[Federal Register Volume 80, Number 122 (Thursday, June 25, 2015)]
[Rules and Regulations]
[Pages 36654-36688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-15343]



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Vol. 80

Thursday,

No. 122

June 25, 2015

Part III





Department of Defense





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32 CFR Part 57





 Provision of Early Intervention and Special Education Services to 
Eligible DoD Dependents; Final Rule

  Federal Register / Vol. 80 , No. 122 / Thursday, June 25, 2015 / 
Rules and Regulations  

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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 57

[Docket ID: DOD-2011-OS-0095]
RIN 0790-AI77


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

AGENCY: Office of the Secretary, Department of Defense (DoD).

ACTION: Final rule.

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SUMMARY: This rule reissues the current regulations and: Establishes 
policy, assigns responsibilities, and implements the non-funding and 
non-reporting provisions in DoD for: Provision of early intervention 
services (EIS) to infants and toddlers with disabilities and their 
families, as well as special education and related services to children 
with disabilities entitled under this part to receive education 
services from the DoD; implementation of a comprehensive, 
multidisciplinary program of EIS for infants and toddlers with 
disabilities and their families who, but for age, are eligible to be 
enrolled in DoD schools; provision of a free appropriate public 
education (FAPE), including special education and related services, for 
children with disabilities, as specified in their individualized 
education programs (IEP), who are eligible to enroll in DoD schools; 
and monitoring of DoD programs providing EIS, and special education and 
related services for compliance with this part. This rule also 
establishes a DoD Coordinating Committee to recommend policies and 
provide compliance oversight for early intervention and special 
education.

DATES: This rule is effective on July 27, 2015.

FOR FURTHER INFORMATION CONTACT: Ed Tyner, 571-372-5320.

SUPPLEMENTARY INFORMATION: 

I. Purpose of the Regulatory Action

    a. This rule revises the current regulations in 32 CFR part 57 to 
incorporate the 2004 amendments to the IDEA and establishes other 
policy and assigns responsibilities to implement the non-funding and 
non-reporting provisions of Parts B and C of the IDEA. Under 10 U.S.C. 
2164(f) and 20 U.S.C. 927(c), DoD implements, within the DoD school 
system, the Department of Defense Education Activity (DoDEA), the 
applicable statutory provisions of Parts B and C of the IDEA, other 
than the funding and reporting provisions. This rule brings the DoD 
into compliance with the requirements of the non-funding and non-
reporting provisions of IDEA by updating and amending the DoD 
implementation of the IDEA within the DoD school system. The revisions 
will ensure that eligible children with disabilities are afforded the 
services and safeguards as required by applicable statutory provisions 
of IDEA. The IDEA regulations in 34 CFR parts 300 and 303, which apply 
to States that receive funds from the U.S. Department of Education 
under IDEA Parts B and C, do not apply to the DoD school systems as DoD 
does not receive funds under the IDEA. Nothing in the regulations in 32 
CFR part 57 would affect the applicability of the U.S. Department of 
Education's regulations implementing IDEA in 34 CFR parts 300 and 303.
    b. The Individuals with Disabilities Education Act (chapter 33 of 
20 U.S.C. 1400 et seq.) is the final authority for the regulatory 
changes to the Department of Defense policy (32 CFR part 57) regarding 
the provision of services to children with disabilities (birth through 
age 21) in the DoD Domestic Dependent Elementary and Secondary Schools 
(10 U.S.C. 2164) and the Department of Defense Dependents Education 
System (20 U.S.C. 921-932).

II. Summary of the Major Provisions of the Regulatory Action in 
Question

    This rule identifies the services and procedural safeguards 
afforded to DoD dependent infants and toddlers and their families who 
are eligible for early intervention services under the IDEA and this 
part; identifies the services and procedural safeguards afforded to DoD 
dependent children with disabilities age 3-21 (inclusive) who are 
eligible for a free and appropriate public education under the IDEA and 
this part; outlines procedures and timelines for the transition of 
young children from early intervention services to school-based 
preschool services; identifies the procedures available for resolution 
of disputes regarding the provision of early intervention services, or 
special education and related services; establishes early intervention 
and special education monitoring and reporting requirements; and 
establishes procedures within the DoD for implementing the applicable 
statutory provisions of the IDEA and this part.

III. Costs and Benefits

    The provision of early intervention and special education, and 
related services, is funded through Congressional appropriations to the 
DoD. The Department of Defense Education Activity (DoDEA) and the 
medical elements of the Military Departments, which are responsible for 
providing services to children with special needs, receive their 
funding from DoD. DoDEA funding is in Defense-wide, Operation and 
Maintenance funds. The cost of the special education program is 
included in the combined DoDEA/Military Departments cost that is used 
to operate all parts of the educational program. The approximate cost 
for the special education program for FY2011 was $107,851,606.94. Total 
includes cost for personnel (salaries/benefits), contracts, travel, and 
equipment/supplies.
    The approximate cost for the provision of early intervention and 
related services by the Military Departments is $32,000,000 annually. 
Total includes cost for personnel, travel, professional development, 
and materials/supplies.
    This rule updates DoD guidance to reflect the current version of 
the requirements resulting from the non-funding and non-reporting 
provisions of the IDEA, thereby ensuring that eligible infants and 
toddlers and children with disabilities, including those of military 
families, are aware of and provided the services and safeguards 
required by federal statute. The non-funding and non-reporting 
provisions of the IDEA are the substantive rights, protections, and 
procedural safeguards that apply to DoD. These are applicable as 
opposed to the ``funding'' and ``reporting'' provisions because DoD 
schools and child development centers do not receive funding from the 
US Department of Education and therefore, the IDEA statutory reporting 
and related funding provisions do not apply to DoD.

IV. Retrospective Review

    The revisions to this rule will be reported in future status 
updates as part of DoD's retrospective plan under Executive Order 13563 
completed in August 2011. DoD's full plan can be accessed at: http://www.regulations.gov/#!docketDetail;D=DOD-2011-OS-0036.

V. Public Comments

    The Department of Defense published a proposed rule in the Federal 
Register on December 13, 2013 (78 FR 75998-76027) for a 60-day public 
comment period. We received seventy comments from different respondents 
on the proposed rule.
    Six of the public comments supported specific provisions of the 
proposed rule. Three of the respondents approved of the new 
Administrative Complaint procedures, citing this as an important 
dispute resolution option for military

[[Page 36655]]

families. One person expressed similar support for the mediation 
process. One commenter validated the importance of ensuring informed 
parental consent prior to evaluations, and one respondent expressed 
appreciation for the opportunity for parents of an infant or toddler, 
especially those new to early intervention, to bring a family member or 
other individuals to Individualized Family Service Plan (IFSP) 
meetings.
    In reviewing the rule, DoD noted an error with the numbering in 
Sec.  57.6(b). The regulation skipped from Sec.  57.6(b)(10) to Sec.  
57.6(b)(12) and appeared to eliminate Sec.  57.6(b)(11). Section 
57.6(b)(11) had been removed and inadvertently the numbering of the 
remaining sections was not changed. The numbering has been corrected; 
section titles are: Sec.  57.6(b)(11) Extended School Year (ESY) 
Services; Sec.  57.6(b)(12) Discipline; Sec.  57.6(b)(13) Children Not 
Yet Determined Eligible for Special Education; Sec.  57.6(b)(14) 
Referral to and Action by Law Enforcement and Judicial Authorities; 
Sec.  57.6(b)(15) Children with Disabilities Who Are Placed in a Non-
DoDEA School or Facility Pursuant to an IEP; Sec.  57.6(b)(16) 
Confidentiality of the Records; Sec.  57.6(b)(17) Parental Consent; 
Sec.  57.6(b)(18) Parent Revocation of Consent for Continued Special 
Education and Related Services; and Sec.  57.6(b)(19) Procedural 
Safeguards.
    Two respondents submitted comments regarding the criteria for early 
intervention eligibility. They noted the variability in criteria used 
by States and urged DoD to employ generous eligibility criteria. Text 
was added to Sec.  57.6(a)(4)(ii)(A) to clarify DoD's eligibility 
criteria of a 25 percent delay. Text now reads, ``The infant or toddler 
is experiencing a developmental delay in one or more of the following 
areas: Physical development; cognitive development; communication 
development; social or emotional development; or adaptive development; 
as verified by a developmental delay of two standard deviations below 
the mean as measured by diagnostic instruments and procedures in at 
least one area; a 25 percent delay in at least one developmental area 
on assessment instruments that yield scores in months; a developmental 
delay of 1.5 standard deviations below the mean as measured by 
diagnostic instruments and procedures in two or more areas; or a 20 
percent delay in two or more developmental areas on assessment 
instruments that yield scores in months.'' Additionally, Sec.  
57.6(a)(4)(ii)(B) was modified to clarify the conditions under which an 
infant or toddler may be ``at-risk'' for a developmental delay and 
therefore eligible for services. Section 57.6(a)(4)(ii)(B) now reads, 
``The infant or toddler has a diagnosed physical or mental condition 
that has a high probability of resulting in a developmental delay. 
Includes conditions such as chromosomal abnormalities; genetic or 
congenital disorders; moderate to severe sensory impairments; inborn 
errors of metabolism; disorders reflecting disturbance of the 
development of the nervous system; congenital infections; and disorders 
secondary to exposure to toxic substances, including fetal alcohol 
syndrome.''
    Several comments were received regarding assessments and 
evaluations of infants and toddlers. One commenter provided suggestions 
for implementation, which did not call for modification of the proposed 
rule. Another commenter expressed concern that the proposed Sec.  
57.6(a)(3) did not appear to require the identification of the services 
and supports needed to enhance a family's capacity to meet an infant or 
toddlers' developmental needs. We agree that clarification of the need 
for identification of family services and supports is appropriate. Text 
was added to Sec.  57.6(a)(3)(ii)(B)(4) to read, ``Incorporate the 
family's description of its resources, priorities, and concerns related 
to enhancing the infant's or toddler's development and the 
identification of the supports and services necessary to enhance the 
family's capacity to meet the developmental needs of the infant or 
toddler.''
    Several respondents suggested that the regulation should more 
clearly explain that comparable services for transferring students 
should include extended year services (ESY) if such services were 
included on the child's IEP when transitioning to a new school. We 
agree and appreciate the reference to the model provided by the 
Department of Education in its July 19, 2013 Letter to the State 
Directors of Special Education on this point. Section 57.6(b)(3)(i)(B) 
has been modified to read, ``Provide FAPE, including services 
comparable (i.e., similar or equivalent) to those described in the 
incoming IEP, which could include extended school year services, in 
consultation with the parents, until the CSC.''
    One commenter addressed the need for parental support during the 
child's transition from Early Intervention Services (EIS), and 
recommended DoD adopt requirements parallel to those set forth for 
state schools in the Department of Education's regulation. We agree 
that parents would benefit from being informed, in the final 
Individualized Family Service Plan (IFSP), of the steps required by the 
early intervention provider when transitioning a child out of the 
program. For clarity, Sec.  57.6(a)(7) has been retitled ``Transition 
from Early Intervention Services'' and clarifying text has been added 
at the end of (7)(i) to better ensure that such supportive steps are 
taken to facilitate the parents' participation and the child's 
transition from EIS to preschool or other environments. The text now 
reads, ``EDIS shall provide a written transition plan for toddlers 
receiving EIS to facilitate their transition to preschool or other 
setting, if appropriate. A transition plan must be recorded on the IFSP 
between the toddler's second and third birthday and not later than 90 
days before the toddler's third birthday and shall include the 
following steps to be taken: (A) A plan for discussions with, and 
training of, parents, as appropriate, regarding future transition from 
early intervention services, and for obtaining parental consent to 
facilitate release of toddler records in order to meet child-find 
requirements of DoDEA, and to ensure smooth transition of services; (B) 
The specific steps to be taken to help the toddler adjust to, and 
function in, the preschool or other setting and changes in service 
delivery; (C) The procedures for providing notice of the transition to 
the DoDEA CSC, for setting a pre-transition meeting with the CSC (with 
notice to parents), and for confirmation that child-find information, 
early intervention assessment reports, the IFSP, and relevant 
supporting documentation are transmitted to the DoDEA CSC; (D) 
Identification of transition services or other activities that the IFSP 
team determines are necessary to support the transition of the child.''
    Several comments were submitted regarding the proposed rule's 
provisions regarding requests for evaluation and eligibility 
determination. One commenter argued that requiring a parent to submit 
``a written request for an evaluation'' was inconsistent with IDEA and 
urged that an oral request should be sufficient to trigger a referral 
and, as appropriate, further evaluation. A second comment from the same 
source recommended the addition of language requiring ``reasonable 
efforts'' to obtain consent to an evaluation. Another commenter 
recommended specific language requiring the eligibility review team to 
review parent-provided information. As to the first comment, IDEA does 
not specify the medium or manner of request for an evaluation. We 
believe that a written

[[Page 36656]]

request encourages clarity of expectations and provides an important 
procedural record. However, this comment has highlighted the fact that 
the regulation would benefit from language specifying responsibilities 
for ensuring the request is committed to writing. We concur with the 
second and third proposed clarifications. Sec.  57.6(b)(4) has been 
modified to read, ``A parent may submit a request for an evaluation if 
they suspect their child has a disability. The CSC shall ensure any 
such request is placed in writing and signed by the requesting parent 
and shall, within 15 school days, review the request and any 
information provided by the parents regarding their concerns, confer 
with the child's teachers, and gather information related to the 
educational concerns. Following a review of the information, the CSC 
shall:'' Section 57.6(b)(6) was modified to include Sec.  
57.6(b)(6)(i)(D) with the requirement that the school ``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.''
    One comment was addressed to the use of pre-referral services and 
the language of Sec.  57.6(b)(5). The commenter recommended that the 
regulation include additional language regarding the use of pre-
referral interventions, including a specific mandate that the use of 
such services should not be used to delay provision of ``IDEA 
services.'' Pre-referral services are intended, in the context of the 
reauthorized IDEA, for students in kindergarten through grade 12 who 
are not currently identified as needing special education and related 
services, but who need additional academic and behavioral support to 
succeed in the general education environment. Pre-referral activities 
as implemented in DoDEA are designed to assist a student who is 
demonstrating learning and/or behavioral difficulties in the general 
education classroom. The pre-referral process is not used to limit 
FAPE, but is a collaborative effort by the child's teacher and 
appropriate school personnel to help improve a student's performance by 
using targeted, research-based interventions. We agree that the 
language of Sec.  57.6(b)(5) could be modified to address the 
requirements of this process more clearly. Sec.  57.6(b)(5)(i) has been 
modified to clarify that prior to referring a child who is struggling 
academically or behaviorally to the CSC for assessment and evaluation 
and development of an IEP, the teacher shall identify the child's areas 
of specific instructional need and target instructional interventions 
to those needs as soon as the areas of need become apparent. We also 
added language requiring those interventions to use scientific, 
research-based interventions. Throughout the pre-referral process, the 
teachers confer with the parents to ensure their awareness of the 
concern and planned interventions, and that parents are informed of the 
child's progress. Therefore, we do not believe inclusion of an 
additional notice requirement is necessary.
    One commenter provided multiple comments regarding the rights of 
parental participation in IEP meetings. The first comment urged that 
expanded language about parental participation in meetings should be 
added to the regulation at Sec.  57.6(b)(1). The commenter also 
suggested that notice of the IDEA procedural safeguards be made 
available on the DoDEA Web site. That commenter also suggested 
modification of the language of Sec.  57.6(b)(8)(ii) to make it clear 
that parents can bring persons with expertise regarding the IDEA, e.g., 
parent advocates, to CSC meetings. We do not agree that additional 
detail regarding specific procedures for parent participation needs to 
be added to the regulation. The procedures for notifying parents of 
meetings, scheduling at a mutually convenient time, and maintaining a 
record of the meeting, as well as guidelines if a parent is unable to 
attend a meeting, are included in the DoDEA Special Education 
Procedural Guide. The Guide is available online at http://
www.dodea.edu/Curriculum/specialEduc/upload/SPEDproceduralGuide.pdf. 
The handbook, ``Parents Rights for Special Education-Notice of 
Procedural Safeguards,'' is already on the DoDEA Web site, together 
with other information accessible at http://www.dodea.edu/Curriculum/specialEduc/parentsInfo.cfm. We agree with the suggested addition to 
Sec.  57.6(b)(8)(ii) and text has been modified to ensure parents 
understand they can invite an individual with special knowledge and 
expertise in the IDEA and its procedures to attend CSC meetings.
    A number of comments were received regarding assessment and 
evaluation of school-aged children. One commenter recommended that 
Sec.  57.6(b)(6) should be revised to require that a professional from 
each suspected disability area should be part of the evaluation team. A 
second commenter recommended addition to Sec.  57.6(b)(6), assessment 
of the nature and level of communication functioning, because 
communication is affected by many disabilities. That same commenter 
also urged that Sec.  57.6(b)(6) should include not only academic 
needs, but functional performance needs, which would be more consistent 
with a broader understanding of educational needs. We agree with these 
three recommendations and the broader focus of educational needs 
intended to be identified in a child's assessment and evaluation. The 
final rule, at Sec.  57.6(b)(6)(iv) has been revised to require ``At 
least one specialist with knowledge in each area of the suspected 
disability shall be a member of the multidisciplinary assessment team'' 
and Sec.  57.6(b)(7)(i)(A) modified to ``Require that the full 
comprehensive evaluation of the child is accomplished by a 
multidisciplinary team including specialists with knowledge in each 
area of the suspected disability and shall receive input from the 
child's parent(s).'' At Sec.  57.6(b)(6)(ii)(D)(1) the rule was revised 
to include assessment of the nature and level of communication 
functioning. In addition Sec.  57.6(b)(6)(xi)(B) was revised to include 
not only academic needs, but related developmental and functional 
needs, as well. The content sought by the fourth recommendation is 
already addressed in Sec.  57.6(b)(6)(ix) and (x).
    Two commenters asked for text clarifying the membership of parents 
and special education teachers and providers on the IEP team (DoDEA's 
CSC). We do not disagree that Sec.  57.6(b)(8)(ii)(B) would benefit 
from these changes. We note, however, that ``parent'' in the DoD system 
is defined elsewhere in the regulation. In conformity with 20 U.S.C. 
1414, Sec.  57.6(b)(8)(ii)(B)(3) has been revised to read, ``Not less 
than one special education teacher or, where appropriate, not less than 
one special education provider of such child,'' and the exact language 
of the IDEA, ``the child's parents,'' now replaces the phrase ``one or 
both of the child's parents'' used in the proposed rule at Sec.  
57.6(b)(8)(ii)(B)(4).
    One commenter suggested amendment of Sec.  57.6(b)(8)(iii) to 
require a description of short-term objectives or benchmarks for all 
children, including those who take alternate assessments as required by 
20 U.S.C. 1414(d)(1)(A)(i)(I)(cc). For students taking an alternate 
assessment aligned to alternate standards, IDEA requires a description 
of benchmarks or short-term objectives. DoDEA IEPs have always 
contained long-term goals and short-term objectives. Including short-
term objectives under long-term annual goals enables DoDEA to track and 
substantiate student progress. To reinforce this requirement, ``For 
children with disabilities who take an alternate

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assessment, a description of short-term objectives,'' was added at 
Sec.  57.6(b)(8)(iii)(A)(3).
    One commenter expressed concern that the proposed rule used 
language inconsistent with 20 U.S.C. 1415(k)(1)(B) when establishing 
criteria for disciplinary removals and use of the Alternate Educational 
Setting (AES). While we did not concur with all the concerns of this 
commenter, we appreciate the commenter's attention to detail and 
recognize that the terminology used resulted in a gap in the regulation 
for what would happen on the 10th day of a child's removal from the 
school, as well as a lack of clarity as to the entity empowered to 
determine an AES and other aspects of the disciplinary procedures 
identified in IDEA. Section 57.6(b)(12)(ii)(B) was modified by 
replacing the phase ``less than'' with ``not more than.'' Other changes 
to Sec.  57.6(b)(12)(iii) were made to better conform to 20 U.S.C. 
1414(k), clarify the circumstances in which an AES must be determined 
by the CSC, and reconcile various provisions of the regulation. The 
title at Sec.  57.6(b)(12)(v) was modified to reduce confusion as to 
what constitutes the ``manifestation determination'' itself, and what 
actions follow thereafter. Section 57.6(b)(12)(iii)(A) was modified and 
now reads, ``To an appropriate interim alternate educational setting 
(AES), another setting, or suspension for not more than 10 consecutive 
school days to the extent those alternatives are applied to children 
without disabilities (for example, removing the child from the 
classroom to the school library, to a different classroom, or to the 
child's home), 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 the CSC has determined that those removals do 
not constitute a pattern in accordance with paragraphs (b)(12)(ii) and 
(b)(12)(iv)(C) of this section.'' Additionally, the phrase, ``To an AES 
determined by the CSC'' was inserted at the beginning of Sec.  
57.6(b)(12)(iii)(B), and a new Sec.  57.6(b)(12)(iii)(C) was added. 
Section 57.6(b)(12)(iii)(C) reads, ``To an AES determined by the CSC, 
another setting, or suspension for more than 10 school days where the 
behavior giving rise to the violation was determined by the CSC not to 
be a manifestation of the child's disability, in accordance with 
paragraph (b)(12)(v) of this section.'' We also added clarifying 
language ``to address the school's failure to implement the IEP'' to 
Sec.  57.6(b)(12)(v)(B)(2)(iii) and revised Sec.  
57.6(b)(12)(v)(B)(5)(ii) to read, ``Reconvene the CSC following a 
disciplinary decision that would change the student's placement, to 
identify, if appropriate, an educational setting and delivery system to 
ensure the child receives services in accordance with the IEP.''
    Four comments were received regarding a parent's right to Prior 
Written Notice, each expressing concern that important language from 
the IDEA was not included in this implementing regulation. We agree 
that the regulation should more clearly demonstrate consistency with 
the IDEA. To better conform to 20 U.S.C. 1415, changes were made to 
Sec.  57.6(b)(19)(i)(D): Deleting the phrase ``be in sufficient detail 
to inform the parents about'' from Sec.  57.6(b)(19)(i)(D)(1), and 
adding Sec.  57.6(b)(19)(i)(D)(1)(iii) stating the specific requirement 
for provision of ``a description of each evaluation procedure, 
assessment, record, or report used as the basis for the proposed or 
refused action.'' The paragraphs were also reordered for increased 
clarity. A proposed modification to Sec.  57.6(b)(19)(i)(c)(1)(v) was 
considered unnecessary because the proposed rule already requires all 
procedural safeguards be set forth in the Prior Written Notice.
    While IDEA requires mediation to be confidential, one respondent 
expressed concern about the proposed text at Sec.  57.6(d)(4)(vii)(D) 
prohibiting the recording of a mediation session and removal of notes 
from the room. The respondent noted that the statute does not include 
such language and that, in situations where both parents are unable to 
participate in the mediation session, depriving a parent of the ability 
to tape or take notes would impact the parent's ability to discuss the 
session with the parent absent from the session. In response to the 
comment, at the proposed rule Sec.  57.6(d)(4)(vii)(D), the text 
reading, ``Unless the parties and the mediator agree, no person may 
record a mediation session, nor shall any written notes be taken from 
the room by either party,'' was deleted. To further clarify the issue, 
the provision regarding a confidentiality, Sec.  57.6(d)(4)(ix)(C) 
became: ``Discussions and statements made during the mediation process, 
and any minutes, statements or other records of a mediation session 
other than a final executed mediation agreement, shall be considered 
confidential between the parties to that mediation and are not 
discoverable or admissible, consistent with the IDEA, in a subsequent 
due process proceeding, appeal proceeding, or civil proceeding.'' The 
fact that mediation is confidential is reinforced in Sec.  
57.6(d)(4)(ix)(D), which now states, ``Mediation is confidential. The 
mediator may require the parties to sign a confidentiality pledge 
before the commencement of mediation.''
    Two commenters addressed the absence of presumed confidentiality 
for Resolution Meetings. One commenter recommended deleting Sec.  
57.6(d)(7)(vii) altogether, asserting that the lack of confidentiality 
and the discoverability and admissibility at due process hearings and 
appeals would discourage parties from candid resolution discussions and 
``settlement offers.'' A second commenter recommended that the final 
regulation include a requirement that parents be informed in writing, 
prior to the resolution session, that discussions were not necessarily 
confidential. The IDEA treats resolution meeting discussions 
differently than it does mediation. While 20 U.S.C. 1415 specifically 
requires confidentiality in the mediation process, Congress did not 
apply the same confidentiality to resolution meetings. We believe that, 
had Congress intended confidentiality, they would have attached the 
same provision to resolution meetings as they did to mediation. We 
agree that parents should be informed of the lack of presumed 
confidentiality in Resolution Meetings, but do not agree that this 
burden falls solely on the school system or that the regulation should 
add this procedural requirement to the school's obligation. Information 
about the resolution session is provided in the ``Parents Rights for 
Special Education-Notice of Procedural Safeguards Handbook'' posted on 
the DoDEA Web site at http://www.dodea.edu/Curriculum/specialEduc/upload/parentRights.pdf.
    Comments on Sec.  57.6(d) Alternative Dispute Resolution and Due 
Process Procedures were submitted by one commenter who expressed 
concern with the timelines set forth in the proposed rule for dispute 
resolution procedures--specifically that the typical service member 
might be reassigned before they could work through the cumulative 
deadlines for the dispute resolution procedures. We do not believe 
these provisions require modification. The various avenues of dispute 
resolution are not intended to be pursued serially. Rather, unless 
otherwise mandated by the IDEA, these are options which may be pursued 
in the alternative or, as in the case of mediation and filing due 
process, concurrently.
    Several commenters addressed specific aspects of the due process 
complaint process. Two commenters expressed concern about the required 
standard for content of a due process

