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| ments |                                                       |      |
| found |                                                       |      |
| in 34 |                                                       |      |
| CFR   |                                                       |      |
| Part  |                                                       |      |
| 300** |                                                       |      |
+=======+=======================================================+======+
| **Re  | **Related Statutory or Regulatory Provisions**        | **\  |
| lated |                                                       | Co   |
| As    |                                                       | nsis |
| suran |                                                       | tent |
| ces** |                                                       | S    |
|       |                                                       | tate |
|       |                                                       | poli |
|       |                                                       | cies |
|       |                                                       | and  |
|       |                                                       | pr   |
|       |                                                       | oced |
|       |                                                       | ures |
|       |                                                       | are  |
|       |                                                       | in   |
|       |                                                       | plac |
|       |                                                       | e.** |
+-------+-------------------------------------------------------+------+
| **Se  |                                                       |      |
| ction |                                                       |      |
| I**   |                                                       |      |
+-------+-------------------------------------------------------+------+
| *     | No Related Statutory or Regulatory Provisions         |      |
| *NA** | Associated with this Section                          |      |
+-------+-------------------------------------------------------+------+
| **Se  |                                                       |      |
| ction |                                                       |      |
| II    |                                                       |      |
| A**   |                                                       |      |
+-------+-------------------------------------------------------+------+
| **1** | FAPE Requirements                                     |      |
|       |                                                       |      |
|       | Sec. 300.101 Free appropriate public education        |      |
|       | (FAPE).                                               |      |
|       |                                                       |      |
|       | \(a\) General. A free appropriate public education    |      |
|       | must be available to all children residing in the     |      |
|       | State between the ages of 3 and 21, inclusive,        |      |
|       | including children with disabilities who have been    |      |
|       | suspended or expelled from school, as provided for in |      |
|       | Sec. 300.530(d).                                      |      |
|       |                                                       |      |
|       | \(b\) FAPE for children beginning at age 3.           |      |
|       |                                                       |      |
|       | \(1\) Each State must ensure that\--                  |      |
|       |                                                       |      |
|       | \(i\) The obligation to make FAPE available to each   |      |
|       | eligible child residing in the State begins no later  |      |
|       | than the child\'s third birthday; and                 |      |
|       |                                                       |      |
|       | \(ii\) An IEP or an IFSP is in effect for the child   |      |
|       | by that date, in accordance with Sec. 300.323(b).     |      |
|       |                                                       |      |
|       | \(2\) If a child\'s third birthday occurs during the  |      |
|       | summer, the child\'s IEP Team shall determine the     |      |
|       | date when services under the IEP or IFSP will begin.  |      |
|       |                                                       |      |
|       | \(c\) Children advancing from grade to grade.         |      |
|       |                                                       |      |
|       | > \(1\) Each State must ensure that FAPE is available |      |
|       | > to any individual child with a disability who needs |      |
|       | > special education and related services, even though |      |
|       | > the child has not failed or been retained in a      |      |
|       | > course or grade, and is advancing from grade to     |      |
|       | > grade.                                              |      |
|       |                                                       |      |
|       | \(2\) The determination that a child described in     |      |
|       | paragraph (a) of this section is eligible under this  |      |
|       | part, must be made on an individual basis by the      |      |
|       | group responsible within the child\'s LEA for making  |      |
|       | eligibility determinations.                           |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(1)(A))                  |      |
|       |                                                       |      |
|       | Sec. 300.102 Limitation\--exception to FAPE for       |      |
|       | certain ages.                                         |      |
|       |                                                       |      |
|       | \(a\) General. The obligation to make FAPE available  |      |
|       | to all children with disabilities does not apply with |      |
