modest as 15 minutes could save approximately $12
per IEP or $77.5 million total in opportunity costs for teachers
related to the development of IEPs during the 2006-2007 school year for
the 6.461 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 Team
meeting for the school year has been held, Sec. 300.324(a)(4) allows
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 previous regulations, the IEP Team
was required to reconvene in order to make amendments to an IEP. Based
on our estimate of an average of 1.2 IEP Team meetings per child per
year, approximately 1.4 million IEP Team meetings beyond the required
annual IEP Team meeting would be held during the 2006-2007 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 350,000 IEP
Team meetings would not be needed. The combined opportunity costs for
personnel participating in a typical IEP Team meeting are estimated at
$307. 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 $53.7 million.
Procedural Safeguards Notice
Section 300.504(a), which incorporates changes in section 615(d)(1)
of the Act, requires that a copy of the procedural safeguards notice be
given to parents of children with disabilities only once a school year,
except that a copy must also be given when an initial evaluation or
parent request for an evaluation occurs; the first time a due process
hearing is requested during a school year; when the decision to take
disciplinary action is made; 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 final regulations, a copy of the procedural safeguards notice no
longer has to be given to parents with each notice for an IEP Team
meeting or every time a request for a due process hearing is received.
Instead, the document only has to be given to parents once a year, and
the first time a due process hearing is requested in a year, when the
decision to take disciplinary action is made, 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 Team 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 Team meeting. Although we lack detailed
data on the number of IEP Team meetings conducted each year, we
estimate that approximately 6.947 million children with disabilities
will be served in school year 2006-2007. For the vast majority of these
children, we believe there will be only one IEP Team 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 Team meetings each year and the change
reflected in 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
Section 300.511(d) prohibits 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 previous
regulations, there was no prohibition on raising issues at due process
hearings that were not raised in the due process notice.
By encouraging the party requesting the hearing to clearly identify
and articulate issues sooner, the final regulations could generate
actual savings by facilitating early resolution of disagreements
through less costly means, such as mediation or resolution meetings.
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
[[Page 46748]]
estimate that there will be approximately 14,059 requests in 2006-2007.
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 Meetings
Section 300.510 requires the parents, relevant members of the IEP
Team, and a representative of the public agency to participate in a
resolution meeting, 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 meeting. The impact of these final
regulations 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 meetings
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 meetings.
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
14,059 requests for due process hearings in school year 2006-2007.
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 6,028 requests would go to mediation in
school year 2006-2007. We further predict that another 4,047 complaints
will be dropped, leaving no more than 3,985 requests for due process
hearings that would require resolution meetings.
Because of the high cost of due process hearings and the low
expected cost of conducting a resolution meeting, there would likely be
some savings for all parties involved if resolution meetings were
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 3,985
resolution meetings (including drafting legally binding agreements when
parties reach agreement), we expect resolution meetings to cost just
over twice the average cost of IEP Team meetings, or approximately $700
per meeting. Even with a very low success rate (eight percent), given
the expected costs of these meetings 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 meetings 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 3,985 complaints were successfully resolved through
resolution meetings, 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 overestimated the potential savings from
resolution meetings).
Beyond those savings to all parties resulting from reductions in
the total number of formal hearings, we also expect some additional
savings to result from parties agreeing to participate in resolution
meetings instead of mediation, particularly if the resolution meetings
are as effective as mediation in resolving disagreements. However,
unlike due process hearings, the expected cost of conducting a
resolution meeting ($700 per meeting) is only somewhat less than the
cost of a mediation session (between $600 and $1,800 per session).
Because the cost differential between resolution meetings and
mediations is relatively small (compared to the difference in cost
between resolution meetings and due process hearings) the potential for
savings generated by parties agreeing to resolution meetings instead of
mediation is minimal.
The Secretary concludes that requiring parties to participate in
resolution meetings prior to due process hearings could generate modest
savings for all parties to disputes, insofar as mandatory resolution
meetings could result in fewer due process hearings and may be used as
a less expensive alternative to mediation.
Manifestation Determination Review Procedures
Section 300.530(e) and (f) 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 the child's disability
only after considering a list of factors, determining that the child's
IEP 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 the
child's ability to understand the impact and consequences of the
behavior in question, and to control such behavior. The Act eliminated
or substantially revised these requirements. The final regulations
simply require an IEP Team to review all relevant information in the
child'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
[[Page 46749]]
make it easier for school officials to discipline children with
disabilities when discipline is appropriate and justified.
Because fewer factors need to be considered during each
manifestation determination review, the time required to conduct such
reviews will likely be reduced, and some minimal savings may be
realized. However, the more significant impact relates to secondary
effects. Because it will 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 children with disabilities who commit serious
violations of student codes of conduct. This prediction is consistent
with a recent GAO report (``Student Discipline: Individuals with
Disabilities Education Act'' (GAO-01-210)), which found that a
``sizable minority of principals'' voiced concern that discipline
policies under previous law impeded proper disciplinary action for
students with disabilities, and that some of these comments ``may have
stemmed from the additional time and resources that principals
reportedly use to discipline special education students compared with
regular education students.'' Even more importantly, the changes in the
law will make it easier 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 add up 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
(``Student Discipline: Individuals with Disabilities Education Act''
(GAO-01-210)), 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 2006-2007 will be approximately 87,880. If we assume that
the streamlining reflected in the regulations will produce a 20 percent
increase in the total number of manifestation reviews, we predict that
17,576 additional meetings will occur, for a total of 105,456 meetings.
Under the final regulations, 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 final regulations will generate
some minimal savings from the reduction in time required to conduct the
manifestation reviews. Schools would also realize some qualitative
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 final regulations 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
Sections 300.530(g) through 300.532 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 to interim alternative educational settings children who have
inflicted serious bodily injury to themselves, or others. Under
previous law, school personnel were authorized to remove children to
alternative settings only 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 that a hearing officer review
the facts to determine whether or not the child is substantially likely
to harm him or herself or others. Second, the 45-day rule has changed.
Under previous law, students could not be removed to interim
alternative educational 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 child who has engaged in such
misconduct, the data suggest that the savings from the final
regulations will 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
6.947 million children with disabilities will be served during the
2006-2007 school year. Using these data, we project that there would
have been approximately 1,283 instances in 2006-2007 in which a school
district might have requested approval from a hearing officer to remove
a child for inflicting serious 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 final
regulations produce only minimal savings (less than $1 million).
[[Page 46750]]
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 1,283 cases in which school officials would have been
expected to seek and secure hearing officer approval for removing a
child with a disability to an alternative setting and the other cases
in which they might not have taken such action, but where removal of a
child with a disability 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 final
regulations) allows school officials to extend placements in
alternative settings for approximately two additional weeks. This
generates some savings to the extent that it obviates the need for
school officials to seek hearing officer approval to extend a child'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 services in interim alternative educational
settings. Using data from a recent GAO study (``Student Discipline:
Individuals with Disabilities Education Act'' (GAO-01-210)), we
estimate that approximately 3,007 children will be removed to an
interim alternative educational setting in 2006-2007 for misconduct
involving drugs or weapons and at least another 1,283 for misconduct
involving serious bodily injury. Although we do not have data on the
costs of educating these children in an alternative setting for 45
school days, the Secretary concludes that the costs of doing so will be
outweighed by the qualitative benefits to schools associated with
ensuring children a safe and orderly environment that is conducive to
learning.
Costs and Benefits of Non-Statutory Final Regulatory Provisions
The following is an analysis of the costs and benefits of the non-
statutory final regulatory provisions that includes consideration of
the special effects these changes may have on small entities.
The final regulations 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 changes also affect children attending private schools and
consequently indirectly affect private schools.
For purposes of this analysis as it relates to small entities, the
Secretary has focused on 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 children in small districts had IEPs.
Both small and large districts will be affected economically by the
final 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 final regulations on small entities will be roughly
proportional to the number of children with disabilities served by
those districts.
For school year 2006-2007, we project that approximately 48.6
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 years 2002-2003 and 2005-2006, we
estimate that in the 2006-2007 school year, approximately 1.46 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 2006-2007 school year, these districts will serve approximately
248,000 children with disabilities of the 6.947 million children with
disabilities served nationwide.
There are many provisions in the final regulations that will result
in economic impacts, both positive and negative. The following analysis
estimates the impact of the final regulations that were not required by
the Act:
Procedures for Evaluating Children With Specific Learning Disabilities
Section 300.307(a) requires that States adopt criteria for
determining whether a child has a specific learning disability. Under
the final regulations, States may not require 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 final regulations 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 are also
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,
Sec. 300.309(b) requires that the evaluation team consider data that
demonstrate that prior to, or as part of the referral process, the
child received appropriate 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 has not made adequate progress under these conditions after
an appropriate period of time, the final regulations further require
that the public agency refer the child for an evaluation to determine
if special education and related services are needed. Under the final
regulations, the child's parents and the team of qualified
professionals, described in Sec. 300.306(a)(1), are permitted to
extend the evaluation timelines described in 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 final regulations will affect approximately
816,000 evaluations each year. Depending on the criteria adopted by
their States pursuant to Sec. 300.307(a), public agencies could
realize savings under the final regulations by reducing the amount of a
school psychologist's time involved in conducting cognitive assessments
that would have been needed to document 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 Sec. 300.309(b).
Although the cost of evaluating children suspected of having
specific learning disabilities might be affected by the final
regulations, the Department expects that the most significant benefits
of the changes will be achieved through improved identification of
children suspected of having specific learning disabilities. By
requiring that States permit alternatives to an IQ-
[[Page 46751]]
discrepancy criterion, the final regulations 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 final regulations may impose additional costs on small public
agencies that currently lack capacity 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 revised criteria may
alleviate testing burdens felt disproportionately by small districts
under an IQ discrepancy evaluation model.
Transition Requirements
Section 300.321(b) modifies previous regulations regarding
transition services planning for children with disabilities who are 16
through 21 years old. Public agencies are still required to invite
other agencies that are likely to be responsible for providing or
paying for transition services to the child's IEP Team meeting. If the
invited agency does not send a representative, public agencies are no
longer required to take additional steps to obtain the participation of
those agencies in the planning of transition, as required under former
Sec. 300.344(b)(3)(ii).
Public agencies will realize savings from the change to the extent
that they will not have to continue to contact agencies that declined
to participate in IEP Team meetings on transition planning. In school
year 2006-2007, we project that public agencies will conduct 1.193
million meetings for children 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
Team meetings during the 2006-2007 school year. Based on these data, we
project that schools will invite 1.492 million personnel from other
agencies to IEP Team meetings for these students during the 2006-2007
school year. The NLTS2 also collected data on the percentage of
children with a transition plan for whom outside agency staff were
actively involved in transition planning. Based on these data, we
project that 432,800 (29 percent) of the contacts will result in the
active participation of outside agency personnel in transition planning
for children with disabilities who are age 16 through 21.
We base our estimate of the savings from the change on the
projected 1,059,200 (71 percent) instances in which outside agencies
will not participate in transition planning despite school contacts
that, under the previous regulations, would have included both an
invitation to participate in the child's IEP Team 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 change
will save $6.6 million (based on an average hourly compensation for
office and administrative support staff of $25).
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 previous regulations focused on administrative
contact instead of active strategic partnerships between agencies that
facilitate seamless transitions for children with disabilities between
school and adult settings. For this reason, the Department believes
that the elimination of the non-statutory requirement that public
agencies make additional attempts to contact other agencies will reduce
administrative burden and allow public agencies to focus their efforts
on interagency collaborative transition planning for children with
disabilities.
Paperwork Reduction Act of 1995
The Paperwork Reduction Act of 1995 does not require you to respond
to a collection of information unless it displays a valid OMB control
number. We display the valid OMB control numbers assigned to the
collections of information in these final regulations at the end of the
affected sections of the regulations.
These final regulations include 9 information collection
requirements associated with the following provisions: 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, and Sec. 300.804. 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.
Collection of Information: Annual State Application under Part B of
the Act. Sec. Sec. 300.100 through 300.176, 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 final regulations. Under the Act, States are no
longer 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 Act and these regulations.
Annual reporting and recordkeeping burden for this collection of
information is estimated to average twelve 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 1820-0030 is estimated to be 720 hours.
Collection of Information: Part B State Performance Plan (SPP) and
Annual Performance Report (APR). Sec. Sec. 300.600 through 300.602.
Each State must have in place, not later than one year after the date
of enactment of the Act, a performance plan that evaluates the State's
efforts to implement the requirements and purposes of Part B of the Act
and these final 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.
Annual reporting and recordkeeping burden for this collection of
information is estimated to average 325 hours for each response for 60
respondents, including the time for reviewing instructions, searching
existing data sources, gathering and maintaining the
[[Page 46752]]
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 19,500 hours.
Collection of Information: Report of Children with Disabilities
Receiving Special Education under Part B of the Individuals with
Disabilities Education Act. Sec. Sec. 300.640 through 300.645. 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 average 9 hours for each of 60 State agencies and 2 hours
for LEAs in each State. Thus, the total annual reporting and
recordkeeping burden for collection 1820-0043 is 33,276 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 final
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. 300.640, Sec. 300.642, and Sec.
300.645. 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 final 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 final 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 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.
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
information collection 1820-0677 is estimated to be 4,200 hours.
Collection of Information: State and LEA Record Keeping and
Reporting Requirements under Part B. Sec. 300.132, Sec. Sec. 300.134
through 300.136, Sec. Sec. 300.151 through 300.153, Sec. Sec. 300.201
through 300.213, Sec. 300.224, Sec. 300.226, Sec. 300.504, Sec.
300.506, Sec. 300.507, Sec. 300.511, and Sec. 300.704. The Act
requires States and LEAs to gather, maintain, and report various
information and data, but the Act does not require this information and
data to be submitted to the Department. In the NPRM, these requirements
were reflected in separate information collections. For the purpose of
clarity and efficiency we have combined these separate collections of
information into one collection that reflects all the record keeping
and reporting that must be completed at the State or LEA level, which
do not require reporting to the Department. The following collections
of information referenced in the NPRM are combined into information
collection 1820-0600: LEA Application under Part B of the Act; List of
Hearing Officers and Mediators, Complaint Procedures; LEA Consultation
with Private School Representatives; Private School Complaint of
Noncompliance with Consultation Requirements; Identification of State-
Imposed Rules, Regulations, or Policies; Number of
[[Page 46753]]
Children with Disabilities Enrolled in Private Schools by Their
Parents; State Plan for High Cost Fund; Free and Low-Cost Legal
Services; and Confidentiality Pledge Prior to the Commencement of
Mediation.
Annual reporting and recordkeeping burden for this collection of
information is estimated to approximately 6 hours for 79,194
respondents (LEAs and State agencies). The total annual reporting and
recordkeeping burden for information collection 1820-0600 for all
States and LEAs is 472,651 hours.
Intergovernmental Review
This program is subject to the requirements of Executive Order
12372 and the regulations in 34 CFR part 79. The objective of the
Executive order is to foster an intergovernmental partnership and a
strengthened federalism by relying on processes developed by State and
local governments for coordination and review of proposed Federal
financial assistance.
In accordance with this order, we intend this document to provide
early notification of the Department's specific plans and actions for
this program.
Assessment of Educational Impact
In the NPRM published in the Federal Register on June 21, 2005, we
requested comments on whether the proposed regulations would require
transmission of information that any other agency or authority of the
United States gathers or makes available.
Based on the response to the NPRM and on our own review, we have
determined that these final regulations do not 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 Reader, 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.
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.
Dated: July 31, 2006.
Margaret Spellings,
Secretary of Education.
For the reasons discussed in this preamble, and under the authority
of 20 U.S.C. 1221(e)(3) and 1406, the Secretary amends title 34 of the
Code of Federal Regulations as follows:
0
1. Part 300 is revised to read as follows:
PART 300--ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH
DISABILITIES
Subpart A--General
Purposes 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 teachers.
300.19 Homeless children.
300.20 Include.
300.21 Indian and Indian tribe.
300.22 Individualized education program.
300.23 Individualized education program team.
300.24 Individualized family service plan.
300.25 Infant or toddler with a disability.
300.26 Institution of higher education.
300.27 Limited English proficient.
300.28 Local educational agency.
300.29 Native language.
300.30 Parent.
300.31 Parent training and information center.
300.32 Personally identifiable.
300.33 Public agency.
300.34 Related services.
300.35 Scientifically based research.
300.36 Secondary school.
300.37 Services plan.
300.38 Secretary.
300.39 Special education.
300.40 State.
300.41 State educational agency.
300.42 Supplementary aids and services.
300.43 Transition services.
300.44 Universal design.
300.45 Ward of the State.
Subpart B--State Eligibility
General
300.100 Eligibility for assistance.
FAPE Requirements
300.101 Free appropriate public education (FAPE).
300.102 Limitation--exception to FAPE for certain ages.
Other FAPE Requirements
300.103 FAPE--methods and payments.
300.104 Residential placement.
300.105 Assistive technology.
300.106 Extended school year services.
300.107 Nonacademic services.
300.108 Physical education.
300.109 Full educational opportunity goal (FEOG).
300.110 Program options.
300.111 Child find.
300.112 Individualized education programs (IEP).
300.113 Routine checking of hearing aids and external components of
surgically implanted medical devices.
Least Restrictive Environment (LRE)
300.114 LRE requirements.
300.115 Continuum of alternative placements.
300.116 Placements.
300.117 Nonacademic settings.
300.118 Children in public or private institutions.
300.119 Technical assistance and training activities.
300.120 Monitoring activities.
Additional Eligibility Requirements
300.121 Procedural safeguards.
300.122 Evaluation.
300.123 Confidentiality of personally identifiable information.
300.124 Transition of children from the Part C program to preschool
programs.
300.125-300.128 [Reserved]
Children in Private Schools
300.129 State responsibility regarding children in private schools.
Children With Disabilities Enrolled by Their Parents in Private Schools
300.130 Definition of parentally-placed private school children with
disabilities.
300.131 Child find for parentally-placed private school children
with disabilities.
[[Page 46754]]
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.
300.142 Use of personnel.
300.143 Separate classes prohibited.
300.144 Property, equipment, and supplies.
Children With Disabilities in Private Schools Placed or Referred by
Public Agencies
300.145 Applicability of Sec. Sec. 300.146 through 300.147.
300.146 Responsibility of SEA.
300.147 Implementation by SEA.
Children With Disabilities Enrolled by Their Parents in Private Schools
When FAPE is at Issue
300.148 Placement of children by parents when FAPE is at issue.
SEA Responsibility for General Supervision and Implementation of
Procedural Safeguards
300.149 SEA responsibility for general supervision.
300.150 SEA implementation of procedural safeguards.
State Complaint Procedures
300.151 Adoption of State complaint procedures.
300.152 Minimum State complaint procedures.
300.153 Filing a complaint.
Methods of Ensuring Services
300.154 Methods of ensuring services.
Additional Eligibility Requirements
300.155 Hearings relating to LEA eligibility.
300.156 Personnel qualifications.
300.157 Performance goals and indicators.
300.158-300.161 [Reserved]
300.162 Supplementation of State, local, and other Federal funds.
300.163 Maintenance of State financial support.
300.164 Waiver of requirement regarding supplementing and not
supplanting with Part B funds.
300.165 Public participation.
300.166 Rule of construction.
State Advisory Panel
300.167 State advisory panel.
300.168 Membership.
300.169 Duties.
Other Provisions Required for State Eligibility
300.170 Suspension and expulsion rates.
300.171 Annual description of use of Part B funds.
300.172 Access to instructional materials.
300.173 Overidentification and disproportionality.
300.174 Prohibition on mandatory medication.
300.175 SEA as provider of FAPE or direct services.
300.176 Exception for prior State plans.
300.177 States' sovereign immunity.
Department Procedures
300.178 Determination by the Secretary that a State is eligible to
receive a grant.
300.179 Notice and hearing before determining that a State is not
eligible to receive a grant.
300.180 Hearing official or panel.
300.181 Hearing procedures.
300.182 Initial decision; final decision.
300.183 Filing requirements.
300.184 Judicial review.
300.185 [Reserved]
300.186 Assistance under other Federal programs.
By-pass for Children in Private Schools
300.190 By-pass--general.
300.191 Provisions for services under a by-pass.
300.192 Notice of intent to implement a by-pass.
300.193 Request to show cause.
300.194 Show cause hearing.
300.195 Decision.
300.196 Filing requirements.
300.197 Judicial review.
300.198 Continuation of a by-pass.
State Administration
300.199 State administration.
Subpart C--Local Educational Agency Eligibility
300.200 Condition of assistance.
300.201 Consistency with State policies.
300.202 Use of amounts.
300.203 Maintenance of effort.
300.204 Exception to maintenance of effort.
300.205 Adjustment to local fiscal efforts in certain fiscal years.
300.206 Schoolwide programs under title I of the ESEA.
300.207 Personnel development.
300.208 Permissive use of funds.
300.209 Treatment of charter schools and their students.
300.210 Purchase of instructional materials.
300.211 Information for SEA.
300.212 Public information.
300.213 Records regarding migratory children with disabilities.
300.214-300.219 [Reserved]
300.220 Exception for prior local plans.
300.221 Notification of LEA or State agency in case of
ineligibility.
300.222 LEA and State agency compliance.
300.223 Joint establishment of eligibility.
300.224 Requirements for establishing eligibility.
300.225 [Reserved]
300.226 Early intervening services.
300.227 Direct services by the SEA.
300.228 State agency eligibility.
300.229 Disciplinary information.
300.230 SEA flexibility.
Subpart D--Evaluations, Eligibility Determinations, Individualized
Education Programs, and Educational Placements
Parental Consent
300.300 Parental consent.
Evaluations and Reevaluations
300.301 Initial evaluations.
300.302 Screening for instructional purposes is not evaluation.
300.303 Reevaluations.
300.304 Evaluation procedures.
300.305 Additional requirements for evaluations and reevaluations.
300.306 Determination of eligibility.
Additional Procedures for Identifying Children With Specific Learning
Disabilities
300.307 Specific learning disabilities.
300.308 Additional group members.
300.309 Determining the existence of a specific learning disability.
300.310 Observation.
300.311 Specific documentation for the eligibility determination.
Individualized Education Programs
300.320 Definition of individualized education program.
300.321 IEP Team.
300.322 Parent participation.
300.323 When IEPs must be in effect.
Development of IEP
300.324 Development, review, and revision of IEP.
300.325 Private school placements by public agencies.
300.326 [Reserved]
300.327 Educational placements.
300.328 Alternative means of meeting participation.
Subpart E--Procedural Safeguards
Due Process Procedures for Parents and Children
300.500 Responsibility of SEA and other public agencies.
300.501 Opportunity to examine records; parent participation in
meetings.
300.502 Independent educational evaluation.
300.503 Prior notice by the public agency; content of notice.
300.504 Procedural safeguards notice.
300.505 Electronic mail.
300.506 Mediation.
300.507 Filing a due process complaint.
300.508 Due process complaint.
300.509 Model forms.
300.510 Resolution process.
300.511 Impartial due process hearing.
300.512 Hearing rights.
300.513 Hearing decisions.
300.514 Finality of decision; appeal; impartial review.
300.515 Timelines and convenience of hearings and reviews.
300.516 Civil action.
300.517 Attorneys' fees.
300.518 Child's status during proceedings.
300.519 Surrogate parents.
300.520 Transfer of parental rights at age of majority.
300.521-300.529 [Reserved]
[[Page 46755]]
Discipline Procedures
300.530 Authority of school personnel.
300.531 Determination of setting.
300.532 Appeal.
300.533 Placement during appeals.
300.534 Protections for children not determined eligible for special
education and related services.
300.535 Referral to and action by law enforcement and judicial
authorities.
300.536 Change of placement because of disciplinary removals.
300.537 State enforcement mechanisms.
300.538-300.599 [Reserved]
Subpart F--Monitoring, Enforcement, Confidentiality, and Program
Information
Monitoring, Technical Assistance, and Enforcement
300.600 State monitoring and enforcement.
300.601 State performance plans and data collection.
300.602 State use of targets and reporting.
300.603 Secretary's review and determination regarding State
performance.
300.604 Enforcement.
300.605 Withholding funds.
300.606 Public attention.
300.607 Divided State agency responsibility.
300.608 State enforcement.
300.609 Rule of construction.
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
Allotments, Grants, and Use of Funds
300.700 Grants to States.
300.701 Outlying areas, freely associated States, and the Secretary
of the Interior.
300.702 Technical assistance.
300.703 Allocations to States.
300.704 State-level activities.
300.705 Subgrants to LEAs.
300.706 [Reserved]
Secretary of the Interior
300.707 Use of amounts by Secretary of the Interior.
300.708 Submission of information.
300.709 Public participation.
300.710 Use of funds under Part B of the Act.
300.711 Early intervening services.
300.712 Payments for education and services for Indian children with
disabilities aged three through five.
300.713 Plan for coordination of services.
300.714 Establishment of advisory board.
300.715 Annual reports.
300.716 Applicable regulations.
Definitions That Apply to This Subpart
300.717 Definitions applicable to allotments, grants, and use of
funds.
Acquisition of Equipment and Construction or Alteration of Facilities
300.718 Acquisition of equipment and construction or alteration of
facilities.
Subpart H--Preschool Grants for Children With Disabilities
300.800 In general.
300.801-300.802 [Reserved]
300.803 Definition of State.
300.804 Eligibility.
300.805 [Reserved]
300.806 Eligibility for financial assistance.
300.807 Allocations to States.
300.808 Increase in funds.
300.809 Limitations.
300.810 Decrease in funds.
300.811 [Reserved]
300.812 Reservation for State activities.
300.813 State administration.
300.814 Other State-level activities.
300.815 Subgrants to LEAs.
300.816 Allocations to LEAs.
300.817 Reallocation of LEA funds.
300.818 Part C of the Act inapplicable.
Appendix A to Part 300--Excess Costs Calculation
Appendix B to Part 300--Proportionate Share Calculation
Appendix C to Part 300--National Instructional Materials
Accessibility Standard (NIMAS)
Appendix D to Part 300--Maintenance of Effort and Early Intervening
Services
Appendix E to Part 300--Index for IDEA--Part B Regulations (34 CFR
Part 300)
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.
(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))
[[Page 46756]]
Sec. 300.5 Assistive technology device.
Assistive technology device means any item, piece of equipment, or
product system, whether acquired commercially off the shelf, modified,
or customized, that is used to increase, maintain, or improve the
functional capabilities of a child with a disability. The term does not
include a medical device that is surgically implanted, or the
replacement of such device.
(Authority: 20 U.S.C. 1401(1))
Sec. 300.6 Assistive technology service.
Assistive technology service means any service that directly
assists a child with a disability in the selection, acquisition, or use
of an assistive technology device. The term includes--
(a) The evaluation of the needs of a child with a disability,
including a functional evaluation of the child in the child's customary
environment;
(b) Purchasing, leasing, or otherwise providing for the acquisition
of assistive technology devices by children with disabilities;
(c) Selecting, designing, fitting, customizing, adapting, applying,
maintaining, repairing, or replacing assistive technology devices;
(d) Coordinating and using other therapies, interventions, or
services with assistive technology devices, such as those associated
with existing education and rehabilitation plans and programs;
(e) Training or technical assistance for a child with a disability
or, if appropriate, that child's family; and
(f) Training or technical assistance for professionals (including
individuals providing education or rehabilitation services), employers,
or other individuals who provide services to, employ, or are otherwise
substantially involved 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. 300.39(a)(2), the related service
required by the child is considered special education rather than a
related service under State standards, the child would be determined to
be a child with a disability under paragraph (a)(1) of this section.
(b) Children aged three through nine experiencing developmental
delays. Child with a disability for children aged three through nine
(or any subset of that age range, including ages three through five),
may, subject to the conditions described in Sec. 300.111(b), include a
child--
(1) Who is experiencing developmental delays, as defined by the
State and as measured by appropriate diagnostic instruments and
procedures, in one or more of the following areas: Physical
development, cognitive development, communication development, social
or emotional development, or adaptive development; and
(2) Who, by reason thereof, needs special education and related
services.
(c) Definitions of disability terms. The terms used in this
definition of a child with a disability are defined as follows:
(1)(i) Autism means a developmental disability significantly
affecting verbal and nonverbal communication and social interaction,
generally evident before age three, that adversely affects a child's
educational performance. Other characteristics often associated with
autism are engagement in repetitive activities and stereotyped
movements, resistance to environmental change or change in daily
routines, and unusual responses to sensory experiences.
(ii) Autism does not apply if a child's educational performance is
adversely affected primarily because the child has an emotional
disturbance, as defined in paragraph (c)(4) of this section.
(iii) A child who manifests the characteristics of autism after age
three could be identified as having autism if the criteria in paragraph
(c)(1)(i) of this section are satisfied.
(2) Deaf-blindness means concomitant hearing and visual
impairments, the combination of which causes such severe communication
and other developmental and educational needs that they cannot be
accommodated in special education programs solely for children with
deafness or children with blindness.
(3) Deafness means a hearing impairment that is so severe that the
child is impaired in processing linguistic information through hearing,
with or without amplification that adversely affects a child's
educational performance.
(4)(i) Emotional disturbance means a condition exhibiting one or
more of the following characteristics over a long period of time and to
a marked degree that adversely affects a child's educational
performance:
(A) An inability to learn that cannot be explained by intellectual,
sensory, or health factors.
(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 or mental retardation-orthopedic
impairment), the combination of which causes such severe educational
needs that they cannot be accommodated in special education programs
solely for one of the impairments. Multiple disabilities does not
include deaf-blindness.
(8) Orthopedic impairment means a severe orthopedic impairment that
adversely affects a child's educational
[[Page 46757]]
performance. The term includes impairments caused by a congenital
anomaly, impairments caused by disease (e.g., poliomyelitis, bone
tuberculosis), and impairments from other causes (e.g., cerebral palsy,
amputations, and fractures or burns that cause contractures).
(9) Other health impairment means having limited strength,
vitality, or alertness, including a heightened alertness to
environmental stimuli, that results in limited alertness with respect
to the educational environment, that--
(i) Is due to chronic or acute health problems such as asthma,
attention deficit disorder or attention deficit hyperactivity disorder,
diabetes, epilepsy, a heart condition, hemophilia, lead poisoning,
leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette
syndrome; and
(ii) Adversely affects a child's educational performance.
(10) Specific learning disability--(i) General. Specific learning
disability means a disorder in one or more of the basic psychological
processes involved in understanding or in using language, spoken or
written, that may manifest itself in the imperfect ability to listen,
think, speak, read, write, spell, or to do mathematical calculations,
including conditions such as perceptual disabilities, brain injury,
minimal brain dysfunction, dyslexia, and developmental aphasia.
(ii) Disorders not included. Specific learning disability does not
include learning problems that are primarily the result of visual,
hearing, or motor disabilities, of 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(d)(1)(ii)).
(c)(1) School day means any day, including a partial day that
children are in attendance at school for instructional purposes.
(2) School day has the same meaning for all children in school,
including children with and without disabilities.
(Authority: 20 U.S.C. 1221e-3)
Sec. 300.12 Educational service agency.
Educational service agency means--
(a) A regional public multiservice agency--
(1) Authorized by State law to develop, manage, and provide
services or programs to LEAs;
(2) Recognized as an administrative agency for purposes of the
provision of special education and related services provided within
public elementary schools and secondary schools of the State;
(b) Includes any other public institution or agency having
administrative control and direction over a public elementary school or
secondary school; and
(c) Includes entities that meet the definition of intermediate
educational unit in section 602(23) of the Act as in effect prior to
June 4, 1997.
(Authority: 20 U.S.C. 1401(5))
Sec. 300.13 Elementary school.
Elementary school means a nonprofit institutional day or
residential school, including a public elementary charter school, that
provides elementary education, as determined under State law.
(Authority: 20 U.S.C. 1401(6))
Sec. 300.14 Equipment.
Equipment means--
(a) Machinery, utilities, and built-in equipment, and any necessary
enclosures or structures to house the machinery, utilities, or
equipment; and
(b) All other items necessary for the functioning of a particular
facility as a facility for the provision of educational services,
including items such as instructional equipment and necessary
furniture; printed, published and audio-visual instructional materials;
telecommunications, sensory, and other technological aids and devices;
and books, periodicals, documents, and other related materials.
(Authority: 20 U.S.C. 1401(7))
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;
[[Page 46758]]
(b) Any State or local funds expended for programs that would
qualify for assistance under any of the parts described in paragraph
(a) of this section, but excluding any amounts for capital outlay or
debt service. (See Appendix A to part 300 for an example of how excess
costs must be calculated.)
(Authority: 20 U.S.C. 1401(8))
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 teachers.
(a) Requirements for special education teachers teaching core
academic subjects. For any public elementary or secondary school
special education teacher teaching core academic subjects, 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--
(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 special education teachers in general. (1)
When used with respect to any public elementary school or secondary
school special education teacher teaching in a State, highly qualified
requires 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 certification or licensing requirements, if
any, 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 special education certification program under
which--
(i) The teacher--
(A) Receives high-quality professional development that is
sustained, intensive, and classroom-focused in order to have a positive
and lasting impact on classroom instruction, before and while teaching;
(B) Participates in a program of intensive supervision that
consists of structured guidance and regular ongoing support for
teachers or a teacher mentoring program;
(C) Assumes functions as a teacher only for a specified period of
time not to exceed three years; and
(D) Demonstrates satisfactory progress toward full certification as
prescribed by the State; and
(ii) The State ensures, through its certification and licensure
process, that the provisions in paragraph (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 in paragraph (b)(1) or the requirements in (b)(1)(iii) and
(b)(2) of this section.
(c) Requirements for 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 paragraph (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 paragraph (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 and
needed to effectively teach to those standards, as determined by the
State.
(d) Requirements for special education teachers teaching multiple
subjects. Subject to paragraph (e) of this section, 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 (HOUSSE) 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 HOUSSE covering multiple subjects.
(e) Separate HOUSSE standards for special education teachers.
Provided that any adaptations of the State's HOUSSE would not establish
a lower standard for the content knowledge requirements for special
education teachers and meets all the requirements for a HOUSSE for
regular education teachers--
(1) A State may develop a separate HOUSSE for special education
teachers; and
(2) The standards described in paragraph (e)(1) of this section may
include single HOUSSE evaluations that cover multiple subjects.
(f) Rule of construction. Notwithstanding any other individual
right of action that a parent or student may maintain under this part,
nothing in this part shall be construed to create a right of action on
behalf of an individual student or class of students for the failure of
a particular SEA or LEA employee to be highly qualified, or to 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.
(g) Applicability of definition to ESEA; and clarification of new
special
[[Page 46759]]
education teacher. (1) A teacher who is highly qualified under this
section is considered highly qualified for purposes of the ESEA.
(2) For purposes of Sec. 300.18(d)(3), a fully certified regular
education teacher who subsequently becomes fully certified or licensed
as a special education teacher is a new special education teacher when
first hired as a special education teacher.
(h) Private school teachers not covered. The requirements in this
section do not apply to teachers hired by private elementary schools
and secondary schools including private school teachers hired or
contracted by LEAs to provide equitable services to parentally-placed
private school children with disabilities under Sec. 300.138.
(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.).
(c) Nothing in this definition is intended to indicate that the
Secretary of the Interior is required to provide services or funding to
a State Indian tribe that is not listed in the Federal Register list of
Indian entities recognized as eligible to receive services from the
United States, published pursuant to Section 104 of the Federally
Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a-1.
(Authority: 20 U.S.C. 1401(12) and (13))
Sec. 300.22 Individualized education program.
Individualized education program or IEP means a written statement
for a child with a disability that is developed, reviewed, and revised
in accordance with Sec. Sec. 300.320 through 300.324.
(Authority: 20 U.S.C. 1401(14))
Sec. 300.23 Individualized education program team.
Individualized education program team or IEP Team means a group of
individuals described in Sec. 300.321 that is responsible for
developing, reviewing, or revising an IEP for a child with a
disability.
(Authority: 20 U.S.C. 1414(d)(1)(B))
Sec. 300.24 Individualized family service plan.
Individualized family service plan or IFSP has the meaning given
the term in section 636 of the Act.
(Authority: 20 U.S.C. 1401(15))
Sec. 300.25 Infant or toddler with a disability.
Infant or toddler with a disability--
(a) Means an individual under three years of age who needs early
intervention services because the individual--
(1) Is experiencing developmental delays, as measured by
appropriate diagnostic instruments and procedures in one or more of the
areas of cognitive development, physical development, communication
development, social or emotional development, and adaptive development;
or
(2) Has a diagnosed physical or mental condition that has a high
probability of resulting in developmental delay; and
(b) May also include, at a State's discretion--
(1) At-risk infants and toddlers; and
(2) Children with disabilities who are eligible for services under
section 619 and who previously received services under Part C of the
Act until such children enter, or are eligible under State law to
enter, kindergarten or elementary school, as appropriate, provided that
any programs under Part C of the Act serving such children shall
include--
(i) An educational component that promotes school readiness and
incorporates pre-literacy, language, and numeracy skills; and
(ii) A written notification to parents of their rights and
responsibilities in determining whether their child will continue to
receive services under Part C of the Act or participate in preschool
programs under section 619.
(Authority: 20 U.S.C. 1401(16) and 1432(5))
Sec. 300.26 Institution of higher education.
Institution of higher education--
(a) Has the meaning given the term in section 101 of the Higher
Education Act of 1965, as amended, 20 U.S.C. 1021 et seq. (HEA); and
(b) Also includes any community college receiving funds from the
Secretary of the Interior under the Tribally Controlled Community
College or University Assistance Act of 1978, 25 U.S.C. 1801, et seq.
(Authority: 20 U.S.C. 1401(17))
Sec. 300.27 Limited English proficient.
Limited English proficient has the meaning given the term 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 nonprofit charter school that is established
as an LEA under State law.