[[Page 36658]]

complaint, noting that the proposed language in Sec.  57.6(d)(5)(vi)(B) 
would require a greater level of specificity than is required in the 
IDEA itself. One commenter expressed concern that Sec.  57.6(d)(6)(vi) 
applied only in response to parental complaints. That commenter also 
demonstrated confusion regarding the provisions controlling the 
interplay between filing a Response to the Petition for Due Process and 
filing a Notice of Insufficiency. We concur with the concerns about the 
level of specificity and the one-sided language defining which party's 
due process complaint (petition) can generate a Notice of 
Insufficiency. We disagree with the commenter's belief that the 
language regarding the filing a Notice of Insufficiency is otherwise 
inconsistent with the IDEA. To better conform to the IDEA, Sec.  
57.6(d)(5)(vi)(B) and Sec.  57.6(d)(13)(iv) were modified to delete the 
word ``specifically.'' Section 57.6(d)(5)(vi)(B) now reads, ``A 
description of the nature of the problem of the child relating to the 
proposed or refused initiation or change including facts (such as who, 
what, when, where, how, why of the problem).'' Additionally, Sec.  
57.6(d)(5)(vi)(B)(1) and (2) were deleted, and Sec.  57.6(d)(6)(vi) was 
modified to read, ``A response to the petitioner under (d)(6)(ii) of 
this section shall not be construed to preclude the respondent from 
asserting that the due process complaint was insufficient using the 
procedures available under (d)(6)(v) of this section.''
    One commenter expressed concern about the provisions for discovery, 
witnesses, and documentary evidence in DoD due process hearings and 
recommended that these provisions be altered or removed to reduce the 
burden on parents exercising their right to due process under IDEA. A 
second commenter expressed concern that proposed Sec.  57.6(d)(13) 
could unduly burden parents with witness expenses. The discovery, 
witness and documentary evidence provisions are consistent with other 
administrative processes, and their value in ensuring a fair and 
focused due process hearing has been proven by similar provisions 
contained within prior DoD regulation under IDEA. The proposed 
revisions are not regarded as necessary or appropriate. As to the 
payment of witness expenses, the regulation at Sec.  57.6(d)(13)(ix) 
already assures this concern can be addressed through a request for 
hearing officer order.
    One commenter urged elimination of the provision that an 
Independent Educational Evaluation (IEE) is required to meet DoDEA 
agency criteria, arguing that the proposed rule did not apply such 
criteria to DoDEA. The commenter further asserted that both the 
requirement to meet such criteria, and any requirements to use Military 
examiners or other evaluators in a specific geographic area, 
constituted interference with the independence of the evaluation. The 
commenter's concern regarding definition of what constitutes DoDEA 
criteria applicable to the DoDEA schools is valid. Some of the criteria 
applied to DoDEA needed to be more clearly set out in the regulation 
itself. We disagree, however, that the agency criteria prevent the 
parents from obtaining a truly independent evaluation or ``a different 
evaluation to fully understand the child's disability and how it 
affects him in school.'' The IDEA, 20 U.S.C. 1415, does not speak to 
parameters of an IEE. Further, we believe the criteria set forth in 
Sec.  57.6(b)(19)(iii)(F) are consistent with guidance released to the 
States by the Department of Education, and that a publicly funded IEE 
may be required to satisfy the school system's own criteria for 
evaluations, so long as the parents are afforded an opportunity to 
demonstrate that under their circumstances, an evaluator who does not 
meet agency criteria, such as those pertaining to geographical location 
or qualifications, is required in order to obtain an appropriate 
evaluation. The provisions regarding DoDEA evaluation criteria at Sec.  
57.6(b)(6)(iv) have been clarified and IEE provisions of Sec.  
57.6(b)(19)(iii) modified to more clearly cross reference the IEE to 
parallel DoDEA evaluation criteria.
    One commenter took issue with the right to appeal as set forth in 
Sec.  57.6(d)(17), noting that the majority of states have eliminated 
this approach and are using a ``single-tier'' approach so that the 
decision of the Hearing Officer is final unless the losing party wishes 
to appeal to state or federal court. DoD has not chosen a single-tier 
approach because we believe the opportunity for appeal has been proven 
to provide superior protection of the rights of the parties.
    One commenter recommended that the rule be revised to include not 
only an IEP content requirement to set forth how a child's progress 
towards meeting annual goals will be measured, but to add a description 
of the extent to which the child's progress is sufficient to enable the 
child to achieve his goals by the end of the school year. The commenter 
was particularly focused on helping the parent to know whether the 
child would be at grade level. DoD respectfully declines the 
recommendation. We do not believe that requiring additional IEP content 
not specified by the IDEA is appropriate, nor is a requirement that 
progress be measured by whether the child achieves grade level 
consistent with the law that has developed under the IDEA regarding 
measurement of progress.
    Several respondents submitted comments about specific definitions 
in the proposed rule at Sec.  57.3. After our review of the comments, a 
number of the definitions were modified for greater clarity. The 
revised definitions are as follows:
    (1) Alternate Assessment. ``An objective and consistent process 
that validly measures the performance of students with disabilities 
unable to participate, even with appropriate accommodations provided as 
necessary and as determined by their respective CSC, in a system-wide 
assessment.''
    (2) Alternative Educational Setting (AES). ``A temporary setting in 
or out of the school, other than the setting normally attended by the 
student (e.g., alternative classroom, home setting, installation 
library) as determined by school authorities or by the CSC in 
accordance with Sec.  57.6(b)(12) as the appropriate learning 
environment for a student because of a violation of school rules and 
regulations or disruption of regular classroom activities.''
    (3) Developmental Delay. ``Developmental Delay in children ages 3 
through 7. A child three through seven (or any subset of that age 
range, including ages 3 through 5) who is experiencing developmental 
delays, as defined for infants and toddlers at Sec.  57.6(a)(4)(ii)(A) 
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 who, by reason thereof, needs 
special education and related services. A child determined to have a 
developmental delay before the age of 7 may maintain that eligibility 
through age 9.''
    (4) Manifestation Determination. ``The process in which the CSC 
reviews all relevant information and the relationship between the 
child's disability and the child's behavior to determine whether the 
behavior is a manifestation of the child's disability.''
    (5) Related Services. ``Transportation and such developmental, 
corrective, and other supportive services, as required, to assist a 
child with a disability to benefit from special education under the 
child's IEP. The term includes services or consults in the areas of 
speech-language pathology; audiology services; interpreting services; 
psychological

[[Page 36659]]

services; physical and occupational therapy; recreation including 
therapeutic recreation; social work services; and school nurse services 
designed to enable a child with a disability to receive a FAPE as 
described in the child's IEP; early identification and assessment of 
disabilities in children; counseling services including rehabilitation 
counseling; orientation and mobility services; and medical services for 
diagnostic or evaluative purposes. The term does not include a medical 
device that is surgically implanted or the replacement of such.''
    (6) Related Services Assigned to the Military Departments. ``In the 
overseas areas, related services provided by the Military Departments 
include medical and psychological services, audiology, and optometry 
for diagnostic or evaluative purposes, including consults, to determine 
whether a particular child has a disability, the type and extent of the 
disability, and the child's eligibility to receive special services; 
and occupational therapy and physical therapy. In the overseas and 
domestic areas, transportation is provided as a related service by the 
Military Department when transportation is prescribed in an IFSP for an 
infant or toddler, birth to 3 years of age, with disabilities.''
    (7) Serious Bodily Injury. ``A bodily injury, which involves a 
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.''
    (8) Transition Services. ``A coordinated set of activities for a 
child with a disability that 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 post-
secondary education, vocational education, integrated employment 
(including supported employment), continuing and adult education, adult 
services, independent living, or community participation, and is based 
on the individual child's needs, taking into account the child's 
strengths, preferences, and interests and includes instruction, related 
services, community experiences, the development of employment and 
other post-school adult living objectives, and when appropriate, 
acquisition of daily living skills and functional vocational 
evaluation.''
    DoD disagreed with the recommended revision of the definition of 
``Children with Disabilities.'' Infants and toddlers should not be 
included in the Sec.  57.3 definition because the phrase ``infants and 
toddlers with disabilities'' is already defined separately. Therefore, 
the definition properly cross-references 20 U.S.C. 1401(3) which 
defines a ``child with a disability'' as meaning a child with 
intellectual disabilities, hearing impairments (including deafness), 
speech or language impairments, visual impairments (including 
blindness), serious emotional disturbance (referred to in this chapter 
as ``emotional disturbance''), orthopedic impairments, autism, 
traumatic brain injury, other health impairments, or specific learning 
disabilities; who, by reason thereof, needs special education and 
related services.
    Several comments were received regarding the definitions of the 
types of disabilities at Sec.  57.6(g). Based on a review of these 
comments, several provisions were modified.
    (1) Title changed: ``Types of Disabilities in Children 3 through 
21. A child may be eligible for services under paragraph (b) if by 
reason of one of the following disabilities the child needs special 
education and related services.''
    (2) Deaf-Blindness. ``A combination of hearing and visual 
impairments causing such severe communication, developmental, and 
educational needs that the child cannot be accommodated in programs 
specifically for children with deafness or children with blindness.''
    (3) Developmental Delay. ``A significant discrepancy, as defined 
and measured in accordance with (a)(4)(ii)(A) and confirmed by clinical 
observation and judgment, in the actual functioning of a child, birth 
through age 7, or any subset of that age range including ages 3 through 
5, when compared with the functioning of a non-disabled child of the 
same chronological age in any of the following developmental areas: 
Physical, cognitive, communication, social or emotional, or adaptive 
development. A child determined to have a developmental delay before 
the age of 7 may maintain that eligibility through age 9.'' The 
criteria for determining a significant discrepancy and high probability 
for a developmental delay were deleted from the definition.
    (4) Specific Learning Disability. ``A disorder in one or more of 
the basic psychological processes involved in understanding or in using 
spoken or written language that may manifest itself as an imperfect 
ability to listen, think, speak, read, write, spell, remember, or do 
mathematical calculations. That term includes such conditions as, 
recognizing that they may have been otherwise labeled with terms such 
as, perceptual disabilities, brain injury, minimal brain dysfunction, 
dyslexia, and developmental aphasia. This term does not include 
learning problems that are primarily the result of visual, hearing, or 
motor disabilities; intellectual disability; emotional disturbance; or 
environmental, cultural, or economic differences.''
    (5) Speech or Language Impairments. ``A communication disorder such 
as stuttering; impaired articulation; limited, impaired or delayed 
capacity to use expressive and/or receptive language; or a voice 
impairment that adversely affects a child's educational performance.'' 
Subcategories, which are defined in the DoDEA Special Education 
Procedural Guide, were deleted.
    DoD also recognizes that a child may be eligible for services under 
paragraph (b) if they demonstrate ``Multiple Disabilities'' which DoD 
defines as ``Concomitant impairments (such as intellectual disability-
blindness or intellectual disability-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, 
which is set forth as its own type of disability at Sec.  57.6(g)(3).''
    General Comment: A respondent proposed that text be added in Sec.  
57.6(b)(2) when establishing workload standards that take into account 
the range of direct and indirect activities that impact the service 
provider's time. This recommendation was accepted, and the text was 
modified to read, ``Oversee development of provider workload standards 
and performance levels to determine staffing requirements for EIS and 
related services. The standards shall take into account the provider's 
training needs, the requirements of this part, and the additional time 
required to provide EIS and related services in schools and natural 
environments, and for the coordination with other DoD components and 
other service providers, indirect services including analysis of data, 
development of the IFSP, transition planning, and designing 
interventions and accommodations.''
    As clarification, due to the division of responsibilities for the 
provision of IDEA services to children with disabilities, the rule is 
written to cover services for children birth through 21. In DoD, the 
responsibility for the provision of IDEA services is shared between the 
Military Departments and DoDEA. The Military Departments are assigned 
responsibility for providing early

[[Page 36660]]

intervention services (Sec.  57.6(a)) at locations in the United States 
and overseas. The Military Departments are also responsible for the 
provision of certain educationally based related services to children 
attending a DoDEA school overseas (Sec.  57.6(c)). DoDEA is responsible 
for special education services and certain related services for 
children age 3 through 21, inclusive, as described in (Sec.  57.6(b)).

VI. Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated a ``significant regulatory 
action,'' although not economically significant, under section 3(f) of 
Executive Order 12866. Accordingly, the rule has been reviewed by the 
Office of Management and Budget (OMB).

Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 
(Pub. L. 104-4) requires agencies assess anticipated costs and benefits 
before issuing any rule whose mandates require spending in any 1 year 
of $100 million in 1995 dollars, updated annually for inflation. In 
2014, that threshold is approximately $141 million. This document will 
not mandate any requirements for State, local, or tribal governments, 
nor will it affect private sector costs.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    The Department of Defense certifies that this final rule is not 
subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it 
would not, if promulgated, have a significant economic impact on a 
substantial number of small entities. Therefore, the Regulatory 
Flexibility Act, as amended, does not require us to prepare a 
regulatory flexibility analysis.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    This final rule imposes reporting or recordkeeping requirements 
under the Paperwork Reduction Act of 1995. These reporting requirements 
have been approved by OMB and assigned OMB Control Number 0704-0411, 
``Exceptional Family Member Program.''

Executive Order 13132, ``Federalism''

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has Federalism 
implications. This final rule will not have a substantial effect on 
State and local governments.

List of Subjects in 32 CFR Part 57

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

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

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

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

    Authority:  10 U.S.C. 2164, 20 U.S.C. 921-932 and chapter 33.


Sec.  57.1  Purpose.

    This part:
    (a) Establishes policy and assigns responsibilities to implement, 
other than the funding and reporting provisions, chapter 33 of 20 
U.S.C. (also known and hereinafter referred to in this part as 
``Individuals with Disabilities Education Act (IDEA)'') pursuant to 20 
U.S.C. 927(c) and 10 U.S.C. 2164(f) for:
    (1) Provision of early intervention services (EIS) to infants and 
toddlers with disabilities and their families, as well as special 
education and related services to children with disabilities entitled 
under this part to receive education services from the DoD in 
accordance with 20 U.S.C. 921-932, 10 U.S.C. 2164, and DoD Directive 
1342.20, ``Department of Defense Education Activity (DoDEA)'' 
(available at http://www.dtic.mil/whs/directives/corres/pdf/134220p.pdf), and the IDEA.
    (2) Implementation of a comprehensive, multidisciplinary program of 
EIS for infants and toddlers with disabilities and their DoD civilian-
employed and military families.
    (3) Provision of a free appropriate public education (FAPE), 
including special education and related services for children with 
disabilities who are eligible to enroll in DoDEA schools, as specified 
in their respective individualized education programs (IEP).
    (4) Monitoring of DoD programs providing EIS, or special education 
and related services for compliance with this part.
    (b) Establishes a DoD Coordinating Committee to recommend policies 
and provide compliance oversight for early intervention and special 
education.
    (c) Authorizes the issuance of other guidance as necessary.


Sec.  57.2  Applicability.

    This part applies to:
    (a) Office of the Secretary of Defense (OSD), the Military 
Departments, the Office of the Chairman of the Joint Chiefs of Staff 
and the Joint Staff, the Combatant Commands, the Office of the 
Inspector General of the Department of Defense, the Defense Agencies, 
the DoD Field Activities, and all other organizational entities in the 
DoD (hereinafter referred to collectively as the ``DoD Components'').
    (b) Eligible infants, toddlers, and children receiving or entitled 
to receive early intervention services (EIS) or special education and 
related services from the DoD, whose parents have not elected voluntary 
enrollment in a non-Department of Defense Education Activity (DoDEA) 
school.
    (c) All schools operated under the oversight of the DoDEA, 
including:
    (1) Domestic Dependent Elementary and Secondary Schools (DDESS) 
operated by the DoD pursuant to 10 U.S.C. 2164.
    (2) Department of Defense Dependents Schools (DoDDS) operated by 
the DoD pursuant to 20 U.S.C. 921-932 (hereinafter referred to as 
``overseas'' schools).
    (d) Does not create any substantive rights or remedies not 
otherwise authorized by the IDEA or other relevant law; and may not be 
relied upon by any person, organization, or other entity to allege a 
denial of substantive rights or remedies not otherwise authorized by 
the IDEA or other relevant law.


Sec.  57.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purpose of this part.

[[Page 36661]]

    Age of majority. The age when a person acquires the rights and 
responsibilities of being an adult. For purposes of this part, a child 
attains majority at age 18, unless the child has been determined by a 
court of competent jurisdiction to be incompetent, or, if the child has 
not been determined to be incompetent, he or she is incapable of 
providing informed consent with respect to his or her educational 
program.
    Alternate assessment. An objective and consistent process that 
validly measures the performance of students with disabilities unable 
to participate, even with appropriate accommodations provided as 
necessary and as determined by their respective CSC, in a system-wide 
assessment.
    Alternative educational setting (AES). A temporary setting in or 
out of the school, other than the setting normally attended by the 
student (e.g., alternative classroom, home setting, installation 
library) as determined by school authorities or the CSC, in accordance 
with Sec.  57.6(b)(12) as the appropriate learning environment for a 
student because of a violation of school rules and regulations or 
disruption of regular classroom activities.
    Assistive technology device. Any item, piece of equipment, or 
product system, whether acquired commercially or off the shelf, 
modified, or customized, that is used to increase, maintain, or improve 
functional capabilities of children with disabilities. This term does 
not include a medical device that is surgically implanted or the 
replacement of that device.
    Assistive technology service. Any service that directly assists an 
individual with a disability in the selection, acquisition, or use of 
an assistive technology device. The term includes: Evaluating the needs 
of an individual with a disability, including a functional evaluation 
in the individual's customary environment; purchasing, leasing, or 
otherwise providing for the acquisition of assistive technology devices 
by individuals with disabilities; selecting, designing, fitting, 
customizing, adapting, applying, maintaining, repairing, or replacing 
assistive technology devices; coordinating and using other therapies, 
interventions, or services with assistive technology devices, such as 
those associated with existing educational and rehabilitative plans and 
programs; training or technical assistance for an individual with 
disabilities or the family of an individual with disabilities; and 
training or technical assistance for professionals (including 
individuals providing educational rehabilitative services), employers, 
or other individuals who provide services to, employ, or are otherwise 
substantially involved in the major life functions of an individual 
with a disability.
    Case study committee (CSC). A school-level multidisciplinary team, 
including the child's parents, responsible for making educational 
decisions concerning a child with a disability.
    Child-find. An outreach program used by DoDEA, the Military 
Departments, and the other DoD Components to locate, identify, and 
evaluate children from birth to age 21, inclusive, who may require EIS 
or special education and related services. All children who are 
eligible to attend a DoD school under 20 U.S.C. 921-932 or 10 U.S.C. 
2164 fall within the scope of the DoD child-find responsibilities. 
Child-find activities include the dissemination of information to 
Service members, DoD employees, and parents of students eligible to 
enroll in DoDEA schools; the identification and screening of children; 
and the use of referral procedures.
    Children with disabilities. Children, ages 3 through 21, inclusive, 
who are entitled to enroll, or are enrolled, in a DoD school in 
accordance with 20 U.S.C. 921-932 and 10 U.S.C. 2164, have not 
graduated from high school or completed the General Education Degree, 
have one or more disabilities in accordance with section 1401(3) of the 
IDEA, and need and qualify for special education and related services.
    Complainant. Person making an administrative complaint.
    Comprehensive system of personnel development (CSPD). A system of 
personnel development that is developed in coordination with the 
Military Departments and the Director, DoDEA. CSPD is the training of 
professionals, paraprofessionals, and primary referral source personnel 
with respect to the basic components of early intervention, special 
education, and related services. CSPD may also include implementing 
innovative strategies and activities for the recruitment and retention 
of personnel providing special education and related services, ensuring 
that personnel requirements are established and maintaining 
qualifications to ensure that personnel necessary to carry out the 
purposes of this part are appropriately and adequately prepared to 
provide special education and related services. Training of personnel 
may include working within the military and with military families, the 
emotional and social development of children, and transition services 
from early intervention to preschool and transitions within educational 
settings and to post-secondary environments.
    Consent. The permission obtained from the parent ensuring they are 
fully informed of all information about the activity for which consent 
is sought, in his or her native language or in another mode of 
communication if necessary, and that the parent understands and agrees 
in writing to the implementation of the activity for which permission 
is sought.
    Continuum of placement options. Instruction in general education 
classes, special classes, special schools, home instruction, and 
instruction in hospitals and institutions; includes provision for 
supplementary services (such as resource room or itinerant instruction) 
to be provided in conjunction with regular class placement.
    Controlled substance. As defined in Sections 801-971 of title 21, 
United States Code (also known as the ``Controlled Substances Act, as 
amended'').
    Day. A calendar day, unless otherwise indicated as a business day 
or a school day.
    (1) Business day. Monday through Friday except for Federal and 
State holidays.
    (2) School day. Any day, including a partial day, that children are 
in attendance at school for instructional purposes. School day has the 
same meaning for all children in school, including children with and 
without disabilities.
    Department of Defense Education Activity (DoDEA). The Department of 
Defense Education Activity is a DoD Field Activity under the direction, 
operation, and control of the Under Secretary of Defense for Personnel 
& Readiness (USD(P&R)) and the Assistant Secretary of Defense for 
Readiness & Force Management (ASD(R&FM)). The mission of DoDEA is to 
provide an exemplary education by effectively and efficiently planning, 
directing, and overseeing the management, operation, and administration 
of the DoD Domestic Dependent Elementary and Secondary Schools (DDESS) 
and the DoD Dependents Schools (DoDDS), which provide instruction from 
kindergarten through grade 12 to eligible dependents.
    Department of Defense Dependents Schools (DoDDS). The overseas 
schools (kindergarten through grade 12) established in accordance with 
20 U.S.C. 921-932.
    Department of Defense Education Activity School. A DDESS or DoDDS 
school operated under the oversight of DoDEA.
    Developmental Delay in children ages 3 through 7. A child three 
through seven

[[Page 36662]]