|       | respect to the following:                             |      |
|       |                                                       |      |
|       | \(1\) Children aged 3, 4, 5, 18, 19, 20, or 21 in a   |      |
|       | State to the extent that its application to those     |      |
|       | children would be inconsistent with State law or      |      |
|       | practice, or the order of any court, respecting the   |      |
|       | provision of public education to children of those    |      |
|       | ages.                                                 |      |
|       |                                                       |      |
|       | (2)(i) Children aged 18 through 21 to the extent that |      |
|       | State law does not require that special education and |      |
|       | related services under Part B of the Act be provided  |      |
|       | to students with disabilities who, in the last        |      |
|       | educational placement prior to their incarceration in |      |
|       | an adult correctional facility\--                     |      |
|       |                                                       |      |
|       | \(A\) Were not actually identified as being a child   |      |
|       | with a disability under Sec. 300.8; and               |      |
|       |                                                       |      |
|       | \(B\) Did not have an IEP under Part B of the Act.    |      |
|       |                                                       |      |
|       | \(ii\) The exception in paragraph (a)(2)(i) of this   |      |
|       | section does not apply to children with disabilities, |      |
|       | aged 18 through 21, who\--                            |      |
|       |                                                       |      |
|       | \(A\) Had been identified as a child with a           |      |
|       | disability under Sec. 300.8 and had received services |      |
|       | in accordance with an IEP, but who left school prior  |      |
|       | to their incarceration; or                            |      |
|       |                                                       |      |
|       | \(B\) Did not have an IEP in their last educational   |      |
|       | setting, but who had actually been identified as a    |      |
|       | child with a disability under Sec. 300.8.             |      |
|       |                                                       |      |
|       | (3)(i) Children with disabilities who have graduated  |      |
|       | from high school with a regular high school diploma.  |      |
|       |                                                       |      |
|       | \(ii\) The exception in paragraph (a)(3)(i) of this   |      |
|       | section does not apply to children who have graduated |      |
|       | from high school but have not been awarded a regular  |      |
|       | high school diploma.                                  |      |
|       |                                                       |      |
|       | \(iii\) Graduation from high school with a regular    |      |
|       | high school diploma constitutes a change in           |      |
|       | placement, requiring written prior notice in          |      |
|       | accordance with Sec. 300.503.                         |      |
|       |                                                       |      |
|       | \(iv\) As used in paragraphs (a)(3)(i) through        |      |
|       | (a)(3)(iii) of this section, the term regular high    |      |
|       | school diploma does not include an alternative degree |      |
|       | that is not fully aligned with the State\'s academic  |      |
|       | standards, such as a certificate or a general         |      |
|       | educational development credential (GED).             |      |
|       |                                                       |      |
|       | \(4\) Children with disabilities who are eligible     |      |
|       | under subpart H of this part, but who receive early   |      |
|       | intervention services under Part C of the Act.        |      |
|       |                                                       |      |
|       | \(b\) Documents relating to exceptions. The State     |      |
|       | must assure that the information it has provided to   |      |
|       | the Secretary regarding the exceptions in paragraph   |      |
|       | (a) of this section, as required by Sec. 300.700 (for |      |
|       | purposes of making grants to States under this part), |      |
|       | is current and accurate.                              |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(1)(B)-(C))              |      |
|       |                                                       |      |
|       | Other FAPE Requirements                               |      |
|       |                                                       |      |
|       | Sec. 300.103 FAPE\--methods and payments.             |      |
|       |                                                       |      |
|       | \(a\) Each State may use whatever State, local,       |      |
|       | Federal, and private sources of support are available |      |
|       | in the State to meet the requirements of this part.   |      |
|       | For example, if it is necessary to place a child with |      |
|       | a disability in a residential facility, a State could |      |
|       | use joint agreements between the agencies involved    |      |
|       | for sharing the cost of that placement.               |      |
|       |                                                       |      |
|       | \(b\) Nothing in this part relieves an insurer or     |      |
|       | similar third party from an otherwise valid           |      |
|       | obligation to provide or to pay for services provided |      |
|       | to a child with a disability.                         |      |
|       |                                                       |      |
|       | \(c\) Consistent with Sec. 300.323(c), the State must |      |
|       | ensure that there is no delay in implementing a       |      |