(c) BIA funded schools. The term includes an elementary school or
secondary school funded by the Bureau of Indian Affairs, and not
subject to the jurisdiction of any SEA other than the Bureau of Indian
Affairs, but only to the extent that the inclusion makes the school
eligible for programs for which specific eligibility is not provided to
the school in another provision of law and the school does not have a
student population that is 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
[[Page 46760]]
language normally used by the child in the home or learning
environment.
(b) For an individual with deafness or blindness, or for an
individual with no written language, the mode of communication is that
normally used by the individual (such as sign language, Braille, or
oral communication).
(Authority: 20 U.S.C. 1401(20))
Sec. 300.30 Parent.
(a) Parent means--
(1) A biological or adoptive parent of a child;
(2) A foster parent, unless State law, regulations, or contractual
obligations with a State or local entity prohibit a foster parent from
acting as a parent;
(3) A guardian generally authorized to act as the child's parent,
or authorized to make educational decisions for the child (but not the
State if the child is a ward of the State);
(4) An individual acting in the place of a biological or adoptive
parent (including a grandparent, stepparent, or other relative) with
whom the child lives, or an individual who is legally responsible for
the child's welfare; or
(5) A surrogate parent who has been appointed in accordance with
Sec. 300.519 or section 639(a)(5) of the Act.
(b) (1) Except as provided in paragraph (b)(2) of this section, the
biological or adoptive parent, when attempting to act as the parent
under this part and when more than one party is qualified under
paragraph (a) of this section to act as a parent, must be presumed to
be the parent for purposes of this section unless the biological or
adoptive parent does not have legal authority to make educational
decisions for the child.
(2) If a judicial decree or order identifies a specific person or
persons under paragraphs (a)(1) through (4) of this section to act as
the ``parent'' of a child or to make educational decisions on behalf of
a child, then such person or persons shall be determined to be the
``parent'' for purposes of this section.
(Authority: 20 U.S.C. 1401(23))
Sec. 300.31 Parent training and information center.
Parent training and information center means a center assisted
under sections 671 or 672 of the Act.
(Authority: 20 U.S.C. 1401(25))
Sec. 300.32 Personally identifiable.
Personally identifiable means information that contains--
(a) The name of the child, the child's parent, or other family
member;
(b) The address of the child;
(c) A personal identifier, such as the child's social security
number or student number; or
(d) A list of personal characteristics or other information that
would make it possible to identify the child with reasonable certainty.
(Authority: 20 U.S.C. 1415(a))
Sec. 300.33 Public agency.
Public agency includes the SEA, LEAs, ESAs, nonprofit public
charter schools that are not otherwise included as LEAs or ESAs and are
not a school of an LEA or ESA, and any other political subdivisions of
the State that are responsible for providing education to children with
disabilities.
(Authority: 20 U.S.C. 1412(a)(11))
Sec. 300.34 Related services.
(a) General. Related services means transportation and such
developmental, corrective, and other supportive services as are
required to assist a child with a disability to benefit from special
education, and includes speech-language pathology and audiology
services, interpreting services, psychological services, physical and
occupational therapy, recreation, including therapeutic recreation,
early identification and assessment of disabilities in children,
counseling services, including rehabilitation counseling, orientation
and mobility services, and medical services for diagnostic or
evaluation purposes. Related services also include school health
services and school nurse services, social work services in schools,
and parent counseling and training.
(b) Exception; services that apply to children with surgically
implanted devices, including cochlear implants.
(1) Related services do not include a medical device that is
surgically implanted, the optimization of that device's functioning
(e.g., mapping), maintenance of that device, or the replacement of that
device.
(2) Nothing in paragraph (b)(1) of this section--
(i) Limits the right of a child with a surgically implanted device
(e.g., cochlear implant) to receive related services (as listed in
paragraph (a) of this section) that are determined by the IEP Team to
be necessary for the child to receive FAPE.
(ii) Limits the responsibility of a public agency to appropriately
monitor and maintain medical devices that are needed to maintain the
health and safety of the child, including breathing, nutrition, or
operation of other bodily functions, while the child is transported to
and from school or is at school; or
(iii) Prevents the routine checking of an external component of a
surgically implanted device to make sure it is functioning properly, as
required in Sec. 300.113(b).
(c) Individual related services terms defined. The terms used in
this definition are defined as follows:
(1) Audiology includes--
(i) Identification of children with hearing loss;
(ii) Determination of the range, nature, and degree of hearing
loss, including referral for medical or other professional attention
for the habilitation of hearing;
(iii) Provision of habilitative activities, such as language
habilitation, auditory training, speech reading (lip-reading), hearing
evaluation, and speech conservation;
(iv) Creation and administration of programs for prevention of
hearing loss;
(v) Counseling and guidance of children, parents, and teachers
regarding hearing loss; and
(vi) Determination of children's needs for group and individual
amplification, selecting and fitting an appropriate aid, and evaluating
the effectiveness of amplification.
(2) Counseling services means services provided by qualified social
workers, psychologists, guidance counselors, or other qualified
personnel.
(3) Early identification and assessment of disabilities in children
means the implementation of a formal plan for identifying a disability
as early as possible in a child's life.
(4) Interpreting services includes--
(i) The following, when used with respect to children who are deaf
or hard of hearing: Oral transliteration services, cued language
transliteration services, sign language transliteration and
interpreting services, and transcription services, such as
communication access real-time translation (CART), C-Print, and
TypeWell; and
(ii) Special interpreting services for children who are deaf-blind.
(5) Medical services means services provided by a licensed
physician to determine a child's medically related disability that
results in the child's need for special education and related services.
(6) Occupational therapy--
(i) Means services provided by a qualified occupational therapist;
and
(ii) Includes--
(A) Improving, developing, or restoring functions impaired or lost
through illness, injury, or deprivation;
(B) Improving ability to perform tasks for independent functioning
if functions are impaired or lost; and
(C) Preventing, through early intervention, initial or further
impairment or loss of function.
[[Page 46761]]
(7) Orientation and mobility services--
(i) Means services provided to blind or visually impaired children
by qualified personnel to enable those students to attain systematic
orientation to and safe movement within their environments in school,
home, and community; and
(ii) Includes teaching children the following, as appropriate:
(A) Spatial and environmental concepts and use of information
received by the senses (such as sound, temperature and vibrations) to
establish, maintain, or regain orientation and line of travel (e.g.,
using sound at a traffic light to cross the street);
(B) To use the long cane or a service animal to supplement visual
travel skills or as a tool for safely negotiating the environment for
children with no available travel vision;
(C) To understand and use remaining vision and distance low vision
aids; and
(D) Other concepts, techniques, and tools.
(8)(i) Parent counseling and training means assisting parents in
understanding the special needs of their child;
(ii) Providing parents with information about child development;
and
(iii) Helping parents to acquire the necessary skills that will
allow them to support the implementation of their child's IEP or IFSP.
(9) Physical therapy means services provided by a qualified
physical therapist.
(10) Psychological services includes--
(i) Administering psychological and educational tests, and other
assessment procedures;
(ii) Interpreting assessment results;
(iii) Obtaining, integrating, and interpreting information about
child behavior and conditions relating to learning;
(iv) Consulting with other staff members in planning school
programs to meet the special educational needs of children as indicated
by psychological tests, interviews, direct observation, and behavioral
evaluations;
(v) Planning and managing a program of psychological services,
including psychological counseling for children and parents; and
(vi) Assisting in developing positive behavioral intervention
strategies.
(11) Recreation includes--
(i) Assessment of leisure function;
(ii) Therapeutic recreation services;
(iii) Recreation programs in schools and community agencies; and
(iv) Leisure education.
(12) Rehabilitation counseling services means services provided by
qualified personnel in individual or group sessions that focus
specifically on career development, employment preparation, achieving
independence, and integration in the workplace and community of a
student with a disability. The term also includes vocational
rehabilitation services provided to a student with a disability by
vocational rehabilitation programs funded under the Rehabilitation Act
of 1973, as amended, 29 U.S.C. 701 et seq.
(13) School health services and school nurse services means health
services that are designed to enable a child with a disability to
receive FAPE as described in the child's IEP. School nurse services are
services provided by a qualified school nurse. School health services
are services that may be provided by either a qualified school nurse or
other qualified person.
(14) Social work services in schools includes--
(i) Preparing a social or developmental history on a child with a
disability;
(ii) Group and individual counseling with the child and family;
(iii) Working in partnership with parents and others on those
problems in a child's living situation (home, school, and community)
that affect the child's adjustment in school;
(iv) Mobilizing school and community resources to enable the child
to learn as effectively as possible in his or her educational program;
and
(v) Assisting in developing positive behavioral intervention
strategies.
(15) Speech-language pathology services includes--
(i) Identification of children with speech or language impairments;
(ii) Diagnosis and appraisal of specific speech or language
impairments;
(iii) Referral for medical or other professional attention
necessary for the habilitation of speech or language impairments;
(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 Scientifically based research.
Scientifically based research has the meaning given the term in
section 9101(37) of the ESEA.
(Authority: 20 U.S.C. 1411(e)(2)(C)(xi))
Sec. 300.36 Secondary school.
Secondary school means a nonprofit institutional day or residential
school, including a public secondary charter school that provides
secondary education, as determined under State law, except that it does
not include any education beyond grade 12.
(Authority: 20 U.S.C. 1401(27))
Sec. 300.37 Services plan.
Services plan means a written statement that describes the special
education and related services the LEA will provide to a parentally-
placed child with a disability enrolled in a private school who has
been designated to receive services, including the location of the
services and any transportation necessary, consistent with Sec.
300.132, and is developed and implemented in accordance with Sec. Sec.
300.137 through 300.139.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.38 Secretary.
Secretary means the Secretary of Education.
(Authority: 20 U.S.C. 1401(28))
Sec. 300.39 Special education.
(a) General. (1) Special education means specially designed
instruction, at no cost to the parents, to meet the unique needs of a
child with a disability, including--
(i) Instruction conducted in the classroom, in the home, in
hospitals and institutions, and in other settings; and
(ii) Instruction in physical education.
(2) Special education includes each of the following, if the
services otherwise meet the requirements of paragraph (a)(1) of this
section--
(i) Speech-language pathology services, or any other related
service, if the service is considered special education rather than a
related service under State standards;
(ii) Travel training; and
(iii) Vocational education.
(b) Individual special education terms defined. The terms in this
definition are defined as follows:
(1) At no cost means that all specially-designed instruction is
provided without charge, but does not preclude incidental fees that are
normally charged to nondisabled students or their parents as a part of
the regular education program.
(2) Physical education means--
[[Page 46762]]
(i) The development of--
(A) Physical and motor fitness;
(B) Fundamental motor skills and patterns; and
(C) Skills in aquatics, dance, and individual and group games and
sports (including intramural and lifetime sports); and
(ii) Includes special physical education, adapted physical
education, movement education, and motor development.
(3) Specially designed instruction means adapting, as appropriate
to the needs of an eligible child under this part, the content,
methodology, or delivery of instruction--
(i) To address the unique needs of the child that result from the
child's disability; and
(ii) To ensure access of the child to the general curriculum, so
that the child can meet the educational standards within the
jurisdiction of the public agency that apply to all children.
(4) Travel training means providing instruction, as appropriate, to
children with significant cognitive disabilities, and any other
children with disabilities who require this instruction, to enable them
to--
(i) Develop an awareness of the environment in which they live; and
(ii) Learn the skills necessary to move effectively and safely from
place to place within that environment (e.g., in school, in the home,
at work, and in the community).
(5) Vocational education means organized educational programs that
are directly related to the preparation of individuals for paid or
unpaid employment, or for additional preparation for a career not
requiring a baccalaureate or advanced degree.
(Authority: 20 U.S.C. 1401(29))
Sec. 300.40 State.
State means each of the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, and each of the outlying areas.
(Authority: 20 U.S.C. 1401(31))
Sec. 300.41 State educational agency.
State educational agency or SEA means the State board of education
or other agency or officer primarily responsible for the State
supervision of public elementary schools and secondary schools, or, if
there is no such officer or agency, an officer or agency designated by
the Governor or by State law.
(Authority: 20 U.S.C. 1401(32))
Sec. 300.42 Supplementary aids and services.
Supplementary aids and services means aids, services, and other
supports that are provided in regular education classes, other
education-related settings, and in extracurricular and nonacademic
settings, to enable children with disabilities to be educated with
nondisabled children to the maximum extent appropriate in accordance
with Sec. Sec. 300.114 through 300.116.
(Authority: 20 U.S.C. 1401(33))
Sec. 300.43 Transition services.
(a) Transition services means a coordinated set of activities for a
child with a disability that--
(1) Is designed to be within a results-oriented process, that is
focused on improving the academic and functional achievement of the
child with a disability to facilitate the child's movement from school
to post-school activities, including postsecondary education,
vocational education, integrated employment (including supported
employment), continuing and adult education, adult services,
independent living, or community participation;
(2) Is based on the individual child's needs, taking into account
the child's strengths, preferences, and interests; and includes--
(i) Instruction;
(ii) Related services;
(iii) Community experiences;
(iv) The development of employment and other post-school adult
living objectives; and
(v) If appropriate, acquisition of daily living skills and
provision of a functional vocational evaluation.
(b) Transition services for children with disabilities may be
special education, if provided as specially designed instruction, or a
related service, if required to assist a child with a disability to
benefit from special education.
(Authority: 20 U.S.C. 1401(34))
Sec. 300.44 Universal design.
Universal design has the meaning given the term in section 3 of the
Assistive Technology Act of 1998, as amended, 29 U.S.C. 3002.
(Authority: 20 U.S.C. 1401(35))
Sec. 300.45 Ward of the State.
(a) General. Subject to paragraph (b) of this section, ward of the
State means a child who, as determined by the State where the child
resides, is--
(1) A foster child;
(2) A ward of the State; or
(3) In the custody of a public child welfare agency.
(b) Exception. Ward of the State does not include a foster child
who has a foster parent who meets the definition of a parent in Sec.
300.30.
(Authority: 20 U.S.C. 1401(36))
Subpart B--State Eligibility
General
Sec. 300.100 Eligibility for assistance.
A State is eligible for assistance under Part B of the Act for a
fiscal year if the State submits a plan that provides assurances to the
Secretary that the State has in effect policies and procedures to
ensure that the State meets the conditions in Sec. Sec. 300.101
through 300.176.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a))
FAPE Requirements
Sec. 300.101 Free appropriate public education (FAPE).
(a) General. A free appropriate public education must be available
to all children residing in the State between the ages of 3 and 21,
inclusive, including children with disabilities who have been suspended
or expelled from school, as provided for in Sec. 300.530(d).
(b) FAPE for children beginning at age 3. (1) Each State must
ensure that--
(i) The obligation to make FAPE available to each eligible child
residing in the State begins no later than the child's third birthday;
and
(ii) An IEP or an IFSP is in effect for the child by that date, in
accordance with Sec. 300.323(b).
(2) If a child's third birthday occurs during the summer, the
child's IEP Team shall determine the date when services under the IEP
or IFSP will begin.
(c) Children advancing from grade to grade. (1) Each State must
ensure that FAPE is available to any individual child with a disability
who needs special education and related services, even though the child
has not failed or been retained in a course or grade, and is advancing
from grade to grade.
(2) The determination that a child described in paragraph (a) of
this section is eligible under this part, must be made on an individual
basis by the group responsible within the child's LEA for making
eligibility determinations.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(1)(A))
Sec. 300.102 Limitation--exception to FAPE for certain ages.
(a) General. The obligation to make FAPE available to all children
with disabilities does not apply with respect to the following:
[[Page 46763]]
(1) Children aged 3, 4, 5, 18, 19, 20, or 21 in a State to the
extent that its application to those children would be inconsistent
with State law or practice, or the order of any court, respecting the
provision of public education to children of those ages.
(2)(i) Children aged 18 through 21 to the extent that State law
does not require that special education and related services under Part
B of the Act be provided to students with disabilities who, in the last
educational placement prior to their incarceration in an adult
correctional facility--
(A) Were not actually identified as being a child with a disability
under Sec. 300.8; and
(B) Did not have an IEP under Part B of the Act.
(ii) The exception in paragraph (a)(2)(i) of this section does not
apply to children with disabilities, aged 18 through 21, who--
(A) Had been identified as a child with a disability under Sec.
300.8 and had received services in accordance with an IEP, but who left
school prior to their incarceration; or
(B) Did not have an IEP in their last educational setting, but who
had actually been identified as a child with a disability under Sec.
300.8.
(3)(i) Children with disabilities who have graduated from high
school with a regular high school diploma.
(ii) The exception in paragraph (a)(3)(i) of this section does not
apply to children who have graduated from high school but have not been
awarded a regular high school diploma.
(iii) Graduation from high school with a regular high school
diploma constitutes a change in placement, requiring written prior
notice in accordance with Sec. 300.503.
(iv) As used in paragraphs (a)(3)(i) through (a)(3)(iii) of this
section, the term regular high school diploma does not include an
alternative degree that is not fully aligned with the State's academic
standards, such as a certificate or a general educational development
credential (GED).
(4) Children with disabilities who are eligible under subpart H of
this part, but who receive early intervention services under Part C of
the Act.
(b) Documents relating to exceptions. The State must assure that
the information it has provided to the Secretary regarding the
exceptions in paragraph (a) of this section, as required by Sec.
300.700 (for purposes of making grants to States under this part), is
current and accurate.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(1)(B)-(C))
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.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(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.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(1), 1412(a)(10)(B))
Sec. 300.105 Assistive technology.
(a) Each public agency must ensure that assistive technology
devices or assistive technology services, or both, as those terms are
defined in Sec. Sec. 300.5 and 300.6, respectively, are made available
to a child with a disability if required as a part of the child's--
(1) Special education under Sec. 300.36;
(2) Related services under Sec. 300.34; or
(3) Supplementary aids and services under Sec. Sec. 300.38 and
300.114(a)(2)(ii).
(b) On a case-by-case basis, the use of school-purchased assistive
technology devices in a child's home or in other settings is required
if the child's IEP Team determines that the child needs access to those
devices in order to receive FAPE.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(1), 1412(a)(12)(B)(i))
Sec. 300.106 Extended school year services.
(a) General. (1) Each public agency must ensure that extended
school year services are available as necessary to provide FAPE,
consistent with paragraph (a)(2) of this section.
(2) Extended school year services must be provided only if a
child's IEP Team determines, on an individual basis, in accordance with
Sec. Sec. 300.320 through 300.324, that the services are necessary for
the provision of FAPE to the child.
(3) In implementing the requirements of this section, a public
agency may not--
(i) Limit extended school year services to particular categories of
disability; or
(ii) Unilaterally limit the type, amount, or duration of those
services.
(b) Definition. As used in this section, the term extended school
year services means special education and related services that--
(1) Are provided to a child with a disability--
(i) Beyond the normal school year of the public agency;
(ii) In accordance with the child's IEP; and
(iii) At no cost to the parents of the child; and
(2) Meet the standards of the SEA.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(1))
Sec. 300.107 Nonacademic services.
The State must ensure the following:
(a) Each public agency must take steps, including the provision of
supplementary aids and services determined appropriate and necessary by
the child's IEP Team, to provide nonacademic and extracurricular
services and activities in the manner necessary to afford children with
disabilities an equal opportunity for participation in those services
and activities.
(b) Nonacademic and extracurricular services and activities may
include counseling services, athletics, transportation, health
services, recreational activities, special interest groups or clubs
sponsored by the public agency, referrals to agencies that provide
assistance to individuals with disabilities, and employment of
students, including both employment by the public agency and assistance
in making outside employment available.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(1))
[[Page 46764]]
Sec. 300.108 Physical education.
The State must ensure that public agencies in the State comply with
the following:
(a) General. Physical education services, specially designed if
necessary, must be made available to every child with a disability
receiving FAPE, unless the public agency enrolls children without
disabilities and does not provide physical education to children
without disabilities in the same grades.
(b) Regular physical education. Each child with a disability must
be afforded the opportunity to participate in the regular physical
education program available to nondisabled children unless--
(1) The child is enrolled full time in a separate facility; or
(2) The child needs specially designed physical education, as
prescribed in the child's IEP.
(c) Special physical education. If specially designed physical
education is prescribed in a child's IEP, the public agency responsible
for the education of that child must provide the services directly or
make arrangements for those services to be provided through other
public or private programs.
(d) Education in separate facilities. The public agency responsible
for the education of a child with a disability who is enrolled in a
separate facility must ensure that the child receives appropriate
physical education services in compliance with this section.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(5)(A))
Sec. 300.109 Full educational opportunity goal (FEOG).
The State must have in effect policies and procedures to
demonstrate that the State has established a goal of providing full
educational opportunity to all children with disabilities, aged birth
through 21, and a detailed timetable for accomplishing that goal.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(2))
Sec. 300.110 Program options.
The State must ensure that each public agency takes steps to ensure
that its children with disabilities have available to them the variety
of educational programs and services available to nondisabled children
in the area served by the agency, including art, music, industrial
arts, consumer and homemaking education, and vocational education.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(2), 1413(a)(1))
Sec. 300.111 Child find.
(a) General. (1) The State must have in effect policies and
procedures to ensure that--
(i) All children with disabilities residing in the State, including
children with disabilities who are homeless children or are wards of
the State, and children with disabilities attending private schools,
regardless of the severity of their disability, and who are in need of
special education and related services, are identified, located, and
evaluated; and
(ii) A practical method is developed and implemented to determine
which children are currently receiving needed special education and
related services.
(b) Use of term developmental delay. The following provisions apply
with respect to implementing the child find requirements of this
section:
(1) A State that adopts a definition of developmental delay under
Sec. 300.8(b) determines whether the term applies to children aged
three through nine, or to a subset of that age range (e.g., ages three
through five).
(2) A State may not require an LEA to adopt and use the term
developmental delay for any children within its jurisdiction.
(3) If an LEA uses the term developmental delay for children
described in Sec. 300.8(b), the LEA must conform to both the State's
definition of that term and to the age range that has been adopted by
the State.
(4) If a State does not adopt the term developmental delay, an LEA
may not independently use that term as a basis for establishing a
child's eligibility under this part.
(c) Other children in child find. Child find also must include--
(1) Children who are suspected of being a child with a disability
under Sec. 300.8 and in need of special education, even though they
are advancing from grade to grade; and
(2) Highly mobile children, including migrant children.
(d) Construction. Nothing in the Act requires that children be
classified by their disability so long as each child who has a
disability that is listed in Sec. 300.8 and who, by reason of that
disability, needs special education and related services is regarded as
a child with a disability under Part B of the Act.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1401(3)); 1412(a)(3))
Sec. 300.112 Individualized education programs (IEP).
The State must ensure that an IEP, or an IFSP that meets the
requirements of section 636(d) of the Act, is developed, reviewed, and
revised for each child with a disability in accordance with Sec. Sec.
300.320 through 300.324, except as provided in Sec. 300.300(b)(3)(ii).
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(4))
Sec. 300.113 Routine checking of hearing aids and external components
of surgically implanted medical devices.
(a) Hearing aids. Each public agency must ensure that hearing aids
worn in school by children with hearing impairments, including
deafness, are functioning properly.
(b) External components of surgically implanted medical devices.
(1) Subject to paragraph (b)(2) of this section, each public agency
must ensure that the external components of surgically implanted
medical devices are functioning properly.
(2) For a child with a surgically implanted medical device who is
receiving special education and related services under this part, a
public agency is not responsible for the post-surgical maintenance,
programming, or replacement of the medical device that has been
surgically implanted (or of an external component of the surgically
implanted medical device).
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1401(1), 1401(26)(B))
Least Restrictive Environment (LRE)
Sec. 300.114 LRE requirements.
(a) General. (1) Except as provided in Sec. 300.324(d)(2)
(regarding children with disabilities in adult prisons), the State must
have in effect policies and procedures to ensure that public agencies
in the State meet the LRE requirements of this section and Sec. Sec.
300.115 through 300.120.
(2) Each public agency must ensure that--
(i) To the maximum extent appropriate, children with disabilities,
including children in public or private institutions or other care
facilities, are educated with children who are nondisabled; and
(ii) Special classes, separate schooling, or other removal of
children with disabilities from the regular educational environment
occurs only if the nature or severity of the disability is such that
education in regular classes with the use of supplementary aids and
[[Page 46765]]
services cannot be achieved satisfactorily.
(b) Additional requirement--State funding mechanism--(1) General.
(i) A State funding mechanism must not result in placements that
violate the requirements of paragraph (a) of this section; and
(ii) A State must not use a funding mechanism by which the State
distributes funds on the basis of the type of setting in which a child
is served that will result in the failure to provide a child with a
disability FAPE according to the unique needs of the child, as
described in the child's IEP.
(2) Assurance. If the State does not have policies and procedures
to ensure compliance with paragraph (b)(1) of this section, the State
must provide the Secretary an assurance that the State will revise the
funding mechanism as soon as feasible to ensure that the mechanism does
not result in placements that violate that paragraph.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(5))
Sec. 300.115 Continuum of alternative placements.
(a) Each public agency must ensure that a continuum of alternative
placements is available to meet the needs of children with disabilities
for special education and related services.
(b) The continuum required in paragraph (a) of this section must--
(1) Include the alternative placements listed in the definition of
special education under Sec. 300.38 (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.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(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;
(c) Unless the IEP of a child with a disability requires some other
arrangement, the child is educated in the school that he or she would
attend if nondisabled;
(d) In selecting the LRE, consideration is given to any potential
harmful effect on the child or on the quality of services that he or
she needs; and
(e) A child with a disability is not removed from education in age-
appropriate regular classrooms solely because of needed modifications
in the general education curriculum.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(5))
Sec. 300.117 Nonacademic settings.
In providing or arranging for the provision of nonacademic and
extracurricular services and activities, including meals, recess
periods, and the services and activities set forth in Sec. 300.107,
each public agency must ensure that each child with a disability
participates with nondisabled children in the extracurricular services
and activities to the maximum extent appropriate to the needs of that
child. The public agency must ensure that each child with a disability
has the supplementary aids and services determined by the child's IEP
Team to be appropriate and necessary for the child to participate in
nonacademic settings.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(5))
Sec. 300.118 Children in public or private institutions.
Except as provided in Sec. 300.149(d) (regarding agency
responsibility for general supervision 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).
(Approved by the Office of Management and Budget under control
number 1820-0030)
(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.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(5))
Sec. 300.120 Monitoring activities.
(a) The SEA must carry out activities to ensure that Sec. 300.114
is implemented by each public agency.
(b) If there is evidence that a public agency makes placements that
are inconsistent with Sec. 300.114, the SEA must--
(1) Review the public agency's justification for its actions; and
(2) Assist in planning and implementing any necessary corrective
action.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(5))
Additional Eligibility Requirements
Sec. 300.121 Procedural safeguards.
(a) General. The State must have procedural safeguards in effect to
ensure that each public agency in the State meets the requirements of
Sec. Sec. 300.500 through 300.536.
(b) Procedural safeguards identified. Children with disabilities
and their parents must be afforded the procedural safeguards identified
in paragraph (a) of this section.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(6)(A))
Sec. 300.122 Evaluation.
Children with disabilities must be evaluated in accordance with
Sec. Sec. 300.300 through 300.311 of subpart D of this part.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(7))
Sec. 300.123 Confidentiality of personally identifiable information.
The State must have policies and procedures in effect to ensure
that public agencies in the State comply with Sec. Sec. 300.610
through 300.626 related to protecting the confidentiality of any
personally identifiable information collected, used, or maintained
under Part B of the Act.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
[[Page 46766]]
Sec. 300.124 Transition of children from the Part C program to
preschool programs.
The State must have in effect policies and procedures to ensure
that--
(a) Children participating in early intervention programs assisted
under Part C of the Act, and who will participate in preschool programs
assisted under Part B of the Act, experience a smooth and effective
transition to those preschool programs in a manner consistent with
section 637(a)(9) of the Act;
(b) By the third birthday of a child described in paragraph (a) of
this section, an IEP or, if consistent with Sec. 300.323(b) and
section 636(d) of the Act, an IFSP, has been developed and is being
implemented for the child consistent with Sec. 300.101(b); and
(c) Each affected LEA will participate in transition planning
conferences arranged by the designated lead agency under section
635(a)(10) of the Act.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(9))
Sec. Sec. 300.125-300.128 [Reserved]
Children in Private Schools
Sec. 300.129 State responsibility regarding children in private
schools.
The State must have in effect policies and procedures that ensure
that LEAs, and, if applicable, the SEA, meet the private school
requirements in Sec. Sec. 300.130 through 300.148.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(10))
Children With Disabilities Enrolled by Their Parents in Private Schools
Sec. 300.130 Definition of parentally-placed private school children
with disabilities.
Parentally-placed private school children with disabilities means
children with disabilities enrolled by their parents in private,
including religious, schools or facilities that meet the definition of
elementary school in Sec. 300.13 or secondary school in Sec. 300.36,
other than children with disabilities covered under Sec. Sec. 300.145
through 300.147.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.131 Child find for parentally-placed private school children
with disabilities.
(a) General. Each LEA must locate, identify, and evaluate all
children with disabilities who are enrolled by their parents in
private, including religious, elementary schools and secondary schools
located in the school district served by the LEA, in accordance with
paragraphs (b) through (e) of this section, and Sec. Sec. 300.111 and
300.201.
(b) Child find design. The child find process must be designed to
ensure--
(1) The equitable participation of parentally-placed private school
children; and
(2) An accurate count of those children.
(c) Activities. In carrying out the requirements of this section,
the LEA, or, if applicable, the SEA, must undertake activities similar
to the activities undertaken for the agency's public school children.
(d) Cost. The cost of carrying out the child find requirements in
this section, including individual evaluations, may not be considered
in determining if an LEA has met its obligation under Sec. 300.133.
(e) Completion period. The child find process must be completed in
a time period comparable to that for students attending public schools
in the LEA consistent with Sec. 300.301.
(f) Out-of-State children. Each LEA in which private, including
religious, elementary schools and secondary schools are located must,
in carrying out the child find requirements in this section, include
parentally-placed private school children who reside in a State other
than the State in which the private schools that they attend are
located.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(A)(ii))
Sec. 300.132 Provision of services for parentally-placed private
school children with disabilities--basic requirement.
(a) General. To the extent consistent with the number and location
of children with disabilities who are enrolled by their parents in
private, including religious, elementary schools and secondary schools
located in the school district served by the LEA, provision is made for
the participation of those children in the program assisted or carried
out under Part B of the Act by providing them with special education
and related services, including direct services determined in
accordance with Sec. 300.137, unless the Secretary has arranged for
services to those children under the by-pass provisions in Sec. Sec.
300.190 through 300.198.
(b) Services plan for parentally-placed private school children
with disabilities. In accordance with paragraph (a) of this section and
Sec. Sec. 300.137 through 300.139, a services plan must be developed
and implemented for each private school child with a disability who has
been designated by the LEA in which the private school is located to
receive special education and related services under this part.
(c) Record keeping. Each LEA must maintain in its records, and
provide to the SEA, the following information related to parentally-
placed private school children covered under Sec. Sec. 300.130 through
300.144:
(1) The number of children evaluated;
(2) The number of children determined to be children with
disabilities; and
(3) The number of children served.
(Approved by the Office of Management and Budget under control
numbers 1820-0030 and 1820-0600)
(Authority: 20 U.S.C. 1412(a)(10)(A)(i))
Sec. 300.133 Expenditures.
(a) Formula. To meet the requirement of Sec. 300.132(a), each LEA
must spend the following on providing special education and related
services (including direct services) to parentally-placed private
school children with disabilities:
(1) For children aged 3 through 21, an amount that is the same
proportion of the LEA's total subgrant under section 611(f) of the Act
as the number of private school children with disabilities aged 3
through 21 who are enrolled by their parents in private, including
religious, elementary schools and secondary schools located in the
school district served by the LEA, is to the total number of children
with disabilities in its jurisdiction aged 3 through 21.
(2)(i) For children aged three through five, an amount that is the
same proportion of the LEA's total subgrant under section 619(g) of the
Act as the number of parentally-placed private school children with
disabilities aged three through five who are enrolled by their parents
in a private, including religious, elementary school located in the
school district served by the LEA, is to the total number of children
with disabilities in its jurisdiction aged three through five.
(ii) As described in paragraph (a)(2)(i) of this section, children
aged three through five are considered to be parentally-placed private
school children with disabilities enrolled by their parents in private,
including religious, elementary schools, if they are enrolled in a
private school that meets the definition of elementary school in Sec.
300.13.
(3) If an LEA has not expended for equitable services all of the
funds described in paragraphs (a)(1) and (a)(2) of this section by the
end of the fiscal
[[Page 46767]]
year for which Congress appropriated the funds, the LEA must obligate
the remaining funds for special education and related services
(including direct services) to parentally-placed private school
children with disabilities during a carry-over period of one additional
year.
(b) Calculating proportionate amount. In calculating the
proportionate amount of Federal funds to be provided for parentally-
placed private school children with disabilities, the LEA, after timely
and meaningful consultation with representatives of private schools
under Sec. 300.134, must conduct a thorough and complete child find
process to determine the number of parentally-placed children with
disabilities attending private schools located in the LEA. (See
Appendix B for an example of how proportionate share is calculated).
(c) Annual count of the number of parentally-placed private school
children with disabilities. (1) Each LEA must--
(i) After timely and meaningful consultation with representatives
of parentally-placed private school children with disabilities
(consistent with Sec. 300.134), determine the number of parentally-
placed private school children with disabilities attending private
schools located in the LEA; and
(ii) Ensure that the count is conducted on any date between October
1 and December 1, inclusive, of each year.
(2) The count must be used to determine the amount that the LEA
must spend on providing special education and related services to
parentally-placed private school children with disabilities in the next
subsequent fiscal year.
(d) Supplement, not supplant. State and local funds may supplement
and in no case supplant the proportionate amount of Federal funds
required to be expended for parentally-placed private school children
with disabilities under this part.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.134 Consultation.
To ensure timely and meaningful consultation, an LEA, or, if
appropriate, an SEA, must consult with private school representatives
and representatives of parents of parentally-placed private school
children with disabilities during the design and development of special
education and related services for the children regarding the
following:
(a) Child find. The child find process, including--
(1) How parentally-placed private school children suspected of
having a disability can participate equitably; and
(2) How parents, teachers, and private school officials will be
informed of the process.
(b) Proportionate share of funds. The determination of the
proportionate share of Federal funds available to serve parentally-
placed private school children with disabilities under Sec.
300.133(b), including the determination of how the proportionate share
of those funds was calculated.
(c) Consultation process. The consultation process among the LEA,
private school officials, and representatives of parents of parentally-
placed private school children with disabilities, including how the
process will operate throughout the school year to ensure that
parentally-placed children with disabilities identified through the
child find process can meaningfully participate in special education
and related services.
(d) Provision of special education and related services. How,
where, and by whom special education and related services will be
provided for parentally-placed private school children with
disabilities, including a discussion of--
(1) The types of services, including direct services and alternate
service delivery mechanisms; and
(2) How special education and related services will be apportioned
if funds are insufficient to serve all parentally-placed private school
children; and
(3) How and when those decisions will be made;
(e) Written explanation by LEA regarding services. How, if the LEA
disagrees with the views of the private school officials on the
provision of services or the types of services (whether provided
directly or through a contract), the LEA will provide to the private
school officials a written explanation of the reasons why the LEA chose
not to provide services directly or through a contract.
(Approved by the Office of Management and Budget under control
numbers 1820-0030 and 1820-0600)
(Authority: 20 U.S.C. 1412(a)(10)(A)(iii))
Sec. 300.135 Written affirmation.
(a) When timely and meaningful consultation, as required by Sec.
300.134, has occurred, the LEA must obtain a written affirmation signed
by the representatives of participating private schools.
(b) If the representatives do not provide the affirmation within a
reasonable period of time, the LEA must forward the documentation of
the consultation process to the SEA.
(Approved by the Office of Management and Budget under control
numbers 1820-0030 and 1820-0600)
(Authority: 20 U.S.C. 1412(a)(10)(A)(iv))
Sec. 300.136 Compliance.
(a) General. A private school official has the right to submit a
complaint to the SEA that the LEA--
(1) Did not engage in consultation that was meaningful and timely;
or
(2) Did not give due consideration to the views of the private
school official.
(b) Procedure. (1) If the private school official wishes to submit
a complaint, the official must provide to the SEA the basis of the
noncompliance by the LEA with the applicable private school provisions
in this part; and
(2) The LEA must forward the appropriate documentation to the SEA.
(3)(i) If the private school official is dissatisfied with the
decision of the SEA, the official may submit a complaint to the
Secretary by providing the information on noncompliance described in
paragraph (b)(1) of this section; and
(ii) The SEA must forward the appropriate documentation to the
Secretary.
(Approved by the Office of Management and Budget under control
numbers 1820-0030 and 1820-0600)
(Authority: 20 U.S.C. 1412(a)(10)(A)(v))
Sec. 300.137 Equitable services determined.
(a) No individual right to special education and related services.
No parentally-placed private school child with a disability has an
individual right to receive some or all of the special education and
related services that the child would receive if enrolled in a public
school.
(b) Decisions. (1) Decisions about the services that will be
provided to parentally-placed private school children with disabilities
under Sec. Sec. 300.130 through 300.144 must be made in accordance
with paragraph (c) of this section and Sec. 300.134(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
[[Page 46768]]
each meeting. If the representative cannot attend, the LEA shall use
other methods to ensure participation by the religious or other private
school, including individual or conference telephone calls.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.138 Equitable services provided.
(a) General. (1) The services provided to parentally-placed private
school children with disabilities must be provided by personnel meeting
the same standards as personnel providing services in the public
schools, except that private elementary school and secondary school
teachers who are providing equitable services to parentally-placed
private school children with disabilities do not have to meet the
highly qualified special education teacher requirements of Sec.