(or any subset of that age range, including ages 3 through 5) who is 
experiencing developmental delays, as defined for infants and toddlers 
at Sec.  57.6(a)(4)(ii)(A) 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 who, by 
reason thereof, needs special education and related services. A child 
determined to have a developmental delay before the age of 7 may 
maintain that eligibility through age 9.
    Domestic Dependent Elementary and Secondary Schools (DDESS). The 
schools (pre-kindergarten through grade 12) established in accordance 
with 10 U.S.C. 2164.
    Early intervention service provider. An individual that provides 
early intervention services in accordance with this part.
    Educational and Developmental Intervention Services (EDIS). 
Programs operated by the Military Departments to provide EIS to 
eligible infants and toddlers with disabilities, and related services 
to eligible children with disabilities in accordance with this part.
    EIS. Developmental services for infants and toddlers with 
disabilities, as defined in this part, that are provided under the 
supervision of a Military Department, including evaluation, 
individualized family service plan (IFSP) development and revision, and 
service coordination, provided at no cost to the child's parents 
(except for incidental fees also charged to children without 
disabilities).
    Extended school year (ESY) services. Special education and related 
services that are provided to a child with a disability beyond the 
normal DoDEA school year, in accordance with the child's IEP, are at no 
cost to the parents, and meet the standards of the DoDEA school system.
    Evaluation. The method used by a multidisciplinary team to conduct 
and review the assessments of the child and other relevant input to 
determine whether a child has a disability and a child's initial and 
continuing need to receive EIS or special education and related 
services.
    Extracurricular and non-academic activities. Services and 
activities including counseling services; athletics; transportation; 
health services; recreational activities; special interest groups or 
clubs sponsored by the DoDEA school system; and referrals to agencies 
that provide assistance to individuals with disabilities and employment 
of students, including employment by a public agency and assistance in 
making outside employment available.
    FAPE. Special education and related services that are provided 
under the general supervision and direction of DoDEA at no cost to 
parents of a child with a disability, in conformity with an IEP, in 
accordance with the requirements of the IDEA and DoD guidance.
    Functional behavioral assessment. A process for identifying the 
events that predict and maintain patterns of problem behavior.
    General education curriculum. The curriculum adopted by the DoDEA 
school systems for all children from preschool through secondary 
school. To the extent applicable to an individual child with a 
disability, the general education curriculum can be used in any 
educational environment along a continuum of alternative placements.
    IEP. A written document that is developed, reviewed, and revised at 
a meeting of the CSC, identifying the required components of the 
individualized education program for a child with a disability.
    Individualized Family Service Plan (IFSP). A written document 
identifying the specially designed services for an infant or toddler 
with a disability and the family of such infant or toddler.
    Independent educational evaluation (IEE). An evaluation conducted 
by a qualified examiner who is not an EDIS examiner or an examiner 
funded by the DoDEA school who conducted the evaluation with which the 
parent is in disagreement.
    Infants and toddlers with disabilities. Children from birth up to 3 
years of age, inclusive, who need EIS because:
    (1) They are experiencing developmental delays as measured by 
appropriate diagnostic instruments and procedures, in one or more of 
the following areas: Cognitive development, physical development 
including vision and hearing, communication development, social or 
emotional development, adaptive development; or
    (2) They have a diagnosed physical or mental condition that has a 
high probability of resulting in developmental delay.
    Inter-component. Cooperation among DoD organizations and programs, 
ensuring coordination and integration of services to infants, toddlers, 
children with disabilities, and their families.
    Manifestation determination. The process in which the CSC reviews 
all relevant information and the relationship between the child's 
disability and the child's behavior to determine whether the behavior 
is a manifestation of the child's disability.
    Mediation. A confidential, voluntary, informal dispute resolution 
process that is provided at no charge to the parents, whether or not a 
due process petition has been filed, in which the disagreeing parties 
engage in a discussion of issues related to the provision of the 
child's EIS or special education and related services in accordance 
with the requirements of IDEA and this part, in the presence of, or 
through, a qualified and impartial mediator who is trained in effective 
mediation techniques.
    Medical services. Those evaluative, diagnostic, and therapeutic, 
services provided by a licensed and credentialed medical provider to 
assist providers of EIS, regular and special education teachers, and 
providers of related services to develop and implement IFSPs and IEPs.
    Multidisciplinary. The involvement of two or more disciplines or 
professions in the integration and coordination of services, including 
evaluation and assessment activities and development of an IFSP or an 
IEP.
    Native language. When used with reference to an individual of 
limited English proficiency, the home language normally used by such 
individuals, or in the case of a child, the language normally used by 
the parents of the child.
    Natural environment. A setting, including home and community, in 
which children without disabilities participate.
    Non-DoD school or facility. A public or private school or other 
educational program not operated by DoD.
    Parent. The natural, adoptive, or foster parent of a child, a 
guardian, an individual acting in the place of a natural or adoptive 
parent with whom the child lives, or an individual who is legally 
responsible for the child's welfare if that person contributes at least 
one-half of the child's support.
    Personally identifiable information. Information that would make it 
possible to identify the infant, toddler, or child with reasonable 
certainty. Information includes: The name of the child, the child's 
parent or other family member; the address of the child; a personal 
identifier, such as the child's social security number or student 
number; or a list of personal characteristics or other information that 
would make it possible to identify the child with reasonable certainty.
    Primary referral source. Parents and the DoD Components, including 
child development centers, pediatric clinics, and newborn nurseries, 
that suspect an infant or toddler has a disability and

[[Page 36663]]

bring the child to the attention of the EDIS.
    Psychological services. Psychological services include: 
Administering psychological and educational tests and other assessment 
procedures; interpreting assessment results; obtaining, integrating and 
interpreting information about child behavior and conditions relating 
to learning; consulting with other staff members in planning school 
programs to meet the special educational needs of children as indicated 
by psychological tests, interviews, direct observations, and behavioral 
evaluations; planning and managing a program of psychological services, 
including psychological counseling for children and parents; and 
assisting in developing positive behavioral intervention strategies.
    Public awareness program. Activities or print materials focusing on 
early identification of infants and toddlers with disabilities. 
Materials may include information prepared and disseminated by a 
military medical department to all primary referral sources and 
information for parents on the availability of EIS. Procedures to 
determine the availability of information on EIS to parents are also 
included in that program.
    Qualified. A person who meets the DoD-approved or recognized 
certification, licensing, or registration requirements or other 
comparable requirements in the area in which the person provides 
evaluation or assessment, EIS, special education or related services to 
an infant, toddler, or child with a disability.
    Rehabilitation counseling. 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 the student with a 
disability. The term also includes vocational rehabilitation services 
provided to a student with disabilities by vocational rehabilitation 
programs funded in accordance with the Rehabilitation Act of 1973, 29 
U.S.C. chapter 16.
    Related services. Transportation and such developmental, 
corrective, and other supportive services, as required, to assist a 
child with a disability to benefit from special education under the 
child's IEP. The term includes services or consults in the areas of 
speech-language pathology; audiology services; interpreting services; 
psychological services; physical and occupational therapy; recreation 
including therapeutic recreation; social work services; and school 
nurse services designed to enable a child with a disability to receive 
a FAPE as described in the child's IEP; early identification and 
assessment of disabilities in children; counseling services including 
rehabilitation counseling; orientation and mobility services; and 
medical services for diagnostic or evaluative purposes. The term does 
not include a medical device that is surgically implanted or the 
replacement of such.
    Related services assigned to the Military Departments. Medical and 
psychological services, audiology, and optometry for diagnostic or 
evaluative purposes, including consults, to determine whether a 
particular child has a disability, the type and extent of the 
disability, and the child's eligibility to receive special services. In 
the overseas and domestic areas, transportation is provided as a 
related service by the Military Department when transportation is 
prescribed in an IFSP for an infant or toddler, birth to 3 years of 
age, with disabilities.
    Resolution meeting. The meeting between parents and relevant school 
personnel, which must be convened within a specified number of days 
after receiving notice of a due process complaint and prior to the 
initiation of a due process hearing, in accordance with the IDEA and 
this part. The purpose of the meeting is for the parent to discuss the 
due process complaint and the facts giving rise to the complaint so 
that the school has the opportunity to resolve the complaint.
    Resolution period. That period of time following a resolution 
meeting, the length of which is defined in this part, during which the 
school is afforded an opportunity to resolve the parent's concerns 
before the dispute can proceed to a due process hearing.
    Separate facility. A school or a portion of a school, regardless of 
whether it is operated by DoD, attended exclusively by children with 
disabilities.
    Serious bodily injury. A bodily injury, which involves a 
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.
    Service coordination. Activities of a service coordinator to assist 
and enable an infant or toddler and the family to receive the rights, 
procedural safeguards, and services that are authorized to be provided.
    Special education. Specially designed instruction, which is 
provided at no cost to the parents, to meet the unique needs of a child 
with a disability, including instruction conducted in the classroom, in 
the home, in hospitals and institutions, and in other settings; and 
instruction in physical education.
    Supplementary aids and services. Aids, services, and other supports 
that are provided in regular education classes or other educational-
related settings, and in extracurricular and non-academic settings to 
enable children with disabilities to be educated with non-disabled 
children to the maximum extent appropriate.
    Transition services. A coordinated set of activities for a child 
with a disability that 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 post-
secondary education, vocational education, integrated employment 
(including supported employment), continuing and adult education, adult 
services, independent living, or community participation, and is based 
on the individual child's needs, taking into account the child's 
strengths, preferences, and interests and includes instruction, related 
services, community experiences, the development of employment and 
other post-school adult living objectives, and when appropriate, 
acquisition of daily living skills and functional vocational 
evaluation.
    Transportation. A service that includes transportation and related 
costs, including the cost of mileage or travel by taxi, common carrier, 
tolls, and parking expenses, that are necessary to: enable an eligible 
child with a disability and the family to receive EIS, when prescribed 
in a child's IFSP; enable an eligible child with a disability to 
receive special education and related services, when prescribed as a 
related service by the child's IEP; and enable a child to obtain an 
evaluation to determine eligibility for special education and related 
services, if necessary. It also includes specialized equipment, 
including special or adapted buses, lifts, and ramps needed to 
transport children with disabilities.
    Weapon. Defined in Department of Defense Education Activity 
Regulation 2051.1, ``Disciplinary Rules and Procedures'' (available at 
http://www.dodea.edu/foia/iod/pdf/2051_1a.pdf).


Sec.  57.4  Policy.

    It is DoD policy that:
    (a) Infants and toddlers with disabilities and their families who 
(but for the children's age) would be entitled to enroll in a DoDEA 
school in

[[Page 36664]]

accordance with 20 U.S.C. 921-932 or 10 U.S.C. 2164 shall be provided 
EIS.
    (b) The DoD shall engage in child-find activities for all children 
age birth to 21, inclusive, who are entitled by 20 U.S.C. 921-932 or 10 
U.S.C. 2164 to enroll or are enrolled in a DoDEA school.
    (c) Children with disabilities who meet the enrollment eligibility 
criteria of 20 U.S.C. 921-932 or 10 U.S.C. 2164 shall be provided a 
FAPE in the least restrictive environment, including if appropriate to 
the needs of the individual child, placement in a residential program 
for children with disabilities in accordance with the child's IEP and 
at no cost to the parents.
    (d) The Military Departments and DoDEA shall cooperate in the 
delivery of related services prescribed by section 1401(26) of the IDEA 
and this part as may be required to assist eligible children with 
disabilities to benefit from special education.
    (e) Children with disabilities who are eligible to enroll in a 
DoDEA school in accordance with 20 U.S.C. 921-932 or 10 U.S.C. 2164 
shall not be entitled to provision of a FAPE by DoDEA, or to the 
procedural safeguards prescribed by this part in accordance with the 
IDEA, if:
    (1) The sponsor is assigned to an overseas area where a DoDEA 
school is available within the commuting area of the sponsor's overseas 
assignment, but the sponsor does not elect to enroll the child in a 
DoDEA school for reasons other than DoDEA's alleged failure to provide 
a FAPE; or
    (2) The sponsor is assigned in the United States or in a U.S. 
territory, commonwealth, or possession and the sponsor's child meets 
the eligibility requirements for enrollment in a DoDEA school, but the 
sponsor does not elect to enroll the child in a DoDEA school for 
reasons other than DoDEA's alleged failure to provide a FAPE.


Sec.  57.5  Responsibilities.

    (a) The ASD(R&FM) under the authority, direction, and control of 
the USD(P&R) shall:
    (1) Establish, in accordance with DoD Instruction 5105.18, ``DoD 
Intergovernmental and Intragovernmental Committee Management Program'' 
(available at http://www.dtic.mil/whs/directives/corres/pdf/510518p.pdf), a DoD Coordinating Committee to recommend policies 
regarding the provision of early intervention and special education 
services.
    (2) Ensure the development, implementation and administration of a 
system of services for infants and toddlers with disabilities and their 
families and children with disabilities; and provide compliance 
oversight for early intervention and special education in accordance 
with DoD Directive 5124.02, ``Under Secretary of Defense for Personnel 
and Readiness (USD(P&R))'' (available at http://www.dtic.mil/whs/directives/corres/pdf/512402p.pdf); 20 U.S.C. 921-932; the applicable 
statutory provision of the IDEA; 10 U.S.C. 2164; DoD Directive 1342.20 
and implementing guidance authorized by this part.
    (3) Oversee DoD Component collaboration on the provision of 
services and transition support to infants, toddlers, and school-aged 
children.
    (4) Develop a DoD-wide comprehensive child-find system to identify 
eligible infants, toddlers, and children ages birth through 21 years, 
inclusive, who may require early intervention or special education 
services, in accordance with the IDEA.
    (5) Develop and provide guidance as necessary for the delivery of 
services for children with disabilities and for the protection of 
procedural rights consistent with the IDEA and implementing guidance 
authorized by this part.
    (6) Coordinate with the Secretaries of the Military Departments to 
ensure that their responsibilities, as detailed in paragraph (f) of 
this section, are completed.
    (7) Direct the development and implementation of a comprehensive 
system of personnel development (CSPD) for personnel serving infants 
and toddlers with disabilities and children with disabilities, and 
their families.
    (8) Develop requirements and procedures for compiling and reporting 
data on the number of eligible infants and toddlers with disabilities 
and their families in need of EIS and children in need of special 
education and related services.
    (9) Require DoDEA schools provide educational information for 
assignment coordination and enrollment in the Services' Exceptional 
Family Member Program or Special Needs Program consistent with DoD 
Instruction 1315.19, ``Authorizing Special Needs Family Members Travel 
Overseas at Government Expense'' (available at http://www.dtic.mil/whs/directives/corres/pdf/131519p.pdf).
    (10) Identify representatives to serve on the Department of Defense 
Coordinating Committee on Early Intervention, Special Education, and 
Related Services (DoD-CC).
    (11) Ensure delivery of appropriate early intervention and 
educational services to eligible infants, toddlers, and children, and 
their families as appropriate pursuant to the IDEA and this part 
through onsite monitoring of special needs programs and submission of 
an annual compliance report.
    (b) The Assistant Secretary of Defense for Health Affairs 
(ASD(HA)), under the authority, direction, and control of the USD(P&R), 
shall:
    (1) Advise the USD(P&R) and consult with the General Counsel of the 
Department of Defense (GC, DoD) regarding the provision of EIS and 
related services.
    (2) Oversee development of provider workload standards and 
performance levels to determine staffing requirements for EIS and 
related services. The standards shall take into account the provider 
training needs, the requirements of this part, and the additional time 
required to provide EIS and related services in schools and the natural 
environments, and for the coordination with other DoD Components and 
other service providers, indirect services including analysis of data, 
development of the IFSP, transition planning, and designing 
interventions and accommodations.
    (3) Establish and maintain an automated data system to support the 
operation and oversight of the Military Departments' delivery of EIS 
and related services.
    (4) Assign geographical areas of responsibility for providing EIS 
and related services under the purview of healthcare providers to the 
Military Departments. Periodically review the alignment of geographic 
areas to ensure that resource issues (e.g., base closures) are 
considered in the cost-effective delivery of services.
    (5) Establish a system for measuring EIS program outcomes for 
children and their families.
    (6) Resolve disputes among the DoD Components providing EIS.
    (c) The Director, Defense Health Agency (DHA), under the authority, 
direction, and control of the ASD(HA), shall identify representatives 
to serve on the DoD-CC.
    (d) The Director, DoD Education Activity (DoDEA), under the 
authority, direction, and control of the USD(P&R), and through the 
ASD(R&FM), in accordance with DoD Directive 5124.02, shall ensure that:
    (1) Children who meet the enrollment eligibility criteria of 20 
U.S.C. 921-932 or 10 U.S.C. 2164 are identified and referred for 
evaluation if they are suspected of having disabilities, and are 
afforded appropriate procedural safeguards in accordance with the IDEA 
and implementing guidance authorized by this part.

[[Page 36665]]

    (2) Children who meet the enrollment eligibility criteria of 20 
U.S.C. 921-932 or 10 U.S.C. 2164 shall be evaluated in accordance with 
the IDEA and implementing guidance authorized by this part, as needed. 
If found eligible for special education and related services, they 
shall be provided a FAPE in accordance with an IEP, with services 
delivered in the least restrictive environment and procedural 
safeguards in accordance with the requirements of the IDEA and 
implementing guidance authorized by this part.
    (3) Records are maintained on the special education and related 
services provided to children in accordance with this part, pursuant to 
32 CFR part 310.
    (4) Related services as prescribed in an IEP for a child with 
disabilities enrolled in a DoDEA school in the United States, its 
territories, commonwealths, or possessions are provided by DoDEA.
    (5) Transportation is provided by DoDEA in overseas and domestic 
areas as a related service to children with disabilities when 
transportation is prescribed in a child's IEP. The related service of 
transportation includes necessary accommodations to access and leave 
the bus and to ride safely on the bus and transportation between the 
child's home, the DoDEA school, or another location, as specified in 
the child's IEP.
    (6) Appropriate personnel participate in the development and 
implementation of a CSPD.
    (7) Appropriate written guidance is issued to implement the 
requirements pertaining to special education and related services under 
20 U.S.C. 921-932, 10 U.S.C. 2164, and the IDEA.
    (8) Activities to identify and train personnel to monitor the 
provision of services to eligible children with disabilities are 
funded.
    (9) DoDEA schools that operate pursuant to 20 U.S.C. 921-932 and 10 
U.S.C. 2164 conduct child-find activities for all eligible children;
    (10) A free appropriate public education (FAPE) and procedural 
safeguards in accordance with IDEA and this part available to children 
with disabilities who are entitled to enroll in DoDEA schools under the 
enrollment eligibility criteria of 20 U.S.C. 921-932 or 10 U.S.C. 2164. 
However, a FAPE, or the procedural safeguards prescribed by the IDEA 
and this part, shall NOT be available to such children, if:
    (i) The sponsor is assigned to an overseas area where a DoDEA 
school is available within the commuting area of the sponsor's 
assignment, but the sponsor does not elect to enroll his or her child 
in a DoDEA school for reasons other than DoDEA's alleged failure to 
provide a FAPE; or
    (ii) The sponsor is assigned in the United States or in a U.S. 
territory, commonwealth, or possession and the sponsor's child meets 
the eligibility requirements for enrollment in a DoDEA school, but the 
sponsor does not elect to enroll the child in a DoDEA school for 
reasons other than DoDEA's alleged failure to provide a FAPE.
    (11) The educational needs of children with and without 
disabilities are met comparably, in accordance with Sec.  57.6(b) of 
this part.
    (12) Educational facilities and services (including the start of 
the school day and the length of the school year) operated by DoDEA for 
children with and without disabilities are comparable.
    (13) All programs providing special education and related services 
are monitored for compliance with this part and with the substantive 
rights, protections, and procedural safeguards of the IDEA and this 
part at least once every 3 years.
    (14) A report is submitted to the USD(P&R) not later than September 
30 of each year certifying whether all schools are in compliance with 
the IDEA and this part, and are affording children with disabilities 
the substantive rights, protections, and procedural safeguards of the 
IDEA.
    (15) Transition assistance is provided in accordance with IDEA and 
this part to promote movement from early intervention or preschool into 
the school setting.
    (16) Transition services are provided in accordance with IDEA and 
this part to facilitate the child's movement into different educational 
settings and post-secondary environments.
    (e) The GC, DoD shall identify representatives to serve on the DoD-
CC.
    (f) The Secretaries of the Military Departments shall:
    (1) Establish educational and developmental intervention services 
(EDIS) to ensure infants and toddlers with disabilities are identified 
and provided EIS where appropriate, and are afforded appropriate 
procedural safeguards in accordance with the requirements of the IDEA 
and implementing guidance authorized by this part.
    (2) Staff EDIS with appropriate professional staff, based on the 
services required to serve children with disabilities.
    (3) Provide related services required to be provided by a Military 
Department in accordance with the mandates of this part for children 
with disabilities. In the overseas areas served by DoDEA schools, the 
related services required to be provided by a Military Department under 
an IEP necessary for the student to benefit from special education 
include medical services for diagnostic or evaluative purposes; social 
work; community health nursing; dietary, audiological, optometric, and 
psychological testing and therapy; occupational therapy; and physical 
therapy. Transportation is provided as a related service by the 
Military Department when it is prescribed in a child's IFSP for an 
infant or toddler birth up to 3 years of age, inclusive, with 
disabilities. Related services shall be administered in accordance with 
guidance issued pursuant to this part, including guidance from the 
ASD(HA) on staffing and personnel standards.
    (4) Issue implementing guidance and forms necessary for the 
operation of EDIS in accordance with this part.
    (5) Provide EIS to infants and toddlers with disabilities and their 
families, and related services to children with disabilities as 
required by this part at the same priority that medical care is 
provided to active duty military members.
    (6) Provide counsel from the Military Department concerned or 
request counsel from the Defense Office of Hearings and Appeals (DOHA) 
to represent the Military Department in impartial due process hearings 
and administrative appeals conducted in accordance with this part for 
infants and toddlers birth up to 3 years of age, inclusive, with 
disabilities who are eligible for EIS.
    (7) Execute Departmental responsibilities under the Exceptional 
Family Member program (EFMP) prescribed by DoD Instruction 1315.19.
    (8) Train command personnel to fully understand their legal 
obligations to ensure compliance with and provide the services required 
by this part.
    (9) Fund activities to identify and train personnel to monitor the 
provision of services to eligible children with disabilities.
    (10) Require the development of policies and procedures for 
providing, documenting, and evaluating EDIS, including EIS and related 
services provided to children receiving special education in a DoDEA 
school.
    (11) Maintain EDIS to provide necessary EIS to eligible infants and 
toddlers with disabilities and related services to eligible children 
with disabilities in accordance with this part and the substantive 
rights, protections, and procedural safeguards of the IDEA, Sec.  
57.6(a) and Sec.  57.6(c) of this part.
    (12) Implement a comprehensive, coordinated, inter-component,

[[Page 36666]]

community-based system of EIS for eligible infants and toddlers with 
disabilities and their families using the procedures established in 
Sec.  57.6(a) of this part and guidelines from the ASD(HA) on staffing 
and personnel standards.
    (13) Provide transportation for EIS pursuant to the IDEA and this 
part.
    (14) Provide transportation for children with disabilities pursuant 
to the IDEA and this part. The Military Departments are to provide 
transportation for a child to receive medical or psychological 
evaluations at a medical facility in the event that the local servicing 
military treatment facility (MTF) is unable to provide such services 
and must transport the child to another facility.
    (15) Require that EDIS programs maintain the components of an EIS 
as required by the IDEA and this part, to include:
    (i) A comprehensive child-find system, including a system for 
making referrals for services that includes timelines and provides for 
participation by primary referral sources, and that establishes 
rigorous standards for appropriately identifying infants and toddlers 
with disabilities for services.
    (ii) A public awareness program focusing on early identification of 
infants and toddlers with disabilities to include:
    (A) Preparation of information materials for parents regarding the 
availability of EIS, especially to inform parents with premature 
infants or infants with other physical risk factors associated with 
learning or developmental complications.
    (B) Dissemination of those materials to all primary referral 
sources, especially hospitals and physicians, for distribution to 
parents.
    (C) A definition of developmental delay, consistent with Sec.  
57.6(g) of this part, to be used in the identification of infants and 
toddlers with disabilities who are in need of services.
    (D) Availability of appropriate EIS.
    (iii) A timely, comprehensive, multidisciplinary evaluation of the 
functioning of each infant or toddler and identification of the needs 
of the child's family to assist appropriately in the development of the 
infant or toddler.
    (iv) Procedures for development of an Individualized Family Service 
Plan (IFSP) and coordination of EIS for families of eligible infants 
and toddlers with disabilities.
    (v) A system of EIS designed to support infants and toddlers and 
their families in the acquisition of skills needed to become 
functionally independent and to reduce the need for additional support 
services as toddlers enter school.
    (vi) A central directory of information on EIS resources and 
experts available to military families.
    (16) Implement a comprehensive system of personnel development 
consistent with the requirements of the IDEA.
    (17) Require that EDIS participate in the existing MTF quality 
assurance program, which monitors and evaluates the medical services 
for children receiving such services as described by this part. 
Generally accepted standards of practice for the relevant medical 
services shall be followed, to the extent consistent with the 
requirements of the IDEA including provision of EIS in a natural 
environment, to ensure accessibility, acceptability, and adequacy of 
the medical portion of the program provided by EDIS.
    (18) Require transition services to promote movement from early 
intervention, preschool, and other educational programs into different 
educational settings and post-secondary environments.
    (19) Direct that each program providing EIS is monitored for 
compliance with this part, and the substantive rights, protections, and 
procedural safeguards of the IDEA, at least once every 3 years.
    (20) Submit a report to the USD(P&R) not later than September 30 of 
each year stating whether all EDIS programs are in compliance with this 
part and are affording infants and toddlers the substantive rights, 
protections, and procedural safeguards of the IDEA, as stated in Sec.  
57.6(f) of this part.
    (21) Compile and report EDIS workload and compliance data using the 
system established by the ASD(HA) as stated in Sec.  57.6(f).
    (g) The Director, DOHA, under the authority, direction, and control 
of the GC, DoD/Director, Defense Legal Services Agency, shall:
    (1) Ensure impartial due process hearings are provided in 
accordance with the IDEA and implementing guidance authorized by this 
part with respect to complaints related to special education and 
related services arising under the IDEA.
    (2) Ensure DOHA Department Counsel represents DoDEA in all due 
process proceedings arising under the IDEA for children age 3 through 
21 who are eligible for special education and related services.
    (3) Ensure DOHA Department Counsel, upon request by a Military 
Department, represents the Military Department in due process 
proceedings arising under the IDEA for infants and toddlers birth up to 
3 years of age with disabilities who are eligible for EIS.
    (4) Ensure the DOHA Center for Alternative Dispute Resolution 
(CADR) maintains a roster of mediators qualified in special education 
disputes and, when requested, provides a mediator for complaints 
related to special education and related services arising under the 
IDEA.


Sec.  57.6  Procedures.