|       | child\'s IEP, including any case in which the payment |      |
|       | source for providing or paying for special education  |      |
|       | and related services to the child is being            |      |
|       | determined.                                           |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1401(8), 1412(a)(1)).           |      |
|       |                                                       |      |
|       | Sec. 300.104 Residential placement                    |      |
|       |                                                       |      |
|       | If placement in a public or private residential       |      |
|       | program is necessary to provide special education and |      |
|       | related services to a child with a disability, the    |      |
|       | program, including non-medical care and room and      |      |
|       | board, must be at no cost to the parents of the       |      |
|       | child.                                                |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(1), 1412(a)(10)(B))     |      |
|       |                                                       |      |
|       | Sec. 300.105 Assistive technology.                    |      |
|       |                                                       |      |
|       | \(a\) Each public agency must ensure that assistive   |      |
|       | technology devices or assistive technology services,  |      |
|       | or both, as those terms are defined in Sections 300.5 |      |
|       | and 300.6, respectively, are made available to a      |      |
|       | child with a disability if required as a part of the  |      |
|       | child\'s\--                                           |      |
|       |                                                       |      |
|       | \(1\) Special education under Sec. 300.36;            |      |
|       |                                                       |      |
|       | \(2\) Related services under Sec. 300.34; or          |      |
|       |                                                       |      |
|       | \(3\) Supplementary aids and services under Sections  |      |
|       | 300.38 and 300.114(a)(2)(ii).                         |      |
|       |                                                       |      |
|       | \(b\) On a case-by-case basis, the use of             |      |
|       | school-purchased assistive technology devices in a    |      |
|       | child\'s home or in other settings is required if the |      |
|       | child\'s IEP Team determines that the child needs     |      |
|       | access to those devices in order to receive FAPE.     |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(1), 1412(a)(12)(B)(i))  |      |
|       |                                                       |      |
|       | Sec. 300.106 Extended school year services.           |      |
|       |                                                       |      |
|       | \(a\) General.                                        |      |
|       |                                                       |      |
|       | \(1\) Each public agency must ensure that extended    |      |
|       | school year services are available as necessary to    |      |
|       | provide FAPE, consistent with paragraph (a)(2) of     |      |
|       | this section.                                         |      |
|       |                                                       |      |
|       | \(2\) Extended school year services must be provided  |      |
|       | only if a child\'s IEP Team determines, on an         |      |
|       | individual basis, in accordance with Sections 300.320 |      |
|       | through 300.324, that the services are necessary for  |      |
|       | the provision of FAPE to the child.                   |      |
|       |                                                       |      |
|       | \(3\) In implementing the requirements of this        |      |
|       | section, a public agency may not\--                   |      |
|       |                                                       |      |
|       | \(i\) Limit extended school year services to          |      |
|       | particular categories of disability; or               |      |
|       |                                                       |      |
|       | \(ii\) Unilaterally limit the type, amount, or        |      |
|       | duration of those services.                           |      |
|       |                                                       |      |
|       | \(b\) Definition. As used in this section, the term   |      |
|       | extended school year services means special education |      |
|       | and related services that\--                          |      |
|       |                                                       |      |
|       | \(1\) Are provided to a child with a disability\--    |      |
|       |                                                       |      |
|       | \(i\) Beyond the normal school year of the public     |      |
|       | agency;                                               |      |
|       |                                                       |      |
|       | \(ii\) In accordance with the child\'s IEP; and       |      |
|       |                                                       |      |
|       | \(iii\) At no cost to the parents of the child; and   |      |
|       |                                                       |      |
|       | \(2\) Meet the standards of the SEA.                  |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(1))                     |      |
|       |                                                       |      |
|       | Sec. 300.107 Nonacademic services.                    |      |
|       |                                                       |      |
|       | The State must ensure the following:                  |      |
|       |                                                       |      |
|       | \(a\) Each public agency must take steps, including   |      |
|       | the provision of supplementary aids and services      |      |