300.18.
(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.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(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 LEA has met the requirement of Sec. 300.133.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.140 Due process complaints and State complaints.
(a) Due process not applicable, except for child find. (1) Except
as provided in paragraph (b) of this section, the procedures in
Sec. Sec. 300.504 through 300.519 do not apply to complaints that an
LEA has failed to meet the requirements of Sec. Sec. 300.132 through
300.139, including the provision of services indicated on the child's
services plan.
(b) Child find complaints--to be filed with the LEA in which the
private school is located. (1) The procedures in Sec. Sec. 300.504
through 300.519 apply to complaints that an LEA has failed to meet the
child find requirements in Sec. 300.131, including the requirements in
Sec. Sec. 300.300 through 300.311.
(2) Any due process complaint regarding the child find requirements
(as described in paragraph (b)(1) of this section) must be filed with
the LEA in which the private school is located and a copy must be
forwarded to the SEA.
(c) State complaints. (1) Any complaint that an SEA or LEA has
failed to meet the requirements in Sec. Sec. 300.132 through 300.135
and 300.137 through 300.144 must be filed in accordance with the
procedures described in Sec. Sec. 300.151 through 300.153.
(2) A complaint filed by a private school official under Sec.
300.136(a) must be filed with the SEA in accordance with the procedures
in Sec. 300.136(b).
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.141 Requirement that funds not benefit a private school.
(a) An LEA may not use funds provided under section 611 or 619 of
the Act to finance the existing level of instruction in a private
school or to otherwise benefit the private school.
(b) The LEA must use funds provided under Part B of the Act to meet
the special education and related services needs of parentally-placed
private school children with disabilities, but not for meeting--
(1) The needs of a private school; or
(2) The general needs of the students enrolled in the private
school.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.142 Use of personnel.
(a) Use of public school personnel. An LEA may use funds available
under sections 611 and 619 of the Act to make public school personnel
available in other than public facilities--
(1) To the extent necessary to provide services under Sec. Sec.
300.130 through 300.144 for parentally-placed private school children
with disabilities; and
(2) If those services are not normally provided by the private
school.
(b) Use of private school personnel. An LEA may use funds available
under sections 611 and 619 of the Act to pay for the services of an
employee of a private school to provide services under Sec. Sec.
300.130 through 300.144 if--
(1) The employee performs the services outside of his or her
regular hours of duty; and
(2) The employee performs the services under public supervision and
control.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.143 Separate classes prohibited.
An LEA may not use funds available under section 611 or 619 of the
Act for classes that are organized separately on the basis of school
enrollment or religion of the children if--'
(a) The classes are at the same site; and
(b) The classes include children enrolled in public schools and
children enrolled in private schools.
[[Page 46769]]
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.144 Property, equipment, and supplies.
(a) A public agency must control and administer the funds used to
provide special education and related services under Sec. Sec. 300.137
through 300.139, and hold title to and administer materials, equipment,
and property purchased with those funds for the uses and purposes
provided in the Act.
(b) The public agency may place equipment and supplies in a private
school for the period of time needed for the Part B program.
(c) The public agency must ensure that the equipment and supplies
placed in a private school--
(1) Are used only for Part B purposes; and
(2) Can be removed from the private school without remodeling the
private school facility.
(d) The public agency must remove equipment and supplies from a
private school if--
(1) The equipment and supplies are no longer needed for Part B
purposes; or
(2) Removal is necessary to avoid unauthorized use of the equipment
and supplies for other than Part B purposes.
(e) No funds under Part B of the Act may be used for repairs, minor
remodeling, or construction of private school facilities.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(A)(vii))
Children With Disabilities in Private Schools Placed or Referred by
Public Agencies
Sec. 300.145 Applicability of Sec. Sec. 300.146 through 300.147.
Sections 300.146 through 300.147 apply only to children with
disabilities who are or have been placed in or referred to a private
school or facility by a public agency as a means of providing special
education and related services.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(B))
Sec. 300.146 Responsibility of SEA.
Each SEA must ensure that a child with a disability who is placed
in or referred to a private school or facility by a public agency--
(a) Is provided special education and related services--
(1) In conformance with an IEP that meets the requirements of
Sec. Sec. 300.320 through 300.325; and
(2) At no cost to the parents;
(b) Is provided an education that meets the standards that apply to
education provided by the SEA and LEAs including the requirements of
this part, except for Sec. 300.18 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.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(B))
Sec. 300.147 Implementation by SEA.
In implementing Sec. 300.146, the SEA must--
(a) Monitor compliance through procedures such as written reports,
on-site visits, and parent questionnaires;
(b) Disseminate copies of applicable standards to each private
school and facility to which a public agency has referred or placed a
child with a disability; and
(c) Provide an opportunity for those private schools and facilities
to participate in the development and revision of State standards that
apply to them.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(B))
Children With Disabilities Enrolled by Their Parents in Private Schools
When FAPE Is at Issue
Sec. 300.148 Placement of children by parents when FAPE is at issue.
(a) General. This part does not require an LEA to pay for the cost
of education, including special education and related services, of a
child with a disability at a private school or facility if that agency
made FAPE available to the child and the parents elected to place the
child in a private school or facility. However, the public agency must
include that child in the population whose needs are addressed
consistent with Sec. Sec. 300.131 through 300.144.
(b) Disagreements about FAPE. Disagreements between the parents and
a public agency regarding the availability of a program appropriate for
the child, and the question of financial reimbursement, are subject to
the due process procedures in Sec. Sec. 300.504 through 300.520.
(c) Reimbursement for private school placement. If the parents of a
child with a disability, who previously received special education and
related services under the authority of a public agency, enroll the
child in a private preschool, elementary school, or secondary school
without the consent of or referral by the public agency, a court or a
hearing officer may require the agency to reimburse the parents for the
cost of that enrollment if the court or hearing officer finds that the
agency had not made FAPE available to the child in a timely manner
prior to that enrollment and that the private placement is appropriate.
A parental placement may be found to be appropriate by a hearing
officer or a court even if it does not meet the State standards that
apply to education provided by the SEA and LEAs.
(d) Limitation on reimbursement. The cost of reimbursement
described in paragraph (c) of this section may be reduced or denied--
(1) If--
(i) At the most recent IEP Team meeting that the parents attended
prior to removal of the child from the public school, the parents did
not inform the IEP Team that they were rejecting the placement proposed
by the public agency to provide FAPE to their child, including stating
their concerns and their intent to enroll their child in a private
school at public expense; or
(ii) At least ten (10) business days (including any holidays that
occur on a business day) prior to the removal of the child from the
public school, the parents did not give written notice to the public
agency of the information described in paragraph (d)(1)(i) of this
section;
(2) If, prior to the parents' removal of the child from the public
school, the public agency informed the parents, through the notice
requirements described in Sec. 300.503(a)(1), of its intent to
evaluate the child (including a statement of the purpose of the
evaluation that was appropriate and reasonable), but the parents did
not make the child available for the evaluation; or
(3) Upon a judicial finding of unreasonableness with respect to
actions taken by the parents.
(e) Exception. Notwithstanding the notice requirement in paragraph
(d)(1) of this section, the cost of reimbursement--
(1) Must not be reduced or denied for failure to provide the notice
if--
(i) The school prevented the parents from providing the notice;
(ii) The parents had not received notice, pursuant to Sec.
300.504, of the notice requirement in paragraph (d)(1) of this section;
or
(iii) Compliance with paragraph (d)(1) of this section would likely
result in physical harm to the child; and
(2) May, in the discretion of the court or a hearing officer, not
be reduced or denied for failure to provide this notice if--
(i) The parents are not literate or cannot write in English; or
[[Page 46770]]
(ii) Compliance with paragraph (d)(1) of this section would likely
result in serious emotional harm to the child.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(C))
SEA Responsibility for General Supervision and Implementation of
Procedural Safeguards
Sec. 300.149 SEA responsibility for general supervision.
(a) The SEA is responsible for ensuring--
(1) That the requirements of this part are carried out; and
(2) That each educational program for children with disabilities
administered within the State, including each program administered by
any other State or local agency (but not including elementary schools
and secondary schools for Indian children operated or funded by the
Secretary of the Interior)--
(i) Is under the general supervision of the persons responsible for
educational programs for children with disabilities in the SEA; and
(ii) Meets the educational standards of the SEA (including the
requirements of this part).
(3) In carrying out this part with respect to homeless children,
the requirements of subtitle B of title VII of the McKinney-Vento
Homeless Assistance Act (42 U.S.C. 11431 et seq.) are met.
(b) The State must have in effect policies and procedures to ensure
that it complies with the monitoring and enforcement requirements in
Sec. Sec. 300.600 through 300.602 and Sec. Sec. 300.606 through
300.608.
(c) Part B of the Act does not limit the responsibility of agencies
other than educational agencies for providing or paying some or all of
the costs of FAPE to children with disabilities in the State.
(d) Notwithstanding paragraph (a) of this section, the Governor (or
another individual pursuant to State law) may assign to any public
agency in the State the responsibility of ensuring that the
requirements of Part B of the Act are met with respect to students with
disabilities who are convicted as adults under State law and
incarcerated in adult prisons.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(11); 1416)
Sec. 300.150 SEA implementation of procedural safeguards.
The SEA (and any agency assigned responsibility pursuant to Sec.
300.149(d)) must have in effect procedures to inform each public agency
of its responsibility for ensuring effective implementation of
procedural safeguards for the children with disabilities served by that
public agency.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(11); 1415(a))
State Complaint Procedures
Sec. 300.151 Adoption of State complaint procedures.
(a) General. Each SEA must adopt written procedures for--
(1) Resolving any complaint, including a complaint filed by an
organization or individual from another State, that meets the
requirements of Sec. 300.153 by--
(i) Providing for the filing of a complaint with the SEA; and
(ii) At the SEA's discretion, providing for the filing of a
complaint with a public agency and the right to have the SEA review the
public agency's decision on the complaint; and
(2) Widely disseminating to parents and other interested
individuals, including parent training and information centers,
protection and advocacy agencies, independent living centers, and other
appropriate entities, the State procedures under Sec. Sec. 300.151
through 300.153.
(b) Remedies for denial of appropriate services. In resolving a
complaint in which the SEA has found a failure to provide appropriate
services, an SEA, pursuant to its general supervisory authority under
Part B of the Act, must address--
(1) The failure to provide appropriate services, including
corrective action appropriate to address the needs of the child (such
as compensatory services or monetary reimbursement); and
(2) Appropriate future provision of services for all children with
disabilities.
(Approved by the Office of Management and Budget under control
numbers 1820-0030 and 1820-0600)
(Authority: 20 U.S.C. 1221e-3)
Sec. 300.152 Minimum State complaint procedures.
(a) Time limit; minimum procedures. Each SEA must include in its
complaint procedures a time limit of 60 days after a complaint is filed
under Sec. 300.153 to--
(1) Carry out an independent on-site investigation, if the SEA
determines that an investigation is necessary;
(2) Give the complainant the opportunity to submit additional
information, either orally or in writing, about the allegations in the
complaint;
(3) Provide the public agency with the opportunity to respond to
the complaint, including, at a minimum--
(i) At the discretion of the public agency, a proposal to resolve
the complaint; and
(ii) An opportunity for a parent who has filed a complaint and the
public agency to voluntarily engage in mediation consistent with Sec.
300.506;
(4) Review all relevant information and make an independent
determination as to whether the public agency is violating a
requirement of Part B of the Act or of this part; and
(5) Issue a written decision to the complainant that addresses each
allegation in the complaint and contains--
(i) Findings of fact and conclusions; and
(ii) The reasons for the SEA's final decision.
(b) Time extension; final decision; implementation. The SEA's
procedures described in paragraph (a) of this section also must--
(1) Permit an extension of the time limit under paragraph (a) of
this section only if--
(i) Exceptional circumstances exist with respect to a particular
complaint; or
(ii) The parent (or individual or organization, if mediation or
other alternative means of dispute resolution is available to the
individual or organization under State procedures) and the public
agency involved agree to extend the time to engage in mediation
pursuant to paragraph (a)(3)(ii) of this section, or to engage in other
alternative means of dispute resolution, if available in the State; and
(2) Include procedures for effective implementation of the SEA's
final decision, if needed, including--
(i) Technical assistance activities;
(ii) Negotiations; and
(iii) Corrective actions to achieve compliance.
(c) Complaints filed under this section and due process hearings
under Sec. 300.507 and Sec. Sec. 300.530 through 300.532. (1) If a
written complaint is received that is also the subject of a due process
hearing under Sec. 300.507 or Sec. Sec. 300.530 through 300.532, or
contains multiple issues of which one or more are part of that hearing,
the State must set aside any part of the complaint that is being
addressed in the due process hearing until the conclusion of the
hearing. However, any issue in the complaint that is not a part of the
due process action must be resolved using the time limit and procedures
described in paragraphs (a) and (b) of this section.
(2) If an issue raised in a complaint filed under this section has
previously
[[Page 46771]]
been decided in a due process hearing involving the same parties--
(i) The due process hearing decision is binding on that issue; and
(ii) The SEA must inform the complainant to that effect.
(3) A complaint alleging a public agency's failure to implement a
due process hearing decision must be resolved by the SEA.
Approved by the Office of Management and Budget under control
numbers 1820-0030 and 1820-0600)
(Authority: 20 U.S.C. 1221e-3)
Sec. 300.153 Filing a complaint.
(a) An organization or individual may file a signed written
complaint under the procedures described in Sec. Sec. 300.151 through
300.152.
(b) The complaint must include--
(1) A statement that a public agency has violated a requirement of
Part B of the Act or of this part;
(2) The facts on which the statement is based;
(3) The signature and contact information for the complainant; and
(4) If alleging violations with respect to a specific child--
(i) The name and address of the residence of the child;
(ii) The name of the school the child is attending;
(iii) In the case of a homeless child or youth (within the meaning
of section 725(2) of the McKinney-Vento Homeless Assistance Act (42
U.S.C. 11434a(2)), available contact information for the child, and the
name of the school the child is attending;
(iv) A description of the nature of the problem of the child,
including facts relating to the problem; and
(v) A proposed resolution of the problem to the extent known and
available to the party at the time the complaint is filed.
(c) The complaint must allege a violation that occurred not more
than one year prior to the date that the complaint is received in
accordance with Sec. 300.151.
(d) The party filing the complaint must forward a copy of the
complaint to the LEA or public agency serving the child at the same
time the party files the complaint with the SEA.
(Approved by the Office of Management and Budget under control
numbers 1820-0030 and 1820-0600)
(Authority: 20 U.S.C. 1221e-3)
Methods of Ensuring Services
Sec. 300.154 Methods of ensuring services.
(a) Establishing responsibility for services. The Chief Executive
Officer of a State or designee of that officer must ensure that an
interagency agreement or other mechanism for interagency coordination
is in effect between each noneducational public agency described in
paragraph (b) of this section and the SEA, in order to ensure that all
services described in paragraph (b)(1) of this section that are needed
to ensure FAPE are provided, including the provision of these services
during the pendency of any dispute under paragraph (a)(3) of this
section. The agreement or mechanism must include the following:
(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
(3) Other appropriate written methods as determined by the Chief
Executive Officer of the State or designee of that officer and approved
by the Secretary.
(d) Children with disabilities who are covered by public benefits
or insurance. (1) A public agency may use the Medicaid or other public
benefits or insurance programs in which a child participates to provide
or pay for services required under this part, as permitted under the
public benefits or insurance program, except as provided in paragraph
(d)(2) of this section.
(2) With regard to services required to provide FAPE to an eligible
child under this part, the public agency--
(i) May not require parents to sign up for or enroll in public
benefits or insurance programs in order for their child to receive FAPE
under Part B of the Act;
(ii) May not require parents to incur an out-of-pocket expense such
as the payment of a deductible or co-pay amount incurred in filing a
claim for services provided pursuant to this part, but pursuant to
paragraph (g)(2) of this section, may pay the cost that the parents
otherwise would be required to pay;
(iii) May not use a child's benefits under a public benefits or
insurance program if that use would--
[[Page 46772]]
(A) Decrease available lifetime coverage or any other insured
benefit;
(B) Result in the family paying for services that would otherwise
be covered by the public benefits or insurance program and that are
required for the child outside of the time the child is in school;
(C) Increase premiums or lead to the discontinuation of benefits or
insurance; or
(D) Risk loss of eligibility for home and community-based waivers,
based on aggregate health-related expenditures; and
(iv)(A) Must obtain parental consent, consistent with Sec. 300.9,
each time that access to public benefits or insurance is sought; and
(B) Notify parents that the parents' refusal to allow access to
their public benefits or insurance does not relieve the public agency
of its responsibility to ensure that all required services are provided
at no cost to the parents.
(e) Children with disabilities who are covered by private
insurance. (1) With regard to services required to provide FAPE to an
eligible child under this part, a public agency may access the parents'
private insurance proceeds only if the parents provide consent
consistent with Sec. 300.9.
(2) Each time the public agency proposes to access the parents'
private insurance proceeds, the agency must--
(i) Obtain parental consent in accordance with paragraph (e)(1) of
this section; and
(ii) Inform the parents that their refusal to permit the public
agency to access their private insurance does not relieve the public
agency of its responsibility to ensure that all required services are
provided at no cost to the parents.
(f) Use of Part B funds. (1) If a public agency is unable to obtain
parental consent to use the parents' private insurance, or public
benefits or insurance when the parents would incur a cost for a
specified service required under this part, to ensure FAPE the public
agency may use its Part B funds to pay for the service.
(2) To avoid financial cost to parents who otherwise would consent
to use private insurance, or public benefits or insurance if the
parents would incur a cost, the public agency may use its Part B funds
to pay the cost that the parents otherwise would have to pay to use the
parents' benefits or insurance (e.g., the deductible or co-pay
amounts).
(g) Proceeds from public benefits or insurance or private
insurance. (1) Proceeds from public benefits or insurance or private
insurance will not be treated as program income for purposes of 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 benefits or insurance program by Federal
statute, regulations or policy under title XIX, or title XXI of the
Social Security Act, 42 U.S.C. 1396 through 1396v and 42 U.S.C. 1397aa
through 1397jj, or any other public benefits or insurance program.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(12) and (e))
Additional Eligibility Requirements
Sec. 300.155 Hearings relating to LEA eligibility.
The SEA must not make any final determination that an LEA is not
eligible for assistance under Part B of the Act without first giving
the LEA reasonable notice and an opportunity for a hearing under 34 CFR
76.401(d).
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(13))
Sec. 300.156 Personnel qualifications.
(a) General. The SEA must establish and maintain qualifications to
ensure that personnel necessary to carry out the purposes of this part
are appropriately and adequately prepared and trained, including that
those personnel have the content knowledge and skills to serve children
with disabilities.
(b) Related services personnel and paraprofessionals. The
qualifications under paragraph (a) of this section must include
qualifications for related services personnel and paraprofessionals
that--
(1) Are consistent with any State-approved or State-recognized
certification, licensing, registration, or other comparable
requirements that apply to the professional discipline in which those
personnel are providing special education or related services; and
(2) Ensure that related services personnel who deliver services in
their discipline or profession--
(i) Meet the requirements of paragraph (b)(1) of this section; and
(ii) Have not had certification or licensure requirements waived on
an emergency, temporary, or provisional basis; and
(iii) Allow paraprofessionals and assistants who are appropriately
trained and supervised, in accordance with State law, regulation, or
written policy, in meeting the requirements of this part to be used to
assist in the provision of special education and related services under
this part to children with disabilities.
(c) Qualifications for special education teachers. 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 create a right of action on
behalf of an individual student or a class of students for the failure
of a particular SEA or LEA employee to be highly qualified, or to
prevent a parent from filing a complaint about staff qualifications
with the SEA as provided for under this part.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(14))
Sec. 300.157 Performance goals and indicators.
The State must--
(a) Have in effect established goals for the performance of
children with disabilities in the State that--
(1) Promote the purposes of this part, as stated in Sec. 300.1;
(2) Are the same as the State's 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;
[[Page 46773]]
(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.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(15))
Sec. Sec. 300.158-300.161 [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.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(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 the State is granted a waiver under paragraph (c) of
this section, the financial support required of the State in future
years under paragraph (a) of this section shall be the amount that
would have been required in the absence of that failure and not the
reduced level of the State's support.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(18))
Sec. 300.164 Waiver of requirement regarding supplementing and not
supplanting with Part B funds.
(a) Except as provided under Sec. Sec. 300.202 through 300.205,
funds paid to a State under Part B of the Act must be used to
supplement and increase the level of Federal, State, and local funds
(including funds that are not under the direct control of SEAs or LEAs)
expended for special education and related services provided to
children with disabilities under Part B of the Act and in no case to
supplant those Federal, State, and local funds. A State may use funds
it retains under Sec. 300.704(a) and (b) without regard to the
prohibition on supplanting other funds.
(b) If a State provides clear and convincing evidence that all
eligible children with disabilities throughout the State have FAPE
available to them, the Secretary may waive for a period of one year in
whole or in part the requirement under Sec. 300.162 (regarding State-
level nonsupplanting) if the Secretary concurs with the evidence
provided by the State.
(c) If a State wishes to request a waiver under this section, it
must submit to the Secretary a written request that includes--
(1) An assurance that FAPE is currently available, and will remain
available throughout the period that a waiver would be in effect, to
all eligible children with disabilities throughout the State,
regardless of the public agency that is responsible for providing FAPE
to them. The assurance must be signed by an official who has the
authority to provide that assurance as it applies to all eligible
children with disabilities in the State;
(2) All evidence that the State wishes the Secretary to consider in
determining whether all eligible children with disabilities have FAPE
available to them, setting forth in detail--
(i) The basis on which the State has concluded that FAPE is
available to all eligible children in the State; and
(ii) The procedures that the State will implement to ensure that
FAPE remains available to all eligible children in the State, which
must include--
(A) The State's procedures under Sec. 300.111 for ensuring that
all eligible children are identified, located and evaluated;
(B) The State's procedures for monitoring public agencies to ensure
that they comply with all requirements of this part;
(C) The State's complaint procedures under Sec. Sec. 300.151
through 300.153; and
(D) The State's hearing procedures under Sec. Sec. 300.511 through
300.516 and Sec. Sec. 300.530 through 300.536;
(3) A summary of all State and Federal monitoring reports, and
State complaint decisions (see Sec. Sec. 300.151 through 300.153) and
hearing decisions (see Sec. Sec. 300.511 through 300.516 and
Sec. Sec. 300.530 through 300.536), issued within three years prior to
the date of the 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
[[Page 46774]]
available to all eligible children with disabilities in the State, has
consulted with the State advisory panel under Sec. 300.167.
(d) If the Secretary determines that the request and supporting
evidence submitted by the State makes a prima facie showing that FAPE
is, and will remain, available to all eligible children with
disabilities in the State, the Secretary, after notice to the public
throughout the State, conducts a public hearing at which all interested
persons and organizations may present evidence regarding the following
issues:
(1) Whether FAPE is currently available to all eligible children
with disabilities in the State.
(2) Whether the State will be able to ensure that FAPE remains
available to all eligible children with disabilities in the State if
the Secretary provides the requested waiver.
(e) Following the hearing, the Secretary, based on all submitted
evidence, will provide a waiver, in whole or in part, for a period of
one year if the Secretary finds that the State has provided clear and
convincing evidence that FAPE is currently available to all eligible
children with disabilities in the State, and the State will be able to
ensure that FAPE remains available to all eligible children with
disabilities in the State if the Secretary provides the requested
waiver.
(f) A State may receive a waiver of the requirement of section
612(a)(18)(A) of the Act and Sec. 300.164 if it satisfies the
requirements of paragraphs (b) through (e) of this section.
(g) The Secretary may grant subsequent waivers for a period of one
year each, if the Secretary determines that the State has provided
clear and convincing evidence that all eligible children with
disabilities throughout the State have, and will continue to have
throughout the one-year period of the waiver, FAPE available to them.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(17)(C), (18)(C)(ii))
Sec. 300.165 Public participation.
(a) Prior to the adoption of any policies and procedures needed to
comply with Part B of the Act (including any amendments to those
policies and procedures), the State must ensure that there are public
hearings, adequate notice of the hearings, and an opportunity for
comment available to the general public, including individuals with
disabilities and parents of children with disabilities.
(b) Before submitting a State plan under this part, a State must
comply with the public participation requirements in paragraph (a) of
this section and those in 20 U.S.C. 1232d(b)(7).
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(19); 20 U.S.C. 1232d(b)(7))
Sec. 300.166 Rule of construction.
In complying with Sec. Sec. 300.162 and 300.163, a State may not
use funds paid to it under this part to satisfy State-law mandated
funding obligations to LEAs, including funding based on student
attendance or enrollment, or inflation.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(20))
State Advisory Panel
Sec. 300.167 State advisory panel.
The State must establish and maintain an advisory panel for the
purpose of providing policy guidance with respect to special education
and related services for children with disabilities in the State.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(21)(A))
Sec. 300.168 Membership.
(a) General. The advisory panel must consist of members appointed
by the Governor, or any other official authorized under State law to
make such appointments, be representative of the State population and
be composed of individuals involved in, or concerned with the education
of children with disabilities, including--
(1) Parents of children with disabilities (ages birth through 26);
(2) Individuals with disabilities;
(3) Teachers;
(4) Representatives of institutions of higher education that
prepare special education and related services personnel;
(5) State and local education officials, including officials who
carry out activities under subtitle B of title VII of the McKinney-
Vento Homeless Assistance Act, (42 U.S.C. 11431 et seq.);
(6) Administrators of programs for children with disabilities;
(7) Representatives of other State agencies involved in the
financing or delivery of related services to children with
disabilities;
(8) Representatives of private schools and public charter schools;
(9) Not less than one representative of a vocational, community, or
business organization concerned with the provision of transition
services to children with disabilities;
(10) A representative from the State child welfare agency
responsible for foster care; and
(11) Representatives from the State juvenile and adult corrections
agencies.
(b) Special rule. A majority of the members of the panel must be
individuals with disabilities or parents of children with disabilities
(ages birth through 26).
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(21)(B) and (C))
Sec. 300.169 Duties.
The advisory panel must--
(a) Advise the SEA of unmet needs within the State in the education
of children with disabilities;
(b) Comment publicly on any rules or regulations proposed by the
State regarding the education of children with disabilities;
(c) Advise the SEA in developing evaluations and reporting on data
to the Secretary under section 618 of the Act;
(d) Advise the SEA in developing corrective action plans to address
findings identified in Federal monitoring reports under Part B of the
Act; and
(e) Advise the SEA in developing and implementing policies relating
to the coordination of services for children with disabilities.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(21)(D))
Other Provisions Required for State Eligibility
Sec. 300.170 Suspension and expulsion rates.
(a) General. The SEA must examine data, including data
disaggregated by race and ethnicity, to determine if significant
discrepancies are occurring in the rate of long-term suspensions and
expulsions of children with disabilities--
(1) Among LEAs in the State; or
(2) Compared to the rates for nondisabled children within those
agencies.
(b) Review and revision of policies. If the discrepancies described
in paragraph (a) of this section are occurring, the SEA must review
and, if appropriate, revise (or require the affected State agency or
LEA to revise) its policies, procedures, and practices relating to the
development and implementation of IEPs, the use of positive behavioral
interventions and supports, and procedural safeguards, to ensure that
these policies, procedures, and practices comply with the Act.
[[Page 46775]]
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(22))
Sec. 300.171 Annual description of use of Part B funds.
(a) In order to receive a grant in any fiscal year a State must
annually describe--
(1) How amounts retained for State administration and State-level
activities under Sec. 300.704 will be used to meet the requirements of
this part; and
(2) How those amounts will be allocated among the activities
described in Sec. 300.704 to meet State priorities based on input from
LEAs.
(b) If a State's plans for use of its funds under Sec. 300.704 for
the forthcoming year do not change from the prior year, the State may
submit a letter to that effect to meet the requirement in paragraph (a)
of this section.
(c) The provisions of this section do not apply to the Virgin
Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana
Islands, and the freely associated States.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1411(e)(5))
Sec. 300.172 Access to instructional materials.
(a) General. The State must--
(1) Adopt the National Instructional Materials Accessibility
Standard (NIMAS), published as appendix C to part 300, for the purposes
of providing instructional materials to blind persons or other persons
with print disabilities, in a timely manner after publication of the
NIMAS in the Federal Register on July 19, 2006 (71 FR 41084); and
(2) Establish a State definition of ``timely manner'' for purposes
of paragraphs (b)(2) and (b)(3) of this section if the State is not
coordinating with the National Instructional Materials Access Center
(NIMAC) or (b)(3) and (c)(2) of this section if the State is
coordinating with the NIMAC.
(b) Rights and responsibilities of SEA. (1) Nothing in this section
shall be construed to require any SEA to coordinate with the NIMAC.
(2) If an SEA chooses not to coordinate with the NIMAC, the SEA
must provide an assurance to the Secretary that it will provide
instructional materials to blind persons or other persons with print
disabilities in a timely manner.
(3) Nothing in this section relieves an SEA of its responsibility
to ensure that children with disabilities who need instructional
materials in accessible formats, but are not included under the
definition of blind or other persons with print disabilities in Sec.
300.172(e)(1)(i) or who need materials that cannot be produced from
NIMAS files, receive those instructional materials in a timely manner.
(4) In order to meet its responsibility under paragraphs (b)(2),
(b)(3), and (c) of this section to ensure that children with
disabilities who need instructional materials in accessible formats are
provided those materials in a timely manner, the SEA must ensure that
all public agencies take all reasonable steps to provide instructional
materials in accessible formats to children with disabilities who need
those instructional materials at the same time as other children
receive instructional materials.
(c) Preparation and delivery of files. If an SEA chooses to
coordinate with the NIMAC, as of December 3, 2006, the SEA must--
(1) As part of any print instructional materials adoption process,
procurement contract, or other practice or instrument used for purchase
of print instructional materials, must enter into a written contract
with the publisher of the print instructional materials to--
(i) Require the publisher to prepare and, on or before delivery of
the print instructional materials, provide to NIMAC electronic files
containing the contents of the print instructional materials using the
NIMAS; or
(ii) Purchase instructional materials from the publisher that are
produced in, or may be rendered in, specialized formats.
(2) Provide instructional materials to blind persons or other
persons with print disabilities in a timely manner.
(d) Assistive technology. In carrying out this section, the SEA, to
the maximum extent possible, must work collaboratively with the State
agency responsible for assistive technology programs.
(e) Definitions. (1) In this section and Sec. 300.210--
(i) Blind persons or other persons with print disabilities means
children served under this part who may qualify to receive books and
other publications produced in specialized formats in accordance with
the Act entitled ``An Act to provide books for adult blind,'' approved
March 3, 1931, 2 U.S.C 135a;
(ii) National Instructional Materials Access Center or NIMAC means
the center established pursuant to section 674(e) of the Act;
(iii) National Instructional Materials Accessibility Standard or
NIMAS has the meaning given the term in section 674(e)(3)(B) of the
Act;
(iv) Specialized formats has the meaning given the term in section
674(e)(3)(D) of the Act.
(2) The definitions in paragraph (e)(1) of this section apply to
each State and LEA, whether or not the State or LEA chooses to
coordinate with the NIMAC.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(23), 1474(e))
Sec. 300.173 Overidentification and disproportionality.
The State must have in effect, consistent with the purposes of this
part and with section 618(d) of the Act, policies and procedures
designed to prevent the inappropriate overidentification or
disproportionate representation by race and ethnicity of children as
children with disabilities, including children with disabilities with a
particular impairment described in Sec. 300.8.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(24))
Sec. 300.174 Prohibition on mandatory medication.
(a) General. The SEA must prohibit State and LEA personnel from
requiring parents to obtain a prescription for substances identified
under schedules I, II, III, IV, or V in section 202(c) of the
Controlled Substances Act (21 U.S.C. 812(c)) for a child as a condition
of attending school, receiving an evaluation under Sec. Sec. 300.300
through 300.311, or receiving services under this part.
(b) Rule of construction. Nothing in paragraph (a) of this section
shall be construed to create a Federal prohibition against teachers and
other school personnel consulting or sharing classroom-based
observations with parents or guardians regarding a student's academic
and functional performance, or behavior in the classroom or school, or
regarding the need for evaluation for special education or related
services under Sec. 300.111 (related to child find).
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(25))
Sec. 300.175 SEA as provider of FAPE or direct services.
If the SEA provides FAPE to children with disabilities, or provides
direct services to these children, the agency--
(a) Must comply with any additional requirements of Sec. Sec.
300.201 and 300.202 and Sec. Sec. 300.206 through 300.226 as if the
agency were an LEA; and
[[Page 46776]]
(b) May use amounts that are otherwise available to the agency
under Part B of the Act to serve those children without regard to Sec.
300.202(b) (relating to excess costs).
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(b))
Sec. 300.176 Exception for prior State plans.
(a) General. If a State has on file with the Secretary policies and
procedures approved by the Secretary that demonstrate that the State
meets any requirement of Sec. 300.100, including any policies and
procedures filed under Part B of the Act as in effect before, December
3, 2004, the Secretary considers the State to have met the requirement
for purposes of receiving a grant under Part B of the Act.
(b) Modifications made by a State. (1) Subject to paragraph (b)(2)
of this section, policies and procedures submitted by a State in
accordance with this subpart remain in effect until the State submits
to the Secretary the modifications that the State determines necessary.
(2) The provisions of this subpart apply to a modification to an
application to the same extent and in the same manner that they apply
to the original plan.
(c) Modifications required by the Secretary. The Secretary may
require a State to modify its policies and procedures, but only to the
extent necessary to ensure the State's compliance with this part, if--
(1) After December 3, 2004, the provisions of the Act or the
regulations in this part are amended;
(2) There is a new interpretation of this Act by a Federal court or
a State's highest court; or
(3) There is an official finding of noncompliance with Federal law
or regulations.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(c)(2) and (3))
Sec. 300.177 States' sovereign immunity.
(a) General. A State that accepts funds under this part waives its
immunity under the 11th amendment to the Constitution of the United
States from suit in Federal court for a violation of this part.
(b) Remedies. In a suit against a State for a violation of this
part, remedies (including remedies both at law and in equity) are
available for such a violation in the suit against a public entity
other than a State.
(c) Effective date. Paragraphs (a) and (b) of this section apply
with respect to violations that occur in whole or part after the date
of enactment of the Education of the Handicapped Act Amendments of
1990.
(Authority: 20 U.S.C. 1404)
Department Procedures
Sec. 300.178 Determination by the Secretary that a State is eligible
to receive a grant.
If the Secretary determines that a State is eligible to receive a
grant under Part B of the Act, the Secretary notifies the State of that
determination.
(Authority: 20 U.S.C. 1412(d)(1))
Sec. 300.179 Notice and hearing before determining that a State is
not eligible to receive a grant.
(a) General. (1) The Secretary does not make a final determination
that a State is not eligible to receive a grant under Part B of the Act
until providing the State--
(i) With reasonable notice; and
(ii) With an opportunity for a hearing.
(2) In implementing paragraph (a)(1)(i) of this section, the
Secretary sends a written notice to the SEA by certified mail with
return receipt requested.
(b) Content of notice. In the written notice described in paragraph
(a)(2) of this section, the Secretary--
(1) States the basis on which the Secretary proposes to make a
final determination that the State is not eligible;
(2) May describe possible options for resolving the issues;
(3) Advises the SEA that it may request a hearing and that the
request for a hearing must be made not later than 30 days after it
receives the notice of the proposed final determination that the State
is not eligible; and
(4) Provides the SEA with information about the hearing procedures
that will be followed.
(Authority: 20 U.S.C. 1412(d)(2))
Sec. 300.180 Hearing official or panel.
(a) If the SEA requests a hearing, the Secretary designates one or
more individuals, either from the Department or elsewhere, not
responsible for or connected with the administration of this program,
to conduct a hearing.
(b) If more than one individual is designated, the Secretary
designates one of those individuals as the Chief Hearing Official of
the Hearing Panel. If one individual is designated, that individual is
the Hearing Official.
(Authority: 20 U.S.C. 1412(d)(2))
Sec. 300.181 Hearing procedures.
(a) As used in Sec. Sec. 300.179 through 300.184 the term party or
parties means the following:
(1) An SEA that requests a hearing regarding the proposed
disapproval of the State's eligibility under this part.
(2) The Department official who administers the program of
financial assistance under this part.
(3) A person, group or agency with an interest in and having
relevant information about the case that has applied for and been
granted leave to intervene by the Hearing Official or Hearing Panel.
(b) Within 15 days after receiving a request for a hearing, the
Secretary designates a Hearing Official or Hearing Panel and notifies
the parties.
(c) The Hearing Official or Hearing Panel may regulate the course
of proceedings and the conduct of the parties during the proceedings.
The Hearing Official or Hearing Panel takes all steps necessary to
conduct a fair and impartial proceeding, to avoid delay, and to
maintain order, including the following:
(1) The Hearing Official or Hearing Panel may hold conferences or
other types of appropriate proceedings to clarify, simplify, or define
the issues or to consider other matters that may aid in the disposition
of the case.
(2) The Hearing Official or Hearing Panel may schedule a prehearing
conference with the Hearing Official or Hearing Panel and the parties.
(3) Any party may request the Hearing Official or Hearing Panel to
schedule a prehearing or other conference. The Hearing Official or
Hearing Panel decides whether a conference is necessary and notifies
all parties.