    (a) Procedures for the Provision of EIS for Infants and Toddlers 
with Disabilities--(1) General.
    (i) There is an urgent and substantial need to:
    (A) Enhance the development of infants and toddlers with 
disabilities to minimize their potential for developmental delay and to 
recognize the significant brain development that occurs during a 
child's first 3 years of life.
    (B) Reduce educational costs by minimizing the need for special 
education and related services after infants and toddlers with 
disabilities reach school age.
    (C) Maximize the potential for individuals with disabilities to 
live independently.
    (D) Enhance the capacity of families to meet the special needs of 
their infants and toddlers with disabilities.
    (ii) All procedures and services within EIS must be in accordance 
with the IDEA and the provisions of this part.
    (2) Identification and screening. (i) Each Military Department 
shall develop and implement in its assigned geographic area a 
comprehensive child-find and public awareness program, pursuant to the 
IDEA and this part, that focuses on the early identification of infants 
and toddlers who are eligible to receive EIS pursuant to this part.
    (ii) The military treatment facility (MTF) and Family Advocacy 
Program must be informed that EDIS will accept direct referrals for 
infants and toddlers from birth up to 3 years of age who are:
    (A) Involved in a substantiated case of child abuse or neglect; or
    (B) Identified as affected by illegal substance abuse or withdrawal 
symptoms resulting from prenatal drug exposure.
    (iii) All other DoD Components will refer infants and toddlers with 
suspected disabilities to EDIS in collaboration with the parents.
    (iv) Upon receipt of a referral, EDIS shall appoint a service 
coordinator.
    (v) All infants and toddlers referred to the EDIS for EIS shall be 
screened to determine the appropriateness of the referral and to guide 
the assessment process.

[[Page 36667]]

    (A) Screening does not constitute a full evaluation. At a minimum, 
screening shall include a review of the medical and developmental 
history of the referred infant or toddler through a parent interview 
and a review of medical records.
    (B) If screening is conducted prior to the referral, or if there is 
a substantial or obvious biological risk, a screening following the 
referral may not be necessary.
    (C) If EDIS determines that an evaluation is not necessary based on 
screening results, EDIS will provide written notice to the parents in 
accordance with paragraph (a)(9) of this section.
    (3) Assessment and evaluation--(i) Assessments and evaluations. The 
assessment and evaluation of each infant and toddler must:
    (A) Be conducted by a multidisciplinary team.
    (B) Include:
    (1) A review of records related to the infant's or toddler's 
current health status and medical history.
    (2) An assessment of the infant's or toddler's needs for EIS based 
on personal observation of the child by qualified personnel.
    (3) An evaluation of the infant's or toddler's level of functioning 
in each of the following developmental areas, including a 
multidisciplinary assessment of the unique strengths and needs of the 
child and the identification of services appropriate to meet those 
needs.
    (i) Cognitive development.
    (ii) Physical development, including functional vision and hearing.
    (iii) Communication development.
    (iv) Social or emotional development.
    (v) Adaptive development.
    (4) Informed clinical opinion of qualified personnel if the infant 
or toddler does not qualify based on standardized testing and there is 
probable need for services.
    (ii) Family assessments. (A) Family assessments must include 
consultation with the family members.
    (B) If EDIS conducts an assessment of the family, the assessment 
must:
    (1) Be voluntary on the part of the family.
    (2) Be conducted by personnel trained to utilize appropriate 
methods and procedures.
    (3) Be based on information provided by the family through a 
personal interview.
    (4) Incorporate the family's description of its resources, 
priorities, and concerns related to enhancing the infant's or toddler's 
development and the identification of the supports and services 
necessary to enhance the family's capacity to meet the developmental 
needs of the infant or toddler.
    (iii) Standards for Assessment Selection and Procedures. EDIS shall 
ensure, at a minimum, that:
    (A) Evaluators administer tests and other evaluations in the native 
language of the infant or toddler, or the family's native language, or 
other mode of communication, unless it is clearly not feasible to do 
so.
    (B) Assessment, evaluation procedures, and materials are selected 
and administered so as not to be racially or culturally discriminatory.
    (C) No single procedure is used as the sole criterion for 
determining an infant's or toddler's eligibility under this part.
    (D) Qualified personnel conduct evaluations and assessments.
    (iv) Delivery of Intervention Services. With parental consent, the 
delivery of intervention services may begin before the completion of 
the assessment and evaluation when it has been determined by a 
multidisciplinary team that the infant or toddler or the infant's or 
toddler's family needs the service immediately. Although EDIS has not 
completed all assessments, EDIS must develop an IFSP before the start 
of services and complete the remaining assessments in a timely manner.
    (4) Eligibility. (i) The EDIS team shall meet with the parents and 
determine eligibility. The EIS team shall document the basis for 
eligibility in an eligibility report and provide a copy to the parents.
    (ii) Infants and toddlers from birth up to 3 years of age with 
disabilities are eligible for EIS if they meet one of the following 
criteria:
    (A) The infant or toddler is experiencing a developmental delay in 
one or more of the following areas: Physical development; cognitive 
development; communication development; social or emotional 
development; or adaptive development, as verified by a developmental 
delay of two standard deviations below the mean as measured by 
diagnostic instruments and procedures in at least one area; a 25 
percent delay in at least one developmental area on assessment 
instruments that yield scores in months; a developmental delay of 1.5 
standard deviations below the mean as measured by diagnostic 
instruments and procedures in two or more areas; or a 20 percent delay 
in two or more developmental areas on assessment instruments that yield 
scores in months.
    (B) The infant or toddler has a diagnosed physical or mental 
condition that has a high probability of resulting in developmental 
delay. Includes conditions such as, chromosomal abnormalities; genetic 
or congenital disorders; severe sensory impairments; inborn errors of 
metabolism; disorders reflecting disturbance of the development of the 
nervous system; congenital infections; and disorders secondary to 
exposure to toxic substances, including fetal alcohol syndrome.
    (5) Timelines. (i) EIS shall complete the initial evaluation and 
assessment of each infant and toddler (including the family assessment) 
in a timely manner ensuring that the timeline in paragraph (a)(6)(ii) 
of this section is met.
    (ii) The Military Department responsible for providing EIS shall 
develop procedures requiring that, if circumstances make it impossible 
to complete the evaluation and assessment within a timely manner (e.g., 
if an infant or toddler is ill), EDIS shall:
    (A) Document those circumstances.
    (B) Develop and implement an appropriate interim IFSP in accordance 
with this part.
    (6) IFSP. (i) The EDIS shall develop and implement an IFSP for each 
infant and toddler with a disability, from birth up to 3 years of age, 
who meets the eligibility criteria for EIS.
    (ii) EDIS shall convene a meeting to develop the IFSP of an infant 
or toddler with a disability. The meeting shall be scheduled as soon as 
possible following its determination that the infant or toddler is 
eligible for EIS, but not later than 45 days from the date of the 
referral for services.
    (iii) The IFSP team meeting to develop and review the IFSP must 
include:
    (A) The parent or parents of the infant or toddler.
    (B) Other family members, as requested by the parent, if feasible.
    (C) An advocate or person outside of the family if the parent 
requests that person's participation.
    (D) The service coordinator who has worked with the family since 
the initial referral of the infant or toddler or who is responsible for 
the implementation of the IFSP.
    (E) The persons directly involved in conducting the evaluations and 
assessments.
    (F) As appropriate, persons who shall provide services to the 
infant or toddler or the family.
    (iv) If a participant listed in paragraph (a)(6)(iii) of this 
section is unable to attend a meeting, arrangements must be made for 
the person's involvement through other means, which may include:

[[Page 36668]]

    (A) A telephone conference call or other electronic means of 
communication.
    (B) Providing knowledgeable, authorized representation.
    (C) Providing pertinent records for use at the meeting.
    (v) The IFSP shall contain:
    (A) A statement of the infant's or toddler's current developmental 
levels including physical, cognitive, communication, social or 
emotional, and adaptive behaviors based on the information from the 
evaluation and assessments.
    (B) A statement of the family's resources, priorities, and concerns 
about enhancing the infant's or toddler's development.
    (C) A statement of the measurable results or measurable outcomes 
expected to be achieved for the infant or toddler and the family. The 
statement shall contain pre-literacy and language skills, as 
developmentally appropriate for the infant or toddler, and the 
criteria, procedures, and timelines used to determine the degree to 
which progress toward achieving the outcomes is being made and whether 
modification or revision of the results and services are necessary.
    (D) A statement of the specific EIS 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.
    (E) A statement of the natural environments in which EIS will be 
provided including a justification of the extent, if any, to which the 
services shall not be provided in a natural environment because the 
intervention cannot be achieved satisfactorily for the infant or 
toddler. The IFSP must include a justification for not providing a 
particular early intervention service in the natural environment.
    (F) The projected dates for initiation of services and the 
anticipated length, duration, and frequency of those services.
    (G) The name of the service coordinator who shall be responsible 
for the implementation of the IFSP and for coordination with other 
agencies and persons. In meeting these requirements, EDIS may:
    (1) Assign the same service coordinator appointed at the infant or 
toddler's initial referral for evaluation to implement the IFSP;
    (2) Appoint a new service coordinator; or
    (3) Appoint a service coordinator requested by the parents.
    (H) A description of the appropriate transition services supporting 
the movement of the toddler with a disability to preschool or other 
services.
    (vi) EDIS shall explain the contents of the IFSP to the parents and 
shall obtain an informed, written consent from the parents before 
providing EIS described in the IFSP.
    (vii) The IFSP shall be implemented within ten business days of 
completing the document, unless the IFSP team, including the parents, 
documents the need for a delay.
    (viii) If a parent does not provide consent for participation in 
all EIS, EDIS shall still provide those interventions to which a parent 
does give consent.
    (ix) EDIS shall evaluate the IFSP at least once a year and the 
family shall be provided an opportunity to review the plan at 6-month 
intervals (or more frequently, based on the needs of the child and 
family). The purpose of the periodic review is to determine:
    (A) The degree to which progress toward achieving the outcomes is 
being made.
    (B) Whether modification or revision of the outcomes or services is 
necessary.
    (x) The review may be carried out by a meeting or by another means 
that is acceptable to the parents and other participants.
    (7) Transition from early intervention services. (i) EDIS shall 
provide a written transition plan for toddlers receiving EIS to 
facilitate their transition to preschool or other setting, if 
appropriate. A transition plan must be recorded on the IFSP between the 
toddler's second and third birthday and not later than 90 days before 
the toddler's third birthday and shall include the following steps to 
be taken:
    (A) A plan for discussions with, and training of, parents, as 
appropriate, regarding future transition from early intervention 
services, and for obtaining parental consent to facilitate the release 
of toddler records in order to meet child-find requirements of DoDEA, 
and to ensure smooth transition of services;
    (B) The specific steps to be taken to help the toddler adjust to, 
and function in, the preschool or other setting and changes in service 
delivery;
    (C) The procedures for providing notice of transition to the DoDEA 
CSC, for setting a pre-transition meeting with the CSC (with notice to 
parents), and for confirmation that child-find information, early 
intervention assessment reports, the IFSP, and relevant supporting 
documentation are transmitted to the DoDEA CSC;
    (D) Identification of transition services or other activities that 
the IFSP team determines are necessary to support the transition of the 
child.
    (ii) Families shall be included in the transition planning. EDIS 
shall inform the toddler's parents regarding future preschool, the 
child-find requirements of the school, and the procedures for 
transitioning the toddler from EIS to preschool.
    (iii) Not later than 6 months before the toddler's third birthday, 
the EDIS service coordinator shall obtain parental consent prior to 
release of identified records of a toddler receiving EIS to the DoD 
local school in order to allow the DoDEA school to meet child-find 
requirements.
    (iv) The EDIS service coordinator shall initiate a pre-transition 
meeting with the CSC, and shall provide the toddler's early 
intervention assessment reports, IFSP, and relevant supporting 
documentation. The parent shall receive reasonable notice of the pre-
transition meeting, shall receive copies of any documents provided to 
the CSC, and shall have the right to participate in and provide input 
to the pre-transition meeting.
    (v) As soon as reasonably possible following receipt of notice of a 
toddler potentially transitioning to preschool, the local DoDEA school 
shall convene a CSC. The CSC and EDIS shall cooperate to obtain 
parental consent, in accordance with IDEA and this part, to conduct 
additional evaluations if necessary.
    (vi) Based on the information received from EDIS, the CSC, 
coordinating with EDIS, will determine at the pre-transition meeting 
whether:
    (A) No additional testing or observation is necessary to determine 
that the toddler is eligible for special education and related 
services, in which case the CSC shall develop an eligibility report 
based on the EDIS early intervention assessment reports, IFSP, 
supporting documentation and other information obtained at the pre-
transition meeting, in accordance with paragraph (b) of this section; 
or
    (B) Additional testing or observation is necessary to determine 
whether the toddler is eligible for special education and related 
services, in which case the CSC shall develop an assessment plan to 
collect all required information necessary to determine eligibility for 
special education and obtain parental consent, in accordance with IDEA 
and this part, for evaluation in accordance with paragraph (b) of this 
section.
    (vii) In the event that the toddler is first referred to EDIS fewer 
than 90 days before the toddler's third birthday, EDIS and the DoDEA 
school shall work cooperatively in the evaluation process

[[Page 36669]]

and shall develop a joint assessment plan to determine whether the 
toddler is eligible for EIS or special education.
    (A) EDIS shall complete its eligibility determination process and 
the development of an IFSP, if applicable.
    (B) The CSC shall determine eligibility for special education.
    (viii) Eligibility assessments shall be multidisciplinary and 
family-centered and shall incorporate the resources of the EDIS as 
necessary and appropriate.
    (ix) Upon completion of the evaluations, the CSC shall schedule an 
eligibility determination meeting at the local school, no later than 90 
days prior to the toddler's third birthday.
    (A) The parents shall receive reasonable notice of the eligibility 
determination meeting, shall receive copies of any documents provided 
to the CSC, and shall have the right to participate in and provide 
input to the meeting.
    (B) EDIS and the CSC shall cooperate to develop an eligibility 
determination report based upon all available data, including that 
provided by EDIS and the parents, in accordance with paragraph (b) of 
this section.
    (x) If the toddler is found eligible for special education and 
related services, the CSC shall develop an individualized education 
program (IEP) in accordance with paragraph (b) of this section, and 
must implement the IEP on or before the toddler's third birthday.
    (xi) If the toddler's third birthday occurs during the period June 
through August (the traditional summer vacation period for school 
systems), the CSC shall complete the eligibility determination process 
and the development of an IEP before the end of the school year 
preceding the toddler's third birthday. An IEP must be prepared to 
ensure that the toddler enters preschool services with an instructional 
program at the start of the new school year.
    (xii) The full transition of a toddler shall occur on the toddler's 
third birthday unless the IFSP team and the CSC determine that an 
extended transition is in the best interest of the toddler and family.
    (A) An extended transition may occur when:
    (1) The toddler's third birthday falls within the last 6 weeks of 
the school year;
    (2) The family is scheduled to have a permanent change of station 
(PCS) within 6 weeks after a toddler's third birthday; or
    (3) The toddler's third birthday occurs after the end of the school 
year and before October 1.
    (B) An extended transition may occur if the IFSP team and the CSC 
determine that extended EIS beyond the toddler's third birthday are 
necessary and appropriate, and if so, how long extended services will 
be provided.
    (1) The IFSP team, including the parents, may decide to continue 
services in accordance with the IFSP until the end of the school year, 
PCS date, or until the beginning of the next school year.
    (2) Extended services must be delivered in accordance with the 
toddler's IFSP, which shall be updated if the toddler's or family's 
needs change on or before the toddler's third birthday.
    (3) The CSC shall maintain in its records meeting minutes that 
reflect the decision for EDIS to provide an extended transition for the 
specified period.
    (4) Prior to the end of the extended transition period, the CSC 
shall meet to develop an IEP that shall identify all special education 
and related services that will begin at the end of the transition 
period and meet all requirements of the IDEA and this part, in 
accordance with paragraph (b) of this section.
    (C) The IFSP team and the CSC may jointly determine that the 
toddler should receive services in the special education preschool 
prior to the toddler's third birthday.
    (1) If only a portion of the child's services will be provided by 
the DoDEA school, the information shall be identified in the IFSP, 
which shall also specify responsibilities for service coordination and 
transition planning. The CSC shall develop an IEP that shall identify 
all services to be delivered at the school, in accordance with 
paragraph (b) of this section.
    (2) If all the toddler's services will be provided by the DoDEA 
school, the services will be delivered pursuant to an IEP developed in 
accordance with paragraph (b) of this section. Transition activities 
and other services under the IFSP will terminate with the toddler's 
entry into the special education preschool.
    (3) Early entry into preschool services should occur only in 
exceptional circumstances (e.g., to facilitate natural transitions).
    (xiii) In the case of a child who may not be eligible for DoDEA 
preschool special education services, with the approval of the parents, 
EDIS shall make reasonable efforts to convene a conference among EDIS, 
the family, and providers of other services for children who are not 
eligible for special education preschool services (e.g., community 
preschools) in order to explain the basis for this conclusion to the 
parents and obtain parental input.
    (8) Maintenance of records. (i) EDIS officials shall maintain all 
EIS records, in accordance with 32 CFR part 310.
    (ii) EIS records, including the IFSP and the documentation of 
services delivered in accordance with the IFSP, are educational records 
consistent with 32 CFR part 285 and shall not be placed in the child's 
medical record.
    (9) Procedural safeguards. (i) Parents of an infant or toddler who 
is eligible for EIS shall be afforded specific procedural safeguards 
that must include:
    (A) The right to confidentiality of personally identifiable 
information in accordance with 32 CFR part 310, including the right of 
a parent to receive written notice and give written consent to the 
exchange of information between the Department of Defense and outside 
agencies in accordance with Federal law and 32 CFR part 310 and 32 CFR 
part 285.
    (B) The opportunity to inspect and review records relating to 
screening, evaluations and assessments, eligibility determinations, 
development and implementation of IFSPs.
    (C) The right to determine whether they or other family members 
will accept or decline any EIS, and to decline such a service after 
first accepting it without jeopardizing the provision of other EIS.
    (D) The right to written parental consent.
    (1) Consent must be obtained before evaluation of the infant or 
toddler in accordance with this section.
    (2) Consent must be obtained before initiation of EIS in accordance 
with this section.
    (3) If consent is not given, EDIS shall make reasonable efforts to 
ensure that the parent:
    (i) Is fully aware of the nature of the evaluation and assessment 
or the services that would be available.
    (ii) Understands that the infant or toddler will not be able to 
receive the evaluation and assessment or services unless consent is 
given.
    (E) The right to prior written notice.
    (1) Prior written notice must be given to the parents of an infant 
or toddler entitled to EIS a reasonable time before EDIS proposes to 
initiate or change, or refuses to initiate or change the 
identification, evaluation, or placement of the infant or toddler, or 
the provision of appropriate EIS to the infant or toddler and any 
family member.
    (2) The notice must be in sufficient detail to inform the parents 
about:
    (i) The action that is being proposed or refused.
    (ii) The reasons for taking the action.

[[Page 36670]]

    (iii) Each of the procedural safeguards that are available in 
accordance with this section, including availability of mediation, 
administrative complaint procedures, and due process complaint 
procedures that are available for dispute resolution as described in 
paragraph (d) of this section, including descriptions of how to file a 
complaint and the applicable timelines.
    (3) The notice must be provided in language written for a general 
lay audience and 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.
    (F) The right to timely administrative resolution of complaints.
    (G) The availability of dispute resolution with respect to any 
matter relating to the provision of EIS to an infant or toddler, 
through the administrative complaint, mediation and due process 
procedures described in paragraph (d) of this section, except the 
requirement to conduct a resolution meeting, in the event of a dispute 
between the Military Department concerned and the parents regarding 
EIS.
    (H) Any party aggrieved by the decision regarding a due process 
complaint filed in accordance with paragraph (d) of this section shall 
have the right to bring a civil action in a district court of the 
United States of competent jurisdiction without regard to the amount in 
controversy.
    (ii) During the pendency of any proceeding or action involving a 
complaint by the parent of an infant or toddler with a disability 
relating to the provision of EIS, unless the parent and EDIS otherwise 
agree, the infant or toddler shall continue to receive the appropriate 
EIS currently being provided under the most recent signed IFSP or, if 
applying for initial EIS services, shall receive the services not in 
dispute.
    (10) Mediation and due process procedures. Mediation and due 
process procedures, described in paragraph (d) of this section, except 
the requirement to conduct a resolution meeting, are applicable to 
early intervention when the Military Department concerned and the 
parents will be the parties in the dispute.
    (b) Procedures for the provision of educational programs and 
services for children with disabilities, ages 3 through 21 years, 
inclusive--(1) Parent involvement and general provisions. (i) The CSC 
shall take reasonable steps to provide for the participation of the 
parent(s) in the special education program of his or her child. School 
officials shall use devices or hire interpreters or other 
intermediaries who might be necessary to foster effective 
communications between the school and the parent about the child. 
Special education parental rights and responsibilities will be provided 
in the parent's native language, unless it is clearly not feasible to 
do so, e.g., low incidence language or not a written language.
    (ii) The CSC shall afford the child's parents the opportunity to 
participate in CSC meetings to determine their child's initial or 
continuing eligibility for special education and related services, to 
prepare or change the child's IEP, or to determine or change the 
child's placement.
    (iii) No child shall be required to obtain a prescription for a 
substance covered by the Controlled Substances Act, as amended, 21 
U.S.C. 801 et seq. as a condition of attending school, receiving an 
evaluation, or receiving services.
    (iv) For meetings described in this section, the parent of a child 
with a disability and the DoDEA school officials may agree to use 
alternative means of meeting participation, such as video conferences 
and conference calls.
    (2) Identification and referral. (i) DoDEA shall:
    (A) Engage in child-find activities to locate, identify, and screen 
all children who are entitled to enroll in DDESS in accordance with DoD 
Instruction 1342.26, ``Eligibility Requirements for Minor Dependents to 
Attend Department of Defense Domestic Dependent Elementary and 
Secondary Schools (DDESS)'' (available at http://www.dtic.mil/whs/directives/corres/pdf/134226p.pdf) or in DoDDS in accordance with DoDEA 
Regulation 1342.13, ``Eligibility Requirements for Education of 
Elementary and Secondary School-Age Dependents in Overseas Areas'' 
(available at http://www.dodea.edu/foia/iod/pdf/1342_13.pdf) who may 
require special education and related services.
    (B) Cooperate with the Military Departments to conduct ongoing 
child-find activities and periodically publish any information, 
guidelines, and directions on child-find activities for eligible 
children with disabilities, ages 3 through 21 years, inclusive.
    (C) Conduct the following activities to determine if children may 
need special education and related services:
    (1) Review school records for information about student performance 
on system-wide testing and other basic skills tests in the areas of 
reading and language arts and mathematics.
    (2) Review school health data such as reports of hearing, vision, 
speech, or language tests and reports from healthcare personnel about 
the health status of a child. For children with disabilities, any 
health records or other information that tends to identify a child as a 
person with a disability must be maintained in confidential files that 
are not co-mingled with other records and that are available only to 
essential staff for the purpose of providing effective education and 
services to the child.
    (3) Review school discipline records and maintain the 
confidentiality of such records and any information that tends to 
identify a child as a person with a disability.
    (4) Participate in transition activities of children receiving EIS 
who may require special education preschool services.
    (ii) DoDEA school system officials, related service providers, or 
others who suspect that a child has a possible disabling condition 
shall submit a child-find referral to the CSC containing, at a minimum, 
the name and contact information for the child and the reason for the 
referral.
    (iii) 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 and does not 
require informed consent.
    (3) Incoming students. The DoDEA school will take the following 
actions, in consultation with the parent, when a child transfers to a 
DoDEA school with an active IEP:
    (i) If the current IEP is from a non-DoDEA school:
    (A) Promptly obtain the child's educational records including 
information regarding assessment, eligibility, and provision of special 
education and related services from the previous school.
    (B) Provide FAPE, including services comparable (i.e., similar or 
equivalent) to those described in the incoming IEP, which could include 
extended school year services, in consultation with the parents, until 
the CSC:
    (1) Conducts an evaluation, if determined necessary by such agency.
    (2) Develops, adopts, and implements a new IEP, if appropriate, in 
accordance with the requirements of the IDEA and this part within 30 
school days of receipt of the IEP.
    (ii) If the current IEP is from a DoDEA school, the new school must 
provide the child a FAPE, including services comparable to those 
described in the incoming IEP, until the new school either:

[[Page 36671]]