|       | determined appropriate and necessary by the child\'s  |      |
|       | IEP Team, to provide nonacademic and extracurricular  |      |
|       | services and activities in the manner necessary to    |      |
|       | afford children with disabilities an equal            |      |
|       | opportunity for participation in those services and   |      |
|       | activities.                                           |      |
|       |                                                       |      |
|       | \(b\) Nonacademic and extracurricular services and    |      |
|       | activities may include counseling services,           |      |
|       | athletics, transportation, health services,           |      |
|       | recreational activities, special interest groups or   |      |
|       | clubs sponsored by the public agency, referrals to    |      |
|       | agencies that provide assistance to individuals with  |      |
|       | disabilities, and employment of students, including   |      |
|       | both employment by the public agency and assistance   |      |
|       | in making outside employment available.               |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(1))                     |      |
|       |                                                       |      |
|       | Sec. 300.108 Physical education.                      |      |
|       |                                                       |      |
|       | The State must ensure that public agencies in the     |      |
|       | State comply with the following:                      |      |
|       |                                                       |      |
|       | \(a\) General. Physical education services, specially |      |
|       | designed if necessary, must be made available to      |      |
|       | every child with a disability receiving FAPE, unless  |      |
|       | the public agency enrolls children without            |      |
|       | disabilities and does not provide physical education  |      |
|       | to children without disabilities in the same grades.  |      |
|       |                                                       |      |
|       | \(b\) Regular physical education. Each child with a   |      |
|       | disability must be afforded the opportunity to        |      |
|       | participate in the regular physical education program |      |
|       | available to nondisabled children unless\--           |      |
|       |                                                       |      |
|       | \(1\) The child is enrolled full time in a separate   |      |
|       | facility; or                                          |      |
|       |                                                       |      |
|       | \(2\) The child needs specially designed physical     |      |
|       | education, as prescribed in the child\'s IEP.         |      |
|       |                                                       |      |
|       | \(c\) Special physical education. If specially        |      |
|       | designed physical education is prescribed in a        |      |
|       | child\'s IEP, the public agency responsible for the   |      |
|       | education of that child must provide the services     |      |
|       | directly or make arrangements for those services to   |      |
|       | be provided through other public or private programs. |      |
|       |                                                       |      |
|       | \(d\) Education in separate facilities. The public    |      |
|       | agency responsible for the education of a child with  |      |
|       | a disability who is enrolled in a separate facility   |      |
|       | must ensure that the child receives appropriate       |      |
|       | physical education services in compliance with this   |      |
|       | section.                                              |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(5)(A))                  |      |
+-------+-------------------------------------------------------+------+
| **2** | Sec. 300.109 Full educational opportunity goal        |      |
|       | (FEOG).                                               |      |
|       |                                                       |      |
|       | The State must have in effect policies and procedures |      |
|       | to demonstrate that the State has established a goal  |      |
|       | of providing full educational opportunity to all      |      |
|       | children with disabilities, aged birth through 21,    |      |
|       | and a detailed timetable for accomplishing that goal. |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(2))Sec. 300.110 Program |      |
|       | options.                                              |      |
|       |                                                       |      |
|       | The State must ensure that each public agency takes   |      |
|       | steps to ensure that its children with disabilities   |      |
|       | have available to them the variety of educational     |      |
|       | programs and services available to nondisabled        |      |
|       | children in the area served by the agency, including  |      |
|       | art, music, industrial arts, consumer and homemaking  |      |
|       | education, and vocational education.                  |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(2), 1413(a)(1))         |      |
+-------+-------------------------------------------------------+------+
| **3** | Sec. 300.111 Child find.                              |      |
|       |                                                       |      |
|       | \(a\) General.                                        |      |
|       |                                                       |      |
|       | \(1\) The State must have in effect policies and      |      |
|       | procedures to ensure that\--                          |      |
|       |                                                       |      |
|       | \(i\) All children with disabilities residing in the  |      |