(4) At a prehearing or other conference, the Hearing Official or
Hearing Panel and the parties may consider subjects such as--
(i) Narrowing and clarifying issues;
(ii) Assisting the parties in reaching agreements and stipulations;
(iii) Clarifying the positions of the parties;
(iv) Determining whether an evidentiary hearing or oral argument
should be held; and
(v) Setting dates for--
(A) The exchange of written documents;
(B) The receipt of comments from the parties on the need for oral
argument or evidentiary hearing;
(C) Further proceedings before the Hearing Official or Hearing
Panel (including an evidentiary hearing or oral argument, if either is
scheduled);
(D) Requesting the names of witnesses each party wishes to present
at an evidentiary hearing and estimation of time for each presentation;
or
(E) Completion of the review and the initial decision of the
Hearing Official or Hearing Panel.
[[Page 46777]]
(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.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1412(d)(2))
Sec. 300.183 Filing requirements.
(a) Any written submission by a party under Sec. Sec. 300.179
through 300.184 must be filed by hand delivery, by mail, or by
facsimile transmission. The Secretary discourages the use of facsimile
transmission for documents longer than five pages.
(b) The filing date under paragraph (a) of this section is the date
the document is--
(1) Hand-delivered;
(2) Mailed; or
(3) Sent by facsimile transmission.
(c) A party filing by facsimile transmission is responsible for
confirming that a complete and legible copy of the document was
received by the Department.
(d) If a document is filed by facsimile transmission, the
Secretary, the Hearing Official, or the Hearing Panel, as applicable,
may require the filing of a follow-up hard copy by hand delivery or by
mail within a reasonable period of time.
(e) If agreed upon by the parties, service of a document may be
made upon the other party by facsimile transmission.
(Authority: 20 U.S.C. 1412(d))
[[Page 46778]]
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
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.
[[Page 46779]]
(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))
State Administration
Sec. 300.199 State administration.
(a) Rulemaking. Each State that receives funds under Part B of the
Act must--
(1) Ensure that any State rules, regulations, and policies relating
to this part conform to the purposes of this part;
(2) Identify in writing to LEAs located in the State and the
Secretary any such rule, regulation, or policy as a State-imposed
requirement that is not required by Part B of the Act and Federal
regulations; and
(3) Minimize the number of rules, regulations, and policies to
which the LEAs and schools located in the State are subject under Part
B of the Act.
(b) Support and facilitation. State rules, regulations, and
policies under Part B of the Act must support and facilitate LEA and
school-level system improvement designed to enable children with
disabilities to meet the challenging State student academic achievement
standards.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1407)
Subpart C--Local Educational Agency Eligibility
Sec. 300.200 Condition of assistance.
An LEA is eligible for assistance under Part B of the Act for a
fiscal year if the agency submits a plan that provides assurances to
the SEA that the LEA meets each of the conditions in Sec. Sec. 300.201
through 300.213.
(Authority: 20 U.S.C. 1413(a))
Sec. 300.201 Consistency with State policies.
The LEA, in providing for the education of children with
disabilities within its jurisdiction, must have in effect policies,
procedures, and programs that are consistent with the State policies
and procedures established under Sec. Sec. 300.101 through 300.163,
and Sec. Sec. 300.165 through 300.174.
(Approved by the Office of Management and Budget under control
number 1820-0600)
(Authority: 20 U.S.C. 1413(a)(1))
Sec. 300.202 Use of amounts.
(a) General. Amounts provided to the LEA under Part B of the Act--
(1) Must be expended in accordance with the applicable provisions
of this part;
(2) Must be used only to pay the excess costs of providing special
education and related services to children with disabilities,
consistent with paragraph (b) of this section; and
(3) Must be used to supplement State, local, and other Federal
funds and not to supplant those funds.
(b) Excess cost requirement--(1) General. (i) The excess cost
requirement prevents an LEA from using funds provided under Part B of
the Act to pay for all of the costs directly attributable to the
education of a child with a disability, subject to paragraph (b)(1)(ii)
of this section.
(ii) The excess cost requirement does not prevent an LEA from using
Part B funds to pay for all of the costs directly attributable to the
education of a child with a disability in any of the ages 3, 4, 5, 18,
19, 20, or 21, if no local or State funds are available for nondisabled
children of these ages. However, the LEA must comply with the
nonsupplanting and other requirements of this part in providing the
education and services for these children.
(2)(i) An LEA meets the excess cost requirement if it has spent at
least a minimum average amount for the education of its children with
disabilities before funds under Part B of the Act are used.
(ii) The amount described in paragraph (b)(2)(i) of this section is
determined in accordance with the definition of excess costs in Sec.
300.16. That amount may not include capital outlay or debt service.
(3) If two or more LEAs jointly establish eligibility in accordance
with Sec. 300.223, the minimum average amount is the average of the
combined minimum average amounts determined in accordance with the
definition of excess costs in Sec. 300.16 in those agencies for
elementary or secondary school students, as the case may be.
(Approved by the Office of Management and Budget under control
number 1820-0600)
(Authority: 20 U.S.C. 1413(a)(2)(A))
[[Page 46780]]
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.
(Approved by the Office of Management and Budget under control
number 1820-0600)
(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).
(Approved by the Office of Management and Budget under control
number 1820-0600)
(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 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.
(Approved by the Office of Management and Budget under control
number 1820-0600)
(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.
(Approved by the Office of Management and Budget under control
number 1820-0600)
(Authority: 20 U.S.C. 1413(a)(2)(D))
Sec. 300.207 Personnel development.
The LEA must ensure that all personnel necessary to carry out Part
B of the Act are appropriately and adequately prepared, subject to the
requirements of Sec. 300.156 (related to personnel qualifications) and
section 2122 of the ESEA.
(Approved by the Office of Management and Budget under control
number 1820-0600)
(Authority: 20 U.S.C. 1413(a)(3))
[[Page 46781]]
Sec. 300.208 Permissive use of funds.
(a) Uses. Notwithstanding Sec. Sec. 300.202, 300.203(a), and
300.162(b), funds provided to an LEA under Part B of the Act may be
used for the following activities:
(1) Services and aids that also benefit nondisabled children. For
the costs of special education and related services, and supplementary
aids and services, provided in a regular class or other education-
related setting to a child with a disability in accordance with the IEP
of the child, even if one or more nondisabled children benefit from
these services.
(2) Early intervening services. To develop and implement
coordinated, early intervening educational services in accordance with
Sec. 300.226.
(3) High cost special education and related services. To establish
and implement cost or risk sharing funds, consortia, or cooperatives
for the LEA itself, or for LEAs working in a consortium of which the
LEA is a part, to pay for high cost special education and related
services.
(b) Administrative case management. An LEA may use funds received
under Part B of the Act to purchase appropriate technology for
recordkeeping, data collection, and related case management activities
of teachers and related services personnel providing services described
in the IEP of children with disabilities, that is needed for the
implementation of those case management activities.
(Approved by the Office of Management and Budget under control
number 1820-0600)
(Authority: 20 U.S.C. 1413(a)(4))
Sec. 300.209 Treatment of charter schools and their students.
(a) Rights of children with disabilities. Children with
disabilities who attend public charter schools and their parents retain
all rights under this part.
(b) Charter schools that are public schools of the LEA. (1) In
carrying out Part B of the Act and these regulations with respect to
charter schools that are public schools of the LEA, the LEA must--
(i) Serve children with disabilities attending those charter
schools in the same manner as the LEA serves children with disabilities
in its other schools, including providing supplementary and related
services on site at the charter school to the same extent to which the
LEA has a policy or practice of providing such services on the site to
its other public schools; and
(ii) Provide funds under Part B of the Act to those charter
schools--
(A) On the same basis as the LEA provides funds to the LEA's other
public schools, including proportional distribution based on relative
enrollment of children with disabilities; and
(B) At the same time as the LEA distributes other Federal funds to
the LEA's other public schools, consistent with the State's charter
school law.
(2) If the public charter school is a school of an LEA that
receives funding under Sec. 300.705 and includes other public
schools--
(i) The LEA is responsible for ensuring that the requirements of
this part are met, unless State law assigns that responsibility to some
other entity; and
(ii) The LEA must meet the requirements of paragraph (b)(1) of this
section.
(c) Public charter schools that are LEAs. If the public charter
school is an LEA, consistent with Sec. 300.28, that receives funding
under Sec. 300.705, that charter school is responsible for ensuring
that the requirements of this part are met, unless State law assigns
that responsibility to some other entity.
(d) Public charter schools that are not an LEA or a school that is
part of an LEA. (1) If the public charter school is not an LEA
receiving funding under Sec. 300.705, or a school that is part of an
LEA receiving funding under Sec. 300.705, the SEA is responsible for
ensuring that the requirements of this part are met.
(2) Paragraph (d)(1) of this section does not preclude a State from
assigning initial responsibility for ensuring the requirements of this
part are met to another entity. However, the SEA must maintain the
ultimate responsibility for ensuring compliance with this part,
consistent with Sec. 300.149.
(Approved by the Office of Management and Budget under control
number 1820-0600)
(Authority: 20 U.S.C. 1413(a)(5))
Sec. 300.210 Purchase of instructional materials.
(a) General. Not later than December 3, 2006, an LEA that chooses
to coordinate with the National Instructional Materials Access Center
(NIMAC), when purchasing print instructional materials, must acquire
those instructional materials in the same manner, and subject to the
same conditions as an SEA under Sec. 300.172.
(b) Rights of LEA. (1) Nothing in this section shall be construed
to require an LEA to coordinate with the NIMAC.
(2) If an LEA chooses not to coordinate with the NIMAC, the LEA
must provide an assurance to the SEA that the LEA will provide
instructional materials to blind persons or other persons with print
disabilities in a timely manner.
(3) Nothing in this section relieves an LEA of its responsibility
to ensure that children with disabilities who need instructional
materials in accessible formats but are not included under the
definition of blind or other persons with print disabilities in Sec.
300.172(e)(1)(i) or who need materials that cannot be produced from
NIMAS files, receive those instructional materials in a timely manner.
(Approved by the Office of Management and Budget under control
number 1820-0600)
(Authority: 20 U.S.C. 1413(a)(6))
Sec. 300.211 Information for SEA.
The LEA must provide the SEA with information necessary to enable
the SEA to carry out its duties under Part B of the Act, including,
with respect to Sec. Sec. 300.157 and 300.160, information relating to
the performance of children with disabilities participating in programs
carried out under Part B of the Act.
(Approved by the Office of Management and Budget under control
number 1820-0600)
(Authority: 20 U.S.C. 1413(a)(7))
Sec. 0.212 Public information.
The LEA must make available to parents of children with
disabilities and to the general public all documents relating to the
eligibility of the agency under Part B of the Act.
(Approved by the Office of Management and Budget under control
number 1820-0600)
(Authority: 20 U.S.C. 1413(a)(8))
Sec. 300.213 Records regarding migratory children with disabilities.
The LEA must cooperate in the Secretary's efforts under section
1308 of the ESEA to ensure the linkage of records pertaining to
migratory children with disabilities for the purpose of electronically
exchanging, among the States, health and educational information
regarding those children.
(Approved by the Office of Management and Budget under control
number 1820-0600)
(Authority: 20 U.S.C. 1413(a)(9))
Sec. Sec. 300.214-300.219 [Reserved]
Sec. 300.220 Exception for prior local plans.
(a) General. If an LEA or a State agency described in Sec. 300.228
has on file with the SEA policies and procedures that demonstrate that
the LEA or State agency meets any requirement of Sec. 300.200,
including any policies and procedures filed under Part B of the Act as
in effect before December 3, 2004, the SEA must consider the LEA or
State agency to have met that requirement for purposes of receiving
assistance under Part B of the Act.
[[Page 46782]]
(b) Modification made by an LEA or State agency. Subject to
paragraph (c) of this section, policies and procedures submitted by an
LEA or a State agency in accordance with this subpart remain in effect
until the LEA or State agency submits to the SEA the modifications that
the LEA or State agency determines are necessary.
(c) Modifications required by the SEA. The SEA may require an LEA
or a State agency to modify its policies and procedures, but only to
the extent necessary to ensure the LEA's or State agency's compliance
with Part B of the Act or State law, if--
(1) After December 3, 2004, the effective date of the Individuals
with Disabilities Education Improvement Act of 2004, the applicable
provisions of the Act (or the regulations developed to carry out the
Act) are amended;
(2) There is a new interpretation of an applicable provision of the
Act by Federal or State courts; or
(3) There is an official finding of noncompliance with Federal or
State law or regulations.
(Authority: 20 U.S.C. 1413(b))
Sec. 300.221 Notification of LEA or State agency in case of
ineligibility.
If the SEA determines that an LEA or State agency is not eligible
under Part B of the Act, then the SEA must--
(a) Notify the LEA or State agency of that determination; and
(b) Provide the LEA or State agency with reasonable notice and an
opportunity for a hearing.
(Authority: 20 U.S.C. 1413(c))
Sec. 300.222 LEA and State agency compliance.
(a) General. If the SEA, after reasonable notice and an opportunity
for a hearing, finds that an LEA or State agency that has been
determined to be eligible under this subpart is failing to comply with
any requirement described in Sec. Sec. 300.201 through 300.213, the
SEA must reduce or must not provide any further payments to the LEA or
State agency until the SEA is satisfied that the LEA or State agency is
complying with that requirement.
(b) Notice requirement. Any State agency or LEA in receipt of a
notice described in paragraph (a) of this section must, by means of
public notice, take the measures necessary to bring the pendency of an
action pursuant to this section to the attention of the public within
the jurisdiction of the agency.
(c) Consideration. In carrying out its responsibilities under this
section, each SEA must consider any decision resulting from a hearing
held under Sec. Sec. 300.511 through 300.533 that is adverse to the
LEA or State agency involved in the decision.
(Authority: 20 U.S.C. 1413(d))
Sec. 300.223 Joint establishment of eligibility.
(a) General. An SEA may require an LEA to establish its eligibility
jointly with another LEA if the SEA determines that the LEA will be
ineligible under this subpart because the agency will not be able to
establish and maintain programs of sufficient size and scope to
effectively meet the needs of children with disabilities.
(b) Charter school exception. An SEA may not require a charter
school that is an LEA to jointly establish its eligibility under
paragraph (a) of this section unless the charter school is explicitly
permitted to do so under the State's charter school statute.
(c) Amount of payments. If an SEA requires the joint establishment
of eligibility under paragraph (a) of this section, the total amount of
funds made available to the affected LEAs must be equal to the sum of
the payments that each LEA would have received under Sec. 300.705 if
the agencies were eligible for those payments.
(Authority: 20 U.S.C. 1413(e)(1) and (2))
Sec. 300.224 Requirements for establishing eligibility.
(a) Requirements for LEAs in general. LEAs that establish joint
eligibility under this section must--
(1) Adopt policies and procedures that are consistent with the
State's policies and procedures under Sec. Sec. 300.101 through
300.163, and Sec. Sec. 300.165 through 300.174; and
(2) Be jointly responsible for implementing programs that receive
assistance under Part B of the Act.
(b) Requirements for educational service agencies in general. If an
educational service agency is required by State law to carry out
programs under Part B of the Act, the joint responsibilities given to
LEAs under Part B of the Act--
(1) Do not apply to the administration and disbursement of any
payments received by that educational service agency; and
(2) Must be carried out only by that educational service agency.
(c) Additional requirement. Notwithstanding any other provision of
Sec. Sec. 300.223 through 300.224, an educational service agency must
provide for the education of children with disabilities in the least
restrictive environment, as required by Sec. 300.112.
(Approved by the Office of Management and Budget under control
number 1820-0600)
(Authority: 20 U.S.C. 1413(e)(3) and (4))
Sec. 300.225 [Reserved]
Sec. 300.226 Early intervening services.
(a) General. An LEA may not use more than 15 percent of the amount
the LEA receives under Part B of the Act for any fiscal year, less any
amount reduced by the LEA pursuant to Sec. 300.205, if any, in
combination with other amounts (which may include amounts other than
education funds), to develop and implement coordinated, early
intervening services, which may include interagency financing
structures, for students in kindergarten through grade 12 (with a
particular emphasis on students in kindergarten through grade three)
who are not currently identified as needing special education or
related services, but who need additional academic and behavioral
support to succeed in a general education environment. (See Appendix D
for examples of how Sec. 300.205(d), regarding local maintenance of
effort, and Sec. 300.226(a) affect one another.)
(b) Activities. In implementing coordinated, early intervening
services under this section, an LEA may carry out activities that
include--
(1) Professional development (which may be provided by entities
other than LEAs) for teachers and other school staff to enable such
personnel to deliver scientifically based academic and behavioral
interventions, including scientifically based literacy instruction,
and, where appropriate, instruction on the use of adaptive and
instructional software; and
(2) Providing educational and behavioral evaluations, services, and
supports, including scientifically based literacy instruction.
(c) Construction. Nothing in this section shall be construed to
either limit or create a right to FAPE under Part B of the Act or to
delay appropriate evaluation of a child suspected of having a
disability.
(d) Reporting. Each LEA that develops and maintains coordinated,
early intervening services under this section must annually report to
the SEA on--
(1) The number of children served under this section who received
early intervening services; and
(2) The number of children served under this section who received
early intervening services and subsequently receive special education
and related services under Part B of the Act during the preceding two
year period.
(e) Coordination with ESEA. Funds made available to carry out this
section may be used to carry out coordinated, early intervening
services aligned with activities funded by, and carried out under the
ESEA if those funds are used
[[Page 46783]]
to supplement, and not supplant, funds made available under the ESEA
for the activities and services assisted under this section.
(Approved by the Office of Management and Budget under control
number 1820-0600)
(Authority: 20 U.S.C. 1413(f))
Sec. 300.227 Direct services by the SEA.
(a) General. (1) An SEA must use the payments that would otherwise
have been available to an LEA or to a State agency to provide special
education and related services directly to children with disabilities
residing in the area served by that LEA, or for whom that State agency
is responsible, if the SEA determines that the LEA or State agency--
(i) Has not provided the information needed to establish the
eligibility of the LEA or State agency, or elected not to apply for its
Part B allotment, under Part B of the Act;
(ii) Is unable to establish and maintain programs of FAPE that meet
the requirements of this part;
(iii) Is unable or unwilling to be consolidated with one or more
LEAs in order to establish and maintain the programs; or
(iv) Has one or more children with disabilities who can best be
served by a regional or State program or service delivery system
designed to meet the needs of these children.
(2) SEA administrative procedures. (i) In meeting the requirements
in paragraph (a)(1) of this section, the SEA may provide special
education and related services directly, by contract, or through other
arrangements.
(ii) The excess cost requirements of Sec. 300.202(b) do not apply
to the SEA.
(b) Manner and location of education and services. The SEA may
provide special education and related services under paragraph (a) of
this section in the manner and at the locations (including regional or
State centers) as the SEA considers appropriate. The education and
services must be provided in accordance with this part.
(Authority: 20 U.S.C. 1413(g))
Sec. 300.228 State agency eligibility.
Any State agency that desires to receive a subgrant for any fiscal
year under Sec. 300.705 must demonstrate to the satisfaction of the
SEA that--
(a) All children with disabilities who are participating in
programs and projects funded under Part B of the Act receive FAPE, and
that those children and their parents are provided all the rights and
procedural safeguards described in this part; and
(b) The agency meets the other conditions of this subpart that
apply to LEAs.
(Authority: 20 U.S.C. 1413(h))
Sec. 300.229 Disciplinary information.
(a) The State may require that a public agency include in the
records of a child with a disability a statement of any current or
previous disciplinary action that has been taken against the child and
transmit the statement to the same extent that the disciplinary
information is included in, and transmitted with, the student records
of nondisabled children.
(b) The statement may include a description of any behavior engaged
in by the child that required disciplinary action, a description of the
disciplinary action taken, and any other information that is relevant
to the safety of the child and other individuals involved with the
child.
(c) If the State adopts such a policy, and the child transfers from
one school to another, the transmission of any of the child's records
must include both the child's current IEP and any statement of current
or previous disciplinary action that has been taken against the child.
(Authority: 20 U.S.C. 1413(i))
Sec. 300.230 SEA flexibility.
(a) Adjustment to State fiscal effort in certain fiscal years. For
any fiscal year for which the allotment received by a State under Sec.
300.703 exceeds the amount the State received for the previous fiscal
year and if the State in school year 2003-2004 or any subsequent school
year pays or reimburses all LEAs within the State from State revenue
100 percent of the non-Federal share of the costs of special education
and related services, the SEA, notwithstanding Sec. Sec. 300.162
through 300.163 (related to State-level nonsupplanting and maintenance
of effort), and Sec. 300.175 (related to direct services by the SEA)
may reduce the level of expenditures from State sources for the
education of children with disabilities by not more than 50 percent of
the amount of such excess.
(b) Prohibition. Notwithstanding paragraph (a) of this section, if
the Secretary determines that an SEA is unable to establish, maintain,
or oversee programs of FAPE that meet the requirements of this part, or
that the State needs assistance, intervention, or substantial
intervention under Sec. 300.603, the Secretary prohibits the SEA from
exercising the authority in paragraph (a) of this section.
(c) Education activities. If an SEA exercises the authority under
paragraph (a) of this section, the agency must use funds from State
sources, in an amount equal to the amount of the reduction under
paragraph (a) of this section, to support activities authorized under
the ESEA, or to support need-based student or teacher higher education
programs.
(d) Report. For each fiscal year for which an SEA exercises the
authority under paragraph (a) of this section, the SEA must report to
the Secretary--
(1) The amount of expenditures reduced pursuant to that paragraph;
and
(2) The activities that were funded pursuant to paragraph (c) of
this section.
(e) Limitation. (1) Notwithstanding paragraph (a) of this section,
an SEA may not reduce the level of expenditures described in paragraph
(a) of this section if any LEA in the State would, as a result of such
reduction, receive less than 100 percent of the amount necessary to
ensure that all children with disabilities served by the LEA receive
FAPE from the combination of Federal funds received under Part B of the
Act and State funds received from the SEA.
(2) If an SEA exercises the authority under paragraph (a) of this
section, LEAs in the State may not reduce local effort under Sec.
300.205 by more than the reduction in the State funds they receive.
(Authority: 20 U.S.C. 1413(j))
Subpart D--Evaluations, Eligibility Determinations, Individualized
Education Programs, and Educational Placements
Parental Consent
Sec. 300.300 Parental consent.
(a) Parental consent for initial evaluation. (1)(i) The public
agency proposing to conduct an initial evaluation to determine if a
child qualifies as a child with a disability under Sec. 300.8 must,
after providing notice consistent with Sec. Sec. 300.503 and 300.504,
obtain informed consent, consistent with Sec. 300.9, from the parent
of the child before conducting the evaluation.
(ii) Parental consent for initial evaluation must not be construed
as consent for initial provision of special education and related
services.
(iii) The public agency must make reasonable efforts to obtain the
informed consent from the parent for an initial evaluation to determine
whether the child is a child with a disability.
(2) For initial evaluations only, if the child is a ward of the
State and is not residing with the child's parent, the public agency is
not required to obtain informed consent from the parent for an
[[Page 46784]]
initial evaluation to determine whether the child is a child with a
disability if--
(i) Despite reasonable efforts to do so, the public agency cannot
discover the whereabouts of the parent of the child;
(ii) The rights of the parents of the child have been terminated in
accordance with State law; or
(iii) The rights of the parent to make educational decisions have
been subrogated by a judge in accordance with State law and consent for
an initial evaluation has been given by an individual appointed by the
judge to represent the child.
(3)(i) If the parent of a child enrolled in public school or
seeking to be enrolled in public school does not provide consent for
initial evaluation under paragraph (a)(1) of this section, or the
parent fails to respond to a request to provide consent, the public
agency may, but is not required to, pursue the initial evaluation of
the child by utilizing the procedural safeguards in subpart E of this
part (including the mediation procedures under Sec. 300.506 or the due
process procedures under Sec. Sec. 300.507 through 300.516), if
appropriate, except to the extent inconsistent with State law relating
to such parental consent.
(ii) The public agency does not violate its obligation under Sec.
300.111 and Sec. Sec. 300.301 through 300.311 if it declines to pursue
the evaluation.
(b) Parental consent for services. (1) A public agency that is
responsible for making FAPE available to a child with a disability must
obtain informed consent from the parent of the child before the initial
provision of special education and related services to the child.
(2) The public agency must make reasonable efforts to obtain
informed consent from the parent for the initial provision of special
education and related services to the child.
(3) If the parent of a child fails to respond 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.
(4) 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 Team 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--
(i) Must obtain informed parental consent, in accordance with Sec.
300.300(a)(1), prior to conducting any reevaluation of a child with a
disability.
(ii) If the parent refuses to consent to the reevaluation, the
public agency may, but is not required to, pursue the reevaluation by
using the consent override procedures described in paragraph (a)(3) of
this section.
(iii) The public agency does not violate its obligation under Sec.
300.111 and Sec. Sec. 300.301 through 300.311 if it declines to pursue
the evaluation or reevaluation.
(2) The informed parental consent described in paragraph (c)(1) of
this section need not be obtained if the public agency can demonstrate
that--
(i) It made reasonable efforts to obtain such consent; and
(ii) The child's parent has failed to respond.
(d) Other consent requirements.
(1) Parental consent is not required before--
(i) Reviewing existing data as part of an evaluation or a
reevaluation; or
(ii) Administering a test or other evaluation that is administered
to all children unless, before administration of that test or
evaluation, consent is required of parents of all children.
(2) In addition to the parental consent requirements described in
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) or (d)(2) of this section
to deny the parent or child any other service, benefit, or activity of
the public agency, except as required by this part.
(4)(i) If a parent of a child who is home schooled or placed in a
private school by the parents at their own expense does not provide
consent for the initial evaluation or the reevaluation, or the parent
fails to respond to a request to provide consent, the public agency may
not use the consent override procedures (described in paragraphs (a)(3)
and (c)(1) of this section); and
(ii) The public agency is not required to consider the child as
eligible for services under Sec. Sec. 300.132 through 300.144.
(5) To meet the reasonable efforts requirement in paragraphs
(a)(1)(iii), (a)(2)(i), (b)(2), and (c)(2)(i) of this section, the
public agency must document its attempts to obtain parental consent
using the procedures in Sec. 300.322(d).
(Authority: 20 U.S.C. 1414(a)(1)(D) and 1414(c))
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 does not apply to a public agency if--
(1) The parent of a child repeatedly fails or refuses to produce
the child for the evaluation; or
(2) A child enrolls in a school of another public agency after the
relevant timeframe in paragraph (c)(1) of this section has begun, and
prior to a determination by the child's previous public agency as to
whether the child is a child with a disability under Sec. 300.8.
(e) The exception in paragraph (d)(2) of this section applies only
if the subsequent public agency is making sufficient progress to ensure
a prompt completion of the evaluation, and the
[[Page 46785]]
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 enabling the child to be involved in and progress in the general
education curriculum (or for a preschool child, to participate in
appropriate activities);
(2) Not use any single measure or assessment as the sole criterion
for determining whether a child is a child with a disability and for
determining an appropriate educational program for the child; and
(3) Use technically sound instruments that may assess the relative
contribution of cognitive and behavioral factors, in addition to
physical or developmental factors.
(c) Other evaluation procedures. Each public agency must ensure
that--
(1) Assessments and other evaluation materials used to assess a
child under this part--
(i) Are selected and administered so as not to be discriminatory on
a racial or cultural basis;
(ii) Are provided and administered in the child's native language
or other mode of communication and in the form most likely to yield
accurate information on what the child knows and can do academically,
developmentally, and functionally, unless it is clearly not feasible to
so provide or administer;
(iii) Are used for the purposes for which the assessments or
measures are valid and reliable;
(iv) Are administered by trained and knowledgeable personnel; and
(v) Are administered in accordance with any instructions provided
by the producer of the assessments.
(2) Assessments and other evaluation materials include those
tailored to assess specific areas of educational need and not merely
those that are designed to provide a single general intelligence
quotient.
(3) Assessments are selected and administered so as best to ensure
that if an assessment is administered to a child with impaired sensory,
manual, or speaking skills, the assessment results accurately reflect
the child's aptitude or achievement level or whatever other factors the
test purports to measure, rather than reflecting the child's impaired
sensory, manual, or speaking skills (unless those skills are the
factors that the test purports to measure).
(4) The child is assessed in all areas related to the suspected
disability, including, if appropriate, health, vision, hearing, social
and emotional status, general intelligence, academic performance,
communicative status, and motor abilities;
(5) Assessments of children with disabilities who transfer from one
public agency to another public agency in the same school year are
coordinated with those children's prior and subsequent schools, as
necessary and as expeditiously as possible, consistent with Sec.
300.301(d)(2) and (e), to ensure prompt completion of full evaluations.
(6) In evaluating each child with a disability under Sec. Sec.
300.304 through 300.306, the evaluation is sufficiently comprehensive
to identify all of the child's special education and related services
needs, whether or not commonly linked to the disability category in
which the child has been classified.
(7) Assessment tools and strategies that provide relevant
information that directly assists persons in determining the
educational needs of the child are provided.
(Authority: 20 U.S.C. 1414(b)(1)-(3), 1412(a)(6)(B))
Sec. 300.305 Additional requirements for evaluations and
reevaluations.
(a) Review of existing evaluation data. As part of an initial
evaluation (if appropriate) and as part of any reevaluation under this
part, the IEP Team and other qualified professionals, as appropriate,
must--
(1) Review existing evaluation data on the child, including--
(i) Evaluations and information provided by the parents of the
child;
(ii) Current classroom-based, local, or State assessments, and
classroom-based observations; and
(iii) Observations by teachers and related services providers; and
(2) On the basis of that review, and input from the child's
parents, identify what additional data, if any, are needed to
determine--
(i)(A) Whether the child is a child with a disability, as defined
in Sec. 300.8, and the educational needs of the child; or
(B) In case of a reevaluation of a child, whether the child
continues to have such a disability, and the educational needs of the
child;
(ii) The present levels of academic achievement and related
developmental needs of the child;
(iii)(A) Whether the child needs special education and related
services; or
(B) In the case of a reevaluation of a child, whether the child
continues to need special education and related services; and
(iv) Whether any additions or modifications to the special
education and related services are needed to enable the child to meet
the measurable annual goals set out in the IEP of the child and to
participate, as appropriate, in the general education curriculum.
(b) Conduct of review. The group described in paragraph (a) of this
section may conduct its review without a meeting.
(c) Source of data. The public agency must administer such
assessments and
[[Page 46786]]
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 eligibility. (1) Except as
provided in paragraph (e)(2) of this section, a public agency must
evaluate a child with a disability in accordance with Sec. Sec.
300.304 through 300.311 before determining that the child is no longer
a child with a disability.
(2) The evaluation described in paragraph (e)(1) of this section is
not required before the termination of a child's eligibility under this
part due to graduation from secondary school with a regular diploma, or
due to exceeding the age eligibility for FAPE under State law.
(3) For a child whose eligibility terminates under circumstances
described in paragraph (e)(2) of this section, a public agency must
provide the child with a summary of the child's academic achievement
and functional performance, which shall include recommendations on how
to assist the child in meeting the child's postsecondary goals.
(Authority: 20 U.S.C. 1414(c))
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
(2) The public agency provides a copy of the evaluation report and
the documentation of determination of eligibility at no cost to the
parent.
(b) Special rule for eligibility determination. A child must not be
determined to be a child with a disability under this part--
(1) If the determinant factor for that determination is--
(i) Lack of appropriate instruction in reading, including the
essential components of reading instruction (as defined in section
1208(3) of the ESEA);
(ii) Lack of appropriate instruction in math; or
(iii) Limited English proficiency; and
(2) If the child does not otherwise meet the eligibility criteria
under Sec. 300.8(a).
(c) Procedures for determining eligibility and educational need.
(1) In interpreting evaluation data for the purpose of determining if a
child is a child with a disability under Sec. 300.8, and the
educational needs of the child, each public agency must--
(i) Draw upon information from a variety of sources, including
aptitude and achievement tests, parent input, and teacher
recommendations, as well as information about the child's physical
condition, social or cultural background, and adaptive behavior; and
(ii) Ensure that information obtained from all of these sources is
documented and carefully considered.
(2) If a determination is made that a child has a disability and
needs special education and related services, an IEP must be developed
for the child in accordance with Sec. Sec. 300.320 through 300.324.
(Authority: 20 U.S.C. 1414(b)(4) and (5))
Additional Procedures for Identifying Children With Specific Learning
Disabilities
Sec. 300.307 Specific learning disabilities.
(a) General. A State must adopt, consistent with Sec. 300.309,
criteria for determining whether a child has a specific learning
disability as defined in Sec. 300.8(c)(10). In addition, the criteria
adopted by the State--
(1) Must not require the use of a severe discrepancy between
intellectual ability and achievement for determining whether a child
has a specific learning disability, as defined in Sec. 300.8(c)(10);
(2) Must permit the use of a process based on the child's response
to scientific, research-based intervention; and
(3) May permit the use of other alternative research-based
procedures for determining whether a child has a specific learning
disability, as defined in Sec. 300.8(c)(10).
(b) Consistency with State criteria. A public agency must use the
State criteria adopted pursuant to paragraph (a) of this section in
determining whether a child has a specific learning disability.
(Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))
Sec. 300.308 Additional group members.
The determination of whether a child suspected of having a specific
learning disability is a child with a disability as defined in Sec.
300.8, must be made by the child's parents and a team of qualified
professionals, which must include--
(a)(1) The child's regular teacher; or
(2) If the child does not have a regular teacher, a regular
classroom teacher qualified to teach a child of his or her age; or
(3) For a child of less than school age, an individual qualified by
the SEA to teach a child of his or her age; and
(b) At least one person qualified to conduct individual diagnostic
examinations of children, such as a school psychologist, speech-
language pathologist, or remedial reading teacher.
(Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))
Sec. 300.309 Determining the existence of a specific learning
disability.
(a) The group described in Sec. 300.306 may determine that a child
has a specific learning disability, as defined in Sec. 300.8(c)(10),
if--
(1) The child does not achieve adequately for the child's age or to
meet State-approved grade-level standards in one or more of the
following areas, when provided with learning experiences and
instruction appropriate for the child's age or State-approved grade-
level standards:
(i) Oral expression.
(ii) Listening comprehension.
(iii) Written expression.
(iv) Basic reading skill.
(v) Reading fluency skills.
(vi) Reading comprehension.
(vii) Mathematics calculation.
(viii) Mathematics problem solving.
(2)(i) The child does not make sufficient progress to meet age or
State-approved grade-level standards in one or more of the areas
identified in paragraph (a)(1) of this section when using a process
based on the child's response to scientific, research-based
intervention; or
(ii) The child exhibits a pattern of strengths and weaknesses in
performance, achievement, or both, relative to age, State-approved
grade-level standards, or intellectual development, that is determined
by the group to be relevant to the identification of a specific
learning disability, using appropriate assessments, consistent with
Sec. Sec. 300.304 and 300.305; and
(3) The group determines that its findings under paragraphs (a)(1)
and (2)
[[Page 46787]]
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;
(v) Environmental or economic disadvantage; or
(vi) Limited English proficiency.
(b) To ensure that underachievement in a child suspected of having
a specific learning disability is not due to lack of appropriate
instruction in reading or math, the group must consider, as part of the
evaluation described in Sec. Sec. 300.304 through 300.306--
(1) Data that demonstrate that prior to, or as a part of, the
referral process, the child was provided appropriate instruction in
regular education settings, delivered by qualified personnel; and
(2) Data-based documentation of repeated assessments of achievement
at reasonable intervals, reflecting formal assessment of student
progress during instruction, which was provided to the child's parents.
(c) The public agency must promptly request parental consent to
evaluate the child to determine if the child needs special education
and related services, and must adhere to the timeframes described in
Sec. Sec. 300.301 and 300.303, unless extended by mutual written
agreement of the child's parents and a group of qualified
professionals, as described in Sec. 300.306(a)(1)--
(1) If, prior to a referral, a child has not made adequate progress
after an appropriate period of time when provided instruction, as
described in paragraphs (b)(1) and (b)(2) of this section; and
(2) Whenever a child is referred for an evaluation.
(Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))
Sec. 300.310 Observation.
(a) The public agency must ensure that the child is observed in the
child's learning environment (including the regular classroom setting)
to document the child's academic performance and behavior in the areas
of difficulty.
(b) The group described in Sec. 300.306(a)(1), in determining
whether a child has a specific learning disability, must decide to--
(1) Use information from an observation in routine classroom
instruction and monitoring of the child's performance that was done
before the child was referred for an evaluation; or
(2) Have at least one member of the group described in Sec.
300.306(a)(1) conduct an observation of the child's academic
performance in the regular classroom after the child has been referred
for an evaluation and parental consent, consistent with Sec.
300.300(a), is obtained.
(c) In the case of a child of less than school age or out of
school, a group member must observe the child in an environment
appropriate for a child of that age.
(Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))
Sec. 300.311 Specific documentation for the eligibility
determination.
(a) For a child suspected of having a specific learning disability,
the documentation of the determination of eligibility, as required in
Sec. 300.306(a)(2), must contain a statement of--
(1) Whether the child has a specific learning disability;
(2) The basis for making the determination, including an assurance
that the determination has been made in accordance with Sec.
300.306(c)(1);
(3) The relevant behavior, if any, noted during the observation of
the child and the relationship of that behavior to the child's academic
functioning;
(4) The educationally relevant medical findings, if any;
(5) Whether--
(i) The child does not achieve adequately for the child's age or to
meet State-approved grade-level standards consistent with Sec.
300.309(a)(1); and
(ii)(A) The child does not make sufficient progress to meet age or
State-approved grade-level standards consistent with Sec.
300.309(a)(2)(i); or
(B) The child exhibits a pattern of strengths and weaknesses in
performance, achievement, or both, relative to age, State-approved
grade level standards or intellectual development consistent with Sec.