    (A) Adopts the child's IEP from the previous DoDEA school; or
    (B) Develops, adopts, and implements a new IEP that meets the 
requirements of the IDEA and this part within 30 school days of receipt 
of the incoming IEP.
    (iii) Coordinate assessments of children with disabilities who 
transfer with the child's previous school as quickly as possible to 
facilitate prompt completion of full evaluations.
    (4) Referral by a parent. A parent may submit a request for an 
evaluation if they suspect their child has a disability. The CSC shall 
ensure any such request is placed in writing and signed by the 
requesting parent and shall, within 15 school days, review the request 
and any information provided by the parents regarding their concerns, 
confer with the child's teachers, and gather information related to the 
educational concerns. Following a review of the information, the CSC 
shall:
    (i) Convene a conference among the parents, teachers, and one or 
more other members of the CSC to discuss the educational concerns and 
document their agreements. Following the discussion, the parents may 
agree that:
    (A) The child's needs are not indicative of a suspected disability 
and other supports and accommodations will be pursued;
    (B) Additional information is necessary and a pre-referral process 
will be initiated; or
    (C) Information from the conference will be forwarded to the CSC 
for action on the parent's request for an evaluation.
    (ii) Within 10 school days of receipt of information from the 
conference regarding the parents' request for evaluation, agree to 
initiate the preparation of an assessment plan for a full and 
comprehensive educational evaluation or provide written notice to the 
parent denying the formal evaluation.
    (5) Referral by a teacher. (i) Prior to referring a child who is 
struggling academically or behaviorally to the CSC for assessment and 
evaluation and development of an IEP, the teacher shall identify the 
child's areas of specific instructional need and target instructional 
interventions to those needs using scientific, research-based 
interventions as soon as the areas of need become apparent.
    (ii) If the area of specific instructional need is not resolved, 
the teacher shall initiate the pre-referral process involving other 
members of the school staff.
    (iii) If interventions conducted during pre-referral fail to 
resolve the area of specific instructional need, the teacher shall 
submit a formal referral to the CSC.
    (6) Assessment and evaluation. (i) A full and comprehensive 
evaluation of educational needs shall be conducted prior to eligibility 
determination and before an IEP is developed or placement is made in a 
special education program, subject to the provisions for incoming 
students transferring to a DoDEA school as set forth in paragraph 
(b)(3) of this section. When the school determines that a child should 
be evaluated for a suspected disability, the school will:
    (A) Issue a prior written notice to the parents of the school's 
intention to evaluate and a description of the evaluation in accordance 
with paragraph (b)(19) of this section.
    (B) Provide parents notice of procedural safeguards.
    (C) Request that the parent execute a written consent for the 
evaluation in accordance with paragraph (b)(17) of this section.
    (D) Make reasonable efforts to obtain the informed consent from the 
parent for an initial evaluation to determine whether the child is a 
child with a disability.
    (ii) The CSC shall ensure that the following elements are included 
in a full and comprehensive assessment and evaluation of a child:
    (A) Screening of visual and auditory acuity.
    (B) Review of existing school educational and health records.
    (C) Observation in an educational environment.
    (D) A plan to assess the type and extent of the disability. A child 
shall be assessed in all areas related to the suspected disability. The 
assessment plan shall include, as appropriate:
    (1) An assessment of the nature and level of communication and the 
level of functioning academically, intellectually, emotionally, 
socially, and in the family.
    (2) An assessment of physical status including perceptual and motor 
abilities.
    (3) An assessment of the need for transition services for students 
16 years and older.
    (iii) The CSC shall involve the parents in the assessment process 
in order to obtain information about the child's strengths and needs 
and family concerns.
    (iv) The CSC, where possible, shall conduct the evaluations in the 
geographic area where the child resides, and shall use all locally 
available community, medical, and school resources, including qualified 
examiners employed by the Military Departments, to accomplish the 
assessment and evaluation. At least one specialist with knowledge in 
each area of the suspected disability shall be a member of the 
multidisciplinary assessment team.
    (v) The CSC must obtain parental consent, in accordance with IDEA 
and this part, before conducting an evaluation. The parent shall not be 
required to give consent for an evaluation without first being informed 
of the specific evaluation procedures that the school proposes to 
conduct.
    (vi) The evaluation must be completed by the school within 45 
school days following the receipt of the parent's written consent to 
evaluate in accordance with the school's assessment plan.
    (vii) The eligibility determination meeting must be conducted 
within 10 school days after completion of the school's formal 
evaluation.
    (viii) All DoD elements including the CSC and related services 
providers shall:
    (A) Use a variety of assessment tools and strategies to gather 
relevant functional, developmental, and academic information, including 
information provided by the parent, which may assist in determining:
    (1) Whether the child has a disability.
    (2) The content of the child's IEP, including information related 
to enabling the child to be involved and progress in the general 
education curriculum or, for preschool children, to participate in 
appropriate activities.
    (B) Not use any single measure or assessment as the sole criterion 
for determining whether a child has a disability or determining an 
appropriate educational program for the child.
    (C) Use technically sound instruments that may assess the relative 
contribution of cognitive and behavioral factors, in addition to 
physical or developmental factors.
    (ix) The CSC and DoD related services providers shall ensure that 
assessment materials and evaluation procedures are:
    (A) Selected and administered so as not to be racially or 
culturally discriminatory.
    (B) Provided 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 and 
administer.
    (C) Selected and administered to assess the extent to which the 
child with limited English proficiency has a disability and needs 
special education, rather than measuring the child's English language 
skills.

[[Page 36672]]

    (D) Validated for the specific purpose for which they are used or 
intended to be used.
    (E) Administered by trained and knowledgeable personnel in 
compliance with the instructions of the testing instrument.
    (F) Selected to assess specific areas of educational needs and 
strengths and not merely to provide a single general intelligence 
quotient.
    (G) Administered to a child with impaired sensory, motor, or 
communication skills so that the results accurately reflect a child's 
aptitude or achievement level or other factors the test purports to 
measure, rather than reflecting the child's impaired sensory, manual, 
or speaking skills.
    (x) As part of an initial evaluation and as part of any 
reevaluation, the CSC shall review existing evaluation data on the 
child, including:
    (A) The child's educational records.
    (B) Evaluations and information provided by the parents of the 
child.
    (C) Current classroom-based, local, or system-wide assessments and 
classroom observations.
    (D) Observations by teachers and related services providers.
    (xi) On the basis of that review and input from the child`s 
parents, identify what additional data, if any, are needed to 
determine:
    (A) Whether the child has a particular category of disability or, 
in the case of a reevaluation of a child, whether the child continues 
to have such a disability.
    (B) The present levels of academic achievement and related 
developmental and functional needs of the child.
    (C) Whether the child needs special education and related services 
or, in the case of a reevaluation of a child, whether the child 
continues to need special education and related services.
    (D) 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 and to participate, as 
appropriate, in the general education curriculum.
    (xii) The CSC may conduct its review of existing evaluation data 
without a meeting.
    (xiii) The CSC shall administer tests and other evaluation 
materials as needed to produce the data identified in paragraph 
(b)(6)(ii) and (xi) of this section.
    (7) Eligibility. (i) The CSC shall:
    (A) Require that the full comprehensive evaluation of a child is 
accomplished by a multidisciplinary team including specialists with 
knowledge in each area of the suspected disability and shall receive 
input from the child's parent(s).
    (B) Convene a meeting to determine eligibility of a child for 
special education and related services not later than 10 school days 
after the child has been assessed by the school.
    (C) Afford the child's parents the opportunity to participate in 
the CSC eligibility meeting.
    (D) Determine whether the child is a child with a disability as 
defined by the IDEA and this part, and the educational needs of the 
child.
    (E) Issue a written eligibility determination report, including a 
synthesis of evaluation findings, that documents a child's primary 
eligibility in one of the disability categories described in paragraph 
(g) of this section, providing a copy of the eligibility determination 
report to the parent.
    (F) Determine that a child does NOT have a disability if the 
determinant factor is:
    (1) Lack of appropriate instruction in essential components of 
reading;
    (2) Lack of instruction in mathematics; or
    (3) Limited English proficiency.
    (ii) The CSC shall reevaluate the eligibility of a child with a 
disability every 3 years, or more frequently, if the child's 
educational or related services needs, including improved academic 
achievement and functional performance, warrant a reevaluation. School 
officials shall not reevaluate more often than once a year, unless the 
parents and the school officials agree otherwise.
    (A) The scope and type of the reevaluation shall be determined 
individually based on a child's performance, behavior, and needs during 
the reevaluation and the review of existing data.
    (B) If the CSC determines that no additional data are needed to 
determine whether the child continues to be a child with a disability, 
the CSC shall, in accordance with paragraph (b)(19) of this section, 
provide prior written notice to the child's parents of:
    (1) The determination that no additional assessment data are needed 
and the reasons for their determination.
    (2) The right of the parents to request an assessment to determine 
whether the child continues to have a disability and to determine the 
child's educational needs.
    (C) The CSC is not required to conduct assessments for the purposes 
described in paragraph Sec.  57.6(b)(7)(ii)(B), unless requested to do 
so by the child's parents.
    (iii) The CSC shall evaluate a child in accordance with paragraph 
(b)(7)(ii) of this section before determining that the child no longer 
has a disability.
    (iv) The CSC is not required to evaluate a child before the 
termination of the child's eligibility due to graduation from secondary 
school with a regular diploma, or due to exceeding the age of 
eligibility for FAPE.
    (v) When a child's eligibility has terminated due to graduation or 
exceeding the age of eligibility, the DoDEA school must provide the 
child, or the parent if the child has not yet reached the age of 
majority or is otherwise incapable of providing informed consent, with 
a summary of the child's academic achievement and functional 
performance.
    (A) The summary of performance must be completed during the final 
year of a child's high school education.
    (B) The summary must include:
    (1) Child's demographics.
    (2) Child's postsecondary goal.
    (3) Summary of performance in the areas of academic, cognitive, and 
functional levels of performance to include the child's present level 
of performance, and the accommodations, modifications, and assistive 
technology that were essential in high school to assist the student in 
achieving maximum progress.
    (4) Recommendations on how to assist the child in meeting the 
child's post-secondary goals.
    (8) IEP--(i) IEP development. (A) DoDEA shall ensure that the CSC 
develops and implements an IEP to provide FAPE for each child with a 
disability who requires special education and related services as 
determined by the CSC. An IEP shall be in effect at the beginning of 
each school year for each child with a disability eligible for special 
education and related services under the IDEA and this part.
    (B) In developing the child's IEP, the CSC shall consider:
    (1) The strengths of the child.
    (2) The concerns of the parents for enhancing the education of 
their child.
    (3) The results of the initial evaluation or most recent evaluation 
of the child.
    (4) The academic, developmental, and functional needs of the child.
    (ii) IEP development meeting. The CSC shall convene a meeting to 
develop the IEP of a child with a disability. The meeting shall:
    (A) Be scheduled within 10 school days from the eligibility meeting 
following a determination by the CSC that the child is eligible for 
special education and related services.
    (B) Include as participants:

[[Page 36673]]

    (1) An administrator or school representative other than the 
child's teacher who is qualified to provide or supervise the provision 
of special education and is knowledgeable about the general education 
curriculum and available resources.
    (2) Not less than one general education teacher of the child (if 
the child is, or may be, participating in the general education 
environment).
    (3) Not less than one special education teacher or, where 
appropriate, not less than one special education provider of such 
child.
    (4) The child's parents.
    (5) An EIS coordinator or other representative of EIS, if the child 
is transitioning from EIS.
    (6) The child, if appropriate.
    (7) A representative of the evaluation team who is knowledgeable 
about the evaluation procedures used and can interpret the 
instructional implications of the results of the evaluation.
    (8) Other individuals invited at the discretion of the parents or 
school who have knowledge or special expertise regarding the child or 
the IDEA, including related services personnel, as appropriate.
    (iii) IEP content. The CSC shall include in the IEP:
    (A) A statement of the child's present levels of academic 
achievement and functional performance including:
    (1) How the child's disability affects involvement and progress in 
the general education curriculum, or
    (2) For preschoolers, how the disability affects participation in 
appropriate activities.
    (3) For children with disabilities who take an alternate 
assessment, a description of short-term objectives.
    (B) A statement of measurable annual goals including academic and 
functional goals designed to meet:
    (1) The child's needs that result from the disability to enable the 
child to be involved in and make progress in the general education 
curriculum.
    (2) Each of the child's other educational needs resulting from his 
or her disability.
    (C) A description of how the child's progress toward meeting the 
annual goals shall be measured, and when periodic progress reports will 
be provided to the parents.
    (D) A statement of the special education and related services, 
supplementary aids and services (which are based on peer-reviewed 
research to the extent practicable and shall be provided to the child 
or on behalf of the child), and a statement of the program 
modifications or supports for school personnel that shall be provided 
for the child to:
    (1) Advance appropriately toward attaining the annual goals.
    (2) Be involved in and make progress in the general education 
curriculum and participate in extracurricular and other non-academic 
activities.
    (3) Be educated and participate with other children who may or may 
not have disabilities.
    (E) An explanation of the extent, if any, to which the child will 
not participate with non-disabled children in the regular class and in 
non-academic activities.
    (F) A statement of any individualized appropriate accommodations 
necessary to measure the child's academic achievement and functional 
performance on system-wide or district-wide assessments. If the CSC 
determines that the child shall take an alternate assessment of a 
particular system-wide or district-wide assessment of student 
achievement (or part of an assessment), a statement of why:
    (1) The child cannot participate in the regular assessment.
    (2) The particular alternate assessment selected is appropriate for 
the child.
    (G) Consideration of the following special factors:
    (1) Assistive technology devices and services for all children.
    (2) Language needs for the child with limited English proficiency.
    (3) Instruction in Braille and the use of Braille for a child who 
is blind or visually impaired, unless the CSC 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.
    (4) Interventions, strategies, and supports including positive 
behavioral interventions and supports to address behavior for a child 
whose behavior impedes his or her learning or that of others.
    (5) Language and communication needs, and in the case of a child 
who is deaf or hard of hearing, 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 communication mode.
    (H) A statement of the amount of time that each service shall be 
provided to the child, including the date for beginning of services and 
the anticipated frequency, number of required related services sessions 
to be provided by EDIS, location and duration of those services 
(including adjusted school day or an extended school year), and 
modifications.
    (I) A statement of special transportation requirements, if any.
    (J) Physical education services, specially designed if necessary, 
shall be made available to every child with a disability receiving a 
FAPE. Each child with a disability must be afforded the opportunity to 
participate in the regular physical education program available to non-
disabled children unless the child is enrolled full-time in a separate 
facility or needs specially designed physical education, as prescribed 
in the child's IEP.
    (iv) Transition services. (A) Beginning not later than the first 
IEP to be in effect when the child turns 16, or younger if determined 
appropriate by the CSC, and updated annually, thereafter, the IEP must 
include:
    (1) Appropriate measurable postsecondary goals based on age-
appropriate transition assessments related to training, education, 
employment and, where appropriate, independent living skills.
    (2) The transition services, including courses of study, needed to 
assist the child in reaching postsecondary goals.
    (B) Beginning at least 1 year before the child reaches the age of 
majority (18 years of age), except for a child with a disability who 
has been determined to be incompetent in accordance with Federal or 
State law, a statement that the child has been informed of those rights 
that transfer to him or her in accordance with this part.
    (9) Implementation of the IEP. (i) The CSC shall ensure that all 
IEP provisions developed for any child entitled to an education by the 
DoDEA school system are fully implemented.
    (ii) The CSC shall:
    (A) Seek to obtain parental agreement and signature on the IEP 
before delivery of special education and related services in accordance 
with that IEP is begun.
    (B) Provide a copy of the child's IEP to the parents.
    (C) Ensure that the IEP is implemented as soon as possible 
following the IEP development meeting.
    (D) Ensure the provision of special education and related services, 
in accordance with the IEP.
    (E) Ensure that the child's IEP is accessible to each general 
education teacher, special education teacher, related service provider, 
and any other service provider who is responsible for its 
implementation, and that each teacher and provider is informed of:
    (1) His or her specific responsibilities related to implementing 
the child's IEP.

[[Page 36674]]

    (2) The specific accommodations, modifications, and supports that 
must be provided for the child in accordance with the IEP.
    (F) Review the IEP for each child periodically and at least 
annually in a CSC meeting to determine whether the child has been 
progressing toward the annual goals.
    (G) Revise the IEP, as appropriate, and address:
    (1) Any lack of progress toward the annual goals and in the general 
education curriculum, where appropriate.
    (2) The results of any reevaluation.
    (3) Information about the child provided by the parents, teachers, 
or related service providers.
    (4) The child's needs.
    (10) Placement and Least Restrictive Environment (LRE). (i) The CSC 
shall determine the educational placement of a child with a disability.
    (ii) The educational placement decision for a child with a 
disability shall be:
    (A) Determined at least annually.
    (B) Made in conformity with the child's IEP.
    (C) Made in conformity with the requirements of IDEA and this part 
for LRE.
    (1) A child with a disability shall be educated, to the maximum 
extent appropriate, with children who are not disabled.
    (2) A child with a disability shall not be removed from education 
in age-appropriate general education classrooms solely because of 
needed modifications in the general education classroom.
    (3) As appropriate, the CSC shall make provisions for supplementary 
services to be provided in conjunction with general education 
placement.
    (4) Special classes, separate schooling, or other removal of a 
child with a disability from the general education environment shall 
occur only when the nature or severity of the disability is such that 
education in general education classes with the use of supplementary 
aids and services cannot be achieved satisfactorily.
    (5) In providing or arranging for the provision of non-academic and 
extracurricular services and activities, including meals, recess 
periods, assemblies, and study trips, the CSC shall ensure that a child 
with a disability participates with non-disabled children in those 
services and activities to the maximum extent appropriate to the needs 
of that child.
    (iv) In determining the LRE for an individual student, the CSC 
shall:
    (A) Consider the needs of the individual child as well as any 
potential harmful effect on the child or the quality of services that 
he or she needs.
    (B) Make a continuum of placement options available to meet the 
needs of children with disabilities for special education and related 
services. The options on this continuum include the general education 
classroom, special classes (a self-contained classroom in the school), 
home bound instruction, or instruction in hospitals or institutions.
    (v) When special schools and institutions may be appropriate, the 
CSC shall consider such placement options in coordination with the Area 
Special Education Office.
    (vi) In the case of a disciplinary placement, school officials 
shall follow the procedures set forth in paragraph (b)(13) of this 
section.
    (11) Extended School Year (ESY) services. ESY services must be 
provided only if a child's IEP team determines that the services are 
necessary for the provision of FAPE to the child. DoDEA may not:
    (i) Limit ESY services to particular categories of disability; or
    (ii) Unilaterally limit the type, amount, or duration of ESY 
services.
    (12) Discipline--(i) School discipline. All regular disciplinary 
rules and procedures applicable to children attending a DoDEA school 
shall apply to children with disabilities who violate school rules and 
regulations or disrupt regular classroom activities, except that:
    (A) A manifestation determination must be conducted for discipline 
proposed for children with disabilities in accordance with DoDEA 
disciplinary rules and regulations and paragraph (b)(12)(v) of this 
section, and
    (B) The child subject to disciplinary removal shall continue to 
receive educational services in accordance with DoD disciplinary rules 
and regulations and paragraph (b)(12)(iv) of this section.
    (ii) Change of placement. (A) It is a change of placement if a 
child is removed from his or her current placement for more than 10 
consecutive school days or for a series of removals that cumulates to 
more than 10 school days during the school year that meets the criteria 
of paragraph (b)(12)(ii)(C) of this section.
    (B) It is not a change of placement if a child is removed from his 
or her current academic placement for not more than 10 consecutive or 
cumulative days in a school year for one incident of misconduct. A 
child can be removed from the current educational placement for 
separate incidents of misconduct in the same school year (as long as 
those removals do not constitute a change of placement under IDEA) to 
the extent such a disciplinary alternative is applied to children 
without disabilities.
    (C) If a child has been removed from his or her current placement 
for more than 10 days in a school year, but not more than 10 
consecutive school days, the CSC shall determine whether the child has 
been subject to a series of removals that constitute a pattern. The 
determination is made on a case-by-case basis and is subject to review 
by a hearing officer in accordance with the provisions of paragraph 
(d)(5) of this section. The CSC will base its determination on whether 
the child has been subjected to a series of removals that constitute a 
pattern by examining whether:
    (1) The child's behavior is substantially similar to his or her 
behavior in previous incidents that resulted in the series of removals, 
and;
    (2) Additional factors such 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.
    (D) On the date the decision is made to remove a child with a 
disability because of misconduct, when the removal would change the 
child's placement, the school must notify the parents of that decision 
and provide the parents the procedural safeguards notice described in 
paragraph (b)(19) of this section.
    (iii) Alternate educational setting determination, period of 
removal. School personnel may remove a child with a disability for 
misconduct from his or her current placement:
    (A) To an appropriate interim alternate educational setting (AES), 
another setting, or suspension for not more than 10 consecutive school 
days to the extent those alternatives are applied to children without 
disabilities (for example, removing the child from the classroom to the 
school library, to a different classroom, or to the child's home), 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 
the CSC has determined that those removals do not constitute a pattern 
in accordance with paragraphs (b)(12)(ii) and (b)(12)(iv)(C) of this 
section; or
    (B) To an AES determined by the CSC 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, at school, on 
school-provided transportation, on school premises, or at a school-
sponsored event:
    (1) Carries a weapon or possesses a weapon;

[[Page 36675]]

    (2) Knowingly possesses or uses illegal drugs or sells or solicits 
the sale of a controlled substance; or
    (3) Has inflicted serious bodily injury upon another person; or
    (C) To an AES determined by the CSC, another setting or suspension 
for more than 10 school days, where the behavior giving rise to the 
violation was determined by the CSC not to be a manifestation of the 
child's disability, in accordance with (b)(12)(v) of this section.
    (D) After an expedited hearing if school personnel believe that 
returning the child to his or her current educational placement is 
substantially likely to cause injury to the child or to others.
    (iv) Required services during removal. (A) If a child with a 
disability is removed from his or her placement for 10 cumulative 
school days or less in a school year, the school is required only to 
provide services comparable to the services it provides to a child 
without disabilities who is similarly removed.
    (B) If a child with a disability is removed from his or her 
placement for more than 10 school days, where the behavior that gave 
rise to the violation of the school code is determined in accordance 
with paragraph (b)(12)(v) of this section not to be a manifestation of 
the child's disability, or who is removed under paragraph 
(b)(12)(iii)(B) of this section irrespective of whether the behavior is 
determined to be a manifestation of the child's disability, the school 
must:
    (1) Continue to provide the child with the educational services as 
identified by the child's IEP as a FAPE so as to enable the child to 
continue participating in the general education curriculum, although in 
another setting, and to progress toward meeting the goals set out in 
the child's IEP.
    (2) Provide, as appropriate, a functional behavioral assessment and 
behavioral intervention services and modifications designed to address 
the behavior violation so that it does not recur.
    (C) If a child with a disability has been removed for more than 10 
cumulative school days and the current removal is for 10 consecutive 
school days or less, then the CSC must determine whether the pattern of 
removals constitutes a change of placement in accordance with paragraph 
(b)(12)(ii) of this section.
    (1) If the CSC determines the pattern of removals is NOT a change 
of placement, then the CSC must determine the extent to which services 
are needed to enable the child to continue participating in the general 
education curriculum, although in another setting, and to progress 
toward meeting the goals set out in the child's IEP.
    (2) If the CSC determines that the pattern of removals IS a change 
of placement, then the CSC must conduct a manifestation determination.
    (v) Manifestation determination and subsequent action by CSC and 
school personnel. (A) A principal must give the notice required and 
convene a manifestation determination meeting with the CSC within 10 
school days of recommending, in accordance with DoDEA Regulation 
2051.1, a disciplinary action that would remove a child with 
disabilities for:
    (1) More than 10 consecutive school days, or
    (2) A period in excess of 10 cumulative school days when the child 
has been subjected to a series of removals that constitute a pattern.
    (B) The manifestation CSC will review all relevant information in 
the child's file (including the IEP, any teacher observations, and any 
information provided by the sponsor or parent) and determine whether 
the misconduct was a manifestation of the child's disability.
    (1) The misconduct must be determined to be a manifestation of the 
child's disability if it is determined the misconduct:
    (i) Was caused by the child's disability or had a direct and 
substantial relationship to the child's disability; or
    (ii) Was the direct result of the school's failure to implement the 
IEP.
    (2) If the determination is made that the misconduct was a 
manifestation of the child's disability, the CSC must:
    (i) Conduct a functional behavioral assessment, unless the school 
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) Review any existing behavioral intervention or disciplinary 
plan and modify it, as necessary, to address the behavior; and
    (iii) Revise the student's IEP or placement and delivery system to 
address the school's failure to implement the IEP and to ensure that 
the student receives services in accordance with the IEP.
    (3) Unless the parent and school agree to a change of placement as 
part of the modification of the behavioral intervention plan, the CSC 
must return the child to the placement from which the child was 
removed:
    (i) Not later than the end of 10 days of removal; or
    (ii) Not later than the end of 45 consecutive school days, if the 
student committed a weapon or drug offense or caused serious bodily 
injury for which the student was removed to an AES.
    (4) If the determination is made that the misconduct in question 
was the direct result of the school's failure to implement the IEP, the 
school must take immediate steps to remedy those deficiencies.
    (5) If the determination is made that the behavior is NOT a 
manifestation of the child's disability, school personnel may apply the 
relevant disciplinary procedures in the same manner and for the same 
duration as the procedures that would be applied to children without 
disabilities, and must:
    (i) Forward the case and a recommended course of action to the 
school principal, who may then refer the case to a disciplinary 
committee for processing.
    (ii) Reconvene the CSC following a disciplinary decision that would 
change the student's placement, to identify, if appropriate, an 
educational setting and delivery system to ensure the child receives 
services in accordance with the IEP.
    (vi) Appeals of school decision regarding placement or 
manifestation determination. (A) The parent of a child with a 
disability who disagrees with any decision regarding placement or 
manifestation determination, or a school that believes 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 an 
expedited due process hearing before a hearing officer by filing a 
petition in accordance with paragraph (d)(5) of this section.
    (B) A hearing officer, appointed in accordance with paragraph (d) 
of this section, hears and makes a determination regarding an appeal. 
In making the determination the hearing officer may:
    (1) 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 the authority of school personnel in 
accordance with this part or that the child's behavior was a 
manifestation of the child's disability; or
    (2) Order a change of placement of the child with a disability to 
an appropriate interim AES for not more than 45 school days if the 
hearing officer determines that maintaining the child's current 
placement is substantially likely to result in injury to the child or 
to others.
    (C) At the end of the placement in the appropriate AES, the 
procedures for placement in an AES may be repeated,