|       | State, including children with disabilities who are   |      |
|       | homeless children or are wards of the State, and      |      |
|       | children with disabilities attending private schools, |      |
|       | regardless of the severity of their disability, and   |      |
|       | who are in need of special education and related      |      |
|       | services, are identified, located, and evaluated; and |      |
|       |                                                       |      |
|       | \(ii\) A practical method is developed and            |      |
|       | implemented to determine which children are currently |      |
|       | receiving needed special education and related        |      |
|       | services.                                             |      |
|       |                                                       |      |
|       | \(b\) Use of term developmental delay. The following  |      |
|       | provisions apply with respect to implementing the     |      |
|       | child find requirements of this section:              |      |
|       |                                                       |      |
|       | \(1\) A State that adopts a definition of             |      |
|       | developmental delay under Sec. 300.8(b) determines    |      |
|       | whether the term applies to children aged three       |      |
|       | through nine, or to a subset of that age range (e.g., |      |
|       | ages three through five).                             |      |
|       |                                                       |      |
|       | \(2\) A State may not require an LEA to adopt and use |      |
|       | the term developmental delay for any children within  |      |
|       | its jurisdiction.                                     |      |
|       |                                                       |      |
|       | \(3\) If an LEA uses the term developmental delay for |      |
|       | children described in Sec. 300.8(b), the LEA must     |      |
|       | conform to both the State\'s definition of that term  |      |
|       | and to the age range that has been adopted by the     |      |
|       | State.                                                |      |
|       |                                                       |      |
|       | (4 If a State does not adopt the term developmental   |      |
|       | delay, an LEA may not independently use that term as  |      |
|       | a basis for establishing a child\'s eligibility under |      |
|       | this part.                                            |      |
|       |                                                       |      |
|       | \(c\) Other children in child find. Child find also   |      |
|       | must include\--                                       |      |
|       |                                                       |      |
|       | \(1\) Children who are suspected of being a child     |      |
|       | with a disability under Sec. 300.8 and in need of     |      |
|       | special education, even though they are advancing     |      |
|       | from grade to grade; and                              |      |
|       |                                                       |      |
|       | \(2\) Highly mobile children, including migrant       |      |
|       | children.                                             |      |
|       |                                                       |      |
|       | \(d\) Construction. Nothing in the Act requires that  |      |
|       | children be classified by their disability so long as |      |
|       | each child who has a disability that is listed in     |      |
|       | Sec. 300.8 and who, by reason of that disability,     |      |
|       | needs special education and related services is       |      |
|       | regarded as a child with a disability under Part B of |      |
|       | the Act.                                              |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1401(3)); 1412(a)(3))           |      |
+-------+-------------------------------------------------------+------+
| **4** | Sec. 300.112 Individualized education programs (IEP). |      |
|       |                                                       |      |
|       | The State must ensure that an IEP, or an IFSP that    |      |
|       | meets the requirements of section 636(d) of the Act,  |      |
|       | is developed, reviewed, and revised for each child    |      |
|       | with a disability in accordance with Sec. 300.320     |      |
|       | through 300.324, except as provided in Sec.           |      |
|       | 300.300(b)(3)(ii).                                    |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(4))                     |      |
|       |                                                       |      |
|       | Sec. 300.320 Definition of individualized education   |      |
|       | program.                                              |      |
|       |                                                       |      |
|       | \(a\) General. As used in this part, the term         |      |
|       | individualized education program or IEP means a       |      |
|       | written statement for each child with a disability    |      |
|       | that is developed, reviewed, and revised in a meeting |      |
|       | in accordance with Sections 300.320 through 300.324,  |      |
|       | and that must include\--                              |      |
|       |                                                       |      |
|       | \(1\) A statement of the child\'s present levels of   |      |
|       | academic achievement and functional performance,      |      |
|       | including\--                                          |      |
|       |                                                       |      |
|       | \(i\) How the child\'s disability affects the         |      |
|       | child\'s involvement and progress in the general      |      |
|       | education curriculum (i.e., the same curriculum as    |      |
|       | for nondisabled children); or                         |      |