300.309(a)(2)(ii);
(6) The determination of the group concerning the effects of a
visual, hearing, or motor disability; mental retardation; emotional
disturbance; cultural factors; environmental or economic disadvantage;
or limited English proficiency on the child's achievement level; and
(7) If the child has participated in a process that assesses the
child's response to scientific, research-based intervention--
(i) The instructional strategies used and the student-centered data
collected; and
(ii) The documentation that the child's parents were notified
about--
(A) The State's policies regarding the amount and nature of student
performance data that would be collected and the general education
services that would be provided;
(B) Strategies for increasing the child's rate of learning; and
(C) The parents' right to request an evaluation.
(b) Each group member must certify in writing whether the report
reflects the member's conclusion. If it does not reflect the member's
conclusion, the group member must submit a separate statement
presenting the member's conclusions.
(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
[[Page 46788]]
supplementary aids and services, based on peer-reviewed research to the
extent practicable, to be provided to the child, or on behalf of the
child, and a statement of the program modifications or supports for
school personnel that will be provided to enable the child--
(i) To advance appropriately toward attaining the annual goals;
(ii) To be involved in and make progress in the general education
curriculum in accordance with paragraph (a)(1) of this section, and to
participate in extracurricular and other nonacademic activities; and
(iii) To be educated and participate with other children with
disabilities and nondisabled children in the activities described in
this section;
(5) An explanation of the extent, if any, to which the child will
not participate with nondisabled children in the regular class and in
the activities described in paragraph (a)(4) of this section;
(6)(i) A statement of any individual appropriate accommodations
that are necessary to measure the academic achievement and functional
performance of the child on State and districtwide assessments
consistent with section 612(a)(16) of the Act; and
(ii) If the IEP Team determines that the child must take an
alternate assessment instead of a particular regular State or
districtwide assessment of student achievement, a statement of why--
(A) The child cannot participate in the regular assessment; and
(B) The particular alternate assessment selected is appropriate for
the child; and
(7) The projected date for the beginning of the services and
modifications described in paragraph (a)(4) of this section, and the
anticipated frequency, location, and duration of those services and
modifications.
(b) Transition services. Beginning not later than the first IEP to
be in effect when the child turns 16, or younger if determined
appropriate by the IEP Team, and updated annually, thereafter, the IEP
must include--
(1) Appropriate measurable postsecondary goals based upon age
appropriate transition assessments related to training, education,
employment, and, where appropriate, independent living skills; and
(2) The transition services (including courses of study) needed to
assist the child in reaching those goals.
(c) Transfer of rights at age of majority. Beginning not later than
one year before the child reaches the age of majority under State law,
the IEP must include a statement that the child has been informed of
the child's rights 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))
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 Team meeting if a purpose
of the meeting will be the consideration of the postsecondary goals for
the child and the transition services needed to assist the child in
reaching those goals under Sec. 300.320(b).
(2) If the child does not attend the IEP Team meeting, the public
agency must take other steps to ensure that the child's preferences and
interests are considered.
(3) To the extent appropriate, with the consent of the parents or a
child who has reached the age of majority, in implementing the
requirements of paragraph (b)(1) of this section, the public agency
must invite a representative of any participating agency that is likely
to be responsible for providing or paying for transition services.
(c) Determination of knowledge and special expertise. The
determination of the knowledge or special expertise of any individual
described in paragraph (a)(6) of this section must be made by the party
(parents or public agency) who invited the individual to be a member of
the IEP Team.
(d) Designating a public agency representative. A public agency may
designate a public agency member of the IEP Team to also serve as the
agency representative, if the criteria in paragraph (a)(4) of this
section are satisfied.
(e) IEP Team attendance. (1) A member of the IEP Team described in
paragraphs (a)(2) through (a)(5) of this section is not required to
attend an IEP Team meeting, in whole or in part, if the parent of a
child with a disability and the public agency agree, in writing, that
the attendance of the member is not necessary because the member's area
of the curriculum or related services is not being modified or
discussed in the meeting.
(2) A member of the IEP Team described in paragraph (e)(1) of this
section may be excused from attending an IEP Team meeting, in whole or
in part, when the meeting involves a modification to or discussion of
the member's area of the curriculum or related services, if--
(i) The parent, in writing, and the public agency consent to the
excusal; and
(ii) The member submits, in writing to the parent and the IEP Team,
input into the development of the IEP prior to the meeting.
(f) Initial IEP Team meeting for child under Part C. In the case of
a child who was previously served under Part C of the Act, an
invitation to the initial IEP Team meeting must, at the request of the
parent, be sent to the Part C service coordinator or other
representatives of the Part C system to assist with the smooth
transition of services.
(Authority: 20 U.S.C. 1414(d)(1)(B)-(d)(1)(D))
Sec. 300.322 Parent participation.
(a) Public agency responsibility--general. Each public agency must
take steps to ensure that one or both of the parents of a child with a
disability are present at each IEP Team meeting or are
[[Page 46789]]
afforded the opportunity to participate, including--
(1) Notifying parents of the meeting early enough to ensure that
they will have an opportunity to attend; and
(2) Scheduling the meeting at a mutually agreed on time and place.
(b) Information provided to parents. (1) The notice required under
paragraph (a)(1) of this section must--
(i) Indicate the purpose, time, and location of the meeting and who
will be in attendance; and
(ii) Inform the parents of the provisions in Sec. 300.321(a)(6)
and (c) (relating to the participation of other individuals on the IEP
Team who have knowledge or special expertise about the child), and
Sec. 300.321(f) (relating to the participation of the Part C service
coordinator or other representatives of the Part C system at the
initial IEP Team meeting for a child previously served under Part C of
the Act).
(2) For a child with a disability beginning not later than the
first IEP to be in effect when the child turns 16, or younger if
determined appropriate by the IEP Team, the notice also must--
(i) Indicate--
(A) That a purpose of the meeting will be the consideration of the
postsecondary goals and transition services for the child, in
accordance with Sec. 300.320(b); and
(B) That the agency will invite the student; and
(ii) Identify any other agency that will be invited to send a
representative.
(c) Other methods to ensure parent participation. If neither parent
can attend an IEP Team meeting, the public agency must use other
methods to ensure parent participation, including individual or
conference telephone calls, consistent with Sec. 300.328 (related to
alternative means of meeting participation).
(d) Conducting an IEP Team meeting without a parent in attendance.
A meeting may be conducted without a parent in attendance if the public
agency is unable to convince the parents that they should attend. In
this case, the public agency must keep a record of its attempts to
arrange a mutually agreed on time and place, such as--
(1) Detailed records of telephone calls made or attempted and the
results of those calls;
(2) Copies of correspondence sent to the parents and any responses
received; and
(3) Detailed records of visits made to the parent's home or place
of employment and the results of those visits.
(e) Use of interpreters or other action, as appropriate. The public
agency must take whatever action is necessary to ensure that the parent
understands the proceedings of the IEP Team meeting, including
arranging for an interpreter for parents with deafness or whose native
language is other than English.
(f) Parent copy of child's IEP. The public agency must give the
parent a copy of the child's IEP at no cost to the parent.
(Authority: 20 U.S.C. 1414(d)(1)(B)(i))
Sec. 300.323 When IEPs must be in effect.
(a) General. At the beginning of each school year, each public
agency must have in effect, for each child with a disability within its
jurisdiction, an IEP, as defined in Sec. 300.320.
(b) IEP or IFSP for children aged three through five. (1) In the
case of a child with a disability aged three through five (or, at the
discretion of the SEA, a two-year-old child with a disability who will
turn age three during the school year), the IEP Team must consider an
IFSP that contains the IFSP content (including the natural environments
statement) described in section 636(d) of the Act and its implementing
regulations (including an educational component that promotes school
readiness and incorporates pre-literacy, language, and numeracy skills
for children with IFSPs under this section who are at least three years
of age), and that is developed in accordance with the IEP procedures
under this part. The IFSP may serve as the IEP of the child, if using
the IFSP as the IEP is--
(i) Consistent with State policy; and
(ii) Agreed to by the agency and the child's parents.
(2) In implementing the requirements of paragraph (b)(1) of this
section, the public agency must--
(i) Provide to the child's parents a detailed explanation of the
differences between an IFSP and an IEP; and
(ii) If the parents choose an IFSP, obtain written informed consent
from the parents.
(c) Initial IEPs; provision of services. Each public agency must
ensure that--
(1) A meeting to develop an IEP for a child is conducted within 30
days of a determination that the child needs special education and
related services; and
(2) As soon as possible following development of the IEP, special
education and related services are made available to the child in
accordance with the child's IEP.
(d) Accessibility of child's IEP to teachers and others. Each
public agency must ensure that--
(1) The child's IEP is accessible to each regular education
teacher, special education teacher, related services provider, and any
other service provider who is responsible for its implementation; and
(2) Each teacher and provider described in paragraph (d)(1) of this
section is informed of--
(i) His or her specific responsibilities related to implementing
the child's IEP; and
(ii) The specific accommodations, modifications, and supports that
must be provided for the child in accordance with the IEP.
(e) IEPs for children who transfer public agencies in the same
State. If a child with a disability (who had an IEP that was in effect
in a previous public agency in the same State) transfers to a new
public agency in the same State, and enrolls in a new school within the
same school year, the new public agency (in consultation with the
parents) must provide FAPE to the child (including services comparable
to those described in the child's IEP from the previous public agency),
until the new public agency either--
(1) Adopts the child's IEP from the previous public agency; or
(2) Develops, adopts, and implements a new IEP that meets the
applicable requirements in Sec. Sec. 300.320 through 300.324.
(f) IEPs for children who transfer from another State. If a child
with a disability (who had an IEP that was in effect in a previous
public agency in another State) transfers to a public agency in a new
State, and enrolls in a new school within the same school year, the new
public agency (in consultation with the parents) must provide the child
with FAPE (including services comparable to those described in the
child's IEP from the previous public agency), until the new public
agency--
(1) Conducts an evaluation pursuant to Sec. Sec. 300.304 through
300.306 (if determined to be necessary by the new public agency); and
(2) Develops, adopts, and implements a new IEP, if appropriate,
that meets the applicable requirements in Sec. Sec. 300.320 through
300.324.
(g) Transmittal of records. To facilitate the transition for a
child described in paragraphs (e) and (f) of this section--
(1) The new public agency in which the child enrolls must take
reasonable steps to promptly obtain the child's records, including the
IEP and supporting documents and any other records relating to the
provision of special education or related services to the child, from
the previous public agency in which the child was enrolled, pursuant to
34 CFR 99.31(a)(2); and
[[Page 46790]]
(2) The previous public agency in which the child was enrolled must
take reasonable steps to promptly respond to the request from the new
public agency.
(Authority: 20 U.S.C. 1414(d)(2)(A)-(C))
Development of IEP
Sec. 300.324 Development, review, and revision of IEP.
(a) Development of IEP--(1) General. In developing each child's
IEP, the IEP Team must consider--
(i) The strengths of the child;
(ii) The concerns of the parents for enhancing the education of
their child;
(iii) The results of the initial or most recent evaluation of the
child; and
(iv) The academic, developmental, and functional needs of the
child.
(2) Consideration of special factors. The IEP Team must--
(i) In the case of a child whose behavior impedes the child's
learning or that of others, consider the use of positive behavioral
interventions and supports, and other strategies, to address that
behavior;
(ii) In the case of a child with limited English proficiency,
consider the language needs of the child as those needs relate to the
child's IEP;
(iii) In the case of a child who is blind or visually impaired,
provide for instruction in Braille and the use of Braille unless the
IEP Team determines, after an evaluation of the child's reading and
writing skills, needs, and appropriate reading and writing media
(including an evaluation of the child's future needs for instruction in
Braille or the use of Braille), that instruction in Braille or the use
of Braille is not appropriate for the child;
(iv) Consider the communication needs of the child, and in the case
of a child who is deaf or hard of hearing, consider the child's
language and communication needs, opportunities for direct
communications with peers and professional personnel in the child's
language and communication mode, academic level, and full range of
needs, including opportunities for direct instruction in the child's
language and communication mode; and
(v) Consider whether the child needs assistive technology devices
and services.
(3) Requirement with respect to regular education teacher. A
regular education teacher of a child with a disability, as a member of
the IEP Team, must, to the extent appropriate, participate in the
development of the IEP of the child, including the determination of--
(i) Appropriate positive behavioral interventions and supports and
other strategies for the child; and
(ii) Supplementary aids and services, program modifications, and
support for school personnel consistent with Sec. 300.320(a)(4).
(4) Agreement. (i) In making changes to a child's IEP after the
annual IEP Team meeting for a school year, the parent of a child with a
disability and the public agency may agree not to convene an IEP Team
meeting for the purposes of making those changes, and instead may
develop a written document to amend or modify the child's current IEP.
(ii) If changes are made to the child's IEP in accordance with
paragraph (a)(4)(i) of this section, the public agency must ensure that
the child's IEP Team is informed of those changes.
(5) Consolidation of IEP Team meetings. To the extent possible, the
public agency must encourage the consolidation of reevaluation meetings
for the child and other IEP Team meetings for the child.
(6) Amendments. Changes to the IEP may be made either by the entire
IEP Team at an IEP Team meeting, or as provided in paragraph (a)(4) of
this section, by amending the IEP rather than by redrafting the entire
IEP. Upon request, a parent must be provided with a revised copy of the
IEP with the amendments incorporated.
(b) Review and revision of IEPs--(1) General. Each public agency
must ensure that, subject to paragraphs (b)(2) and (b)(3) of this
section, the IEP Team--
(i) Reviews the child's IEP periodically, but not less than
annually, to determine whether the annual goals for the child are being
achieved; and
(ii) Revises the IEP, as appropriate, to address--
(A) Any lack of expected progress toward the annual goals described
in Sec. 300.320(a)(2), and in the general education curriculum, if
appropriate;
(B) The results of any reevaluation conducted under Sec. 300.303;
(C) Information about the child provided to, or by, the parents, as
described under Sec. 300.305(a)(2);
(D) The child's anticipated needs; or
(E) Other matters.
(2) Consideration of special factors. In conducting a review of the
child's IEP, the IEP Team must consider the special factors described
in paragraph (a)(2) of this section.
(3) Requirement with respect to regular education teacher. A
regular education teacher of the child, as a member of the IEP Team,
must, consistent with paragraph (a)(3) of this section, participate in
the review and revision of the IEP of the child.
(c) Failure to meet transition objectives--(1) Participating agency
failure. If a participating agency, other than the public agency, fails
to provide the transition services described in the IEP in accordance
with Sec. 300.320(b), the public agency must reconvene the IEP Team to
identify alternative strategies to meet the transition objectives for
the child set out in the IEP.
(2) Construction. Nothing in this part relieves any participating
agency, including a State vocational rehabilitation agency, of the
responsibility to provide or pay for any transition service that the
agency would otherwise provide to children with disabilities who meet
the eligibility criteria of that agency.
(d) Children with disabilities in adult prisons--(1) Requirements
that do not apply. The following requirements do not apply to children
with disabilities who are convicted as adults under State law and
incarcerated in adult prisons:
(i) The requirements contained in section 612(a)(16) of the Act and
Sec. 300.320(a)(6) (relating to participation of children with
disabilities in general assessments).
(ii) The requirements in Sec. 300.320(b) (relating to transition
planning and transition services) do not apply with respect to the
children whose eligibility under Part B of the Act will end, because of
their age, before they will be eligible to be released from prison
based on consideration of their sentence and eligibility for early
release.
(2) Modifications of IEP or placement. (i) Subject to paragraph
(d)(2)(ii) of this section, the IEP Team of a child with a disability
who is convicted as an adult under State law and incarcerated in an
adult prison may modify the child's IEP or placement if the State has
demonstrated a bona fide security or compelling penological interest
that cannot otherwise be accommodated.
(ii) The requirements of Sec. Sec. 300.320 (relating to IEPs), and
300.112 (relating to LRE), do not apply with respect to the
modifications described in paragraph (d)(2)(i) of this section.
(Authority: 20 U.S.C. 1412(a)(1), 1412(a)(12)(A)(i), 1414(d)(3),
(4)(B), and (7); and 1414(e))
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.
[[Page 46791]]
(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 of this part, and carrying out
administrative matters under section 615 of the Act (such as
scheduling, exchange of witness lists, and status conferences), the
parent of a child with a disability and a public agency may agree to
use alternative means of meeting participation, such as video
conferences and conference calls.
(Authority: 20 U.S.C. 1414(f))
Subpart E--Procedural Safeguards Due Process Procedures for Parents
and Children
Sec. 300.500 Responsibility of SEA and other public agencies.
Each SEA must ensure that each public agency establishes,
maintains, and implements procedural safeguards that meet the
requirements of Sec. Sec. 300.500 through 300.536.
(Authority: 20 U.S.C. 1415(a))
Sec. 300.501 Opportunity to examine records; parent participation in
meetings.
(a) Opportunity to examine records. The parents of a child with a
disability must be afforded, in accordance with the procedures of
Sec. Sec. 300.613 through 300.621, an opportunity to inspect and
review all education records with respect to--
(1) The identification, evaluation, and educational placement of
the child; and
(2) The provision of FAPE to the child.
(b) Parent participation in meetings. (1) The parents of a child
with a disability must be afforded an opportunity to participate in
meetings with respect to--
(i) The identification, evaluation, and educational placement of
the child; and
(ii) The provision of FAPE to the child.
(2) Each public agency must provide notice consistent with Sec.
300.322(a)(1) and (b)(1) to ensure that parents of children with
disabilities have the opportunity to participate in meetings described
in paragraph (b)(1) of this section.
(3) A meeting does not include informal or unscheduled
conversations involving public agency personnel and conversations on
issues such as teaching methodology, lesson plans, or coordination of
service provision. A meeting also does not include preparatory
activities that public agency personnel engage in to develop a proposal
or response to a parent proposal that will be discussed at a later
meeting.
(c) Parent involvement in placement decisions. (1) Each public
agency must ensure that a parent of each child with a disability is a
member of any group that makes decisions on the educational placement
of the parent's child.
(2) In implementing the requirements of paragraph (c)(1) of this
section, the public agency must use procedures consistent with the
procedures described in Sec. 300.322(a) through (b)(1).
(3) If neither parent can participate in a meeting in which a
decision is to be made relating to the educational placement of their
child, the public agency must use other methods to ensure their
participation, including individual or conference telephone calls, or
video conferencing.
(4) A placement decision may be made by a group without the
involvement of a parent, if the public agency is unable to obtain the
parent's participation in the decision. In this case, the public agency
must have a record of its attempt to ensure their involvement.
(Authority: 20 U.S.C. 1414(e), 1415(b)(1))
Sec. 300.502 Independent educational evaluation.
(a) General. (1) The parents of a child with a disability have the
right under this part to obtain an independent educational evaluation
of the child, subject to paragraphs (b) through (e) of this section.
(2) Each public agency must provide to parents, upon request for an
independent educational evaluation, information about where an
independent educational evaluation may be obtained, and the agency
criteria applicable for independent educational evaluations as set
forth in paragraph (e) of this section.
(3) For the purposes of this subpart--
(i) Independent educational evaluation means an evaluation
conducted by a qualified examiner who is not employed by the public
agency responsible for the education of the child in question; and
(ii) Public expense means that the public agency either pays for
the full cost of the evaluation or ensures that the evaluation is
otherwise provided at no cost to the parent, consistent with Sec.
300.103.
(b) Parent right to evaluation at public expense.
(1) A parent has the right to an independent educational evaluation
at public expense if the parent disagrees with an evaluation obtained
by the public agency, subject to the conditions in paragraphs (b)(2)
through (4) of this section.
(2) If a parent requests an independent educational evaluation at
public expense, the public agency must, without unnecessary delay,
either--
(i) File a due process complaint to request a hearing to show that
its evaluation is appropriate; or
(ii) Ensure that an independent educational evaluation is provided
at public expense, unless the agency demonstrates in a hearing pursuant
to Sec. Sec. 300.507 through 300.513 that the evaluation obtained by
the parent did not meet agency criteria.
(3) If the public agency files a due process complaint notice to
request a hearing and the final decision is that the agency's
evaluation is appropriate, the parent still has the right to an
independent educational evaluation, but not at public expense.
(4) If a parent requests an independent educational evaluation, the
public agency may ask for the parent's reason why he or she objects to
the public evaluation. However, the public agency may not require the
parent to provide an explanation and may not unreasonably delay either
providing the independent educational evaluation at
[[Page 46792]]
public expense or filing a due process complaint to request a due
process hearing to defend the public evaluation.
(5) A parent is entitled to only one independent educational
evaluation at public expense each time the public agency conducts an
evaluation with which the parent disagrees.
(c) Parent-initiated evaluations. If the parent obtains an
independent educational evaluation at public expense or shares with the
public agency an evaluation obtained at private expense, the results of
the evaluation--
(1) Must be considered by the public agency, if it meets agency
criteria, in any decision made with respect to the provision of FAPE to
the child; and
(2) May be presented by any party as evidence at a hearing on a due
process complaint under subpart E of this part regarding that child.
(d) Requests for evaluations by hearing officers. If a hearing
officer requests an independent educational evaluation as part of a
hearing on a due process complaint, the cost of the evaluation must be
at public expense.
(e) Agency criteria. (1) If an independent educational evaluation
is at public expense, the criteria under which the evaluation is
obtained, including the location of the evaluation and the
qualifications of the examiner, must be the same as the criteria that
the public agency uses when it initiates an evaluation, to the extent
those criteria are consistent with the parent's right to an independent
educational evaluation.
(2) Except for the criteria described in paragraph (e)(1) of this
section, a public agency may not impose conditions or timelines related
to obtaining an independent educational evaluation at public expense.
(Authority: 20 U.S.C. 1415(b)(1) and (d)(2)(A))
Sec. 300.503 Prior notice by the public agency; content of notice.
(a) Notice. Written notice that meets the requirements of paragraph
(b) of this section must be given to the parents of a child with a
disability a reasonable time before the public agency--
(1) Proposes to initiate or change the identification, evaluation,
or educational placement of the child or the provision of FAPE to the
child; or
(2) Refuses to initiate or change the identification, evaluation,
or educational placement of the child or the provision of FAPE to the
child.
(b) Content of notice. The notice required under paragraph (a) of
this section must include--
(1) A description of the action proposed or refused by the agency;
(2) An explanation of why the agency proposes or refuses to take
the action;
(3) A description of each evaluation procedure, assessment, record,
or report the agency used as a basis for the proposed or refused
action;
(4) A statement that the parents of a child with a disability have
protection under the procedural safeguards of this part and, if this
notice is not an initial referral for evaluation, the means by which a
copy of a description of the procedural safeguards can be obtained;
(5) Sources for parents to contact to obtain assistance in
understanding the provisions of this part;
(6) A description of other options that the IEP Team considered and
the reasons why those options were rejected; and
(7) A description of other factors that are relevant to the
agency's proposal or refusal.
(c) Notice in understandable language. (1) The notice required
under paragraph (a) of this section must be--
(i) Written in language understandable to the general public; and
(ii) Provided in the native language of the parent or other mode of
communication used by the parent, unless it is clearly not feasible to
do so.
(2) If the native language or other mode of communication of the
parent is not a written language, the public agency must take steps to
ensure--
(i) That the notice is translated orally or by other means to the
parent in his or her native language or other mode of communication;
(ii) That the parent understands the content of the notice; and
(iii) That there is written evidence that the requirements in
paragraphs (c)(2)(i) and (ii) of this section have been met.
(Authority: 20 U.S.C. 1415(b)(3) and (4), 1415(c)(1), 1414(b)(1))
Sec. 300.504 Procedural safeguards notice.
(a) General. A copy of the procedural safeguards available to the
parents of a child with a disability must be given to the parents only
one time a school year, except that a copy also must be given to the
parents--
(1) Upon initial referral or parent request for evaluation;
(2) Upon receipt of the first State complaint under Sec. Sec.
300.151 through 300.153 and upon receipt of the first due process
complaint under Sec. 300.507 in a school year;
(3) In accordance with the discipline procedures in Sec.
300.530(h); and
(4) Upon request by a parent.
(b) Internet Web site. A public agency may place a current copy of
the procedural safeguards notice on its Internet Web site if a Web site
exists.
(c) Contents. The procedural safeguards notice must include a full
explanation of all of the procedural safeguards available under Sec.
300.148, Sec. Sec. 300.151 through 300.153, Sec. 300.300, Sec. Sec.
300.502 through 300.503, Sec. Sec. 300.505 through 300.518, Sec.
300.520, Sec. Sec. 300.530 through 300.536 and Sec. Sec. 300.610
through 300.625 relating to--
(1) Independent educational evaluations;
(2) Prior written notice;
(3) Parental consent;
(4) Access to education records;
(5) Opportunity to present and resolve complaints through the due
process complaint and State complaint procedures, including--
(i) The time period in which to file a complaint;
(ii) The opportunity for the agency to resolve the complaint; and
(iii) The difference between the due process complaint and the
State complaint procedures, including the jurisdiction of each
procedure, what issues may be raised, filing and decisional timelines,
and relevant procedures;
(6) The availability of mediation;
(7) The child's placement during the pendency of any due process
complaint;
(8) Procedures for students who are subject to placement in an
interim alternative educational setting;
(9) Requirements for unilateral placement by parents of children in
private schools at public expense;
(10) Hearings on due process complaints, including requirements for
disclosure of evaluation results and recommendations;
(11) State-level appeals (if applicable in the State);
(12) Civil actions, including the time period in which to file
those actions; and
(13) Attorneys' fees.
(d) Notice in understandable language. The notice required under
paragraph (a) of this section must meet the requirements of Sec.
300.503(c).
(Approved by the Office of Management and Budget under control
number 1820-0600)
(Authority: 20 U.S.C. 1415(d))
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))
[[Page 46793]]
Sec. 300.506 Mediation.
(a) General. Each public agency must ensure that procedures are
established and implemented to allow parties to disputes involving any
matter under this part, including matters arising prior to the filing
of a due process complaint, to resolve disputes through a mediation
process.
(b) Requirements. The procedures must meet the following
requirements:
(1) The procedures must ensure that the mediation process--
(i) Is voluntary on the part of the parties;
(ii) Is not used to deny or delay a parent's right to a hearing on
the parent's due process complaint, or to deny any other rights
afforded under Part B of the Act; and
(iii) Is conducted by a qualified and impartial mediator who is
trained in effective mediation techniques.
(2) A public agency may establish procedures to offer to parents
and schools that choose not to use the mediation process, an
opportunity to meet, at a time and location convenient to the parents,
with a disinterested party--
(i) Who is under contract with an appropriate alternative dispute
resolution entity, or a parent training and information center or
community parent resource center in the State established under section
671 or 672 of the Act; and
(ii) Who would explain the benefits of, and encourage the use of,
the mediation process to the parents.
(3)(i) The State must maintain a list of individuals who are
qualified mediators and knowledgeable in laws and regulations relating
to the provision of special education and related services.
(ii) The SEA must select mediators on a random, rotational, or
other impartial basis.
(4) The State must bear the cost of the mediation process,
including the costs of meetings described in paragraph (b)(2) of this
section.
(5) Each session in the mediation process must be scheduled in a
timely manner and must be held in a location that is convenient to the
parties to the dispute.
(6) If the parties resolve a dispute through the mediation process,
the parties must execute a legally binding agreement that sets forth
that resolution and that--
(i) States that all discussions that occurred during the mediation
process will remain confidential and may not be used as evidence in any
subsequent due process hearing or civil proceeding; and
(ii) Is signed by both the parent and a representative of the
agency who has the authority to bind such agency.
(7) A written, signed mediation agreement under this paragraph is
enforceable in any State court of competent jurisdiction or in a
district court of the United States.
Discussions that occur during the mediation process must be
confidential and may not be used as evidence in any subsequent due
process hearing or civil proceeding of any Federal court or State court
of a State receiving assistance under this part.
(c) Impartiality of mediator. (1) An individual who serves as a
mediator under this part--
(i) May not be an employee of the SEA or the LEA that is involved
in the education or care of the child; and
(ii) Must not have a personal or professional interest that
conflicts with the person's objectivity.
(2) A person who otherwise qualifies as a mediator is not an
employee of an LEA or State agency described under Sec. 300.228 solely
because he or she is paid by the agency to serve as a mediator.
(Approved by the Office of Management and Budget under control
number 1820-0600)
(Authority: 20 U.S.C. 1415(e))
Sec. 300.507 Filing a due process complaint.
(a) General. (1) A parent or a public agency may file a due process
complaint on any of the matters described in Sec. 300.503(a)(1) and
(2) (relating to the identification, evaluation or educational
placement of a child with a disability, or the provision of FAPE to the
child).
(2) The due process complaint must allege a violation that occurred
not more than two years before the date the parent or public agency
knew or should have known about the alleged action that forms the basis
of the due process complaint, or, if the State has an explicit time
limitation for filing a due process complaint under this part, in the
time allowed by that State law, except that the exceptions to the
timeline described in Sec. 300.511(f) apply to the timeline in this
section.
(b) Information for parents. The public agency must inform the
parent of any free or low-cost legal and other relevant services
available in the area if--
(1) The parent requests the information; or
(2) The parent or the agency files a due process complaint under
this section.
(Approved by the Office of Management and Budget under control
number 1820-0600)
(Authority: 20 U.S.C. 1415(b)(6))
Sec. 300.508 Due process complaint.
(a) General. (1) The public agency must have procedures that
require either party, or the attorney representing a party, to provide
to the other party a due process complaint (which must remain
confidential).
(2) The party filing a due process complaint must forward a copy of
the due process complaint to the SEA.
(b) Content of complaint. The due process complaint required in
paragraph (a)(1) of this section must include--
(1) The name of the child;
(2) The address of the residence of the child;
(3) The name of the school the child is attending;
(4) In the case of a homeless child or youth (within the meaning of
section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C.
11434a(2)), available contact information for the child, and the name
of the school the child is attending;
(5) A description of the nature of the problem of the child
relating to the proposed or refused initiation or change, including
facts relating to the problem; and
(6) A proposed resolution of the problem to the extent known and
available to the party at the time.
(c) Notice required before a hearing on a due process complaint. A
party may not have a hearing on a due process complaint until the
party, or the attorney representing the party, files a due process
complaint that meets the requirements of paragraph (b) of this section.
(d) Sufficiency of complaint. (1) The due process complaint
required by this section must be deemed sufficient unless the party
receiving the due process complaint notifies the hearing officer and
the other party in writing, within 15 days of receipt of the due
process complaint, that the receiving party believes the due process
complaint does not meet the requirements in paragraph (b) of this
section.
(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
[[Page 46794]]
complaint through a meeting held pursuant to Sec. 300.510; or
(ii) The hearing officer grants permission, except that the hearing
officer may only grant permission to amend at any time not later than
five days before the due process hearing begins.
(4) If a party files an amended due process complaint, the
timelines for the resolution meeting in Sec. 300.510(a) and the time
period to resolve in Sec. 300.510(b) begin again with the filing of
the amended due process complaint.
(e) LEA response to a due process complaint. (1) If the LEA has not
sent a prior written notice under Sec. 300.503 to the parent regarding
the subject matter contained in the parent's due process complaint, the
LEA must, within 10 days of receiving the due process complaint, send
to the parent a response that includes--
(i) An explanation of why the agency proposed or refused to take
the action raised in the due process complaint;
(ii) A description of other options that the IEP Team considered
and the reasons why those options were rejected;
(iii) A description of each evaluation procedure, assessment,
record, or report the agency used as the basis for the proposed or
refused action; and
(iv) A description of the other factors that are relevant to the
agency's proposed or refused action.
(2) A response by an LEA under paragraph (e)(1) of this section
shall not be construed to preclude the LEA from asserting that the
parent's due process complaint was insufficient, where appropriate.
(f) Other party response to a due process complaint. Except as
provided in paragraph (e) of this section, the party receiving a due
process complaint must, within 10 days of receiving the due process
complaint, send to the other party a response that specifically
addresses the issues raised in the due process complaint.
(Authority: 20 U.S.C. 1415(b)(7), 1415(c)(2))
Sec. 300.509 Model forms.
(a) Each SEA must develop model forms to assist parents and public
agencies in filing a due process complaint in accordance with
Sec. Sec. 300.507(a) and 300.508(a) through (c) and to assist parents
and other parties in filing a State complaint under Sec. Sec. 300.151
through 300.153. However, the SEA or LEA may not require the use of the
model forms.
(b) Parents, public agencies, and other parties may use the
appropriate model form described in paragraph (a) of this section, or
another form or other document, so long as the form or document that is
used meets, as appropriate, the content requirements in Sec.
300.508(b) for filing a due process complaint, or the requirements in
Sec. 300.153(b) for filing a State complaint.
(Authority: 20 U.S.C. 1415(b)(8))
Sec. 300.510 Resolution process.
(a) Resolution meeting. (1) Within 15 days of receiving notice of
the parent's due process complaint, and prior to the initiation of a
due process hearing under Sec. 300.511, the LEA must convene a meeting
with the parent and the relevant member or members of the IEP Team who
have specific knowledge of the facts identified in the due process
complaint that--
(i) Includes a representative of the public agency who has
decision-making authority on behalf of that agency; and
(ii) May not include an attorney of the LEA unless the parent is
accompanied by an attorney.
(2) The purpose of the meeting is for the parent of the child to
discuss the due process complaint, and the facts that form the basis of
the due process complaint, so that the LEA has the opportunity to
resolve the dispute that is the basis for the due process complaint.
(3) The meeting described in paragraph (a)(1) and (2) of this
section need not be held if--
(i) The parent and the LEA agree in writing to waive the meeting;
or
(ii) The parent and the LEA agree to use the mediation process
described in Sec. 300.506.
(4) The parent and the LEA determine the relevant members of the
IEP Team to attend the meeting.
(b) Resolution period. (1) If the LEA has not resolved the due
process complaint to the satisfaction of the parent within 30 days of
the receipt of the due process complaint, the due process hearing may
occur.
(2) Except as provided in paragraph (c) of this section, the
timeline for issuing a final decision under Sec. 300.515 begins at the
expiration of this 30-day period.
(3) Except where the parties have jointly agreed to waive the
resolution process or to use mediation, notwithstanding paragraphs
(b)(1) and (2) of this section, the failure of the parent filing a due
process complaint to participate in the resolution meeting will delay
the timelines for the resolution process and due process hearing until
the meeting is held.
(4) If the LEA is unable to obtain the participation of the parent
in the resolution meeting after reasonable efforts have been made (and
documented using the procedures in Sec. 300.322(d)), the LEA may, at
the conclusion of the 30-day period, request that a hearing officer
dismiss the parent's due process complaint.
(5) If the LEA fails to hold the resolution meeting specified in
paragraph (a) of this section within 15 days of receiving notice of a
parent's due process complaint or fails to participate in the
resolution meeting, the parent may seek the intervention of a hearing
officer to begin the due process hearing timeline.
(c) Adjustments to 30-day resolution period. The 45-day timeline
for the due process hearing in Sec. 300.515(a) starts the day after
one of the following events:
(1) Both parties agree in writing to waive the resolution meeting;
(2) After either the mediation or resolution meeting starts but
before the end of the 30-day period, the parties agree in writing that
no agreement is possible;
(3) If both parties agree in writing to continue the mediation at
the end of the 30-day resolution period, but later, the parent or
public agency withdraws from the mediation process.
(d) Written settlement agreement. If a resolution to the dispute is
reached at the meeting described in paragraphs (a)(1) and (2) of this
section, the parties must execute a legally binding agreement that is--
(1) Signed by both the parent and a representative of the agency
who has the authority to bind the agency; and
(2) Enforceable in any State court of competent jurisdiction or in
a district court of the United States, or, by the SEA, if the State has
other mechanisms or procedures that permit parties to seek enforcement
of resolution agreements, pursuant to Sec. 300.537.
(e) Agreement review period. If the parties execute an agreement
pursuant to paragraph (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 received under
Sec. 300.507 or Sec. 300.532, the parents or the LEA involved in the
dispute must have an opportunity for an impartial due process hearing,
consistent with the procedures in Sec. Sec. 300.507, 300.508, and
300.510.
(b) Agency responsible for conducting the due process hearing. The
hearing described in paragraph (a) of this section must be conducted by
the SEA or the public agency directly responsible for the education of
the child, as determined under State statute,
[[Page 46795]]
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.
(Approved by the Office of Management and Budget under control
number 1820-0600)
(Authority: 20 U.S.C. 1415(f)(1)(A), 1415(f)(3)(A)-(D))
Sec. 300.512 Hearing rights.
(a) General. Any party to a hearing conducted pursuant to
Sec. Sec. 300.507 through 300.513 or Sec. Sec. 300.530 through
300.534, or an appeal conducted pursuant to Sec. 300.514, has the
right to--
(1) Be accompanied and advised by counsel and by individuals with
special knowledge or training with respect to the problems of children
with disabilities;
(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 on the provision of FAPE. (1)
Subject to paragraph (a)(2) of this section, a hearing officer's
determination of whether a child received FAPE must be based on
substantive grounds.
(2) In matters alleging a procedural violation, a hearing officer
may find that a child did not receive a FAPE only if the procedural
inadequacies--
(i) Impeded the child's right to a FAPE;
(ii) Significantly impeded the parent's opportunity to participate
in the decision-making process regarding the provision of a FAPE to the
parent's child; or
(iii) Caused a deprivation of educational benefit.
(3) Nothing in paragraph (a) of this section shall be construed to
preclude a hearing officer from ordering an LEA to comply with
procedural requirements under Sec. Sec. 300.500 through 300.536.
(b) Construction clause. Nothing in Sec. Sec. 300.507 through
300.513 shall be construed to affect the right of a parent to file an
appeal of the due process hearing decision with the SEA under Sec.
300.514(b), if a State level appeal is available.
(c) Separate request for a due process hearing. Nothing in
Sec. Sec. 300.500 through 300.536 shall be construed to preclude a
parent from filing a separate due process complaint on an issue
separate from a due process complaint already filed.