[[Page 36676]]

with the consent of the Area Director, if the school believes that 
returning the child to the original placement is substantially likely 
to result in injury to the child or to others.
    (D) When an appeal has been made by either the parent or the 
school, the child must remain in the interim AES pending the decision 
of the hearing officer or until the expiration of the specified time 
period, whichever occurs first, unless the parent and the DoDEA school 
system agree otherwise.
    (13) Children not yet determined eligible for special education. 
(i) A child who has not been determined to be eligible for special 
education and related services and who is subject to discipline may 
assert any of the protections provided for in paragraph (b)(19) of this 
section if the school had knowledge that the child was a child with a 
disability before the behavior that precipitated the disciplinary 
action occurred.
    (ii) DoDEA shall be deemed to have knowledge that a child is a 
child with a disability if, before the behavior that precipitated the 
disciplinary action occurred:
    (A) The parent of the child expressed concern in writing to a 
teacher of the child, the school principal or assistant principal, or 
the school special education coordinator that the child was in need of 
special education and related services;
    (B) The child presented an active IEP from another school;
    (C) The parent of the child requested an evaluation of the child; 
or
    (D) The teacher of the child or other school personnel expressed 
specific concerns about a pattern of behavior demonstrated by the child 
directly to the principal or assistant principal, the special education 
coordinator, or to another teacher of the child.
    (iii) A school is deemed NOT to have knowledge that a child is a 
child with a disability if:
    (A) The parent of the child has not allowed an evaluation of the 
child or the parent has revoked consent, in writing, to the delivery of 
the child's special education and related services, in accordance with 
this part; or
    (B) The child has been evaluated and determined not to be a child 
with a disability.
    (iv) Conditions that apply if there is no basis of knowledge that 
the child is a child with a disability.
    (A) If a school has no basis of knowledge that a child is a child 
with a disability prior to taking disciplinary measures against the 
child, the child may be subjected to the disciplinary measures applied 
to non-disabled children who engage in comparable behaviors in 
accordance with paragraph (b)(12)(i) of this section.
    (B) If a request is made for an evaluation of a child during the 
time period when the child is subjected to disciplinary measures:
    (1) The evaluation must be expedited.
    (2) Until the evaluation is completed, the child remains in his or 
her then current educational placement, which can include suspension or 
expulsion without educational services.
    (v) 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 school must 
provide special education and related services in accordance with an 
IEP.
    (14) Referral to and action by law enforcement and judicial 
authorities--(i) Rule of construction. Nothing prohibits a school from 
reporting a crime threatened or committed by a child with a disability 
to appropriate authorities, or prevents military, host-nation, or State 
law enforcement and judicial authorities from exercising their 
responsibilities with regard to the application of Federal, host-
nation, and State law to crimes committed or threatened by a child with 
a disability.
    (ii) Transmittal of records. An agency reporting a crime in 
accordance with this paragraph may transmit copies of the child's 
special education and disciplinary records only to the extent that the 
transmission is in accordance with 32 CFR part 285.
    (15) Children with disabilities who are placed in a non-DoDEA 
school or facility pursuant to an IEP.
    (i) Children with disabilities who are eligible to receive a DoDEA 
school education, but are placed in a non-DoD school or facility by 
DoDEA because a FAPE cannot be provided by DoD, shall have all the 
rights of children with disabilities who are enrolled in a DoDEA 
school.
    (ii) A child with a disability may be placed at DoD expense in a 
non-DoD school or facility only if required by the IEP.
    (iii) DoDEA school officials shall initiate and conduct a meeting 
to develop an IEP for the child before placement. A representative of 
the non-DoD school or facility should attend the meeting. If the 
representative cannot attend, the DoDEA school officials shall 
communicate in other ways to facilitate participation including 
individual or conference telephone calls. A valid IEP must document the 
necessity of the placement in a non-DoD school or facility. The IEP 
must:
    (A) Be signed by an authorized DoDEA official before it becomes 
valid.
    (B) Include a determination that the DoDEA school system does not 
currently have and cannot reasonably create an educational program 
appropriate to meet the needs of the child with a disability.
    (C) Include a determination that the non-DoD school or facility and 
its educational program and related services conform to the 
requirements of this part.
    (iv) The DoD shall not be required to reimburse the costs of 
special education and related services if DoDEA made FAPE available in 
accordance with the requirements of the IDEA and a parent unilaterally 
places the child in a non-DoD school without the approval of DoDEA.
    (A) Reimbursement may be ordered by a hearing officer if he or she 
determines that DoDEA had not made FAPE available in a timely manner 
prior to enrollment in the non-DoDEA school and that the private 
placement is appropriate.
    (B) Reimbursement may be reduced or denied:
    (1) If, at the most recent CSC meeting that the parents attended 
prior to removal of the child from the DoDEA school, the parents did 
not inform the CSC that they were rejecting the placement proposed by 
the DoDEA school to provide FAPE to their child, including stating 
their concerns and their intent to enroll their child in non-DoD school 
at DoD expense.
    (2) If, at least 10 business days (including for this purpose any 
holidays that occur on a Monday through Friday) prior to the removal of 
the child from the DoDEA school, the parents did not give written 
notice to the school principal or CSC chairperson of the information 
described in paragraph (b)(15)(iv)(B)(1) of this section.
    (3) If, the CSC informed the parents of its intent to evaluate the 
child, using the notice requirement described in paragraph (b)(6)(i) 
and paragraph (b)(19) of this section, but the parents did not make the 
child available; or
    (4) Upon a hearing officer finding of unreasonableness with respect 
to actions taken by the parents.
    (C) Reimbursement may not be reduced or denied for failure to 
provide the required notice if:
    (1) The DoDEA school prevented the parent from providing notice;
    (2) The parents had not received notification of the requirement 
that the school provide prior written notice required by paragraph 
(b)(19) of this section;

[[Page 36677]]

    (3) Compliance would result in physical or emotional harm to the 
child; or
    (4) The parents cannot read and write in English.
    (16) Confidentiality of the records. The DoDEA school and EDIS 
officials shall maintain all student records in accordance with 32 CFR 
part 310.
    (17) Parental consent--(i) Consent requirements. The consent of a 
parent of a child with a disability or suspected of having a disability 
shall be obtained before:
    (A) Initiation of formal evaluation procedures to determine whether 
the child qualifies as a child with a disability and prior to 
conducting a reevaluation;
    (B) Initial provision of special education and related services.
    (ii) Consent for initial evaluation. If the parent of a child does 
not provide consent for an initial evaluation or fails to respond to a 
request for consent for an initial evaluation, then DoDEA may use the 
procedures described in paragraph (d) of this section to pursue an 
evaluation of a child suspected of having a disability.
    (A) Consent to evaluate shall not constitute consent for placement 
or receipt of special education and related services.
    (B) If a parent declines to give consent for evaluation, DoDEA 
shall not be in violation of the requirement to conduct child-find, the 
initial evaluation, or the duties to follow evaluation procedures or 
make an eligibility determination and write an IEP as prescribed in 
this section.
    (iii) Consent for reevaluation. The school must seek to obtain 
parental consent to conduct a reevaluation. If the parent does not 
provide consent or fails to respond to a request for consent for a 
reevaluation, then the school may conduct the reevaluation without 
parental consent if the school can demonstrate that it has made 
reasonable efforts to obtain parental consent and documented its 
efforts. The documentation must include a record of the school's 
attempts in areas such as:
    (A) Detailed records of telephone calls made or attempted and the 
results of those calls.
    (B) Copies of correspondence sent to the parents and any responses 
received.
    (C) Detailed records of visits made to the parents' home, place of 
employment or duty station, and the results of those visits.
    (iv) Consent for the initial provision of special education and 
related services. The school that is responsible for making a FAPE 
available to a child with a disability under this part must seek to 
obtain informed consent from the parent of such child before providing 
special education and related services to the child. If the parent 
refuses initial consent for services, the DoDEA school:
    (A) May not use the procedures described in paragraph (d) of this 
section (mediation and due process) to obtain agreement or a ruling 
that the special education and related services recommended by the 
child's CSC may be provided to the child without parental consent.
    (B) Shall not be considered to be in violation of the requirement 
to make a FAPE available to the child for its failure to provide those 
services to the child for which parental consent was requested.
    (C) Shall not be required to convene an IEP meeting or develop an 
IEP for the child.
    (18) Parent revocation of consent for continued special education 
and related services. (i) Parents may unilaterally withdraw their 
children from further receipt of all special education and related 
services by revoking their consent for the continued provision of 
special education and related services to their children.
    (ii) Parental revocation of consent must be in writing.
    (iii) Upon receiving a written revocation of consent, the DoDEA 
school must cease the provision of special education and related 
services and must provide the parents prior written notice before 
ceasing the provision of services. The notice shall comply with the 
requirements of paragraph (b)(19) of this section and shall advise the 
parents:
    (A) Of any changes in educational placement and services that will 
result from the revocation of consent.
    (B) That the school will terminate special education and related 
services to the child on a specified date, which shall be within a 
reasonable time following the delivery of the written notice.
    (C) That DoDEA will not be considered to be in violation of the 
requirement to make FAPE available to the child because of the failure 
to provide the child with further special education and related 
services.
    (D) That the DoDEA school will not be deemed to have knowledge that 
the child is a child with a disability and the child may be disciplined 
as a general education student and will not be entitled to the IDEA 
discipline protections.
    (E) That the parents maintain the right to subsequently request an 
initial evaluation to determine if the child is a child with a 
disability who needs special education and related services and that 
their child will not receive special education and related services 
until eligibility has been determined.
    (F) That the DoDEA school will not challenge, through mediation or 
a due process hearing, the revocation of consent to the provision of 
special education or related services.
    (G) That while the school is not required to convene a CSC meeting 
or to develop an IEP for further provision of special education and 
related services, it is willing to convene a CSC meeting upon request 
of the parent prior to the date that service delivery ceases.
    (iv) Revocation of consent for a particular service:
    (A) Upon receiving a revocation of consent for a particular special 
education or related service, the DoDEA school must provide the parent 
prior written notice in accordance with the requirements of paragraph 
(b)(19) of this section.
    (B) If parents disagree with the provision of a particular special 
education or related service and the school members of the CSC and the 
parents agree that the child would be provided a FAPE if the child did 
not receive that service, the child's IEP may be modified to remove the 
service.
    (C) If the parent and the school members of the CSC disagree as to 
whether the child would be provided a FAPE if the child did not receive 
a particular service, the parent may use the mediation or due process 
procedures under this part to obtain a determination as to whether the 
service with which the parent disagrees is or is not appropriate to his 
or her child and whether it is necessary to FAPE, but the school may 
not cease the provision of a particular service.
    (19) Procedural safeguards--(i) Parental rights. Parents of 
children, ages 3 through 21 inclusive, with disabilities must be 
afforded procedural safeguards with respect to the provision of FAPE 
which shall include:
    (A) The right to confidentiality of personally identifiable 
information in accordance with Federal law and DoD regulations.
    (B) The right to examine records and to participate in meetings 
with respect to assessment, screening, eligibility determinations, and 
the development and implementation of the IEP.
    (C) The right to furnish or decline consent in accordance with this 
section.
    (D) The right to prior written notice when the school proposes to 
initiate or change, or refuses to initiate or change the 
identification, evaluation, educational placement, or provision of FAPE 
to a child with a disability.

[[Page 36678]]

    (1) The notice shall include:
    (i) A description of the action that is being proposed or refused.
    (ii) An explanation of why the agency proposes or refuses to take 
the action.
    (iii) A description of each evaluation procedure, assessment, 
record, or report used as a basis for the proposed or refused action.
    (iv) A description of the factors that were relevant to the 
agency's proposal or refusal.
    (v) A description of any other options considered by the CSC and 
the reasons why those options were rejected.
    (vi) Each of the procedural safeguards that is available in 
accordance with the IDEA and this part.
    (vii) Sources for parents to contact to obtain assistance in 
understanding the provisions of this part.
    (viii) Dispute resolution procedures, including a description of 
mediation, how to file a complaint, due process hearing procedures, and 
applicable timelines.
    (2) The notice must be provided in language understandable to a lay 
person and 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.
    (E) The right to obtain an independent educational evaluation (IEE) 
of the child.
    (F) The right to timely administrative resolution of complaints.
    (G) The availability of dispute resolution through the 
administrative complaint, mediation, and due process procedures 
described in paragraph (d) of this section with respect to any matter 
relating to the identification, evaluation, or educational placement of 
the child, or a FAPE for the child, age 3 through 21 years, inclusive.
    (H) The right of any party aggrieved by the decision regarding a 
due process complaint to bring a civil action in a district court of 
the United States of competent jurisdiction in accordance with 
paragraph (d)(21) of this section.
    (ii) Procedural safeguards notice. A DoDEA school shall not be 
required to give parents a copy of the procedural safeguards notice 
more than once a school year, except that a copy must be given to 
parents upon a request from the parents; upon initial referral for 
evaluation or parental request for evaluation; and upon receipt of the 
first due process complaint.
    (A) The procedural safeguards notice must include a full 
explanation of all of the procedural safeguards available, including:
    (1) Independent evaluation for children (3 through 21 years, 
inclusive).
    (2) Prior written notice.
    (3) Parental consent.
    (4) Access to educational records.
    (5) Dispute resolution procedures together with applicable 
timelines including:
    (i) The availability of mediation.
    (ii) Procedures for filing a due process complaint and the required 
time period within which a due process complaint must be filed.
    (iii) The opportunity for the DoDEA school system to resolve a due 
process complaint filed by a parent through the resolution process.
    (iv) Procedures for filing an administrative complaint and for 
administrative resolution of the issues.
    (6) The child's placement during pendency of due process 
proceedings in accordance with paragraph (d)(18) of this section.
    (7) Procedures for children (3 through 21 years, inclusive) who are 
subject to placement in an interim AES.
    (8) Requirements for unilateral placement by parents of children in 
private schools at public expense.
    (9) Due process hearings, including requirements for disclosure of 
evaluation results and recommendations.
    (10) The right to bring a civil action in a district court of the 
United States in accordance with paragraph (d)(21) of this section, 
including the time period in which to file such action.
    (11) The possibility of an award of attorney's fees to the 
prevailing party in certain circumstances.
    (B) The procedural safeguards notice must be:
    (1) Written in language understandable to the general public.
    (2) 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. If the procedural safeguards notice is not translated into the 
native language of the parent, then the DoDEA school system shall 
ensure that:
    (i) The notice is translated orally or by other means for the 
parent in his or her native language or other mode of communication.
    (ii) The parent understands the content of the notice.
    (iii) There is written evidence that the requirements above have 
been met.
    (iii) Independent Educational Evaluation (IEE)--(A) Obtaining an 
IEE. The DoDEA school system shall provide to the parents, upon request 
for an IEE, information about the requirements to meet the DoDEA school 
system criteria, as set forth in paragraph (b)(19)(iii)(F) of this 
section, and identification of qualified resources available to meet 
the requirements of paragraph (b)(iii)(F)(2) of this section.
    (B) Right to IEE. The parents of a child with a disability have a 
right to an IEE at the DoDEA school system expense if the parent 
disagrees with an evaluation obtained by the DoDEA school system, 
subject to paragraph (b)(19)(iii)(C) to (H) of this section.
    (C) Written request for IEE. If a parent provides the DoDEA school 
system with a written request for an IEE funded by the school system, 
then the school system shall either:
    (1) Agree to fund an appropriate IEE that meets the criteria the 
DoDEA school system would use for an initial evaluation of a child as 
set forth in paragraph (b)(19)(iii)(F) of this section, or
    (2) Initiate a due process hearing in accordance with paragraph (d) 
of this section, without unnecessary delay, and demonstrate that its 
evaluation was appropriate under this part.
    (i) If the DoDEA school system initiates a due process hearing and 
the final decision is that the school system's evaluation is 
appropriate, the parent still has the right to an IEE, but not at 
public expense.
    (ii) If a parent requests an IEE, the DoDEA school system may ask 
for the parent's reason why he or she objects to the school system's 
evaluation. However, the parent may not be compelled to provide an 
explanation and the DoDEA school system may not unreasonably delay 
either agreeing to fund an IEE that meets DoDEA school system criteria 
or initiating a due process hearing to defend its evaluation.
    (D) Parent-initiated evaluations. If the parent obtains an IEE 
funded by the school system or shares with the DoDEA school system an 
evaluation obtained at private expense:
    (1) The results of the evaluation shall be considered by the DoDEA 
school if it meets the school system's criteria in any decision made 
with respect to the provision of FAPE to the child.
    (2) The results may be presented by any party as evidence at a due 
process hearing under this section regarding that child.
    (3) The DoDEA school system may not be required to fund an IEE that 
has been obtained by a parent if at a due process hearing initiated by 
either party and conducted under this section, the DoDEA school system 
demonstrates either that:
    (i) The parentally obtained evaluation was not educationally 
appropriate or failed to meet agency criteria; or
    (ii) The DoDEA school system's evaluation was appropriate.
    (E) Hearing officer order for evaluation. A hearing officer may 
only order an IEE at the DoDEA school

[[Page 36679]]

system's expense as part of a due process hearing under this section 
if:
    (1) The school system has failed to demonstrate its assessment was 
appropriate; or
    (2) The school system has not already funded an IEE in response to 
a given school evaluation.
    (F) DoDEA school system criteria. An IEE provided at the DoDEA 
school system's expense must:
    (1) Conform to the requirements of paragraph (b)(6)(viii) and (ix) 
of this section.
    (2) Be conducted, when possible, in the geographic area where the 
child resides utilizing available qualified resources, including 
qualified examiners employed by the Military Department, in accordance 
with (b)(6)(iv) of this part, unless the parent can demonstrate to the 
satisfaction of the DoDEA school system or in a due process hearing 
filed in accordance with paragraph (d) of this section, that the 
geographic limitation renders the IEE impossible.
    (G) Conditions. Except for the criteria in paragraph 
(b)(19)(iii)(F) of this section, the DoDEA school system shall not 
impose conditions or timelines related to obtaining an IEE at the DoDEA 
school system expense.
    (H) Limitations. A parent is entitled to only one IEE at DoDEA 
school system expense in response to a given DoDEA school system 
evaluation with which the parent disagrees.
    (iv) Placement during due process, appeal, or civil procedures. 
While an impartial due process proceeding, appeal proceeding, or civil 
proceeding is pending, unless the DoDEA school system and the parent of 
the child agree otherwise in writing, the child shall remain in his or 
her current placement, subject to the disciplinary procedures 
prescribed in paragraph (b)(12) of this section.
    (v) Transfer of parental rights at age of majority. (A) In the 
DoDEA school system, a child reaches the age of majority at age 18.
    (B) When a child with a disability reaches the age of majority 
(except for a child with a disability who has been determined to be 
incompetent in accordance with Federal or State law) the rights 
afforded to the parents in accordance with the IDEA and this part 
transfer to the child.
    (C) When a child reaches the age of majority, the DoDEA school 
shall notify the child and the parents of the transfer of rights.
    (D) When a child with a disability who has not been determined to 
be incompetent, but who does not have the ability to provide informed 
consent with respect to his or her educational program reaches the age 
of majority, the DoD shall appoint a parent or the parents of the child 
to represent the educational interests of the child throughout the 
period of eligibility for special education services.
    (c) Procedures for provision of related services by the military 
departments to students with disabilities in a DoDDS--(1) Evaluation 
procedures. (i) Upon request by a CSC, the responsible EDIS shall 
ensure that a qualified medical authority conducts or verifies a 
medical evaluation for use by the CSC in determining the medically 
related disability that results in a child's need for special education 
and related services, and shall oversee an EDIS evaluation used in 
determining a child's need for related services.
    (ii) The medical or related services evaluation, including 
necessary consultation with other medical personnel, shall be 
supervised by a physician or other qualified healthcare provider.
    (iii) The medical or related services evaluation shall be specific 
to the concerns addressed in the request from the CSC.
    (iv) The EDIS shall provide to the CSC an evaluation report that 
responds to the questions posed in the original request for an 
evaluation. The written report shall include:
    (A) Demographic information about the child, such as the child's 
name, date of birth, and grade level.
    (B) Behavioral observation of the child during testing.
    (C) Instruments and techniques used.
    (D) Evaluation results.
    (E) Descriptions of the child's strengths and limitations.
    (F) Instructional implications of the findings.
    (G) The impact of the child's medical condition(s), if applicable, 
on his or her educational performance.
    (v) If the EDIS that supports the DoDDS school requires assistance 
to conduct or complete an evaluation, the EDIS shall contact the MTF 
designated by the Military Department with geographic responsibility 
for the area where the EDIS is located.
    (vi) If EDIS determines that in order to respond to the CSC 
referral the scope of its assessment and evaluation must be expanded 
beyond the areas specified in the initial parental permission, EDIS 
must:
    (A) Obtain parental permission for the additional activities.
    (B) Complete its initial evaluation by the original due date.
    (C) Notify the CSC of the additional evaluation activities.
    (vii) When additional evaluation information is submitted by EDIS, 
the CSC shall review all data and determine the need for program 
changes and the reconsideration of eligibility.
    (viii) An EDIS provider shall serve on the CSC when eligibility, 
placement, or requirements for related services that EDIS provides are 
to be determined.
    (2) IEP--(i) EDIS shall be provided the opportunity to participate 
in the IEP meeting.
    (ii) EDIS shall provide related services assigned to EDIS that are 
listed on the IEP.
    (3) Liaison with DoDDS. Each EDIS shall designate a special 
education liaison officer to:
    (i) Provide liaison between the EDIS and DoDDS on requests for 
evaluations and other matters within their purview.
    (ii) Offer, on a consultative basis, training for school personnel 
on medical aspects of specific disabilities.
    (iii) Offer consultation and advice as needed regarding the medical 
services provided at school (for example, tracheotomy care, tube 
feeding, occupational therapy).
    (iv) Participate with school personnel in developing and delivering 
in-service training programs that include familiarization with various 
conditions that impair a child's educational endeavors, the 
relationship of medical findings to educational functioning, related 
services, and the requirements of the IDEA and this part.
    (d) Dispute resolution and due process procedures--(1) General. 
This section establishes requirements for resolving disputes regarding 
the provision of EIS to an infant or toddler up to 3 years of age, or 
the identification, evaluation, or educational placement of a child 
(ages 3 through 21, inclusive), or the provision of a FAPE to such 
child in accordance with the IDEA and this part.
    (2) Conferences. Whenever possible, parties are encouraged to 
resolve disputes through the use of conferences at the lowest level 
possible between the parents and EDIS or the DoDEA school.
    (i) Within a DoDEA school, problems should be brought first to the 
teacher, then the school administrator, and then the district office.
    (ii) At EDIS, problems should be brought first to the EDIS 
provider, then the EDIS program manager, and then the local MTF 
commander.
    (3) Administrative complaints. (i) A complaint filed with the 
responsible agency, relating to the provision of services under the 
IDEA and this part, other than due process complaints filed in 
accordance with paragraph (d)(5) of

[[Page 36680]]

this section, is known as an administrative complaint.
    (ii) An individual or organization may file an administrative 
complaint alleging issues relating to services required to be delivered 
under the IDEA and this part with:
    (A) The Office of the Inspector General of a Military Department 
when the issue involves services or programs for infants and toddlers 
with disabilities, or related services provided by the Military 
Departments to children with disabilities.
    (B) The DoDEA Director, Office of Investigations and Internal 
Review (OI&IR) when the issue involves the services or programs for 
children ages 3 through 21, inclusive that are under the direction or 
control of the DoDEA school system.
    (iii) An administrative complaint alleging issues relating to 
services required to be delivered under the IDEA or this part must 
include:
    (A) A statement that the Military Service or the DoDEA school 
system has violated a requirement of the IDEA or this part.
    (B) The facts on which the statement is based.
    (C) The signature and contact information for the complainant.
    (D) If alleging violations with respect to specific children:
    (1) The name of the school the child is attending.
    (2) The name and address of the residence of the child.
    (3) A description of the nature of the problem of the child, 
including facts relating to the problem.
    (4) A proposed resolution of the problem to the extent known and 
available to the complainant at the time the complaint is filed.
    (iv) An administrative complaint may not allege a violation that 
occurred more than 1 year prior to the date that the complaint is 
received.
    (v) The complainant filing an administrative complaint alleging 
issues related to services required to be delivered under the IDEA or 
this part must forward a copy of the complaint to the DoDEA school or 
EDIS clinic serving the child at the same time the complainant files 
the complaint with the appropriate authority in paragraph (d)(3)(i) of 
this section.
    (A) Upon receipt of the complaint, the Inspector General of the 
Military Department concerned will notify the Secretary of the Military 
Department concerned, and the OI&IR will notify the Director, DoDEA, of 
the complaint.
    (B) Upon receipt of a complaint, the responsible Military 
Department Inspector General or the OCA shall, if warranted, promptly 
open an investigation consistent with its established procedures for 
investigating complaints.
    (1) The investigation shall afford the complainant an opportunity 
to submit additional information about the allegations.
    (2) The investigation shall afford the DoDEA school system or the 
Military Department an opportunity to:
    (i) Respond to the complaint;
    (ii) Propose a resolution to the complaint; or
    (iii) If the parties are willing, voluntarily engage in mediation 
of the complaint.
    (3) The investigation shall produce a report consistent with those 
the investigating agency routinely provides, shall determine whether 
its findings support the complaint, and shall state whether the DoDEA 
school system or the Military Department is violating a requirement of 
the IDEA or this part.
    (vi) The findings and conclusions of the report of investigation 
related to the administrative complaint shall be made available to the 
complainant and members of the public in accordance with the standard 
operating procedures of the investigating activity and 32 CFR parts 285 
and 310.
    (A) The investigating activity shall provide a copy of the report 
to the Director, DoDEA and the Secretary of a Military Department 
concerned or in accordance with the investigating activity's protocols.
    (B) The report shall be provided, to the extent practicable, within 
60 days of initiating the investigation, unless extended by the 
complainant and the DoDEA school system or the Military Department.
    (vii) The Secretary of the Military Department concerned or the 
Director, DoDEA shall resolve complaints within their respective area 
of responsibility when the Military Service or the DoDEA school system 
is found to have failed to provide appropriate services consistent with 
the requirements of the IDEA or this part. Remediation may include 
corrective action appropriate to address the needs of the child such as 
compensatory services, or monetary reimbursement where otherwise 
authorized by law.
    (viii) When a complaint received under this section is also the 
subject of a due process complaint regarding alleged violations of 
rights afforded under the IDEA and this part, or contains multiple 
issues of which one or more are part of that due process complaint, the 
investigation activity shall set aside any issues alleged in the due 
process complaint until a hearing is concluded in accordance with the 
IDEA and this part. Any issue that is not part of the due process 
hearing must be resolved using the procedures of this section.
    (ix) If an issue raised in a complaint filed under this section has 
been previously decided in a due process hearing involving the same 
parties:
    (A) The due process hearing decision is binding on that issue.
    (B) The Director, DoDEA or the Secretary of the Military Department 
concerned shall so inform the complainant.
    (4) Mediation. (i) A parent, the Military Department concerned, or 
DoDEA may request mediation at any time, whether or not a due process 
petition has been filed, to informally resolve a disagreement on any 
matter relating to the provision of EIS to an infant or toddler (birth 
up to 3 years of age), or the identification, evaluation, or 
educational placement of a child (ages 3 through 21, inclusive), or the 
provision of a FAPE to such child.
    (ii) Mediation must be voluntary on the part of the parties and 
shall not be used to deny or delay a parent's right to a due process 
hearing or to deny other substantive or procedural rights afforded 
under the IDEA.
    (A) DoDEA school officials participate in mediation involving 
special education and related services; the cognizant Military 
Department participates in mediation involving EIS.
    (B) The initiating party's request must be written, include a 
description of the dispute, bear the signature of the requesting party, 
and be provided:
    (1) In the case of a parent initiating mediation, to:
    (i) The local EDIS program manager in disputes involving EDIS; or
    (ii) The school principal in disputes involving a DoDEA school.
    (2) In the case of the school or EDIS initiating mediation, to the 
parent.
    (C) Acknowledgment of the request for mediation shall occur in a 
timely manner.
    (D) Agreement to mediate shall be provided in writing to the other 
party in a timely manner.
    (iii) Upon agreement of the parties to mediate a dispute, the local 
EDIS or DoDEA school shall forward a request for a mediator to the 
Military Department or to DoDEA's Center for Early Dispute Resolution 
(CEDR), respectively.
    (iv) The mediator shall be obtained from the Defense Office of 
Hearings and Appeals (DOHA) unless another qualified and impartial 
mediator is obtained by the Military Department or CEDR.

[[Page 36681]]

    (A) Where DOHA is used, the DOHA Center for Alternate Dispute 
Resolution (CADR) shall provide the mediator from its roster of 
mediators qualified in special education disputes.
    (B) Where the Military Department or DoDEA elects to secure a 
mediator through its own DoD Component resources, the mediator shall be 
selected from the Component's roster of mediators qualified in special 
education disputes, or by contract with an outside mediator duly 
qualified in special education disputes and who is trained in effective 
mediation techniques.
    (v) The Military Department or DoDEA through CEDR shall obtain a 
mediator within 15 business days of receipt of a request for mediation, 
or immediately request a mediator from the Director, DOHA, through the 
DOHA CADR.
    (vi) When requested, the Director, DOHA, through the CADR, shall 
appoint a mediator within 15 business days of receiving the request, 
unless a party provides written notice to the Director, DOHA that the 
party refuses to participate in mediation.
    (vii) Unless both parties agree otherwise, mediation shall commence 
in a timely manner after both parties agree to mediation.
    (viii) The parents of the infant, toddler, or child, and EDIS or 
the school shall be parties in the mediation. With the consent of both 
parties, other persons may attend the mediation.
    (ix) Mediation shall be conducted using the following rules:
    (A) The Military Department concerned shall bear the cost of the 
mediation process in mediations concerning EIS.
    (B) DoDEA shall bear the cost of the mediation process in 
mediations concerning special education and related services.
    (C) Discussions and statements made during the mediation process, 
and any minutes, statements or other records of a mediation session 
other than a final executed mediation agreement, shall be considered 
confidential between the parties to that mediation and are not 
discoverable or admissible in a due process proceeding, appeal 
proceeding, or civil proceeding under this part.
    (D) Mediation shall be confidential. The mediator may require the 
parties to sign a confidentiality pledge before the commencement of 
mediation.
    (E) Either party may request a recess of a mediation session to 
consult advisors, whether or not present, or to consult privately with 
the mediator.
    (F) The mediator shall ensure and the contract for mediation 
services shall require that any partial or complete resolution or 
agreement of any issue in mediation is reduced to writing, and that the 
written agreement is signed and dated by the parties, with a copy given 
to each party.
    (x) Any written agreement resulting from the mediation shall state 
that all discussions that occurred during the mediation process and all 
records of the mediation other than a final executed agreement shall be 
confidential and may not be discoverable or admissible as evidence in 
any subsequent due process proceeding, appeal proceeding, or civil 
proceeding, and shall be legally binding upon the parties and 
enforceable in a district court of the United States.
    (xi) All mediation sessions shall be held in a location that is 
convenient to both parties.
    (xii) No hearing officer or adjudicative body shall draw any 
inference from the fact that a mediator or a party withdrew from 
mediation or from the fact that mediation did not result in settlement 
of a dispute.
    (5) Due process complaint procedures. (i) Parents of infants, 
toddlers, and children who are covered by this part and the cognizant 
Military Department or DoDEA, are afforded impartial hearings and 
administrative appeals after the parties have waived or participated in 
and failed to resolve a dispute through:
    (A) Mediation, in the case of an infant or toddler; or
    (B) A resolution process, or mediation in lieu of the resolution 
process prior to proceeding to a due process hearing in the case of a 
child (ages 3 through 21 years, inclusive).
    (ii) An impartial due process hearing is available to resolve any 
dispute concerning the provision of EIS to infants and toddlers with 
disabilities or with respect to any matter relating to the 
identification, evaluation, educational placement of, and the FAPE 
provided by the Department of Defense to children (ages 3 through 21, 
inclusive) who are covered by this part, in accordance with the IDEA 
and this part.
    (A) Whenever the parents or the cognizant Military Department 
present a due process complaint (petition) in accordance with this 
part, an impartial due process hearing is available to resolve any 
dispute concerning the provision of EIS.
    (B) When the parents of children ages 3 through 21 years, 
inclusive, or the cognizant Military Department or DoDEA, present a due 
process complaint (petition) in accordance with this part relating to 
any matter regarding the identification, evaluation, placement, or the 
provision of FAPE, the parties shall first proceed in accordance with 
the requirements for a statutory resolution process in accordance with 
this part, after which time an impartial due process hearing is 
available to resolve the dispute set forth by the complaint.
    (iii) An expedited impartial due process hearing may be requested:
    (A) By a parent when the parent disagrees with the manifestation 
determination or any decision regarding the child's disciplinary 
placement.
    (B) By the school when it believes that maintaining a student in 
his or her current educational placement is substantially likely to 
result in injury to the student or others.
    (iv) Any party to a special education dispute may initiate a due 
process hearing by filing a petition stating the specific issues that 
are in dispute. The initiating party is the ``petitioner'' and the 
responding party is the ``respondent.'' The petition itself will remain 
confidential, in accordance with applicable law, not be released to 
those not a party to the litigation and its Personally Identifiable 
Information shall be protected in accordance with the DoD Privacy Act.
    (v) Petitioner and respondent are each entitled to representation 
by counsel at their own expense. The parent and child may choose to be 
assisted by a personal representative with special knowledge or 
training with respect to the problems of disabilities rather than by 
legal counsel.
    (vi) To file a petition that affords sufficient notice of the 
issues and commences the running of relevant timelines, petitioners 
shall specifically include in the petition:
    (A) The name and residential address of the child and the name of 
the school the child is attending or the location of the EDIS serving 
the child.
    (B) A description of the nature of the problem of the child 
relating to the proposed or refused initiation or change including 
facts (such as who, what, when, where, how, why of the problem).
    (C) A proposed resolution of the problem to the extent known and 
available to the petitioner at the time.
    (D) The signature of the parent, or if the petitioner is DoDEA or a 
Military Department, an authorized representative of that petitioner, 
or of the counsel or personal representative for the petitioner, and 
his or her telephone number and mailing address.
    (vii) When the cognizant Military Department or DoDEA petitions for 
a hearing, it shall additionally:
    (A) Inform the parent of the 10 business-day deadline (or 5 school 
days in the case of an expedited hearing) for filing a response that 
specifically

[[Page 36682]]

addresses the issues raised in the petition.
    (B) Provide the parent with a copy of this part.
    (viii) A special rule applies for expedited hearing requests. The 
petitioner must state, as applicable to his or her petition:
    (A) The disciplinary basis for the child's change in placement to 
an interim AES or other removal from the child's current placement.
    (B) The reasons for the change in placement.
    (C) The reasoning of the manifestation determination committee in 
concluding that a particular act of misconduct was not a manifestation 
of the child's disability.
    (D) How the child's current educational placement is or is not 
substantially likely to result in injury to the child or others.
    (ix) The petition or request for an expedited due process hearing 
must be delivered to:
    (A) The Director, DOHA, by mail to P.O. Box 3656, Arlington, 
Virginia 22203, by fax to 703-696-1831, or email to 
[email protected]. Filing may also be made by hand 
delivery to the office of the Director, DOHA if approval from the 
Director, DOHA is obtained in advance of delivery.
    (B) The respondent by mail, fax, email, or hand delivery.
    (1) If the petitioner is a parent of a child (ages of 3 through 21, 
inclusive), or a child (in the event that rights have been transferred 
in accordance with paragraph (b)(19) of this section, the respondent is 
DoDEA and the petition must be delivered to and received by the 
principal of the school in which the child is enrolled, or if the child 
is enrolled in the Non-DoD School Program (NDSP) to the DoDEA General 
Counsel ([email protected]).
    (2) If the petitioner is the parent of an infant or toddler (birth 
up to 3 years of age), the respondent is the responsible Military 
Department and the petition must be delivered to and received by the 
EDIS manager.
    (3) If the petitioner is the responsible Military Department or 
DoDEA, the petition must be delivered to and received by the parent of 
the child.
    (C) Filing of the due process petition with DOHA is considered 
complete when received by DOHA.
    (x) The timelines for requesting and conducting a due process 
hearing are:
    (A) Timelines for requesting a hearing. A petitioner may not allege 
a violation that occurred more than 2 years before the date the 
petitioner knew, or should have known, about the alleged action that 
forms the basis of the complaint, unless the parent was prevented from 
requesting the hearing due to:
    (1) Specific misrepresentation by DoDEA or EDIS that it had 
resolved the problem forming the basis of the complaint.
    (2) The withholding of information by DoDEA or EDIS from the 
petitioning parent that was required to be provided to the parent in 
accordance with the IDEA and this part.
    (B) Timelines for conducting a due process hearing. Except as 
provided in paragraph (d)(5)(x)(D) and (d)(8)(ii) of this section, a 
hearing officer shall issue findings of fact and conclusions of law not 
later than 50 business days:
    (1) In a case involving EDIS, following the filing and service of a 
legally sufficient petition or amended petition in accordance with this 
section.
    (2) In disputes involving a school and a child age 3 through 21, 
inclusive, following the filing and service of a legally sufficient 
petition or amended petition in accordance with this section and the 
hearing officer's receipt of notice that the 30-day resolution period 
concluded without agreement, the parties waived the resolution meeting, 
or the parties concluded mediation in lieu of the resolution process 
without reaching agreement.
    (C) Exceptions to the timelines for conduct of a hearing. (1) When 
the hearing officer grants a request for discovery made by either 
party, as provided for in paragraph (d)(10) of this section, in which 
case the time required for such discovery does not count toward the 50 
business days.
    (2) When the hearing officer grants a specific extension of time 
for good cause in accordance with paragraph (d)(8) of this section.
    (D) Timeline for conducting an expedited hearing. In the event of a 
petition for expedited hearing is requested, a DOHA hearing officer 
shall arrange for the hearing to be held not later than 20 school days 
(when school is in session) of the date the request is filed with DOHA, 
subject to the timeline for scheduling a resolution meeting and the 15 
day resolution period requirements of this section. The hearing officer 
must make a determination within 10 school days after the hearing.
    (6) Responses and actions required following receipt of a petition 
or request for expedited hearing. (i) Immediately upon receipt of the 
petition, the Director, DOHA, shall appoint a hearing officer to take 
charge of the case.
    (A) The hearing officer shall immediately notify the parties of his 
or her appointment.
    (B) Upon receipt of notice that a hearing officer is appointed, the 
parties shall communicate all motions, pleadings, or amendments in 
writing to the hearing officer, with a copy to the opposing party, 
unless the hearing officer directs otherwise.
    (ii) Within 10 business days of receipt of the petition (5 school 
days when school is in session in the case of a petition for an 
expedited hearing), the respondent shall deliver a copy of the written 
response to the petitioner and file the original written response with 
the hearing officer. Filing may be made by mail to P.O. Box 3656, 
Arlington, Virginia 22203, by fax to 703-696-1831, by hand delivery if 
approved in advance by the hearing officer, or by email to 
[email protected]. If a hearing officer has not yet been 
appointed, the respondent will deliver the original written response to 
the Director, DOHA in accordance with paragraph (d)(5)(ix) of this 
section.
    (iii) The respondent shall specifically address the issues raised 
in the due process hearing petition.
    (iv) If the respondent is the cognizant Military Department or 
DoDEA, the response shall include:
    (A) An explanation of why the respondent proposed or refused to 
take the action at issue in the due process complaint.
    (B) A description of each evaluation procedure, assessment, record, 
or report the DoD Component used as the basis for the proposed or 
refused action.
    (C) A description of the options that the respondent considered and 
the reasons why those options were rejected.
    (D) A description of the other factors that are relevant to the 
respondent's proposed or refused action.
    (v) The respondent may file a notice of insufficient petition 
within 15 business days of receiving a petition if the respondent 
wishes to challenge the sufficiency of the petition for failure to 
state the elements required by the IDEA. Within 5 business days of 
receiving a notice of insufficient petition, the hearing officer will 
issue a decision and will notify the parties in writing of that 
determination.
    (vi) A response to the petitioner under (d)(6)(ii) of this section 
shall not be construed to preclude the respondent from asserting that 
the due process complaint was insufficient using the procedures 
available under (d)(6)(v) of this section.
    (vii) Parties may amend a petition only if:

[[Page 36683]]

    (A) The other party consents in writing to such amendment and is 
given the opportunity to resolve the complaint through the resolution 
process; or
    (B) The hearing officer grants permission, except that the hearing 
officer may not grant such permission at any time later than 5 days 
before a due process hearing is scheduled to begin.
    (viii) The filing of an amended petition resets the timelines for:
    (A) The conduct of a resolution meeting and the resolution period 
relating to the amended petition, and
    (B) All deadlines for responses and actions required following the 
receipt of the amended petition, and for conducting a due process 
hearing on the amended petition.
    (7) Statutory resolution process. A resolution meeting shall be 
convened by DoDEA and a resolution period afforded, in accordance with 
this section, for any dispute in which a due process petition has been 
filed regarding the identification, evaluation, or educational 
placement, or the provision of FAPE for children ages 3 to 21, 
inclusive.
    (i) Within 15 calendar days of receiving the parent's petition for 
due process (7 calendar days in the case of an expedited hearing), 
DoDEA, through the pertinent school principal or superintendent, shall 
convene a dispute resolution meeting, which must be attended by:
    (A) The parents.
    (B) A legal representative of the parents if desired by the 
parents.
    (C) A DoDEA official designated and authorized by the District 
Superintendent or Area Director to exercise decision-making authority 
on behalf of DoDEA.
    (D) A DoDEA legal representative, only if the parents are 
represented by counsel at the resolution meeting.
    (E) The relevant members of the child's CSC who have specific 
knowledge of the facts identified in the petition.
    (ii) The parties may agree to mediate in lieu of conducting a 
resolution meeting or in lieu of completing the resolution period. The 
resolution meeting need not be held if the parties agree in writing to 
waive the meeting or agree to use the mediation process.
    (iii) Failure to convene or participate in resolution meeting.
    (A) If DoDEA has offered to convene a resolution meeting and has 
been unable to obtain parental participation in the resolution meeting 
after making and documenting its reasonable efforts, DoDEA may, at the 
conclusion of the resolution period (30 days or 15 days in the case of 
an expedited hearing) request that a hearing officer dismiss the 
parent's due process complaint or request for an expedited due process 
hearing.
    (B) If DoDEA fails to convene a resolution meeting within 15 days 
of receipt of a due process complaint or if it fails to participate in 
the resolution meeting, the parent may request the hearing officer to 
immediately convene the due process hearing without waiting for the 30-
day resolution period to expire.
    (iv) DoDEA shall have a 30-day resolution period, counted from the 
receipt of the complaint by the school principal, (15 days in the case 
of an expedited hearing request) within which to resolve the complaint 
to the satisfaction of the parents.
    (v) The resolution period may be adjusted because of one of the 
following events:
    (A) Both parties agree in writing to waive the resolution meeting.
    (B) After the resolution meeting starts, but before the end of the 
applicable resolution period, the parties agree in writing that no 
agreement is possible and agree to waive the balance of the resolution 
period.
    (C) Both parties agree in writing to continue the resolution 
meeting at the end of the applicable resolution period, but later the 
parent or the school withdraws from the resolution process.
    (vi) If a partial or complete resolution to the dispute is reached 
at the resolution meeting, the parties must execute a written agreement 
that is:
    (A) Signed by both the parents and a representative of the school 
with authority to bind the school to the terms of the agreement.
    (B) Legally enforceable in a U.S. District Court of competent 
jurisdiction, unless the parties have voided the agreement within an 
agreement review period of 3 business days following the execution of 
the agreement.
    (vii) Discussions held, minutes, statements, and other records of a 
resolution meeting, and any final executed resolution agreement are not 
presumed confidential and therefore are discoverable and admissible in 
a due process proceeding, appeal proceeding, or civil proceeding, 
except when the parties have agreed to confidentiality.
    (viii) If DoDEA has not resolved the complaint to the satisfaction 
of the parents at the expiration of the resolution period or the 
adjusted resolution period, if applicable:
    (A) DoDEA shall provide written notice to the hearing officer, copy 
to the parents, within 3 business days (1 business day in the case of 
an expedited hearing) of the expiration of the resolution period or 
adjusted resolution period that the parties failed to reach agreement.
    (B) Upon receipt of that notification by the hearing officer, all 
of the applicable timelines for proceeding to a due process hearing 
under this section shall commence.
    (ix) If the parties execute a binding written agreement at the 
conclusion of the resolution period, and do not subsequently declare it 
void during the 3-business day agreement review period, then:
    (A) DoDEA shall provide written notice to the hearing officer, copy 
to the parents, at the conclusion of the agreement review period that 
the parties have reached an agreement for resolution of complaints set 
forth in the due process petition.
    (B) Upon receipt of that notification by the presiding hearing 
officer, no due process hearing shall proceed on the issues resolved.
    (8) The due process hearing--(i) Purpose. The purpose of the due 
process hearing is to establish the relevant facts necessary for the 
hearing officer to reach a fair and impartial determination of the 
case.
    (ii) Hearing officer duties. The hearing officer shall be the 
presiding officer, with judicial powers to manage the proceeding and 
conduct the hearing. Those powers shall include, but are not limited 
to, the authority to:
    (A) Determine the adequacy of pleadings.
    (B) Decide whether to allow amendment of pleadings, provided 
permission is granted to authorize the amendment not later than 5 days 
before a due process hearing occurs.
    (C) Rule on questions of timeliness and grant specific extension of 
time for good cause either on his or her own motion or at the request 
of either party.
    (1) Good cause includes the time required for mediation in 
accordance with paragraph (d)(4) of this section where the parties have 
jointly requested an extension of time in order to complete mediation.
    (2) If the hearing officer grants an extension of time, he or she 
shall identify the length of the extension and the reason for the 
extension in the record of the proceeding. Any such extension shall be 
excluded from the time required to convene a hearing or issue a final 
decision, and at the discretion of the hearing officer may delay other 
filing dates specified by this section.
    (D) Rule on requests for discovery and discovery disputes.
    (E) Order an evaluation of the child at the expense of the DoDEA 
school