(d) Findings and decision to advisory panel and general public. The
public agency, after deleting any personally identifiable information,
must--
(1) Transmit the findings and decisions referred to in Sec.
300.512(a)(5) to the State advisory panel established under Sec.
300.167; and
(2) Make those findings and decisions available to the public.
(Authority: 20 U.S.C. 1415(f)(3)(E) and (F), 1415(h)(4), 1415(o))
Sec. 300.514 Finality of decision; appeal; impartial review.
(a) Finality of hearing decision. A decision made in a hearing
conducted pursuant to Sec. Sec. 300.507 through 300.513 or Sec. Sec.
300.530 through 300.534 is final, except that any party involved in the
hearing may appeal the decision under the provisions of paragraph (b)
of this section and Sec. 300.516.
(b) Appeal of decisions; impartial review. (1) If the hearing
required by Sec. 300.511 is conducted by a public agency other than
the SEA, any party aggrieved by the findings and decision in the
hearing may appeal to the SEA.
(2) If there is an appeal, the SEA must conduct an impartial review
of the findings and decision appealed. The official conducting the
review must--
(i) Examine the entire hearing record;
(ii) Ensure that the procedures at the hearing were consistent with
the requirements of due process;
(iii) Seek additional evidence if necessary. If a hearing is held
to receive additional evidence, the rights in Sec. 300.512 apply;
[[Page 46796]]
(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), or the
adjusted time periods described in Sec. 300.510(c)--
(1) A final decision is reached in the hearing; and
(2) A copy of the decision is mailed to each of the parties.
(b) The SEA must ensure that not later than 30 days after the
receipt of a request for a review--
(1) A final decision is reached in the review; and
(2) A copy of the decision is mailed to each of the parties.
(c) A hearing or reviewing officer may grant specific extensions of
time beyond the periods set out in paragraphs (a) and (b) of this
section at the request of either party.
(d) Each hearing and each review involving oral arguments must be
conducted at a time and place that is reasonably convenient to the
parents and child involved.
(Authority: 20 U.S.C. 1415(f)(1)(B)(ii), 1415(g), 1415(i)(1))
Sec. 300.516 Civil action.
(a) General. Any party aggrieved by the findings and decision made
under Sec. Sec. 300.507 through 300.513 or Sec. Sec. 300.530 through
300.534 who does not have the right to an appeal under Sec.
300.514(b), and any party aggrieved by the findings and decision under
Sec. 300.514(b), has the right to bring a civil action with respect to
the due process complaint notice requesting a due process hearing under
Sec. 300.507 or Sec. Sec. 300.530 through 300.532. The action may be
brought in any State court of competent jurisdiction or in a district
court of the United States without regard to the amount in controversy.
(b) Time limitation. The party bringing the action shall have 90
days from the date of the decision of the hearing officer or, if
applicable, the decision of the State review official, to file a civil
action, or, if the State has an explicit time limitation for bringing
civil actions under Part B of the Act, in the time allowed by that
State law.
(c) Additional requirements. In any action brought under paragraph
(a) of this section, the court--
(1) Receives the records of the administrative proceedings;
(2) Hears additional evidence at the request of a party; and
(3) Basing its decision on the preponderance of the evidence,
grants the relief that the court determines to be appropriate.
(d) Jurisdiction of district courts. The district courts of the
United States have jurisdiction of actions brought under section 615 of
the Act without regard to the amount in controversy.
(e) Rule of construction. Nothing in this part restricts or limits
the rights, procedures, and remedies available under the Constitution,
the Americans with Disabilities Act of 1990, title V of the
Rehabilitation Act of 1973, or other Federal laws protecting the rights
of children with disabilities, except that before the filing of a civil
action under these laws seeking relief that is also available under
section 615 of the Act, the procedures under Sec. Sec. 300.507 and
300.514 must be exhausted to the same extent as would be required had
the action been brought under section 615 of the Act.
(Authority: 20 U.S.C. 1415(i)(2) and (3)(A), 1415(l))
Sec. 300.517 Attorneys' fees.
(a) In general. (1) In any action or proceeding brought under
section 615 of the Act, the court, in its discretion, may award
reasonable attorneys' fees as part of the costs to--
(i) The prevailing party who is the parent of a child with a
disability;
(ii) To a prevailing party who is an SEA or LEA against the
attorney of a parent who files a complaint or subsequent cause of
action that is frivolous, unreasonable, or without foundation, or
against the attorney of a parent who continued to litigate after the
litigation clearly became frivolous, unreasonable, or without
foundation; or
(iii) To a prevailing SEA or LEA against the attorney of a parent,
or against the parent, if the parent's request for a due process
hearing or subsequent cause of action was presented for any improper
purpose, such as to harass, to cause unnecessary delay, or to
needlessly increase the cost of litigation.
(2) Nothing in this subsection shall be construed to affect section
327 of the District of Columbia Appropriations Act, 2005.
(b) Prohibition on use of funds. (1) Funds under Part B of the Act
may not be used to pay attorneys' fees or costs of a party related to
any action or proceeding under section 615 of the Act and subpart E of
this part.
(2) Paragraph (b)(1) of this section does not preclude a public
agency from using funds under Part B of the Act for conducting an
action or proceeding under section 615 of the Act.
(c) Award of fees. A court awards reasonable attorneys' fees under
section 615(i)(3) of the Act consistent with the following:
(1) Fees awarded under section 615(i)(3) of the Act must be based
on rates prevailing in the community in which the action or proceeding
arose for the kind and quality of services furnished. No bonus or
multiplier may be used in calculating the fees awarded under this
paragraph.
(2)(i) Attorneys' fees may not be awarded and related costs may not
be reimbursed in any action or proceeding under section 615 of the Act
for services performed subsequent to the time of a written offer of
settlement to a parent if--
(A) The offer is made within the time prescribed by Rule 68 of the
Federal Rules of Civil Procedure or, in the case of an administrative
proceeding, at any time more than 10 days before the proceeding begins;
(B) The offer is not accepted within 10 days; and
(C) The court or administrative hearing officer finds that the
relief finally obtained by the parents is not more favorable to the
parents than the offer of settlement.
(ii) Attorneys' fees may not be awarded relating to any meeting of
the IEP Team unless the meeting is convened as a result of an
administrative proceeding or judicial action, or at the discretion of
the State, for a mediation described in Sec. 300.506.
(iii) A meeting conducted pursuant to Sec. 300.510 shall not be
considered--
(A) A meeting convened as a result of an administrative hearing or
judicial action; or
(B) An administrative hearing or judicial action for purposes of
this section.
[[Page 46797]]
(3) Notwithstanding paragraph (c)(2) of this section, an award of
attorneys' fees and related costs may be made to a parent who is the
prevailing party and who was substantially justified in rejecting the
settlement offer.
(4) Except as provided in paragraph (c)(5) of this section, the
court reduces, accordingly, the amount of the attorneys' fees awarded
under section 615 of the Act, if the court finds that--
(i) The parent, or the parent's attorney, during the course of the
action or proceeding, unreasonably protracted the final resolution of
the controversy;
(ii) The amount of the attorneys' fees otherwise authorized to be
awarded unreasonably exceeds the hourly rate prevailing in the
community for similar services by attorneys of reasonably comparable
skill, reputation, and experience;
(iii) The time spent and legal services furnished were excessive
considering the nature of the action or proceeding; or
(iv) The attorney representing the parent did not provide to the
LEA the appropriate information in the due process request notice in
accordance with Sec. 300.508.
(5) The provisions of paragraph (c)(4) of this section do not apply
in any action or proceeding if the court finds that the State or local
agency unreasonably protracted the final resolution of the action or
proceeding or there was a violation of section 615 of the Act.
(Authority: 20 U.S.C. 1415(i)(3)(B)-(G))
Sec. 300.518 Child's status during proceedings.
(a) Except as provided in Sec. 300.533, during the pendency of any
administrative or judicial proceeding regarding a due process complaint
notice requesting a due process hearing under Sec. 300.507, unless the
State or local agency and the parents of the child agree otherwise, the
child involved in the complaint must remain in his or her current
educational placement.
(b) If the complaint involves an application for initial admission
to public school, the child, with the consent of the parents, must be
placed in the public school until the completion of all the
proceedings.
(c) If the complaint involves an application for initial services
under this part from a child who is transitioning from Part C of the
Act to Part B and is no longer eligible for Part C services because the
child has turned three, the public agency is not required to provide
the Part C services that the child had been receiving. If the child is
found eligible for special education and related services under Part B
and the parent consents to the initial provision of special education
and related services under Sec. 300.300(b), then the public agency
must provide those special education and related services that are not
in dispute between the parent and the public agency.
(d) If the hearing officer in a due process hearing conducted by
the SEA or a State review official in an administrative appeal agrees
with the child's parents that a change of placement is appropriate,
that placement must be treated as an agreement between the State and
the parents for purposes of paragraph (a) of this section.
(Authority: 20 U.S.C. 1415(j))
Sec. 300.519 Surrogate parents.
(a) General. Each public agency must ensure that the rights of a
child are protected when--
(1) No parent (as defined in Sec. 300.30) can be identified;
(2) The public agency, after reasonable efforts, cannot locate a
parent;
(3) The child is a ward of the State under the laws of that State;
or
(4) The child is an unaccompanied homeless youth as defined in
section 725(6) of the McKinney-Vento Homeless Assistance Act (42 U.S.C.
11434a(6)).
(b) Duties of public agency. The duties of a public agency under
paragraph (a) of this section include the assignment of an individual
to act as a surrogate for the parents. This must include a method--
(1) For determining whether a child needs a surrogate parent; and
(2) For assigning a surrogate parent to the child.
(c) Wards of the State. In the case of a child who is a ward of the
State, the surrogate parent alternatively may be appointed by the judge
overseeing the child's case, provided that the surrogate meets the
requirements in paragraphs (d)(2)(i) and (e) of this section.
(d) Criteria for selection of surrogate parents. (1) The public
agency may select a surrogate parent in any way permitted under State
law.
(2) Public agencies must ensure that a person selected as a
surrogate parent--
(i) Is not an employee of the SEA, the LEA, or any other agency
that is involved in the education or care of the child;
(ii) Has no personal or professional interest that conflicts with
the interest of the child the surrogate parent represents; and
(iii) Has knowledge and skills that ensure adequate representation
of the child.
(e) Non-employee requirement; compensation. A person otherwise
qualified to be a surrogate parent under paragraph (d) of this section
is not an employee of the agency solely because he or she is paid by
the agency to serve as a surrogate parent.
(f) Unaccompanied homeless youth. In the case of a child who is an
unaccompanied homeless youth, appropriate staff of emergency shelters,
transitional shelters, independent living programs, and street outreach
programs may be appointed as temporary surrogate parents without regard
to paragraph (d)(2)(i) of this section, until a surrogate parent can be
appointed that meets all of the requirements of paragraph (d) of this
section.
(g) Surrogate parent responsibilities. The surrogate parent may
represent the child in all matters relating to--
(1) The identification, evaluation, and educational placement of
the child; and
(2) The provision of FAPE to the child.
(h) SEA responsibility. The SEA must make reasonable efforts to
ensure the assignment of a surrogate parent not more than 30 days after
a public agency determines that the child needs a surrogate parent.
(Authority: 20 U.S.C. 1415(b)(2))
Sec. 300.520 Transfer of parental rights at age of majority.
(a) General. A State may provide that, when a child with a
disability reaches the age of majority under State law that applies to
all children (except for a child with a disability who has been
determined to be incompetent under State law)--
(1)(i) The public agency must provide any notice required by this
part to both the child and the parents; and
(ii) All rights accorded to parents under Part B of the Act
transfer to the child;
(2) All rights accorded to parents under Part B of the Act transfer
to children who are incarcerated in an adult or juvenile, State or
local correctional institution; and
(3) Whenever a State provides for the transfer of rights under this
part pursuant to paragraph (a)(1) or (a)(2) of this section, the agency
must notify the child and the parents of the transfer of rights.
(b) Special rule. A State must establish procedures for appointing
the parent of a child with a disability, or, if the parent is not
available, another appropriate individual, to represent the educational
interests of the child throughout the period of the child's eligibility
under Part B of the Act if, under State law, a child who has
[[Page 46798]]
reached the age of majority, but has not been determined to be
incompetent, can be determined not to have the ability to provide
informed consent with respect to the child's educational program.
(Authority: 20 U.S.C. 1415(m))
Sec. Sec. 300.521-300.529 [Reserved]
Discipline Procedures
Sec. 300.530 Authority of school personnel.
(a) Case-by-case determination. School personnel may consider any
unique circumstances on a case-by-case basis when determining whether a
change in placement, consistent with the other requirements of this
section, is appropriate for a child with a disability who violates a
code of student conduct.
(b) General. (1) School personnel under this section may remove a
child with a disability who violates a code of student conduct from his
or her current placement to an appropriate interim alternative
educational setting, another setting, or suspension, for not more than
10 consecutive school days (to the extent those alternatives are
applied to children without disabilities), and for additional removals
of not more than 10 consecutive school days in that same school year
for separate incidents of misconduct (as long as those removals do not
constitute a change of placement under Sec. 300.536).
(2) After a child with a disability has been removed from his or
her current placement for 10 school days in the same school year,
during any subsequent days of removal the public agency must provide
services to the extent required under paragraph (d) of this section.
(c) Additional authority. For disciplinary changes in placement
that would exceed 10 consecutive school days, if the behavior that gave
rise to the violation of the school code is determined not to be a
manifestation of the child's disability pursuant to paragraph (e) of
this section, school personnel may apply the relevant disciplinary
procedures to children with disabilities in the same manner and for the
same duration as the procedures would be applied to children without
disabilities, except as provided in paragraph (d) of this section.
(d) Services. (1) A child with a disability who is removed from the
child's current placement pursuant to paragraphs (c), or (g) of this
section must--
(i) Continue to receive educational services, as provided in Sec.
300.101(a), so as to enable the child to continue to participate in the
general education curriculum, although in another setting, and to
progress toward meeting the goals set out in the child's IEP; and
(ii) Receive, as appropriate, a functional behavioral assessment,
and behavioral intervention services and modifications, that are
designed to address the behavior violation so that it does not recur.
(2) The services required by paragraph (d)(1), (d)(3), (d)(4), and
(d)(5) of this section may be provided in an interim alternative
educational setting.
(3) A public agency is only required to provide services during
periods of removal to a child with a disability who has been removed
from his or her current placement for 10 school days or less in that
school year, if it provides services to a child without disabilities
who is similarly removed.
(4) After a child with a disability has been removed from his or
her current placement for 10 school days in the same school year, if
the current removal is for not more than 10 consecutive school days and
is not a change of placement under Sec. 300.536, school personnel, in
consultation with at least one of the child's teachers, determine the
extent to which services are needed, as provided in Sec. 300.101(a),
so as to enable the child to continue to participate in the general
education curriculum, although in another setting, and to progress
toward meeting the goals set out in the child's IEP.
(5) If the removal is a change of placement under Sec. 300.536,
the child's IEP Team determines appropriate services under paragraph
(d)(1) of this section.
(e) Manifestation determination. (1) Within 10 school days of any
decision to change the placement of a child with a disability because
of a violation of a code of student conduct, the LEA, the parent, and
relevant members of the child's IEP Team (as determined by the parent
and the LEA) must review all relevant information in the student's
file, including the child's IEP, any teacher observations, and any
relevant information provided by the parents to determine--
(i) If the conduct in question was caused by, or had a direct and
substantial relationship to, the child's disability; or
(ii) If the conduct in question was the direct result of the LEA's
failure to implement the IEP.
(2) The conduct must be determined to be a manifestation of the
child's disability if the LEA, the parent, and relevant members of the
child's IEP Team determine that a condition in either paragraph
(e)(1)(i) or (1)(ii) of this section was met.
(3) If the LEA, the parent, and relevant members of the child's IEP
Team determine the condition described in paragraph (e)(1)(ii) of this
section was met, the LEA must take immediate steps to remedy those
deficiencies.
(f) Determination that behavior was a manifestation. If the LEA,
the parent, and relevant members of the IEP Team make the determination
that the conduct was a manifestation of the child's disability, the IEP
Team must--
(1) Either--
(i) Conduct a functional behavioral assessment, unless the LEA had
conducted a functional behavioral assessment before the behavior that
resulted in the change of placement occurred, and implement a
behavioral intervention plan for the child; or
(ii) If a behavioral intervention plan already has been developed,
review the behavioral intervention plan, and modify it, as necessary,
to address the behavior; and
(2) Except as provided in paragraph (g) of this section, return the
child to the placement from which the child was removed, unless the
parent and the LEA agree to a change of placement as part of the
modification of the behavioral intervention plan.
(g) Special circumstances. School personnel may remove a student to
an interim alternative educational setting for not more than 45 school
days without regard to whether the behavior is determined to be a
manifestation of the child's disability, if the child--
(1) Carries a weapon to or possesses a weapon at school, on school
premises, or to or at a school function under the jurisdiction of an
SEA or an LEA;
(2) Knowingly possesses or uses illegal drugs, or sells or solicits
the sale of a controlled substance, while at school, on school
premises, or at a school function under the jurisdiction of an SEA or
an LEA; or
(3) Has inflicted serious bodily injury upon another person while
at school, on school premises, or at a school function under the
jurisdiction of an SEA or an LEA.
(h) Notification. On the date on which the decision is made to make
a removal that constitutes a change of placement of a child with a
disability because of a violation of a code of student conduct, the LEA
must notify the parents of that decision, and provide 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
[[Page 46799]]
202(c) of the Controlled Substances Act (21 U.S.C. 812(c)).
(2) Illegal drug means a controlled substance; but does not include
a controlled substance that is legally possessed or used under the
supervision of a licensed health-care professional or that is legally
possessed or used under any other authority under that Act or under any
other provision of Federal law.
(3) Serious bodily injury has the meaning given the term ``serious
bodily injury'' under paragraph (3) of subsection (h) of section 1365
of title 18, United States Code.
(4) Weapon has the meaning given the term ``dangerous weapon''
under paragraph (2) of the first subsection (g) of section 930 of title
18, United States Code.
(Authority: 20 U.S.C. 1415(k)(1) and (7))
Sec. 300.531 Determination of setting.
The child's IEP Team determines the interim alternative educational
setting for services under Sec. 300.530(c), (d)(5), and (g).
(Authority: 20 U.S.C. 1415(k)(2))
Sec. 300.532 Appeal.
(a) General. The parent of a child with a disability who disagrees
with any decision regarding placement under Sec. Sec. 300.530 and
300.531, or the manifestation determination under Sec. 300.530(e), or
an LEA that believes that maintaining the current placement of the
child is substantially likely to result in injury to the child or
others, may appeal the decision by requesting a hearing. The hearing is
requested by filing a complaint pursuant to Sec. Sec. 300.507 and
300.508(a) and (b).
(b) Authority of hearing officer. (1) A hearing officer under Sec.
300.511 hears, and makes a determination regarding an appeal under
paragraph (a) of this section.
(2) In making the determination under paragraph (b)(1) of this
section, the hearing officer may--
(i) Return the child with a disability to the placement from which
the child was removed if the hearing officer determines that the
removal was a violation of Sec. 300.530 or that the child's behavior
was a manifestation of the child's disability; or
(ii) Order a change of placement of the child with a disability to
an appropriate interim alternative educational setting for not more
than 45 school days if the hearing officer determines that maintaining
the current placement of the child is substantially likely to result in
injury to the child or to others.
(3) The procedures under paragraphs (a) and (b)(1) and (2) of this
section may be repeated, if the LEA believes that returning the child
to the original placement is substantially likely to result in injury
to the child or to others.
(c) Expedited due process hearing. (1) Whenever a hearing is
requested under paragraph (a) of this section, the parents or the LEA
involved in the dispute must have an opportunity for an impartial due
process hearing consistent with the requirements of Sec. Sec. 300.507
and 300.508(a) through (c) and Sec. Sec. 300.510 through 300.514,
except as provided in paragraph (c)(2) through (4) of this section.
(2) The SEA or LEA is responsible for arranging the expedited due
process hearing, which must occur within 20 school days of the date the
complaint requesting the hearing is filed. The hearing officer must
make a determination within 10 school days after the hearing.
(3) Unless the parents and LEA agree in writing to waive the
resolution meeting described in paragraph (c)(3)(i) of this section, or
agree to use the mediation process described in Sec. 300.506--
(i) A resolution meeting must occur within seven days of receiving
notice of the due process complaint; and
(ii) The due process hearing may proceed unless the matter has been
resolved to the satisfaction of both parties within 15 days of the
receipt of the due process complaint.
(4) A State may establish different State-imposed procedural rules
for expedited due process hearings conducted under this section than it
has established for other due process hearings, but, except for the
timelines as modified in paragraph (c)(3) of this section, the State
must ensure that the requirements in Sec. Sec. 300.510 through 300.514
are met.
(5) The decisions on expedited due process hearings are appealable
consistent with Sec. 300.514.
(Authority:
20 U.S.C. 1415(k)(3) and (4)(B), 1415(f)(1)(A))
Sec. 300.533 Placement during appeals.
When an appeal under Sec. 300.532 has been made by either the
parent or the LEA, the child must remain in the interim alternative
educational setting pending the decision of the hearing officer or
until the expiration of the time period specified in Sec. A300.530(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 determined eligible for
special education and related services.
(a) General. A child who has not been determined to be eligible for
special education and related services under this part and who has
engaged in behavior that violated a code of student conduct, may assert
any of the protections provided for in this part if the public agency
had knowledge (as determined in accordance with paragraph (b) of this
section) that the child was a child with a disability before the
behavior that precipitated the disciplinary action occurred.
(b) Basis of knowledge. A public agency must be deemed to have
knowledge that a child is a child with a disability if before the
behavior that precipitated the disciplinary action occurred--
(1) The parent of the child expressed concern in writing to
supervisory or administrative personnel of the appropriate educational
agency, or a teacher of the child, that the child is in need of special
education and related services;
(2) The parent of the child requested an evaluation of the child
pursuant to Sec. Sec. 300.300 through 300.311; or
(3) The teacher of the child, or other personnel of the LEA,
expressed specific concerns about a pattern of behavior demonstrated by
the child directly to the director of special education of the agency
or to other supervisory personnel of the agency.
(c) Exception. A public agency would not be deemed to have
knowledge under paragraph (b) of this section if--
(1) The parent of the child--
(i) Has not allowed an evaluation of the child pursuant to
Sec. Sec. 300.300 through 300.311; or
(ii) Has refused services under this part; or
(2) The child has been evaluated in accordance with Sec. Sec.
300.300 through 300.311 and determined to not be a child with a
disability under this part.
(d) Conditions that apply if no basis of knowledge. (1) If a public
agency does not have knowledge that a child is a child with a
disability (in accordance with paragraphs (b) and (c) of this section)
prior to taking disciplinary measures against the child, the child may
be subjected to the disciplinary measures applied to children without
disabilities who engage in comparable behaviors consistent with
paragraph (d)(2) of this section.
(2)(i) If a request is made for an evaluation of a child during the
time period in which the child is subjected to disciplinary measures
under
[[Page 46800]]
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 that copies of the
special education and disciplinary records of the child are transmitted
for consideration by the appropriate authorities to whom the agency
reports the crime.
(2) An agency reporting a crime under this section may transmit
copies of the child's special education and disciplinary records only
to the extent that the transmission is permitted by the Family
Educational Rights and Privacy Act.
(Authority: 20 U.S.C. 1415(k)(6))
Sec. 300.536 Change of placement because of disciplinary removals.
(a) For purposes of removals of a child with a disability from the
child's current educational placement under Sec. Sec. 300.530 through
300.535, a change of placement occurs if--
(1) The removal is for more than 10 consecutive school days; or
(2) The child has been subjected to a series of removals that
constitute a pattern--
(i) Because the series of removals total more than 10 school days
in a school year;
(ii) Because the child's behavior is substantially similar to the
child's behavior in previous incidents that resulted in the series of
removals; and
(iii) Because of such additional factors as the length of each
removal, the total amount of time the child has been removed, and the
proximity of the removals to one another.
(b)(1) The public agency determines on a case-by-case basis whether
a pattern of removals constitutes a change of placement.
(2) This determination is subject to review through due process and
judicial proceedings.
(Authority: 20 U.S.C. 1415(k))
Sec. 300.537 State enforcement mechanisms.
Notwithstanding Sec. Sec. 300.506(b)(7) and 300.510(d)(2), which
provide for judicial enforcement of a written agreement reached as a
result of mediation or a resolution meeting, there is nothing in this
part that would prevent the SEA from using other mechanisms to seek
enforcement of that agreement, provided that use of those mechanisms is
not mandatory and does not delay or deny a party the right to seek
enforcement of the written agreement in a State court of competent
jurisdiction or in a district court of the United States.
(Authority: 20 U.S.C. 1415(e)(2)(F), 1415(f)(1)(B))
Sec. Sec. 300.538-300.599 [Reserved]
Subpart F--Monitoring, Enforcement, Confidentiality, and Program
Information
Monitoring, Technical Assistance, and Enforcement
Sec. 300.600 State monitoring and enforcement.
(a) The State must monitor the implementation of this part, enforce
this part in accordance with Sec. 300.604(a)(1) and (a)(3), (b)(2)(i)
and (b)(2)(v), and (c)(2), 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 paragraph (d) of this section, and
the indicators established by the Secretary for the State performance
plans.
(d) The State must monitor the LEAs located in the State, using
quantifiable indicators in each of the following priority areas, and
using such qualitative indicators as are needed to adequately measure
performance in those areas:
(1) Provision of FAPE in the least restrictive environment.
(2) State exercise of general supervision, including child find,
effective monitoring, the use of resolution meetings, mediation, and a
system of transition services as defined in Sec. 300.43 and in 20
U.S.C. 1437(a)(9).
(3) Disproportionate representation of racial and ethnic groups in
special education and related services, to the extent the
representation is the result of inappropriate identification.
(Approved by the Office of Management and Budget under control
number 1820-0624)
(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
Sec. 300.600(d).
(b) Data collection. (1) Each State must collect valid and reliable
information as needed to report annually to the Secretary on the
indicators established by the Secretary for the State performance
plans.
(2) If the Secretary permits States to collect data on specific
indicators through State monitoring or sampling, and the State collects
the data through State monitoring or sampling, the State must collect
data on those indicators for each LEA at least once during the period
of the State performance plan.
(3) Nothing in Part B of the Act shall be construed to authorize
the development of a nationwide database of personally identifiable
information
[[Page 46801]]
on individuals involved in studies or other collections of data under
Part B of the Act.
(Approved by the Office of Management and Budget under control
number 1820-0624)
(Authority: 20 U.S.C. 1416(b))
Sec. 300.602 State use of targets and reporting.
(a) General. Each State must use the targets established in the
State's performance plan under Sec. 300.601 and the priority areas
described in Sec. 300.600(d) to analyze the performance of each LEA.
(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 under
paragraph (b)(1)(i)(A) of this section the most recently available
performance data on each LEA, and the date the data were obtained.
(2) State performance report. The State must report annually to the
Secretary on the performance of the State under the State's performance
plan.
(3) Privacy. The State must not report to the public or the
Secretary any information on performance that would result in the
disclosure of personally identifiable information about individual
children, or where the available data are insufficient to yield
statistically reliable information.
(Approved by the Office of Management and Budget under control
number 1820-0624)
(Authority: 20 U.S.C. 1416(b)(2)(C))
Sec. 300.603 Secretary's review and determination regarding State
performance.
(a) Review. The Secretary annually reviews the State's performance
report submitted pursuant to Sec. 300.602(b)(2).
(b) Determination--(1) General. Based on the information provided
by the State in the State's annual performance report, information
obtained through monitoring visits, and any other public information
made available, the Secretary determines if the State--
(i) Meets the requirements and purposes of Part B of the Act;
(ii) Needs assistance in implementing the requirements of Part B of
the Act;
(iii) Needs intervention in implementing the requirements of Part B
of the Act; or
(iv) Needs substantial intervention in implementing the
requirements of Part B of the Act.
(2) Notice and opportunity for a hearing. (i) For determinations
made under paragraphs (b)(1)(iii) and (b)(1)(iv) of this section, the
Secretary provides reasonable notice and an opportunity for a hearing
on those determinations.
(ii) The hearing described in paragraph (b)(2) of this section
consists of an opportunity to meet with the Assistant Secretary for
Special Education and Rehabilitative Services to demonstrate why the
Department should not make the determination described in paragraph
(b)(1) of this section.
(Authority: 20 U.S.C. 1416(d))
Sec. 300.604 Enforcement.
(a) Needs assistance. If the Secretary determines, for two
consecutive years, that a State needs assistance under Sec.
300.603(b)(1)(ii) in implementing the requirements of Part B of the
Act, the Secretary takes one or more of the following actions:
(1) Advises the State of available sources of technical assistance
that may help the State address the areas in which the State needs
assistance, which may include assistance from the Office of Special
Education Programs, other offices of the Department of Education, other
Federal agencies, technical assistance providers approved by the
Secretary, and other federally funded nonprofit agencies, and requires
the State to work with appropriate entities. Such technical assistance
may include--
(i) The provision of advice by experts to address the areas in
which the State needs assistance, including explicit plans for
addressing the area for concern within a specified period of time;
(ii) Assistance in identifying and implementing professional
development, instructional strategies, and methods of instruction that
are based on scientifically based research;
(iii) Designating and using distinguished superintendents,
principals, special education administrators, special education
teachers, and other teachers to provide advice, technical assistance,
and support; and
(iv) Devising additional approaches to providing technical
assistance, such as collaborating with institutions of higher
education, educational service agencies, national centers of technical
assistance supported under Part D of the Act, and private providers of
scientifically based technical assistance.
(2) Directs the use of State-level funds under section 611(e) of
the Act on the area or areas in which the State needs assistance.
(3) Identifies the State as a high-risk grantee and imposes special
conditions on the State's grant under Part B of the Act.
(b) Needs intervention. If the Secretary determines, for three or
more consecutive years, that a State needs intervention under Sec.
300.603(b)(1)(iii) in implementing the requirements of Part B of the
Act, the following shall apply:
(1) The Secretary may take any of the actions described in
paragraph (a) of this section.
(2) The Secretary takes one or more of the following actions:
(i) Requires the State to prepare a corrective action plan or
improvement plan if the Secretary determines that the State should be
able to correct the problem within one year.
(ii) Requires the State to enter into a compliance agreement under
section 457 of the General Education Provisions Act, as amended, 20
U.S.C. 1221 et seq. (GEPA), if the Secretary has reason to believe that
the State cannot correct the problem within one year.
(iii) For each year of the determination, withholds not less than
20 percent and not more than 50 percent of the State's funds under
section 611(e) of the Act, until the Secretary determines the State has
sufficiently addressed the areas in which the State needs intervention.
(iv) Seeks to recover funds under section 452 of GEPA.
(v) Withholds, in whole or in part, any further payments to the
State under Part B of the Act.
(vi) Refers the matter for appropriate enforcement action, which
may include referral to the Department of Justice.
(c) Needs substantial intervention. Notwithstanding paragraph (a)
or (b) of this section, at any time that the Secretary determines that
a State needs substantial intervention in implementing the requirements
of Part B of the Act or that there is a substantial failure to comply
with any condition of an SEA's or LEA's eligibility under Part B of the
Act, the Secretary takes one or more of the following actions:
(1) Recovers funds under section 452 of GEPA.
(2) Withholds, in whole or in part, any further payments to the
State under Part B of the Act.
(3) Refers the case to the Office of the Inspector General at the
Department of Education.
[[Page 46802]]
(4) Refers the matter for appropriate enforcement action, which may
include referral to the Department of Justice.
(d) Report to Congress. The Secretary reports to the Committee on
Education and the Workforce of the House of Representatives and the
Committee on Health, Education, Labor, and Pensions of the Senate
within 30 days of taking enforcement action pursuant to paragraph (a),
(b), or (c) of this section, on the specific action taken and the
reasons why enforcement action was taken.
(Authority: 20 U.S.C. 1416(e)(1)-(e)(3), (e)(5))
Sec. 300.605 Withholding funds.
(a) Opportunity for hearing. Prior to withholding any funds under
Part B of the Act, the Secretary provides reasonable notice and an
opportunity for a hearing to the SEA involved, pursuant to the
procedures in Sec. Sec. 300.180 through 300.183.
(b) Suspension. Pending the outcome of any hearing to withhold
payments under paragraph (a) of this section, the Secretary may suspend
payments to a recipient, suspend the authority of the recipient to
obligate funds under Part B of the Act, or both, after the recipient
has been given reasonable notice and an opportunity to show cause why
future payments or authority to obligate funds under Part B of the Act
should not be suspended.
(c) Nature of withholding. (1) If the Secretary determines that it
is appropriate to withhold further payments under Sec. 300.604(b)(2)
or (c)(2), the Secretary may determine--
(i) That the withholding will be limited to programs or projects,
or portions of programs or projects, that affected the Secretary's
determination under Sec. 300.603(b)(1); or
(ii) That the SEA must not make further payments under Part B of
the Act to specified State agencies or LEAs that caused or were
involved in the Secretary's determination under Sec. 300.603(b)(1).
(2) Until the Secretary is satisfied that the condition that caused
the initial withholding has been substantially rectified--
(i) Payments to the State under Part B of the Act must be withheld
in whole or in part; and
(ii) Payments by the SEA under Part B of the Act must be limited to
State agencies and LEAs whose actions did not cause or were not
involved in the Secretary's determination under Sec. 300.603(b)(1), as
the case may be.
(Authority: 20 U.S.C. 1416(e)(4), (e)(6))
Sec. 300.606 Public attention.
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 notify the public within the State
of the pendency of an action taken pursuant to Sec. 300.604.
(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 Sec. 300.149(d), and if the Secretary finds that
the failure to comply substantially with the provisions of Part B of
the Act are related to a failure by the public agency, the Secretary
takes appropriate corrective action to ensure compliance with Part B of
the Act, except that--
(a) Any reduction or withholding of payments to the State under
Sec. 300.604 must be proportionate to the total funds allotted under
section 611 of the Act to the State as the number of eligible children
with disabilities in adult prisons under the supervision of the other
public agency is proportionate to the number of eligible individuals
with disabilities in the State under the supervision of the SEA; and
(b) Any withholding of funds under Sec. 300.604 must be limited to
the specific agency responsible for the failure to comply with Part B
of the Act.
(Authority: 20 U.S.C. 1416(h))
Sec. 300.608 State enforcement.
(a) If an SEA determines that an LEA is not meeting the
requirements of Part B of the Act, including the targets in the State's
performance plan, the SEA must prohibit the LEA from reducing the LEA's
maintenance of effort under Sec. 300.203 for any fiscal year.
(b) Nothing in this subpart shall be construed to restrict a State
from utilizing any other authority available to it to monitor and
enforce the requirements of Part B of the Act.
(Authority: 20 U.S.C. 1416(f); 20 U.S.C. 1412(a)(11))
Sec. 300.609 Rule of construction.
Nothing in this subpart shall be construed to restrict the
Secretary from utilizing any authority under GEPA, including the
provisions in 34 CFR parts 76, 77, 80, and 81 to monitor and enforce
the requirements of the Act, including the imposition of special
conditions under 34 CFR 80.12.
(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 300.627.
(Authority: 20 U.S.C. 1417(c))
Sec. 300.611 Definitions.
As used in Sec. Sec. 300.611 through 300.625--
(a) Destruction means physical destruction or removal of personal
identifiers from information so that the information is no longer
personally identifiable.
(b) Education records means the type of records covered under the
definition of ``education records'' in 34 CFR part 99 (the regulations
implementing the Family Educational Rights and Privacy Act of 1974, 20
U.S.C. 1232g (FERPA)).
(c) Participating agency means any agency or institution that
collects, maintains, or uses personally identifiable information, or
from which information is obtained, under Part B of the Act.
(Authority: 20 U.S.C. 1221e-3, 1412(a)(8), 1417(c))
Sec. 300.612 Notice to parents.
(a) The SEA must give notice that is adequate to fully inform
parents about the requirements of Sec. 300.123, including--
(1) A description of the extent that the notice is given in the
native languages of the various population groups in the State;
(2) A description of the children on whom personally identifiable
information is maintained, the types of information sought, the methods
the State intends to use in gathering the information (including the
sources from whom information is gathered), and the uses to be made of
the information;
(3) A summary of the policies and procedures that participating
agencies must follow regarding storage, disclosure to third parties,
retention, and destruction of personally identifiable information; and
(4) A description of all of the rights of parents and children
regarding this information, including the rights under FERPA and
implementing regulations in 34 CFR part 99.
(b) Before any major identification, location, or evaluation
activity, the
[[Page 46803]]
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 this part is inaccurate or
misleading or violates the privacy or other rights of the child may
request the participating agency that maintains the information to
amend the information.
(b) The agency must decide whether to amend the information in
accordance with the request within a reasonable period of time of
receipt of the request.
(c) If the agency decides to refuse to amend the information in
accordance with the request, it must inform the parent of the refusal
and advise the parent of the right to a hearing under Sec. 300.619.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
Sec. 300.619 Opportunity for a hearing.
The agency must, on request, provide an opportunity for a hearing
to challenge information in education records to ensure that it is not
inaccurate, misleading, or otherwise in violation of the privacy or
other rights of the child.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
Sec. 300.620 Result of hearing.
(a) If, as a result of the hearing, the agency decides that the
information is inaccurate, misleading or otherwise in violation of the
privacy or other rights of the child, it must amend the information
accordingly and so inform the parent in writing.
(b) If, as a result of the hearing, the agency decides that the
information is not inaccurate, misleading, or otherwise in violation of
the privacy or other rights of the child, it must inform the parent of
the parent's right to place in the records the agency maintains on the
child a statement commenting on the information or setting forth any
reasons for disagreeing with the decision of the agency.