[[Page 36684]]

system or the Military Department concerned.
    (F) Rule on evidentiary issues.
    (G) Ensure a full and complete record of the case is developed.
    (H) Decide when the record in a case is closed.
    (I) Issue findings of fact and conclusions of law.
    (J) Issue a decision on substantive grounds based on a 
determination of whether the child received a FAPE. When the petition 
alleges a procedural violation, a hearing officer may find that a child 
did not receive a FAPE only if the procedural inadequacies:
    (1) Impeded the child's right to a FAPE;
    (2) Significantly impeded the parent's opportunity to participate 
in the decision-making process regarding the provision of FAPE to the 
child; or
    (3) Caused a deprivation of educational benefits.
    (K) Order such relief as is necessary for the child to receive a 
FAPE or appropriate EIS, including ordering the DoDEA school system or 
the responsible Military Department to:
    (1) Correct a procedural deficiency that caused a denial of a FAPE 
or appropriate EIS;
    (2) Conduct evaluations or assessments and report to the hearing 
officer;
    (3) Change the school-aged child's placement or order the child to 
an AES for up to 45 days;
    (4) Provide EIS or specific school-age educational or related 
services to a child to remedy a denial of FAPE, including compensatory 
services when appropriate and in accordance with the current early 
intervention or educational program; or
    (5) Placement of a school-aged child in an appropriate residential 
program for children with disabilities at DoD expense, when appropriate 
under the law and upon a determination that DoDEA has failed to provide 
and cannot provide an otherwise eligible child with a FAPE at the 
appropriate DoD facility.
    (i) A residential program must be one that can address the specific 
needs of the child as determined by the DoDEA school.
    (ii) The program should, whenever possible, be located near members 
of the child's family.
    (9) Attendees at the hearing. Attendance at the hearing is limited 
to:
    (i) The parents and the counsel or personal representative of the 
parents.
    (ii) A representative of DoDEA or the EDIS concerned and the 
counsel representing DoDEA or the EDIS.
    (iii) Witnesses for the parties, including but not limited to the 
professional employees of DoDEA or the EDIS concerned and any expert 
witnesses.
    (iv) A person qualified to transcribe or record the proceedings.
    (v) Other persons with the agreement of the parties or the order of 
the hearing officer, in accordance with the privacy interests of the 
parents and the individual with disabilities.
    (10) Discovery. (i) Full discovery shall be available, with the 
Federal Rules of Civil Procedure, Rules 26-37, 28 U.S.C. appendix, 
serving as a guide to parties to a due process hearing or conducted in 
accordance with this part.
    (ii) If voluntary discovery cannot be accomplished, a party seeking 
discovery may file a motion with the hearing officer to accomplish 
discovery. The hearing officer shall grant an order to accomplish 
discovery upon a showing that the document or information sought is 
relevant or reasonably calculated to lead to the discovery of 
admissible evidence. An order granting discovery, or compelling 
testimony or the production of evidence shall be enforceable by all 
reasonable means within the authority of the hearing officer, to 
include the exclusion of testimony or witnesses, adverse inferences, 
and dismissal or summary judgment.
    (iii) Records compiled or created in the regular course of 
business, which have been provided to the opposing party at least 5 
business days prior to the hearing, may be received and considered by 
the hearing officer without authenticating witnesses.
    (iv) A copy of the written or electronic transcription of a 
deposition taken by a Military Department or DoDEA shall be made 
available by the Military Department or DoDEA without charge to the 
opposing party.
    (11) Right to an open hearing. The parents, or child who has 
reached the age of majority, have the right to an open hearing upon 
waiving, in writing, their privacy rights and those of the individual 
with disabilities who is the subject of the hearing.
    (12) Location of hearing. Subject to modification by the hearing 
officer for good cause shown or upon the agreement of the parties, the 
hearing shall be held:
    (i) In the DoDEA school district attended by the child (ages 3 
through 21, inclusive):
    (ii) On the military installation of the EDIS serving infants and 
toddlers with disabilities; or
    (iii) At a suitable video teleconferencing facility convenient for 
the parents of the child involved in the hearing and available for the 
duration of a hearing.
    (13) Witnesses and documentary evidence. (i) At least 5 business 
days prior to a hearing, the parties shall exchange lists of all 
documents and materials that each party intends to use at the hearing, 
including all evaluations and reports. Each party also shall disclose 
the names of all witnesses it intends to call at a hearing along with a 
proffer of the anticipated testimony of each witness.
    (ii) At least 10 business days prior to a hearing, each party must 
provide the name, title, description of professional qualifications, 
and summary of proposed testimony of any expert witness it intends to 
call at the hearing.
    (iii) Failure to disclose documents, materials, or witnesses may 
result in the hearing officer barring their introduction at the 
hearing.
    (iv) Parties must limit evidence to the issues pleaded, except by 
order of the hearing officer or with the consent of the parties.
    (v) The rules of evidence shall be relaxed to permit the 
development of a full evidentiary record with the Federal Rules of 
Evidence, 28 U.S.C. appendix, serving as guide.
    (vi) All witnesses testifying at the hearing shall be advised by 
the hearing officer that under 18 U.S.C. 1001, it is a criminal offense 
to knowingly and willfully make a materially false, fictitious, or 
fraudulent statement or representation to a department or agency of the 
U.S. Government as to any matter within the jurisdiction of that 
department or agency, and may result in a fine or imprisonment.
    (vii) A party calling a witness shall bear the witness' travel and 
incidental expenses associated with testifying at the hearing. The 
DoDEA school system or the Military Department concerned shall pay such 
expenses if a witness is called by the hearing officer.
    (viii) The parties shall have the right to cross-examine witnesses 
testifying at the hearing.
    (ix) The hearing officer may issue an order compelling a party to 
make a specific witness employed by or under control of the party 
available for testimony at the party's expense or to submit specific 
documentary or physical evidence for inspection by the hearing officer 
or for submission into the record on motion of either party or on the 
hearing officer's own motion.
    (x) When the hearing officer determines that a party has failed to 
obey an order to make a specific witness available for testimony or to 
submit specific documentary or physical evidence in accordance with the 
hearing

[[Page 36685]]

officer's order, and that such failure is in knowing and willful 
disregard of the order, the hearing officer shall so certify as a part 
of the written record in the case and may order appropriate sanctions.
    (14) Transcripts. (i) A verbatim written transcription of any 
deposition taken by a party shall be provided to the opposing party in 
hardcopy written format or as attached to an electronic email with 
prior permission of the recipient. If a Military Department or DoDEA 
takes a deposition, the verbatim written transcript of that deposition 
shall be provided to the parent(s) without charge.
    (ii) A verbatim written transcription of the due process hearing 
shall be arranged by the hearing officer and shall be made available to 
the parties in hardcopy written format, or as an attachment to an 
electronic email, with prior permission of the recipient, on request 
and without cost to the parent(s), and a copy of the verbatim written 
transcript of the hearing shall become a permanent part of the record
    (15) Hearing officer's written decision. (i) The hearing officer 
shall make written findings of fact and conclusions of law and shall 
set forth both in a written decision addressing the issues raised in 
the due process complaint, the resolution of those issues, and the 
rationale for the resolution.
    (ii) The hearing officer's decision of the case shall be based on 
the record, which shall include the petition, the answer, the 
transcript of the hearing, exhibits admitted into evidence, pleadings 
or correspondence properly filed and served on all parties, and such 
other matters as the hearing officer may include in the record, if such 
matter is made available to all parties before the record is closed.
    (iii) The hearing officer shall file the written decision with the 
Director, DOHA, and additionally provide the Director, DOHA with a copy 
of that decision from which all personally identifiable information has 
been redacted.
    (iv) The Director, DOHA, shall forward to parents and to the DoDEA 
or the EDIS concerned, copies, unredacted and with all personally 
identifiable information redacted, of the hearing officer's decision.
    (v) The decision of the hearing officer shall become final unless a 
timely notice of appeal is filed in accordance with paragraph (d)(17) 
of this section.
    (vi) The DoDEA or the EDIS concerned shall implement the decision 
as soon as practicable after it becomes final.
    (16) Determination without hearing. (i) At the request of a parent 
of an infant or toddler, birth to 3 years of age, when EIS are at 
issue, or of a parent of a child age 3 through 21, inclusive, or child 
who has reached the age of majority, when special education (including 
related services) are at issue, the requirement for a hearing may be 
waived, and the case may be submitted to the hearing officer on written 
documents filed by the parties. The hearing officer shall make findings 
of fact and conclusions of law and issue a written decision within the 
period fixed by paragraph (d)(5)(x) of this section.
    (ii) DoDEA or the EDIS concerned may oppose a request to waive a 
hearing. In that event, the hearing officer shall rule on the request.
    (iii) Documentary evidence submitted to the hearing officer in a 
case determined without a hearing shall comply with the requirements of 
paragraph (d)(13) of this section. A party submitting such documents 
shall provide copies to all other parties.
    (17) Appeal of hearing officer decision. (i) A party may appeal the 
hearing officer's findings of fact and decision by filing a written 
notice of appeal within 15 business days of receipt of the hearing 
officer's decision with the Chairperson, DOHA Appeal Board by mail to 
P.O. Box 3656, Arlington, Virginia 22203, by fax to 703-696-1831, by 
email to [email protected], or by hand delivery to the 
office of the Chairperson, DOHA Appeal Board if approval from the 
Chairperson, DOHA Appeal Board is obtained in advance of delivery. The 
notice of appeal must contain the appealing party's certification that 
a copy of the notice of appeal has been provided to the other party by 
mail.
    (ii) Within 30 business days of filing the notice of appeal, the 
appealing party shall file a written statement of issues and arguments 
on appeal with the Chairperson, DOHA Appeal Board by mail to P.O. Box 
3656, Arlington, Virginia 22203, by fax to 703-696-1831, by email to 
[email protected], or by hand delivery to the office of 
the Chairperson, DOHA Appeal Board if approval from the Chairperson, 
DOHA Appeal Board is obtained in advance of filing. The appealing party 
shall deliver a copy to the other party by mail.
    (iii) The non-appealing party shall file any reply within 20 
business days of receiving the appealing party's statement of issues 
and arguments on appeal with the Chairperson, DOHA Appeal Board by mail 
to P.O. Box 3656, Arlington, Virginia 22203, by fax to 703-696-1831, by 
email to [email protected], or by hand delivery to the 
office of the Chairperson, DOHA Appeal Board if approval from the 
Chairperson, DOHA Appeal Board is obtained in advance of filing The 
non-appealing party shall deliver a copy of the reply to the appealing 
party by mail.
    (iv) Appeal filings with DOHA are complete upon transmittal. It is 
the burden of the appealing party to provide timely transmittal to and 
receipt by DOHA.
    (v) The DOHA Appeal Board, shall issue a decision on all parties' 
appeals within 45 business days of receipt of the matter.
    (vi) The determination of the DOHA Appeal Board shall be a final 
administrative decision and shall be in written form. It shall address 
the issues presented and set forth a rationale for the decision 
reached. A determination denying the appeal of a parent in whole or in 
part shall state that the parent has the right, in accordance with the 
IDEA, to bring a civil action on the matters in dispute in a district 
court of the United States of competent jurisdiction without regard to 
the amount in controversy.
    (vii) No provision of this part or other DoD guidance may be 
construed as conferring a further right of administrative review. A 
party must exhaust all administrative remedies afforded by this section 
before seeking judicial review of a determination.
    (18) Maintenance of current educational placement. (i) Except when 
a child is in an interim AES for disciplinary reasons, during the 
pendency of any proceeding conducted pursuant to this section, unless 
the school and the parents otherwise agree, the child will remain in 
the then current educational placement.
    (ii) When the parent has appealed a decision to place a child in an 
interim AES, the child shall remain in the interim setting until the 
expiration of the prescribed period or the hearing officer makes a 
decision on placement, whichever occurs first, unless the parent and 
the school agree otherwise.
    (19) General hearing administration. The Director, DOHA, shall:
    (i) Exercise administrative responsibility for ensuring the 
timeliness, fairness, and impartiality of the hearing and appeal 
procedures to be conducted in accordance with this section.
    (ii) Appoint hearing officers from the DOHA Administrative judges 
who shall:
    (A) Be attorneys who are active members of the bar of the highest 
court of a State, U.S. Commonwealth, U.S. Territory, or the District of 
Columbia and permitted to engage in the active practice of law, who are 
qualified in

[[Page 36686]]

accordance with DoD Instruction 1442.02, ``Personnel Actions Involving 
Civilian Attorneys'' (available at http://www.dtic.mil/whs/directives/corres/pdf/144202p.pdf).
    (B) Possess the knowledge of and ability to:
    (1) Understand the provisions of the IDEA and this part, and 
related Federal laws and legal interpretations of those regulations by 
Federal courts.
    (2) Conduct hearings in accordance with appropriate, standard legal 
practice.
    (3) Render and write decisions in accordance with the requirements 
of this part.
    (C) Be disqualified from presiding in any individual case if the 
hearing officer:
    (1) Has a personal or professional interest that conflicts with the 
hearing officer's objectivity in the hearing.
    (2) Is a current employee of, or military member assigned to, DoDEA 
or the Military Medical Department providing services in accordance 
with the IDEA and this part.
    (20) Publication and reporting of final decisions. The Director, 
DOHA, shall ensure that hearing officer and appeal board decisions in 
cases arising in accordance with this section are published and indexed 
with all personally identifiable information redacted to protect the 
privacy rights of the parents who are parties in the due process 
hearing and the children of such parents, in accordance with 32 CFR 
part 310.
    (21) Civil actions. Any party aggrieved by the final administrative 
decision of a due process complaint shall have the right to file a 
civil action in a district court of the United States of competent 
jurisdiction without regard to the amount in controversy. The party 
bringing the civil action shall have 90 days from the date of the 
decision of the hearing officer or, if applicable, the date of the 
decision of the DOHA Appeal Board, to file a civil action.
    (e) DoD-CC on early intervention, special education, and related 
services--(1) Committee membership. The DoD-CC shall meet at least 
annually to facilitate collaboration in early intervention, special 
education, and related services in the Department of Defense. The 
Secretary of Defense shall appoint representatives to serve on the DoD-
CC who shall be full-time or permanent part-time government employees 
or military members from:
    (i) USD(P&R), who shall serve as the Chair.
    (ii) Secretaries of the Military Departments.
    (iii) Defense Health Agency.
    (iv) DoDEA.
    (v) GC, DoD.
    (2) Responsibilities. The responsibilities of the DoD-CC include:
    (i) Implementation of a comprehensive, multidisciplinary program of 
EIS for infants and toddlers with disabilities and their families.
    (ii) Provision of a FAPE, including special education and related 
services, for children with disabilities who are enrolled full-time in 
the DoDEA school system, as specified in their IEP.
    (iii) Designation of a subcommittee on compliance to:
    (A) Advise and assist the USD(P&R) in the performance of his or her 
responsibilities.
    (B) At the direction of the USD(P&R), advise and assist the 
Military Departments and DoDEA in the coordination of services among 
providers of early intervention, special education, and related 
services.
    (C) Monitor compliance in the provision of EIS for infants and 
toddlers and special education and related services for children ages 3 
to 21, inclusive.
    (D) Identify common concerns, facilitate coordination of effort, 
and forward issues requiring resolution to the USD(P&R).
    (E) Assist in the coordination of assignments of sponsors who have 
children with disabilities who are or who may be eligible for special 
education and related services through DoDEA or EIS through the 
Military Departments.
    (F) Perform other duties as assigned by the USD(P&R), including 
oversight for monitoring the delivery of services consistent with the 
IDEA and this part.
    (f) Monitoring--(1) Program monitoring and oversight. (i) The 
USD(P&R) shall monitor the implementation of the provisions of the IDEA 
and this part in the programs operated by the Department of Defense. 
The USD(P&R) will carry out his or her responsibilities under this 
section primarily through the DoD-CC.
    (ii) The primary focus of monitoring shall be on:
    (A) Improving educational results and functional outcomes for all 
children with disabilities.
    (B) Ensuring the DoD programs meet the requirements of the IDEA and 
this part.
    (iii) Monitoring shall include the following priority areas and any 
additional priority areas identified by the USD(P&R):
    (A) Provision of a FAPE in the LRE and the delivery of early 
intervention services.
    (B) Child-find.
    (C) Program management.
    (D) The use of dispute resolution including administrative 
complaints, due process and the mandatory resolution process, and 
voluntary mediation.
    (E) A system of transition services.
    (iv) The USD(P&R) shall develop quantifiable indicators in each of 
the priority areas and such qualitative indicators necessary to 
adequately measure performance.
    (v) DoDEA and the Military Departments shall establish procedures 
for monitoring special services and reviewing program compliance in 
accordance with the requirements of this section.
    (vi) By January 1 of each calendar year, the DoD-CC shall identify 
any additional information required to support compliance activities 
that will be included in the next annual compliance report to be 
submitted no later than September 30 of that year. The results of 
monitoring program areas described in paragraph (f)(1)(iii) of this 
section shall be reported in a manner that does not result in the 
disclosure of data identifiable to individual children.
    (2) Compliance reporting. The Director, DoDEA, and the Military 
Departments shall submit reports to the DoD-CC not later than September 
30 each year that summarize the status of compliance. The reports 
shall:
    (i) Identify procedures conducted at headquarters and at each 
subordinate level, including on-site visits, to evaluate compliance 
with the IDEA and this part.
    (ii) Summarize the findings and indicate the status of program 
compliance.
    (iii) Describe corrective actions required of the programs that did 
not meet the requirements of the IDEA and this part and identify the 
technical assistance that was or shall be provided to ensure 
compliance.
    (iv) Include applicable data on the operation of special education 
and early intervention in the Department of Defense. Data must be 
submitted in the format required by the DoD-CC to enable the 
aggregation of data across components. March 31 shall be the census 
date for counting children for the reporting period that begins on July 
1 and ends on June 30 of the following year.
    (3) School level reporting. (i) The reporting requirements for 
school aged children (3 through 21, inclusive) with disabilities shall 
also include:
    (A) Data to determine if significant disproportionality based on 
race and ethnicity is occurring with respect to:

[[Page 36687]]

    (1) The identification of school-aged children as children with 
disabilities including the identification of children as children with 
disabilities affected by a particular impairment described in paragraph 
(g) of this section.
    (2) The placement of these children in particular educational 
settings.
    (3) The incidence, duration, and type of disciplinary suspensions 
and expulsions.
    (4) Removal to an interim AES, the acts or items precipitating 
those removals, and the number of children with disabilities who are 
subject to long-term suspensions or expulsions.
    (5) The number and percentage of school-aged children with 
disabilities, by race, ethnicity, limited English proficiency status, 
gender, and disability category, who are:
    (i) Receiving special education and related services.
    (ii) Participating in regular education.
    (iii) In separate classes, separate schools or facilities, or 
public or private residential facilities.
    (B) The number of due process complaints requested, the number of 
hearings conducted, and the number of changes in placement ordered as a 
result of those hearings.
    (C) The number of mediations held and the number of settlement 
agreements reached through such mediations.
    (ii) For each year of age from age 16 through 21, children 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.
    (4) Early intervention reporting. The reporting requirements for 
infants and toddlers with disabilities shall also include:
    (i) Data to determine if significant disproportionality based on 
race, gender, and ethnicity is occurring with respect to infants and 
toddlers with disabilities who:
    (A) Received EIS by criteria of developmental delay or a high 
probability of developing a delay.
    (B) Stopped receiving EIS because of program completion or for 
other reasons.
    (C) Received EIS in natural environments.
    (D) Received EIS in a timely manner as defined in paragraph (a) of 
this section.
    (ii) The number of due process complaints requested and the number 
of hearings conducted.
    (iii) The number of mediations held and the number of settlement 
agreements reached through such mediations.
    (5) USD(P&R) oversight. (i) On behalf of the USD(P&R), the DoD-CC 
shall make or arrange for periodic visits, not less than annually, to 
selected programs to ensure the monitoring process is in place; 
validate the compliance data and reporting; and address select focus 
areas identified by the DoD-CC and priority areas identified in 
paragraph (f)(1) of this section. The DoD-CC may use other means in 
addition to periodic visits to ensure compliance with the requirements 
established in this part.
    (ii) The DoD-CC shall identify monitoring team members to conduct 
monitoring activities.
    (iii) For DoD-CC monitoring visits, the Secretaries of the Military 
Departments shall:
    (A) Provide necessary technical assistance and logistical support 
to monitoring teams during monitoring visits to facilities for which 
they are responsible.
    (B) Provide necessary travel funding and support for their 
respective team members.
    (C) Cooperate with monitoring teams, including making all pertinent 
records available to the teams.
    (D) Promptly implement monitoring teams' recommendations concerning 
early intervention and related services for which the Secretary 
concerned has responsibility, including those to be furnished through 
an inter-Service agreement.
    (iv) For DoD-CC monitoring visits, the Director, DoDEA, shall:
    (A) Provide necessary technical assistance and logistical support 
to monitoring teams during monitoring visits to facilities for which he 
or she is responsible.
    (B) Cooperate with monitoring teams, including making all pertinent 
records available to the teams.
    (C) Promptly implement monitoring teams' recommendations concerning 
special education and related services for which the DoDEA school 
system concerned has responsibility.
    (v) The ASD(HA) shall provide technical assistance to the DoD 
monitoring teams when requested.
    (vi) The GC, DoD shall:
    (A) Provide legal counsel to the USD(P&R), and, where appropriate, 
to DoDEA, monitored agencies, and monitoring teams regarding monitoring 
activities conducted pursuant to this part.
    (B) Provide advice about the legal requirements of this part and 
Federal law to the DoDEA school systems, military medical commanders, 
military installation commanders, and to other DoD personnel as 
appropriate, in connection with monitoring activities conducted 
pursuant to this part.
    (g) Types of disabilities in children ages 3 through 21. A child 
may be eligible for services under paragraph (b) of this section if by 
reason of one of the following disabilities the child needs special 
education and related services.
    (1) Autism Spectrum Disorder. A developmental disability 
significantly affecting verbal and nonverbal communication and social 
interaction 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. Essential features are typically but not 
necessarily manifested before age 3. Autism may include autism spectrum 
disorders such as but not limited to autistic disorder, pervasive 
developmental disorder not otherwise specified, and Asperger's 
syndrome. The term does not apply if a child's educational performance 
is adversely affected primarily because the child has an emotional 
disturbance.
    (2) Deafness. A hearing loss or deficit so severe that it impairs a 
child's ability to process linguistic information through hearing, with 
or without amplification, and affects the child's educational 
performance adversely.
    (3) Deaf-blindness. A combination of hearing and visual impairments 
causing such severe communication, developmental, and educational needs 
that the child cannot be accommodated in programs specifically for 
children with deafness or children with blindness.
    (4) Developmental delay. A significant discrepancy, as defined and 
measured in accordance with paragraph (a)(4)(ii)(A) and confirmed by 
clinical observation and judgment, in the actual functioning of a 
child, birth through age 7, or any subset of that age range including 
ages 3 through 5, when compared with the functioning of a non-disabled 
child of the same chronological age in any of the following 
developmental areas: Physical, cognitive, communication, social or 
emotional, or adaptive development. A child determined to have a 
developmental delay before the age of 7 may maintain that eligibility 
through age 9.
    (5) Emotional disturbance. A condition confirmed by clinical 
evaluation and diagnosis and that, over a long period of time and to a 
marked degree, adversely affects educational

[[Page 36688]]

performance and exhibits one or more of the following characteristics:
    (i) Inability to learn that cannot be explained by intellectual, 
sensory, or health factors.
    (ii) Inability to build or maintain satisfactory interpersonal 
relationships with peers and teachers.
    (iii) Inappropriate types of behavior or feelings under normal 
circumstances.
    (iv) A general pervasive mood of unhappiness or depression.
    (v) A tendency to develop physical symptoms or fears associated 
with personal or school problems.
    (vi) Includes children who are schizophrenic, but does not include 
children who are socially maladjusted unless it is determined they are 
emotionally disturbed.
    (6) Hearing impairment. An impairment in hearing, whether permanent 
or fluctuating, that adversely affects a child's educational 
performance but is not included under the definition of deafness.
    (7) Intellectual disability. Significantly below-average general 
intellectual functioning, existing concurrently with deficits in 
adaptive behavior. This disability is manifested during the 
developmental period and adversely affects a child's educational 
performance.
    (8) Orthopedic impairment. A severe orthopedic impairment that 
adversely affects a child's educational performance. That term includes 
congenital impairments such as club foot or absence of some member; 
impairments caused by disease, such as poliomyelitis and bone 
tuberculosis; and impairments from other causes such as cerebral palsy, 
amputations, and fractures or burns causing contractures.
    (9) Other health impairment. Limited strength, vitality, or 
alertness including a heightened alertness to environmental stimuli 
that results in limited alertness with respect to the educational 
environment, that is due to chronic or acute health problems and that 
adversely affects a child's educational performance. Such impairments 
may include, but are not necessarily limited to, attention deficit 
disorder, attention deficit hyperactivity disorder, heart condition, 
tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, 
hemophilia, seizure disorder, lead poisoning, leukemia, or diabetes.
    (10) Specific learning disability. A disorder in one or more of the 
basic psychological processes involved in understanding or in using 
spoken or written language that may manifest itself as an imperfect 
ability to listen, think, speak, read, write, spell, remember, or do 
mathematical calculations. That term includes such conditions, 
recognizing that they may have been otherwise labeled with terms such 
as perceptual disabilities, brain injury, minimal brain dysfunction, 
dyslexia, and developmental aphasia. This term does not include 
learning problems that are primarily the result of visual, hearing, or 
motor disabilities; intellectual disability; emotional disturbance; or 
environmental, cultural, or economic differences.
    (11) Speech or language impairments. A communication disorder such 
as stuttering; impaired articulation; limited, impaired or delayed 
capacity to use expressive and/or receptive language; or a voice 
impairment that adversely affects a child's educational performance.
    (12) Traumatic brain injury. An acquired injury to the brain caused 
by an external physical force resulting in total or partial functional 
disability or psychosocial impairment (or both) that adversely affects 
educational performance. Includes open or closed head injuries 
resulting in impairments in one or more areas including cognition, 
language, memory, attention, reasoning, abstract thinking, judgment, 
problem solving, sensory, perceptual and motor abilities, psychosocial 
behavior, physical function, information processing, and speech. The 
term does not include brain injuries that are congenital or 
degenerative or brain injuries that are induced by birth trauma.
    (13) Visual impairment, including blindness. An impairment of 
vision that, even with correction, adversely affects a child's 
educational performance. Term includes both partial sight and 
blindness. DoD also recognizes that a child may be eligible for 
services under paragraph (b) if they demonstrate ``Multiple 
Disabilities'' which DoD defines as: ``Concomitant impairments (such as 
intellectual disability-blindness or intellectual disability-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, which is set forth as its own type of 
disability at Sec.  57.6(g)(3).

    Dated: June 17, 2015.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2015-15343 Filed 6-24-15; 8:45 am]
 BILLING CODE 5001-06-P