(c) Any explanation placed in the records of the child under this
section must--
(1) Be maintained by the agency as part of the records of the child
as long as the record or contested portion is maintained by the agency;
and
(2) If the records of the child or the contested portion is
disclosed by the agency to any party, the explanation must also be
disclosed to the party.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
Sec. 300.621 Hearing procedures.
A hearing held under Sec. 300.619 must be conducted according to
the procedures in 34 CFR 99.22.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
Sec. 300.622 Consent.
(a) Parental consent must be obtained before personally
identifiable information is disclosed to parties, other than officials
of participating agencies in accordance with paragraph (b)(1) of this
section, unless the information is contained in education records, and
the disclosure is authorized without parental consent under 34 CFR part
99. (b)(1) Except as provided in paragraphs (b)(2) and (b)(3) of this
section, parental consent is not required before personally
identifiable information is released to officials of participating
agencies for purposes of meeting a requirement of this part.
(2) Parental consent, or the consent of an eligible child who has
reached the age of majority under State law, must be obtained before
personally identifiable information is released to officials of
participating agencies providing or paying for transition services in
accordance with Sec. 300.321(b)(3).
(3) If a child is enrolled, or is going to enroll in a private
school that is not located in the LEA of the parent's residence,
parental consent must be obtained before any personally identifiable
information about the child is released between officials in the LEA
where the private school is located and officials in the LEA of the
parent's residence.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
Sec. 300.623 Safeguards.
(a) Each participating agency must protect the confidentiality of
personally identifiable information at collection, storage, disclosure,
and destruction stages.
(b) One official at each participating agency must assume
responsibility for
[[Page 46804]]
ensuring the confidentiality of any personally identifiable
information.
(c) All persons collecting or using personally identifiable
information must receive training or instruction regarding the State's
policies and procedures under Sec. 300.123 and 34 CFR part 99.
(d) Each participating agency must maintain, for public inspection,
a current listing of the names and positions of those employees within
the agency who may have access to personally identifiable information.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
Sec. 300.624 Destruction of information.
(a) The public agency must inform parents when personally
identifiable information collected, maintained, or used under this part
is no longer needed to provide educational services to the child.
(b) The information must be destroyed at the request of the
parents. However, a permanent record of a student's name, address, and
phone number, his or her grades, attendance record, classes attended,
grade level completed, and year completed may be maintained without
time limitation.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
Sec. 300.625 Children's rights.
(a) The SEA must have in effect policies and procedures regarding
the extent to which children are afforded rights of privacy similar to
those afforded to parents, taking into consideration the age of the
child and type or severity of disability.
(b) Under the regulations for FERPA in 34 CFR 99.5(a), the rights
of parents regarding education records are transferred to the student
at age 18.
(c) If the rights accorded to parents under Part B of the Act are
transferred to a student who reaches the age of majority, consistent
with Sec. 300.520, the rights regarding educational records in
Sec. Sec. 300.613 through 300.624 must also be transferred to the
student. However, the public agency must provide any notice required
under section 615 of the Act to the student and the parents.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
Sec. 300.626 Enforcement.
The SEA must have in effect the policies and procedures, including
sanctions that the State uses, to ensure that its policies and
procedures consistent with Sec. Sec. 300.611 through 300.625 are
followed and that the requirements of the Act and the regulations in
this part are met.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
Sec. 300.627 Department use of personally identifiable information.
If the Department or its authorized representatives collect any
personally identifiable information regarding children with
disabilities that is not subject to the Privacy Act of 1974, 5 U.S.C.
552a, the Secretary applies the requirements of 5 U.S.C. 552a(b)(1) and
(b)(2), 552a(b)(4) through (b)(11); 552a(c) through 552a(e)(3)(B);
552a(e)(3)(D); 552a(e)(5) through (e)(10); 552a(h); 552a(m); and
552a(n); and the regulations implementing those provisions in 34 CFR
part 5b.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
Reports--Program Information
Sec. 300.640 Annual report of children served--report requirement.
(a) The SEA must annually report to the Secretary on the
information required by section 618 of the Act at the times specified
by the Secretary.
(b) The SEA must submit the report on forms provided by the
Secretary.
(Approved by the Office of Management and Budget under control
numbers 1820-0030, 1820-0043, 1820-0659, 1820-0621, 1820-0518, 1820-
0521, 1820-0517, and 1820-0677)
(Authority: 20 U.S.C. 1418(a))
Sec. 300.641 Annual report of children served--information required
in the report.
(a) For purposes of the annual report required by section 618 of
the Act and Sec. 300.640, the State and the Secretary of the Interior
must count and report the number of children with disabilities
receiving special education and related services on any date between
October 1 and December 1 of each year.
(b) For the purpose of this reporting provision, a child's age is
the child's actual age on the date of the child count.
(c) The SEA may not report a child under more than one disability
category.
(d) If a child with a disability has more than one disability, the
SEA must report that child in accordance with the following procedure:
(1) If a child has only two disabilities and those disabilities are
deafness and blindness, and the child is not reported as having a
developmental delay, that child must be reported under the category
``deaf-blindness.''
(2) A child who has more than one disability and is not reported as
having deaf-blindness or as having a developmental delay must be
reported under the category ``multiple disabilities.''
(Approved by the Office of Management and Budget under control
numbers 1820-0030, 1820-0043, 1820-0621, 1820-0521, and 1820-0517)
(Authority: 20 U.S.C. 1418(a), (b))
Sec. 300.642 Data reporting.
(a) Protection of personally identifiable data. The data described
in section 618(a) of the Act and in Sec. 300.641 must be publicly
reported by each State in a manner that does not result in disclosure
of data identifiable to individual children.
(b) Sampling. The Secretary may permit States and the Secretary of
the Interior to obtain data in section 618(a) of the Act through
sampling.
(Approved by the Office of Management and Budget under control
numbers 1820-0030, 1820-0043, 1820-0518, 1820-0521, and 1820-0517)
(Authority: 20 U.S.C. 1418(b))
Sec. 300.643 Annual report of children served--certification.
The SEA must include in its report a certification signed by an
authorized official of the agency that the information provided under
Sec. 300.640 is an accurate and unduplicated count of children with
disabilities receiving special education and related services on the
dates in question.
(Approved by the Office of Management and Budget under control
numbers 1820-0030 and 1820-0043)
(Authority: 20 U.S.C. 1418(a)(3))
Sec. 300.644 Annual report of children served--criteria for counting
children.
The SEA may include in its report children with disabilities who
are enrolled in a school or program that is operated or supported by a
public agency, and that--
(a) Provides them with both special education and related services
that meet State standards;
(b) Provides them only with special education, if a related service
is not required, that meets State standards; or
(c) In the case of children with disabilities enrolled by their
parents in private schools, counts those children who are eligible
under the Act and receive special education or related services or both
that meet State standards under Sec. Sec. 300.132 through 300.144.
(Approved by the Office of Management and Budget under control
numbers 1820-0030, 1820-0043, 1820-0659, 1820-0621, 1820-0521, and
1820-0517)
(Authority: 20 U.S.C. 1418(a))
Sec. 300.645 Annual report of children served--other responsibilities
of the SEA.
In addition to meeting the other requirements of Sec. Sec. 300.640
through 300.644, the SEA must--
(a) Establish procedures to be used by LEAs and other educational
institutions
[[Page 46805]]
in counting the number of children with disabilities receiving special
education and related services;
(b) Set dates by which those agencies and institutions must report
to the SEA to ensure that the State complies with Sec. 300.640(a);
(c) Obtain certification from each agency and institution that an
unduplicated and accurate count has been made;
(d) Aggregate the data from the count obtained from each agency and
institution, and prepare the reports required under Sec. Sec. 300.640
through 300.644; and
(e) Ensure that documentation is maintained that enables the State
and the Secretary to audit the accuracy of the count.
(Approved by the Office of Management and Budget under control
numbers 1820-0030, 1820-0043, 1820-0659, 1820-0621, 1820-0518, 1820-
0521, and 1820-0517)
(Authority: 20 U.S.C. 1418(a))
Sec. 300.646 Disproportionality.
(a) General. Each State that receives assistance under Part B of
the Act, and the Secretary of the Interior, must provide for the
collection and examination of data to determine if significant
disproportionality based on race and ethnicity is occurring in the
State and the LEAs of the State with respect to--
(1) The identification of children as children with disabilities,
including the identification of children as children with disabilities
in accordance with a particular impairment described in section 602(3)
of the Act;
(2) The placement in particular educational settings of these
children; and
(3) The incidence, duration, and type of disciplinary 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
Allotments, Grants, and Use of Funds
Sec. 300.700 Grants to States.
(a) Purpose of grants. The Secretary makes grants to States,
outlying areas, and freely associated States (as defined in Sec.
300.717), and provides funds to the Secretary of the Interior, to
assist them to provide special education and related services to
children with disabilities in accordance with Part B of the Act.
(b) Maximum amount. The maximum amount of the grant a State may
receive under section 611 of the Act is--
(1) For fiscal years 2005 and 2006--
(i) The number of children with disabilities in the State who are
receiving special education and related services--
(A) Aged three through five, if the State is eligible for a grant
under section 619 of the Act; and
(B) Aged 6 through 21; multiplied by--
(ii) Forty (40) percent of the average per-pupil expenditure in
public elementary schools and secondary schools in the United States
(as defined in Sec. 300.717); and
(2) For fiscal year 2007 and subsequent fiscal years--
(i) The number of children with disabilities in the 2004-2005
school year in the State who received special education and related
services--
(A) Aged three through five if the State is eligible for a grant
under section 619 of the Act; and
(B) Aged 6 through 21; multiplied by
(ii) Forty (40) percent of the average per-pupil expenditure in
public elementary schools and secondary schools in the United States
(as defined in Sec. 300.717);
(iii) Adjusted by the rate of annual change in the sum of--
(A) Eighty-five (85) percent of the State's population of children
aged 3 through 21 who are of the same age as children with disabilities
for whom the State ensures the availability of FAPE under Part B of the
Act; and
(B) Fifteen (15) percent of the State's population of children
described in paragraph (b)(2)(iii)(A) of this section who are living in
poverty.
(Authority: 20 U.S.C. 1411(a) and (d))
Sec. 300.701 Outlying areas, freely associated States, and the
Secretary of the Interior.
(a) Outlying areas and freely associated States. (1) Funds
reserved. From the amount appropriated for any fiscal year under
section 611(i) of the Act, the Secretary reserves not more than one
percent, which must be used--
(i) To provide assistance to the outlying areas in accordance with
their respective populations of individuals aged 3 through 21; and
(ii) To provide each freely associated State a grant in the amount
that the freely associated State received for fiscal year 2003 under
Part B of the Act, but only if the freely associated State--
(A) Meets the applicable requirements of Part B of the Act that
apply to States.
(B) Meets the requirements in paragraph (a)(2) of this section.
(2) Application. Any freely associated State that wishes to receive
funds under Part B of the Act must include, in its application for
assistance--
(i) Information demonstrating that it will meet all conditions that
apply to States under Part B of the Act.
(ii) An assurance that, notwithstanding any other provision of Part
B of the Act, it will use those funds only for the direct provision of
special education and related services to children with disabilities
and to enhance its capacity to make FAPE available to all children with
disabilities;
(iii) The identity of the source and amount of funds, in addition
to funds under Part B of the Act, that it will make available to ensure
that FAPE is available to all children with disabilities within its
jurisdiction; and
(iv) Such other information and assurances as the Secretary may
require.
(3) Special rule. The provisions of Public Law 95-134, permitting
the consolidation of grants by the outlying areas, do not apply to
funds provided to the outlying areas or to the freely associated States
under Part B of the Act.
(b) Secretary of the Interior. From the amount appropriated for any
fiscal year under section 611(i) of the Act, the Secretary reserves
1.226 percent to provide assistance to the Secretary of the Interior in
accordance with Sec. Sec. 300.707 through 300.716.
(Authority: 20 U.S.C. 1411(b))
Sec. 300.702 Technical assistance.
(a) In general. The Secretary may reserve not more than one-half of
one percent of the amounts appropriated
[[Page 46806]]
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 amount appropriated for section 611 of the Act from the
preceding fiscal year.
(iii) Maximum. Notwithstanding paragraph (c)(2)(ii) of t his
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) 1999 amount. The amount the State received under section 611 of
the Act for fiscal year 1999; and
(ii) Remaining funds. An amount that bears the same relation to any
remaining funds as the increase the State received under section 611 of
the Act for the preceding fiscal year over fiscal year 1999 bears to
the total of all such increases for all States.
(2) Amounts equal to or less than fiscal year 1999 allocations.--
(i) General. If the amount available for allocations under paragraph
(a) of this section is equal to or less than the amount allocated to
the States for fiscal year 1999, each State is allocated the amount it
received for fiscal year 1999.
(ii) Ratable reduction. If the amount available for allocations
under paragraph (d) of this section is insufficient to make the
allocations described in paragraph (d)(2)(i) of this section, those
allocations are ratably reduced.
(Authority: 20 U.S.C. 1411(d))
Sec. 300.704 State-level activities.
(a) State administration. (1) For the purpose of administering Part
B of the Act, including paragraph (c) of this section, section 619 of
the Act, and the coordination of activities under Part B of the Act
with, and providing technical assistance to, other programs that
provide services to children with disabilities--
(i) Each State may reserve for each fiscal year not more than the
maximum amount the State was eligible to reserve for State
administration under section 611 of the Act for fiscal year 2004 or
$800,000 (adjusted in accordance with paragraph (a)(2) of this
section), whichever is greater; and
(ii) Each outlying area may reserve for each fiscal year not more
than five percent of the amount the outlying area receives under Sec.
300.701(a) for the fiscal year or $35,000, whichever is greater.
(2) For each fiscal year, beginning with fiscal year 2005, the
Secretary cumulatively adjusts--
(i) The maximum amount the State was eligible to reserve for State
administration under section 611 of the Act for fiscal year 2004; and
[[Page 46807]]
(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 also may
be used to carry out the following activities:
(i) For support and direct services, including technical
assistance, personnel preparation, and professional development and
training;
(ii) To support paperwork reduction activities, including expanding
the use of technology in the IEP process;
(iii) To assist LEAs in providing positive behavioral interventions
and supports and mental health services for children with disabilities;
(iv) To improve the use of technology in the classroom by children
with disabilities to enhance learning;
(v) To support the use of technology, including technology with
universal design principles and assistive technology devices, to
maximize accessibility to the general education curriculum for children
with disabilities;
(vi) Development and implementation of transition programs,
including coordination of services with agencies involved in supporting
the transition of students with disabilities to postsecondary
activities;
(vii) To assist LEAs in meeting personnel shortages;
(viii) To support capacity building activities and improve the
delivery of services by LEAs to improve results for children with
disabilities;
(ix) Alternative programming for children with disabilities who
have been expelled from school, and services for children with
disabilities in correctional facilities, children enrolled in State-
operated or State-supported schools, and children with disabilities in
charter schools;
(x) To support the development and provision of appropriate
accommodations for children with disabilities, or the development and
provision of alternate assessments that are valid and reliable for
assessing the performance of children with disabilities, in accordance
with sections 1111(b) and 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
[[Page 46808]]
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;
(E) Establish an annual schedule by which the SEA must make its
distributions from the high cost fund each fiscal year; and
(F) If the State elects to reserve funds for supporting innovative
and effective ways of cost sharing under paragraph (c)(1)(i)(B) of this
section, describe how these funds will be used.
(ii) The State must make its final State plan available to the
public not less than 30 days before the beginning of the school year,
including dissemination of such information on the State Web site.
(4)(i) Each SEA must make all annual disbursements from the high
cost fund established under paragraph (c)(1)(i) of this section in
accordance with the State plan published pursuant to paragraph (c)(3)
of this section.
(ii) The costs associated with educating a high need child with a
disability, as defined under paragraph (c)(3)(i)(A) of this section,
are only those costs associated with providing direct special education
and related services to the child that are identified in that child's
IEP, including the cost of room and board for a residential placement
determined necessary, consistent with Sec. 300.114, to implement a
child's IEP.
(iii) The funds in the high cost fund remain under the control of
the State until disbursed to an LEA to support a specific child who
qualifies under the State plan for the high cost funds or distributed
to LEAs, consistent with paragraph (c)(9) of this section.
(5) The disbursements under paragraph (c)(4) of this section must
not be used to support legal fees, court costs, or other costs
associated with a cause of action brought on behalf of a child with a
disability to ensure FAPE for such child.
(6) Nothing in paragraph (c) of this section--
(i) Limits or conditions the right of a child with a disability who
is assisted under Part B of the Act to receive FAPE pursuant to section
612(a)(1) of the Act in the least restrictive environment pursuant to
section 612(a)(5) of the Act; or
(ii) Authorizes an SEA or LEA to establish a limit on what may be
spent on the education of a child with a disability.
(7) Notwithstanding the provisions of paragraphs (c)(1) through (6)
of this section, a State may use funds reserved pursuant to paragraph
(c)(1)(i) of this section for implementing a placement neutral cost
sharing and reimbursement program of high need, low incidence,
catastrophic, or extraordinary aid to LEAs that provides services to
high need children based on eligibility criteria for such programs that
were created not later than January 1, 2004, and are currently in
operation, if such program serves children that meet the requirement of
the definition of a high need child with a disability as described in
paragraph (c)(3)(i)(A) of this section.
(8) Disbursements provided under paragraph (c) of this section must
not be used to pay costs that otherwise would be reimbursed as medical
assistance for a child with a disability under the State Medicaid
program under Title XIX of the Social Security Act.
(9) Funds reserved under paragraph (c)(1)(i) of this section from
the appropriation for any fiscal year, but not expended pursuant to
paragraph (c)(4) of this section before the beginning of their last
year of availability for obligation, must be allocated to LEAs in the
same manner as other funds from the appropriation for that fiscal year
are allocated to LEAs under Sec. 300.705 during their final year of
availability.
(d) Inapplicability of certain prohibitions. A State may use funds
the State reserves under paragraphs (a) and (b) of this section without
regard to--
(1) The prohibition on commingling of funds in Sec. 300.162(b).
(2) The prohibition on supplanting other funds in Sec. 300.162(c).
(e) Special rule for increasing funds. A State may use funds the
State reserves under paragraph (a)(1) of this section as a result of
inflationary increases under paragraph (a)(2) of this section to carry
out activities authorized under paragraph(b)(4)(i), (iii), (vii), or
(viii) of this section.
(f) Flexibility in using funds for Part C. Any State eligible to
receive a grant under section 619 of the Act may use funds made
available under paragraph (a)(1) of this section, Sec. 300.705(c), or
Sec. 300.814(e) to develop and implement a State policy jointly with
the lead agency under Part C of the Act and the SEA to provide early
intervention services (which must include an educational component that
promotes school readiness and incorporates preliteracy, language, and
numeracy skills) in accordance with Part C of the Act to children with
disabilities who are eligible for services under section 619 of the Act
and who previously received services under Part C of the Act until the
children enter, or are eligible under State law to enter, kindergarten,
or elementary school as appropriate.
(Approved by the Office of Management and Budget under control
number 1820-0600)
(Authority: 20 U.S.C. 1411(e))
Sec. 300.705 Subgrants to LEAs.
(a) Subgrants required. Each State that receives a grant under
section 611 of the Act for any fiscal year must distribute any funds
the State does not reserve under Sec. 300.704 to LEAs (including
public charter schools that operate as LEAs) in the State that have
established their eligibility under section 613 of the Act for use in
accordance with Part B of the Act.
(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
[[Page 46809]]
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.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1411(f))
Sec. 300.706 [Reserved]
Secretary of the Interior
Sec. 300.707 Use of amounts by Secretary of the Interior.
(a) Definitions. For purposes of Sec. Sec. 300.707 through
300.716, the following definitions apply:
(1) Reservation means Indian Country as defined in 18 U.S.C. 1151.
(2) Tribal governing body has the definition given that term in 25
U.S.C. 2021(19).
(b) Provision of amounts for assistance. The Secretary provides
amounts to the Secretary of the Interior to meet the need for
assistance for the education of children with disabilities on
reservations aged 5 to 21, inclusive, enrolled in elementary schools
and secondary schools for Indian children operated or funded by the
Secretary of the Interior. The amount of the payment for any fiscal
year is equal to 80 percent of the amount allotted under section
611(b)(2) of the Act for that fiscal year. Of the amount described in
the preceding sentence, after the Secretary of the Interior reserves
funds for administration under Sec. 300.710, 80 percent must be
allocated to such schools by July 1 of that fiscal year and 20 percent
must be allocated to such schools by September 30 of that fiscal year.
(c) Additional requirement. With respect to all other children aged
3 to 21, inclusive, on reservations, the SEA of the State in which the
reservation is located must ensure that all of the requirements of Part
B of the Act are implemented.
(Authority: 20 U.S.C. 1411(h)(1))
Sec. 300.708 Submission of information.
The Secretary may provide the Secretary of the Interior amounts
under Sec. 300.707 for a fiscal year only if the Secretary of the
Interior submits to the Secretary information that--
(a) Meets the requirements of section 612(a)(1), (3) through (9),
(10)(B) through (C), (11) through (12), (14) through (16), (19), and
(21) through (25) of the Act (including monitoring and evaluation
activities);
(b) Meets the requirements of section 612(b) and (e) of the Act;
(c) Meets the requirements of section 613(a)(1), (2)(A)(i), (7)
through (9) and section 613(i) of the Act (references to LEAs in these
sections must be read as references to elementary schools and secondary
schools for Indian children operated or funded by the Secretary of the
Interior);
(d) Meets the requirements of section 616 of the Act that apply to
States (references to LEAs in section 616 of the Act must be read as
references to elementary schools and secondary schools for Indian
children operated or funded by the Secretary of the Interior).
(e) Meets the requirements of this part that implement the sections
of the Act listed in paragraphs (a) through (d) of this section;
(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.
[[Page 46810]]
(Authority: 20 U.S.C. 1411(h)(2) and (3))
Sec. 300.709 Public participation.
In fulfilling the requirements of Sec. 300.708 the Secretary of
the Interior must provide for public participation consistent with
Sec. 300.165.
(Authority: 20 U.S.C. 1411(h))
Sec. 300.710 Use of funds under Part B of the Act.
(a) The Secretary of the Interior may reserve five percent of its
payment under Sec. 300.707(b) in any fiscal year, or $500,000,
whichever is greater, for administrative costs in carrying out the
provisions of Sec. Sec. 300.707 through 300.709, 300.711, and 300.713
through 300.716.
(b) Payments to the Secretary of the Interior under Sec. 300.712
must be used in accordance with that section.
(Authority: 20 U.S.C. 1411(h)(1)(A))
Sec. 300.711 Early intervening services.
(a) The Secretary of the Interior may allow each elementary school
and secondary school for Indian children operated or funded by the
Secretary of the Interior to use not more than 15 percent of the amount
the school receives under Sec. 300.707(b) for any fiscal year, in
combination with other amounts (which may include amounts other than
education funds), to develop and implement coordinated, early
intervening services, which may include interagency financing
structures, for children in kindergarten through grade 12 (with a
particular emphasis on children in kindergarten through grade three)
who have not been identified as needing special education or related
services but who need additional academic and behavioral support to
succeed in a general education environment, in accordance with section
613(f) of the Act.
(b) Each elementary school and secondary school for Indian children
operated or funded by the Secretary of the Interior that develops and
maintains coordinated early intervening services in accordance with
section 613(f) of the Act and Sec. 300.226 must annually report to the
Secretary of the Interior in accordance with section 613(f) of the Act.
(Authority: 20 U.S.C. 1411(h) and 1413(f))
Sec. 300.712 Payments for education and services for Indian children
with disabilities aged three through five.
(a) General. With funds appropriated under section 611(i) of the
Act, the Secretary makes payments to the Secretary of the Interior to
be distributed to tribes or tribal organizations (as defined under
section 4 of the Indian Self-Determination and Education Assistance
Act) or consortia of tribes or tribal organizations to provide for the
coordination of assistance for special education and related services
for children with disabilities aged three through five on reservations
served by elementary schools and secondary schools for Indian children
operated or funded by the Department of the Interior. The amount of the
payments under paragraph (b) of this section for any fiscal year is
equal to 20 percent of the amount allotted under Sec. 300.701(b).
(b) Distribution of funds. The Secretary of the Interior must
distribute the total amount of the payment under paragraph (a) of this
section by allocating to each tribe, tribal organization, or consortium
an amount based on the number of children with disabilities aged three
through five residing on reservations as reported annually, divided by
the total of those children served by all tribes or tribal
organizations.
(c) Submission of information. To receive a payment under this
section, the tribe or tribal organization must submit the figures to
the Secretary of the Interior as required to determine the amounts to
be allocated under paragraph (b) of this section. This information must
be compiled and submitted to the Secretary.
(d) Use of funds. (1) The funds received by a tribe or tribal
organization must be used to assist in child find, screening, and other
procedures for the early identification of children aged three through
five, parent training, and the provision of direct services. These
activities may be carried out directly or through contracts or
cooperative agreements with the BIA, LEAs, and other public or private
nonprofit organizations. The tribe or tribal organization is encouraged
to involve Indian parents in the development and implementation of
these activities.
(2) The tribe or tribal organization, as appropriate, must make
referrals to local, State, or Federal entities for the provision of
services or further diagnosis.
(e) Biennial report. To be eligible to receive a grant pursuant to
paragraph (a) of this section, the tribe or tribal organization must
provide to the Secretary of the Interior a biennial report of
activities undertaken under this section, including the number of
contracts and cooperative agreements entered into, the number of
children contacted and receiving services for each year, and the
estimated number of children needing services during the two years
following the year in which the report is made. The Secretary of the
Interior must include a summary of this information on a biennial basis
in the report to the Secretary required under section 611(h) of the
Act. The Secretary may require any additional information from the
Secretary of the Interior.
(f) Prohibitions. None of the funds allocated under this section
may be used by the Secretary of the Interior for administrative
purposes, including child count and the provision of technical
assistance.
(Authority: 20 U.S.C. 1411(h)(4))
Sec. 300.713 Plan for coordination of services.
(a) The Secretary of the Interior must develop and implement a plan
for the coordination of services for all Indian children with
disabilities residing on reservations served by elementary schools and
secondary schools for Indian children operated or funded by the
Secretary of the Interior.
(b) The plan must provide for the coordination of services
benefiting those children from whatever source, including tribes, the
Indian Health Service, other BIA divisions, other Federal agencies,
State educational agencies, and State, local, and tribal juvenile and
adult correctional facilities.
(c) In developing the plan, the Secretary of the Interior must
consult with all interested and involved parties.
(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
[[Page 46811]]
States having reservations, and other members representing the various
divisions and entities of the BIA. The chairperson must be selected by
the Secretary of the Interior.
(b) The advisory board must--
(1) Assist in the coordination of services within the BIA and with
other local, State, and Federal agencies in the provision of education
for infants, toddlers, and children with disabilities;
(2) Advise and assist the Secretary of the Interior in the
performance of the Secretary of the Interior's responsibilities
described in section 611(h) of the Act;
(3) Develop and recommend policies concerning effective inter- and
intra-agency collaboration, including modifications to regulations, and
the elimination of barriers to inter- and intra-agency programs and
activities;
(4) Provide assistance and disseminate information on best
practices, effective program coordination strategies, and
recommendations for improved early intervention services or educational
programming for Indian infants, toddlers, and children with
disabilities; and
(5) Provide assistance in the preparation of information required
under Sec. 300.708(h).
(Authority: 20 U.S.C. 1411(h)(6))
Sec. 300.715 Annual reports.
(a) In general. The advisory board established under Sec. 300.714
must prepare and submit to the Secretary of the Interior and to
Congress an annual report containing a description of the activities of
the advisory board for the preceding year.
(b) Availability. The Secretary of the Interior must make available
to the Secretary the report described in paragraph (a) of this section.
(Authority: 20 U.S.C. 1411(h)(7))
Sec. 300.716 Applicable regulations.
The Secretary of the Interior must comply with the requirements of
Sec. Sec. 300.103 through 300.108, 300.110 through 300.124, 300.145
through 300.154, 300.156 through 300.160, 300.165, 300.170 through
300.186, 300.226, 300.300 through 300.606, 300.610 through 300.646, and
300.707 through 300.716.
(Authority: 20 U.S.C. 1411(h)(2)(A))
Definitions that Apply to this Subpart
Sec. 300.717 Definitions applicable to allotments, grants, and use of
funds.
As used in this subpart--
(a) Freely associated States means the Republic of the Marshall
Islands, the Federated States of Micronesia, and the Republic of Palau;
(b) Outlying areas means the United States Virgin Islands, Guam,
American Samoa, and the Commonwealth of the Northern Mariana Islands;
(c) State means each of the 50 States, the District of Columbia,
and the Commonwealth of Puerto Rico; and
(d) Average per-pupil expenditure in public elementary schools and
secondary schools in the United States means--
(1) Without regard to the source of funds--
(i) The aggregate current expenditures, during the second fiscal
year preceding the fiscal year for which the determination is made (or,
if satisfactory data for that year are not available, during the most
recent preceding fiscal year for which satisfactory data are available)
of all LEAs in the 50 States and the District of Columbia); plus
(ii) Any direct expenditures by the State for the operation of
those agencies; divided by (2) The aggregate number of children in
average daily attendance to whom those agencies provided free public
education during that preceding year.
(Authority: 20 U.S.C. 1401(22), 1411(b)(1) (C) and (g))
Acquisition of Equipment and Construction or Alteration of Facilities
Sec. 300.718 Acquisition of equipment and construction or alteration
of facilities.
(a) General. If the Secretary determines that a program authorized
under Part B of the Act will be improved by permitting program funds to
be used to acquire appropriate equipment, or to construct new
facilities or alter existing facilities, the Secretary may allow the
use of those funds for those purposes.
(b) Compliance with certain regulations. Any construction of new
facilities or alteration of existing facilities under paragraph (a) of
this section must comply with the requirements of--
(1) Appendix A of part 36 of title 28, Code of Federal Regulations
(commonly known as the ``Americans with Disabilities Accessibility
Standards for Buildings and Facilities''); or
(2) Appendix A of subpart 101-19.6 of title 41, Code of Federal
Regulations (commonly known as the ``Uniform Federal Accessibility
Standards'').
(Authority: 20 U.S.C. 1404)
Subpart H--Preschool Grants for Children with Disabilities
Sec. 300.800 In general.
The Secretary provides grants under section 619 of the Act to
assist States to provide special education and related services in
accordance with Part B of the Act--
(a) To children with disabilities aged three through five years;
and
(b) At a State's discretion, to two-year-old children with
disabilities who will turn three during the school year.
(Authority: 20 U.S.C. 1419(a))
Sec. Sec. 300.801-300.802 [Reserved]
Sec. 300.803 Definition of State.
As used in this subpart, State means each of the 50 States, the
District of Columbia, and the Commonwealth of Puerto Rico.
(Authority: 20 U.S.C. 1419(i))
Sec. 300.804 Eligibility.
A State is eligible for a grant under section 619 of the Act if the
State--
(a) Is eligible under section 612 of the Act to receive a grant
under Part B of the Act; and
(b) Makes FAPE available to all children with disabilities, aged
three through five, residing in the State.
(Approved by the Office of Management and Budget under control
number 1820-0030)
(Authority: 20 U.S.C. 1419(b))
Sec. 300.805 [Reserved]
Sec. 300.806 Eligibility for financial assistance.
No State or LEA, or other public institution or agency, may receive
a grant or enter into a contract or cooperative agreement under subpart
2 or 3 of Part D of the Act that relates exclusively to programs,
projects, and activities pertaining to children aged three through five
years, unless the State is eligible to receive a grant under section
619(b) of the Act.
(Authority: 20 U.S.C. 1481(e))
Sec. 300.807 Allocations to States.
The Secretary allocates the amount made available to carry out
section 619 of the Act for a fiscal year among the States in accordance
with Sec. Sec. 300.808 through 300.810.
(Authority: 20 U.S.C. 1419(c)(1))
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
[[Page 46812]]
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))
Sec. 300.811 [Reserved]
Sec. 300.812 Reservation for State activities.
(a) Each State may reserve not more than the amount described in
paragraph (b) of this section for administration and other State-level
activities in accordance with Sec. Sec. 300.813 and 300.814.
(b) For each fiscal year, the Secretary determines and reports to
the SEA an amount that is 25 percent of the amount the State received
under section 619 of the Act for fiscal year 1997, cumulatively
adjusted by the Secretary for each succeeding fiscal year by the lesser
of--
(1) The percentage increase, if any, from the preceding fiscal year
in the State's allocation under section 619 of the Act; or
(2) The rate of inflation, as measured by the percentage increase,
if any, from the preceding fiscal year in the Consumer Price Index For
All Urban Consumers, published by the Bureau of Labor Statistics of the
Department of Labor.
(Authority: 20 U.S.C. 1419(d))
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))
[[Page 46813]]
Sec. 300.815 Subgrants to LEAs.
Each State that receives a grant under section 619 of the Act for
any fiscal year must distribute all of the grant funds 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 LEAs.
(a) Base payments. The State must first award each LEA described in
Sec. 300.815 the amount that agency would have received under section
619 of the Act for fiscal year 1997 if the State had distributed 75
percent of its grant for that year under section 619(c)(3), as such
section was then in effect.
(b) Base payment adjustments. For fiscal year 1998 and beyond--
(1) If a new LEA is created, the State must divide the base
allocation determined under paragraph (a) of this section for the LEAs
that would have been responsible for serving children with disabilities
now being served by the new LEA, among the new LEA and affected LEAs
based on the relative numbers of children with disabilities ages three
through five currently provided special education by each of the LEAs;
(2) If one or more LEAs are combined into a single new LEA, the
State must combine the base allocations of the merged LEAs; 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.
(d) Use of best data. For the purpose of making grants under this
section, States must apply on a uniform basis across all LEAs the best
data that are available to them on the numbers of children enrolled in
public and private elementary and secondary schools and the numbers of
children living in poverty.
(Authority: 20 U.S.C. 1419(g)(1))
Sec. 300.817 Reallocation of LEA 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 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))
Appendix A to Part 300--Excess Costs Calculation
Except as otherwise provided, amounts provided to an LEA under
Part B of the Act may be used only to pay the excess costs of
providing special education and related services to children with
disabilities. Excess costs are those costs for the education of an
elementary school or secondary school student with a disability that
are in excess of the average annual per student expenditure in an
LEA during the preceding school year for an elementary school or
secondary school student, as may be appropriate. An LEA must spend
at least the average annual per student expenditure on the education
of an elementary school or secondary school child with a disability
before funds under Part B of the Act are used to pay the excess
costs of providing special education and related services.
Section 602(8) of the Act and Sec. 300.16 require the LEA to
compute the minimum average amount separately for children with
disabilities in its elementary schools and for children with
disabilities in its secondary schools. LEAs may not compute the
minimum average amount it must spend on the education of children
with disabilities based on a combination of the enrollments in its
elementary schools and secondary schools.
The following example shows how to compute the minimum average
amount an LEA must spend for the education of each of its elementary
school children with disabilities under section 602(3) of the Act
before it may use funds under Part B of the Act.
a. First the LEA must determine the total amount of its
expenditures for elementary school students from all sources--local,
State, and Federal (including Part B)--in the preceding school year.
Only capital outlay and debt services are excluded.
Example: The following is an example of a computation for
children with disabilities enrolled in an LEA's elementary schools.
In this example, the LEA had an average elementary school enrollment
for the preceding school year of 800 (including 100 children with
disabilities). The LEA spent the following amounts last year for
elementary school students (including its elementary school children
with disabilities):
(1).................... From State and local tax funds. $6,500,000
(2).................... From Federal funds............ 600,000
---------------
Total expenditures............ 7,100,000
Of this total, $60,000 was for capital outlay and debt service
relating to the education of elementary school students. This must
be subtracted from total expenditures.
(1).................... Total Expenditures............. $7,100,000
(2).................... Less capital outlay and debt... -60,000
===============
Total expenditures for $7,040,000
elementary school students
less capital outlay and debt.
b. Next, the LEA must subtract from the total expenditures
amounts spent for:
(1) IDEA, Part B allocation,
(2) ESEA, Title I, Part A allocation,
(3) ESEA, Title III, Parts A and B allocation,
(4) State and local funds for children with disabilities, and
(5) State or local funds for programs under ESEA, Title I, Part
A, and Title III, Parts A and B.
These are funds that the LEA actually spent, not funds received
last year but carried over for the current school year.
Example: The LEA spent the following amounts for elementary
school students last year:
(1).................... From funds under IDEA, Part B $ 200,000
allocation.
(2).................... From funds under ESEA, Title I, 250,000
Part A allocation.
(3).................... From funds under ESEA, Title 50,000
III, Parts A and B allocation.
(4).................... From State funds and local 500,000
funds for children with
disabilities.
(5).................... From State and local funds for 150,000
programs under ESEA, Title I,
Part A, and Title III, Parts A
and B.
---------------
Total......................... 1,150,000
---------------
(1).................... Total expenditures less 7,040,000
capital outlay and debt.
(2).................... Other deductions............... -1,150,000
===============
Total......................... $5,890,000
c. Except as otherwise provided, the LEA next must determine the
average annual per
[[Page 46814]]
student expenditure for its elementary schools dividing the average
number of students enrolled in the elementary schools of the agency
during the preceding year (including its children with disabilities)
into the amount computed under the above paragraph. The amount
obtained through this computation is the minimum amount the LEA must
spend (on the average) for the education of each of its elementary
school children with disabilities. Funds under Part B of the Act may
be used only for costs over and above this minimum.
(1).................... Amount from Step b............. $5,890,000
(2).................... Average number of students 800
enrolled.
(3).................... $5,890,000/800 Average annual $ 7,362
per student expenditure.
d. Except as otherwise provided, to determine the total minimum
amount of funds the LEA must spend for the education of its
elementary school children with disabilities in the LEA (not
including capital outlay and debt service), the LEA must multiply
the number of elementary school children with disabilities in the
LEA times the average annual per student expenditure obtained in
paragraph c above. Funds under Part B of the Act can only be used
for excess costs over and above this minimum.
(1).................... Number of children with 100
disabilities in the LEA's
elementary schools.
(2).................... Average annual per student $ 7,362
expenditure.
(3).................... $7,362 x 100...................
Total minimum amount of funds $ 736,200
the LEA must spend for the
education of children with
disabilities enrolled in the
LEA's elementary schools
before using Part B funds.
Appendix B to Part 300--Proportionate Share Calculation
Each LEA must expend, during the grant period, on the provision
of special education and related services for the parentally-placed
private school children with disabilities enrolled in private
elementary schools and secondary schools located in the LEA an
amount that is equal to--
(1) A proportionate share of the LEA's subgrant under section
611(f) of the Act for children with disabilities aged 3 through 21.
This is an amount that is the same proportion of the LEA's total
subgrant under section 611(f) of the Act as the number of
parentally-placed private school children with disabilities aged 3
through 21 enrolled in private elementary schools and secondary
schools located in the LEA is to the total number of children with
disabilities enrolled in public and private elementary schools and
secondary schools located in the LEA aged 3 through 21; and
(2) A proportionate share of the LEA's subgrant under section
619(g) of the Act for children with disabilities aged 3 through 5.
This is an amount that is the same proportion of the LEA's total
subgrant under section 619(g) of the Act as the total number of
parentally-placed private school children with disabilities aged 3
through 5 enrolled in private elementary schools located in the LEA
is to the total number of children with disabilities enrolled in
public and private elementary schools located in the LEA aged 3
through 5.
Consistent with section 612(a)(10)(A)(i) of the Act and Sec.
300.133 of these regulations, annual expenditures for parentally-
placed private school children with disabilities are calculated
based on the total number of children with disabilities enrolled in
public and private elementary schools and secondary schools located
in the LEA eligible to receive special education and related
services under Part B, as compared with the total number of eligible
parentally-placed private school children with disabilities enrolled
in private elementary schools located in the LEA. This ratio is used
to determine the proportion of the LEA's total Part B subgrants
under section 611(f) of the Act for children aged 3 through 21, and
under section 619(g) of the Act for children aged 3 through 5, that
is to be expended on services for parentally-placed private school
children with disabilities enrolled in private elementary schools
and secondary schools located in the LEA.
The following is an example of how the proportionate share is
calculated:
There are 300 eligible children with disabilities enrolled in
the Flintstone School District and 20 eligible parentally-placed
private school children with disabilities enrolled in private
elementary schools and secondary schools located in the LEA for a
total of 320 eligible public and private school children with
disabilities (note: proportionate share for parentally-placed
private school children is based on total children eligible, not
children served). The number of eligible parentally-placed private
school children with disabilities (20) divided by the total number
of eligible public and private school children with disabilities
(320) indicates that 6.25 percent of the LEA's subgrant must be
spent for the group of eligible parentally-placed children with
disabilities enrolled in private elementary schools and secondary
schools located in the LEA. Flintstone School District receives
$152,500 in Federal flow through funds. Therefore, the LEA must
spend $9,531.25 on special education or related services to the
group of parentally-placed private school children with disabilities
enrolled in private elementary schools and secondary schools located
in the LEA. (Note: The LEA must calculate the proportionate share of
IDEA funds before earmarking funds for any early intervening
activities in Sec. 300.226).
The following outlines the calculations for the example of how
the proportionate share is calculated.
Proportionate Share Calculation for Parentally-Placed Private
School Children with Disabilities For Flintstone School
District:
Number of eligible children with disabilities in public 300
schools in the LEA..........................................
Number of parentally-placed eligible children with 20
disabilities in private elementary schools and secondary
schools located in the LEA..................................
----------
Total number of eligible children........................ 320
Federal Flow-Through Funds to Flintstone School District
Total allocation to Flintstone........................... $152,500
Calculating Proportionate Share:
Total allocation to Flinstone................................ 152,500
Divided by total number of eligible children................. 320
Average allocation per eligible child........................ 476.5625
Multiplied by the number of parentally placed children with 20
disabilities................................................
Amount to be expended for parentally-placed children with 9,531.25
disabilities................................................
Appendix C to Part 300--National Instructional Materials Accessibility
Standard (NIMAS)
Under sections 612(a)(23)(A) and 674(e)(4) of the Individuals
with Disabilities Education Act, as amended by the Individuals with
Disabilities Education Improvement Act of 2004, the Secretary of
Education establishes the NIMAS. Under section 674(e)(4) of the Act,
the NIMAS applies to print instructional materials published after
July 19, 2006. The purpose of the NIMAS is to help increase the
availability and timely delivery of print instructional materials in
accessible formats to blind or other persons with print disabilities
in elementary and secondary schools.
Technical Specifications--The Baseline Element Set
The Baseline Element Set details the minimum requirement that
must be delivered to fulfill the NIMAS. It is the responsibility of
publishers to provide this NIMAS-conformant XML content file, a
package file (OPF), a PDF-format copy of the title page (or
whichever page(s) contain(s) ISBN and copyright information), and a
full set of the content's images. All of the images included within
a work must be provided in a folder and placeholders entered in the
relevant XML document indicating their location (all images must be
included). The preferred image type is SVG, next is either PNG or
JPG format. Images should be rendered in the same size/proportion as
their originals at 300 dpi. Images should be named with relative
path filenames in XML files (example: img id=``staricon4'' src=``./
images/U10C02/staricon4.jpg'' alt=``star icon'').
NIMAS-conformant content must be valid to the NIMAS 1.1 [see
ANSI/NISO Z39.86 2005 or subsequent revisions]. In addition, files
are required to use the tags from the Baseline Element Set when such
tags are appropriate. Publishers are encouraged to augment the
required Baseline Element Set with tags from the Optional Element
Set (elements not included in the Standard) as applicable. For the
purposes of NIMAS, appropriate usage of elements, both baseline
[[Page 46815]]
and optional, is defined by the DAISY Structure Guidelines. Files
that do not follow these guidelines in the selection and application
of tags are not conformant to this Standard. Both optional elements
and appropriate structure guidelines may be located within Z39.86-
2002 and Z39.86-2005 available from http://www.daisy.org/z3986/. Use
of the most current standard is recommended.
The Baseline Element Set
------------------------------------------------------------------------
Element Description
------------------------------------------------------------------------
a. Document-level tags
------------------------------------------------------------------------
dtbook............................ The root element in the Digital
Talking Book DTD. <dtbook> contains
metadata in <head> and the contents
itself in <book>.
head.............................. Contains metainformation about the
book but no actual content of the
book itself, which is placed in
<book>.
book.............................. Surrounds the actual content of the
document, which is divided into
<frontmatter>, <bodymatter>, and
<rearmatter>. <head>, which
contains metadata, precedes <book>.
meta.............................. Indicates metadata about the book.
It is an empty element that may
appear repeatedly only in <head>.
For the most current usage
guidelines, please refer to http://www.daisy.org/z3986/
------------------------------------------------------------------------
b. Structure and Hierarchy
------------------------------------------------------------------------
frontmatter....................... Usually contains <doctitle> and
<docauthor>, as well as preliminary
material that is often enclosed in
appropriate <level> or <level1>
etc. Content may include a
copyright notice, a foreword, an
acknowledgements section, a table
of contents, etc. <frontmatter>
serves as a guide to the content
and nature of a <book>.
bodymatter........................ Consists of the text proper of a
book, as contrasted with
preliminary material <frontmatter>
or supplementary information in
<rearmatter>.
rearmatter........................ Contains supplementary material such
as appendices, glossaries,
bibliographies, and indices. It
follows the <bodymatter> of the
book.
level1............................ The highest-level container of major
divisions of a book. Used in
<frontmatter>, <bodymatter>, and
<rearmatter> to mark the largest
divisions of the book (usually
parts or chapters), inside which
<level2> subdivisions (often
sections) may nest. The class
attribute identifies the actual
name (e.g., part, chapter) of the
structure it marks. Contrast with
<level>.
level2............................ Contains subdivisions that nest
within <level1> divisions. The
class attribute identifies the
actual name (e.g., subpart,
chapter, subsection) of the
structure it marks.
level3............................ Contains sub-subdivisions that nest
within <level2> subdivisions (e.g.,
sub-subsections within
subsections). The class attribute
identifies the actual name (e.g.,
section, subpart, subsubsection) of
the subordinate structure it marks.
level4............................ Contains further subdivisions that
nest within <level3> subdivisions.
The class attribute identifies the
actual name of the subordinate
structure it marks.
level5............................ Contains further subdivisions that
nest within <level4> subdivisions.
The class attribute identifies the
actual name of the subordinate
structure it marks.
level6............................ Contains further subdivisions that
nest within <level5> subdivisions.
The class attribute identifies the
actual name of the subordinate
structure it marks.
h1................................ Contains the text of the heading for
a <level1> structure.
h2................................ Contains the text of the heading for
a <level2> structure.
h3................................ Contains the text of the heading for
a <level3> structure.
h4................................ Contains the text of the heading for
a <level4> structure.
h5................................ Contains the text of the heading for
a <level5> structure.
h6................................ Contains the text of the heading for
a <level6> structure.
For the most current usage
guidelines, please refer to http://www.daisy.org/z3986/
------------------------------------------------------------------------
c. Block elements
------------------------------------------------------------------------
author............................ Identifies the writer of a work
other than this one. Contrast with
<docauthor>, which identifies the
author of this work. [author]
typically occurs within
<blockquote> and <cite>.
blockquote........................ Indicates a block of quoted content
that is set off from the
surrounding text by paragraph
breaks. Compare with <q>, which
marks short, inline quotations.
list.............................. Contains some form of list, ordered
or unordered. The list may have an
intermixed heading <hd> (generally
only one, possibly with
<prodnote>), and an intermixture of
list items <li> and <pagenum>. If
bullets and outline enumerations
are part of the print content, they
are expected to prefix those list
items in content, rather than be
implicitly generated.
li................................ Marks each list item in a <list>.
<li> content may be either inline
or block and may include other
nested lists. Alternatively it may
contain a sequence of list item
components, <lic>, that identify
regularly occurring content, such
as the heading and page number of
each entry in a table of contents.
hd................................ Marks the text of a heading in a
<list> or <sidebar>.
note.............................. Marks a footnote, endnote, etc. Any
local reference to < note
id=``yyy''> is by [noteref
idref=``[greek-i]yyy''''>.
<Attribute id>
p................................. Contains a paragraph, which may
contain subsidiary <list> or <dl>.
sidebar........................... Contains information supplementary
to the main text and/or narrative
flow and is often boxed and printed
apart from the main text block on a
page. It may have a heading [hd].
cite.............................. Marks a reference (or citation) to
another document.
dd................................ Marks a definition of the preceding
term <dt> within a definition list
<dl>. A definition without a
preceding <dt> has no semantic
interpretation, but is visually
presented aligned with other <dd>.
dl................................ Contains a definition list, usually
consisting of pairs of terms <dt>
and definitions <dd>. Any
definition can contain another
definition list.
[[Page 46816]]
em................................ Indicates emphasis. Usually <em> is
rendered in italics. Compare with
<strong>.
q................................. Contains a short, inline quotation.
Compare with <blockquote>, which
marks a longer quotation set off
from the surrounding text.
strong............................ Marks stronger emphasis than <em>.
Visually <strong> is usually
rendered bold.
sub............................... Indicates a subscript character
(printed below a character's normal
baseline). Can be used recursively
and/or intermixed with <sup>.
sup............................... Marks a superscript character
(printed above a character's normal
baseline). Can be used recursively
and/or intermixed with <sub>.
br................................ Marks a forced line break.
line.............................. Marks a single logical line of text.
Often used in conjunction with
<linenum> in documents with
numbered lines. [Use only when line
breaks must be preserved to capture
meaning (e.g., poems, legal
texts).]
linenum........................... Contains a line number, for example
in legal text. [Use only when
<line> is used, and only for lines
numbered in print book.]
pagenum........................... Contains one page number as it
appears from the print document,
usually inserted at the point
within the file immediately
preceding the first item of content
on a new page. [NB: Only valid when
it includes an id attribute].
noteref........................... Marks one or more characters that
reference a footnote or endnote
<note>. Contrast with <annoref>.
<noteref> and <note> are
independently skippable.
For the most current usage
guidelines, please refer to http://www.daisy.org/z3986/
------------------------------------------------------------------------
e. Tables
------------------------------------------------------------------------
table............................. Contains cells of tabular data
arranged in rows and columns. A
<table> may have a <caption>. It
may have descriptions of the
columns in <col>s or groupings of
several <col> in <colgroup>. A
simple <table> may be made up of
just rows <tr>. A long table
crossing several pages of the print
book should have separate <pagenum>
values for each of the pages
containing that <table> indicated
on the page where it starts. Note
the logical order of optional
<thead>, optional <tfoot>, then one
or more of either <tbody> or just
rows <tr>. This order accommodates
simple or large, complex tables.
The <thead> and <tfoot> information
usually helps identify content of
the <tbody> rows. For a multiple-
page print <table> the <thead> and
<tfoot> are repeated on each page,
but not redundantly tagged.
td................................ Indicates a table cell containing
data.
tr................................ Marks one row of a <table>
containing <th> or <td> cells.
For the most current usage
guidelines, please refer to http://www.daisy.org/z3986/
------------------------------------------------------------------------
f. Images
------------------------------------------------------------------------
imggroup.......................... Provides a container for one or more
<img> and associated <caption>(s)
and <prodnote>(s). A <prodnote> may
contain a description of the image.
The content model allows: 1)
multiple <img> if they share a
caption, with the ids of each <img>
in the < caption imgref=``id1 id2
...''>, 2) multiple <caption> if
several captions refer to a single
<img id=``xxx''> where each caption
has the same < caption
imgref=``xxx''>, 3) multiple
<prodnote> if different versions
are needed for different media
(e.g., large print, braille, or
print). If several <prodnote> refer
to a single <img id=``xxx''>, each
prodnote has the same < prodnote
imgref=``xxx''>.
img............................... Points to the image to be rendered.
An <img> may stand alone or be
grouped using <imggroup>. Note that
providing extracted images is not a
requirement of the NIMAS. If they
are included, it is best to refer
to them using <img> within the
<imggroup> container.
caption........................... Describes a <table> or <img>. If
used with <table> it must follow
immediately after the <table> start
tag. If used with <imggroup> it is
not so constrained.
For the most current usage
guidelines, please refer to http://www.daisy.org/z3986/
------------------------------------------------------------------------
1. The Optional Elements and Guidelines for Use
Publishers are encouraged to apply markup beyond the baseline
(required) elements. The complete DTBook Element Set reflects the
tags necessary to create the six types of Digital Talking Books and
Braille output. Because of the present necessity to subdivide the
creation of alternate format materials into distinct phases, the
Panel determined that baseline elements would be provided by
publishers, and optional elements would be added to the NIMAS-
conformant files by third party conversion entities. In both
circumstances the protocols for tagging digital files should conform
to the most current ANSI/NISO Z39.86 specification. Content
converters are directed to the most current DAISY Structure
Guidelines (http://www.daisy.org/z3986/) for guidance on their use.
Since the publication of the original National File Format
report from which the NIMAS technical specifications were derived,
ANSI/NISO Z39.86-2002 was updated and is now ANSI/NISO Z39.86-2005.
It may be best to avoid using the following optional elements which
are no longer included in ANSI/NISO Z39.86-2005: style, notice, hr,
and levelhd.
Also, the following new elements were introduced by ANSI/NISO
Z39.86-2005 and should be considered optional elements for the
NIMAS: bridgehead, byline, covertitle, dateline, epigraph,
linegroup, and poem. Please refer to ANSI/NISO Z39.86-2005 for
additional information regarding these elements. To access the ANSI/
NISO Z39.86-2005 specification, go to http://www.daisy.org/z3986/.
2. Package File
A package file describes a publication. It identifies all other
files in the publication and provides descriptive and access
information about them. A publication must include a package file
conforming to the NIMAS. The package file is based on the
[[Page 46817]]
Open eBook Publication Structure 1.2 package file specification (For
most recent detail please see http://www.openebook.org/oebps/oebps1.2/download/oeb12-xhtml.htm#sec2). A NIMAS package file must
be an XML-valid OeB PS 1.2 package file instance and must meet the
following additional standards:
The NIMAS Package File must include the following Dublin Core
(dc:)metadata:
dc:Title.
dc:Creator (if applicable).
dc:Publisher.
dc:Date (Date of NIMAS-compliant file creation--yyyy-mm-dd).
dc:Format (=``NIMAS 1.0'').
dc:Identifier (a unique identifier for the NIMAS-compliant digital
publication, e.g., print ISBN + ``-NIMAS''--exact format to be
determined).
dc:Language (one instance, or multiple in the case of a foreign
language textbook, etc.).
dc:Rights (details to be determined).
dc:Source (ISBN of print version of textbook).
And the following x-metadata items:
nimas-SourceEdition (the edition of the print textbook).
nimas-SourceDate (date of publication of the print textbook).
The following metadata were proposed also as a means of
facilitating recordkeeping, storage and file retrieval:
dc:Subject (Lang Arts, Soc Studies, etc.).
nimas-grade (specific grade level of the print textbook, e.g.; Grade
6).
nimas gradeRange (specific grade range of the print textbook, e.g.;
Grades 4-5).
An additional suggestion references the use of:
dc:audience:educationLevel (for the grade and gradeRange
identifiers, noting that Dublin Core recommends using educationLevel
with an appropriate controlled vocabulary for context, and
recommends the U.S. Department of Education's Level of Education
vocabulary online at http://www.ed.gov/admin/reference/index.jsp.
Using educationLevel obviates the need for a separate field for
gradeRange since dc elements can repeat more than once. A book used
in more than one grade would therefore have two elements, one with
value ``Grade 4'' and another with value ``Grade 5.''
A final determination as to which of these specific metadata
elements to use needs to be clarified in practice. The package
manifest must list all provided files (text, images, etc.).
(Note: For purposes of continuity and to minimize errors in
transformation and processing, the NIMAS-compliant digital text
should be provided as a single document.)
3. Modular Extensions
The most current DAISY/NISO standard, formally the ANSI/NISO
Z39.86, Specifications for the Digital Talking Book defines a
comprehensive system for creating Digital Talking Books. A part of
this standard is DTBook, an XML vocabulary that provides a core set
of elements needed to produce most types of books. However, DTBook
is not intended to be an exhaustive vocabulary for all types of
books.
Guidelines for the correct approach to extend the DAISY/NISO
standard have been established. Mathematics, video support, testing,
workbooks, music, dictionaries, chemistry, and searching are some of
the extensions that have been discussed. Visit http://www.daisy.org/z3986/ to learn more about modular extensions.
End
Appendix D to Part 300--Maintenance of Effort and Early Intervening
Services
LEAs that seek to reduce their local maintenance of effort in
accordance with Sec. 300.205(d) and use some of their Part B funds
for early intervening services under Sec. 300.226 must do so with
caution because the local maintenance of effort reduction provision
and the authority to use Part B funds for early intervening services
are interconnected. The decisions that an LEA makes about the amount
of funds that it uses for one purpose affect the amount that it may
use for the other. Below are examples that illustrate how Sec. Sec.
300.205(d) and 300.226(a) affect one another.
Example 1: In this example, the amount that is 15 percent of the
LEA's total grant (see Sec. 300.226(a)), which is the maximum
amount that the LEA may use for early intervening services (EIS), is
greater than the amount that may be used for local maintenance of
effort (MOE) reduction (50 percent of the increase in the LEA's
grant from the prior year's grant) (see Sec. 300.205(a)).
Prior Year's Allocation................................. $900,000.
Current Year's Allocation............................... 1,000,000.
Increase................................................ 100,000.
Maximum Available for MOE Reduction..................... 50,000.
Maximum Available for EIS............................... 150,000.
If the LEA chooses to set aside $150,000 for EIS, it may not
reduce its MOE (MOE maximum $50,000 less $150,000 for EIS means $0
can be used for MOE).
If the LEA chooses to set aside $100,000 for EIS, it may not
reduce its MOE (MOE maximum $50,000 less $100,000 for EIS means $0
can be used for MOE).
If the LEA chooses to set aside $50,000 for EIS, it may not
reduce its MOE (MOE maximum $50,000 less $50,000 for EIS means $0
can be used for MOE).
If the LEA chooses to set aside $30,000 for EIS, it may reduce
its MOE by $20,000 (MOE maximum $50,000 less $30,000 for EIS means
$20,000 can be used for MOE).
If the LEA chooses to set aside $0 for EIS, it may reduce its
MOE by $50,000 (MOE maximum $50,000 less $0 for EIS means $50,000
can be used for MOE).
Example 2: In this example, the amount that is 15 percent of the
LEA's total grant (see Sec. 300.226(a)), which is the maximum
amount that the LEA may use for EIS, is less than the amount that
may be used for MOE reduction (50 percent of the increase in the
LEA's grant from the prior year's grant) (see Sec. 300.205(a)).
Prior Year's Allocation................................. $1,000,000.
Current Year's Allocation............................... 2,000,000.
Increase................................................ 1,000,000.
Maximum Available for MOE Reduction..................... 500,000.
Maximum Available for EIS............................... 300,000.
If the LEA chooses to use no funds for MOE, it may set aside
$300,000 for EIS (EIS maximum $300,000 less $0 means $300,000 for
EIS).
If the LEA chooses to use $100,000 for MOE, it may set aside
$200,000 for EIS (EIS maximum $300,000 less $100,000 means $200,000
for EIS).
If the LEA chooses to use $150,000 for MOE, it may set aside
$150,000 for EIS (EIS maximum $300,000 less $150,000 means $150,000
for EIS).
If the LEA chooses to use $300,000 for MOE, it may not set aside
anything for EIS (EIS maximum $300,000 less $300,000 means $0 for
EIS).
If the LEA chooses to use $500,000 for MOE, it may not set aside
anything for EIS (EIS maximum $300,000 less $500,000 means $0 for
EIS).
Appendix E to Part 300--Index for IDEA--Part B Regulations (34 CFR Part
300)
ACCESS TO
Access rights (Parents)........................... 300.613.
Assistive technology devices in child's home...... 300.105(b).
Disciplinary records.............................. 300.229.
Education records (Procedural safeguards notice).. 300.504(c)(4).
General curriculum (Ensure access to)............. 300.39(b)(3)(ii).
Instructional materials (see Sec. Sec. 300.172,
300.210).
List of employees who may have access to records.. 300.623(d).
Parent's private insurance proceeds............... 300.154(e).
Record of access (Confidentiality)................ 300.614.
ACCESSIBILITY STANDARDS (Regarding construction)
Americans with Disabilities Accessibility 300.718(b)(1).
Standards for Buildings and Facilities.
Uniform Federal Accessibility Standards........... 300.718(b)(2).
ACCOMMODATIONS
In assessments.................................... 300.320(a)(6)(i).
State level activities in support of.............. 300.704(b)(4)(x).
[[Page 46818]]
ACT (Definition)........................................... 300.4.
ADD AND ADHD (See ``Attention deficit disorder'' and
``Attention deficit hyperactivity disorder'')
ADDITIONAL DISCLOSURE OF INFORMATION REQUIREMENT........... 300.512(b).
ADULT CORRECTIONAL FACILITIES (See ``Correctional
facilities'')
ADULT PRISONS (Children with disabilities in)
Divided State agency responsibility............... 300.607.
FAPE requirements:
[cir] Exception to FAPE................................ 300.102(a)(2).
[cir] Modifications of IEP or placement................ 300.324(d)(2).
[cir] Requirements that do not apply................... 300.324(d)(1).
Governor.......................................... 300.149(d).
Other public agency responsibility................ 300.149(d).
ADVERSELY AFFECTS EDUCATIONAL PERFORMANCE (See ``Child with
a disability,'' Sec. 300.8(c)(1)(i), (c)(3), (c)(4)(i),
(c)(5), (c)(6), (c)(8), (c)(9)(ii), (c)(11), (c)(12))
ADVISORY BOARD
(Secretary of the Interior)................................ 300.714.
ADVISORY PANEL (See ``State advisory panel'')
AGE-APPROPRIATE CLASSROOM.................................. 300.116(e).
ALLOCATION(S)
By-pass for private school children (see Sec.
300.191(d)).
To LEAs (see Sec. Sec. 300.705(b), 300.816)
To Outlying areas................................. 300.701(a).
To Secretary of the Interior...................... 300.707.
To States (see Sec. Sec. 300.703, 300.807
through 300.810).
ALLOWABLE COSTS
(By SEA for State administration).......................... 300.704(a).
ALTERATION OF FACILITIES................................... 300.718(b).
ALTERNATE ASSESSMENTS
Aligned with alternate achievement standards...... 300.320(a)(2)(ii).
Development and provision of in accordance with 300.704(b)(4)(x).
ESEA.
Participation determined by IEP Team.............. 300.320(a)(6)(ii).
ALTERNATIVE PLACEMENTS (Continuum)......................... 300.115.
ALTERNATIVE STRATEGIES to meet transition objectives....... 300.324(c)(1).
AMENDMENTS
To LEA policies and procedures.................... 300.220(b).
To State policies and procedures:
[cir] Made by State.................................... 300.176(b).
[cir] Required by the Secretary........................ 300.176(c).
ANNUAL GOALS (IEPs)
FAPE for children suspended or expelled (see Sec.
Sec. 300.101(a), 300.530(d))
IEP content:
[cir] How progress will be measured.................... 300.320(a)(3).
[cir] Special education and related services........... 300.320(a)(4).
[cir] Statement of measurable annual goals............. 300.320(a)(2)(i).
Review and revision of IEP........................ 300.324(b)(1).
Review of existing evaluation data................ 300.305(a).
ANNUAL REPORT
Of children served (see Sec. Sec. 300.640 through
300.646)
On education of Indian children............................ 300.715.
APPENDICES TO PART 300 (A through E)
Excess Costs Calculation (see Appendix A)
Proportionate Share Calculation (see Appendix B)
National Instructional Materials Accessibility Standard
(NIMAS) (see Appendix C)
Maintenance of Effort and Early Intervening Services (see
Appendix D)
Index for IDEA--Part B Regulations (This Appendix E)
APPLICABILITY OF THIS PART to State, local, and private 300.2.
agencies.
APPLICATION
Initial admission to public school................ 300.518(b).
Initial services.................................. 300.518(c).
ASSESSMENT(S)
For specific learning disability (see Sec.
300.309(a)(2)(ii), (b)(2))
Functional behavioral assessment (see Sec.
300.530(d)(1)(ii), (f)(1)(i))
In evaluation (see Sec. Sec. 300.304(b), (c),
300.305(a)(1)(ii), (c), (d))
Of leisure function (in ``Recreation'')........... 300.34(c)(11)(i).
ASSESSMENTS--STATE and DISTRICT-WIDE
Alternate assessments (see Sec. 300.320 (a)(2)(ii),
(a)(6)(ii))
Performance indicators..................................... 300.157.
ASSISTANCE UNDER OTHER FEDERAL PROGRAMS.................... 300.186.
ASSISTIVE TECHNOLOGY (AT)
AT devices........................................ 300.5.
AT services....................................... 300.6.
[[Page 46819]]
Consideration of special factors.................. 300.324(a)(2)(v).
Hearing aids...................................... 300.113.
Requirement:
[cir] Ensure availability of........................... 300.105(a).
[cir] Use of AT in child's home........................ 300.105(b).
Surgically implanted medical devices (see Sec.
Sec. 300.5, 300.34(b), 300.113(b))
ASTHMA..................................................... 300.8(c)(9).
ATTENTION DEFICIT DISORDER (ADD)........................... 300.8(c)(9).
ATTENTION DEFICIT HYPERACTIVITY DISORDER (ADHD)............ 300.8(c)(9).
ATTORNEYS' FEES............................................ 300.517.
Award of fees..................................... 300.517(c).
Prohibition on use of funds for................... 300.517(b).
When court reduces fee awards..................... 300.517(c)(4).
AUDIOLOGY.................................................. 300.34(c)(1).
AUTHORITY (A-O)
Of guardian....................................... 300.30(a)(3).
Of hearing officer (Discipline)................... 300.532(b).
Of school personnel (Discipline).................. 300.530.
Of Secretary to monitor and enforce............... 300.609.
AUTHORITY (P-Z)
Parental authority to inspect and review records.. 300.613.
State complaint procedures........................ 300.151(b).
Waiver request (Signed by person with authority).. 300.164(c)(1).
AUTISM..................................................... 300.8(c)(1).
AVERAGE PER-PUPIL EXPENDITURE
(Definition)............................................... 300.717(d).
BASE PAYMENTS (to LEAs) (See Sec. 300.705(b)(1), (b)(2))
BASIS OF KNOWLEDGE: Protection for children not yet 300.534(b).
eligible.
BEHAVIORAL ASSESSMENT (See ``Functional behavioral
assessment'')
BEHAVIORAL INTERVENTION(S)................................. 300.530(f).
Assist in developing.............................. 300.34(c)(10)(vi).
Behavioral intervention plan...................... 300.530(f).
Consideration of by IEP Team...................... 300.324(a)(2)(i).
Not a manifestation of disability................. 300.530(d).
Regular education teacher (Determination of)...... 300.324(a)(3).
Suspension and expulsion rates.................... 300.170(b).
BENCHMARKS OR SHORT TERM OBJECTIVES........................ 300.320(a)(2)(ii).
BENEFITS TO NONDISABLED (Permissive use of funds).......... 300.208(a)(1).
BIA (See ``Bureau of Indian Affairs'')
BLIND(NESS): Under ``Visual impairment''
Access to instructional materials (see Sec. Sec.
300.172, 300.210(b)(3))
Consideration of special factors by IEP Team...... 300.324(a)(2).
Definition........................................ 300.8(c)(13).
BRAILLE (see Sec. Sec. 300.29(b), 300.324(a)(2)(iii))
BUREAU OF INDIAN AFFAIRS (BIA)
BIA funded schools................................ 300.28(c).
In definition of ``LEA''.......................... 300.28(c).
See also Sec. Sec. 300.21(c), 300.713(b), (d),
300.714
Use of funds...................................... 300.712(d).
BUSINESS DAY
Definition........................................ 300.11(b).
See ``Timelines,'' ``Timelines--Discipline''
BY-PASS: Private school children with disabilities (see
Sec. Sec. 300.190 through 300.198)
CALENDAR DAY
Definition........................................ 300.11(a).
See ``Timelines,'' ``Timelines--Discipline''
CERTIFICATION
Annual report of children served.................. 300.643.
CHANGE OF PLACEMENT BECAUSE OF DISCIPLINARY REMOVALS....... 300.536.
CHARTER SCHOOLS
Applicability of this part to..................... 300.2(b)(1)(ii).
Definition........................................ 300.7.
Exception: joint establishment of eligibility..... 300.223(b).
In definition of ``Elementary school''............ 300.13.
In definition of ``LEA''.......................... 300.28(b)(2).
In definition of ``Public agency''................ 300.33.
In definition of ``Secondary school''............. 300.36.
State-level activities regarding charter schools.. 300.704(b)(4)(ix).
Treatment of charter schools and their students... 300.209.
CHIEF EXECUTIVE OFFICER (CEO)
[[Page 46820]]
Adult prisons (Assigned by Governor).............. 300.149(d).
Methods of ensuring services (see Sec.
300.154(a), (c))
CHILD COUNT
Annual report of children served (see Sec. Sec.
300.640 through 300.646)
Certification..................................... 300.643.
Criteria for...................................... 300.644.
Dates for count................................... 300.641(a).
Indian children................................... 300.712(b).
LEA records of private school children............ 300.132(c).
Procedures for counting children served........... 300.645(a).
CHILD FIND
Basic requirement................................. 300.111(a).
Children advancing from grade to grade............ 300.111(c)(1).
Developmental delay............................... 300.111(b).
Highly mobile children............................ 300.111(c)(2).
Homeless children................................. 300.111(a)(1)(i).
Indian children aged 3 through 5.................. 300.712(d)(1).
Migrant children.................................. 300.111(c)(2).
Private school children........................... 300.131(b).
Protections for children not determined eligible.. 300.534.
Secretaries of the Interior and Health and Human 300.708(i)(2).
Services (Memo of agreement).
CHILD WITH A DISABILITY (CWD)
Adversely affects educational performance (see
Sec. 300.8(c)(1)(i), (c)(3), (c)(4)(i), (c)(5), (c)(6),
(c)(8), (c)(9)(ii), (c)(11), (c)(12), (c)(13))
Children experiencing developmental delay(s)...... 300.8(b)(1).
Children who need only a related service.......... 300.8(a)(2).
Definition........................................ 300.8(a)(1).
Individual disability terms (Defined)............. 300.8(c).
Requirement....................................... 300.111(b).
See ``Developmental delay(s)''
CHILD'S STATUS DURING PROCEEDINGS
Discipline (see Sec. Sec. 300.530(f)(2),
300.533)
Pendency (Stay put)............................... 300.518.
CHILDREN ADVANCING FROM GRADE TO GRADE
Child find........................................ 300.111(c)(1).
FAPE.............................................. 300.101(c).
CHILDREN EXPERIENCING DEVELOPMENTAL DELAY(S) (See
``Developmental delay(s)'')
CHILDREN'S RIGHTS (Confidentiality)........................ 300.625.
CIVIL ACTION--PROCEEDINGS.................................. 300.516.
Finality of review decision....................... 300.514(d).
Mediation......................................... 300.506(b)(6)(i).
Procedural safeguards notice...................... 300.504(c)(12).
See ``Court(s)''
COCHLEAR IMPLANT (See ``Surgically implanted medical 300.34(b).
device'').
CODE OF CONDUCT
Case-by-case determination........................ 300.530(a).
Manifestation determination review................ 300.530(e).
Protections for children not determined eligible.. 300.534(a).
COMMINGLING--PROHIBITION AGAINST........................... 300.162(b).
COMMUNITY-BASED WAIVERS (Public benefits or insurance)..... 300.154(d)(2)(iii).
COMPLAINT(S): DUE PROCESS
Attorneys' fees................................... 300.517(a)(1).
Civil action...................................... 300.516(a).
Pendency.......................................... 300.518(a).
Private school children (Complaints).............. 300.140(c).
See ``Due process hearing(s) and reviews''
COMPLAINT(S): STATE COMPLAINT PROCEDURES (A-P)
Adoption of State complaint procedures............ 300.151(a).
Complaint investigations (SEA allocations for).... 300.704(b)(3)(i).
Filing a complaint................................ 300.153(a).
Minimum State complaint procedures................ 300.152.
Private schools (State complaints)................ 300.140.
Procedural safeguards notice...................... 300.504(c).
Provisions for services under by-pass............. 300.191(d).
Public agency failure to implement hearing 300.152(c)(3).
decision.
COMPLAINT(S): STATE COMPLAINT PROCEDURES (Q-Z)
See also Sec. Sec. 300.151 through 300.153
Time limit........................................ 300.152(a).
Waiver of nonsupplanting requirement.............. 300.163(c)(2).
COMPLIANCE--COMPLY (A-M)
Child find requirements........................... 300.111(a).
Department procedures (If failure to comply)...... 300.604(c).
FAPE requirement.................................. 300.101(a).
[[Page 46821]]
LEA and State agency compliance................... 300.222(a).
LRE (State funding mechanism)..................... 300.114(b).
Modifications of policies:........................
[cir] Made by LEA or State agency...................... 300.176(b).
[cir] Required by SEA.................................. 300.220(c).
[cir] Required by Secretary............................ 300.176(c).
Monitoring (See ``Monitor; Monitoring
activities'');
COMPLIANCE--COMPLY (N-Z)
Physical education................................ 300.108.
Private school placement by parents............... 300.148(e).
Private school placements by public agencies:
[cir] IEP requirement.................................. 300.325(c).
[cir] SEA (Monitor compliance)......................... 300.147(a)
Public participation requirements................. 300.165.
SEA responsibility if LEA does not comply......... 300.227(a).
State funding mechanism (LRE)..................... 300.114(b).
COMPREHENSIVE EVALUATION.......................... 300.304(c)(6).
CONDITION OF ASSISTANCE
LEA eligibility................................... 300.200.
State eligibility................................. 300.100.
CONFIDENTIALITY (A-C)
Access rights..................................... 300.613.
Children's rights................................. 300.625.
Consent........................................... 300.622.
CONFIDENTIALITY (D-E)
Definitions:
[cir] Destruction of information....................... 300.611(a).
[cir] Education records................................ 300.611(b).
[cir] Participating agency............................. 300.611(c).
Department use of personally identifiable 300.627.
information.
Disciplinary information.......................... 300.229.
Enforcement by SEA................................ 300.626.
CONFIDENTIALITY (F-Z)
Family Educational Rights and Privacy Act:
[cir] Children's rights................................ 300.625.
[cir] Disciplinary records............................. 300.535(b)(2).
[cir] In definition of ``Education records''........... 300.611(b).
[cir] Notice to parents................................ 300.612(a)(3).
Fees.............................................. 300.617.
Hearing procedures................................ 300.621.
List of types and location of information......... 300.616.
Notice to parents................................. 300.612(a).
Opportunity for a hearing......................... 300.619.
Parental authority to inspect and review records.. 300.613(b).
Record of access.................................. 300.614.
Records on more than one child.................... 300.615.
Result of hearing................................. 300.620.
Safeguards........................................ 300.623.
State eligibility requirement..................... 300.123.
CONSENT (A-I)