|       |                                                       |      |
|       | \(ii\) For preschool children, as appropriate, how    |      |
|       | the disability affects the child\'s participation in  |      |
|       | appropriate activities;                               |      |
|       |                                                       |      |
|       | (2)(i) A statement of measurable annual goals,        |      |
|       | including academic and functional goals designed      |      |
|       | to\--                                                 |      |
|       |                                                       |      |
|       | \(A\) Meet the child\'s needs that result from the    |      |
|       | child\'s disability to enable the child to be         |      |
|       | involved in and make progress in the general          |      |
|       | education curriculum; and                             |      |
|       |                                                       |      |
|       | \(B\) Meet each of the child\'s other educational     |      |
|       | needs that result from the child\'s disability;       |      |
|       |                                                       |      |
|       | \(ii\) For children with disabilities who take        |      |
|       | alternate assessments aligned to alternate            |      |
|       | achievement standards, a description of benchmarks or |      |
|       | short-term objectives;                                |      |
|       |                                                       |      |
|       | \(3\) A description of\--                             |      |
|       |                                                       |      |
|       | \(i\) How the child\'s progress toward meeting the    |      |
|       | annual goals described in paragraph (2) of this       |      |
|       | section will be measured; and                         |      |
|       |                                                       |      |
|       | \(ii\) When periodic reports on the progress the      |      |
|       | child is making toward meeting the annual goals (such |      |
|       | as through the use of quarterly or other periodic     |      |
|       | reports, concurrent with the issuance of report       |      |
|       | cards) will be provided;                              |      |
|       |                                                       |      |
|       | \(4\) A statement of the special education and        |      |
|       | related services and supplementary aids and services, |      |
|       | based on peer-reviewed research to the extent         |      |
|       | practicable, to be provided to the child, or on       |      |
|       | behalf of the child, and a statement of the program   |      |
|       | modifications or supports for school personnel that   |      |
|       | will be provided to enable the child\--               |      |
|       |                                                       |      |
|       | \(i\) To advance appropriately toward attaining the   |      |
|       | annual goals;                                         |      |
|       |                                                       |      |
|       | \(ii\) To be involved in and make progress in the     |      |
|       | general education curriculum in accordance with       |      |
|       | paragraph (a)(1) of this section, and to participate  |      |
|       | in extracurricular and other nonacademic activities;  |      |
|       | and                                                   |      |
|       |                                                       |      |
|       | \(iii\) To be educated and participate with other     |      |
|       | children with disabilities and nondisabled children   |      |
|       | in the activities described in this section;          |      |
|       |                                                       |      |
|       | \(5\) An explanation of the extent, if any, to which  |      |
|       | the child will not participate with nondisabled       |      |
|       | children in the regular class and in the activities   |      |
|       | described in paragraph (a)(4) of this section;        |      |
|       |                                                       |      |
|       | (6)(i) A statement of any individual appropriate      |      |
|       | accommodations that are necessary to measure the      |      |
|       | academic achievement and functional performance of    |      |
|       | the child on State and districtwide assessments       |      |
|       | consistent with section 612(a)(16) of the Act; and    |      |
|       |                                                       |      |
|       | \(ii\) If the IEP Team determines that the child must |      |
|       | take an alternate assessment instead of a particular  |      |
|       | regular State or districtwide assessment of student   |      |
|       | achievement, a statement of why\--                    |      |
|       |                                                       |      |
|       | \(A\) The child cannot participate in the regular     |      |
|       | assessment; and                                       |      |
|       |                                                       |      |
|       | \(B\) The particular alternate assessment selected is |      |
|       | appropriate for the child; and                        |      |
|       |                                                       |      |
|       | \(7\) The projected date for the beginning of the     |      |
|       | services and modifications described in paragraph     |      |
|       | (a)(4) of this section, and the anticipated           |      |
|       | frequency, location, and duration of those services   |      |
|       | and modifications.                                    |      |
|       |                                                       |      |
|       | \(b\) Transition services. Beginning not later than   |      |
|       | the first IEP to be in effect when the child turns    |      |
|       | 16, or younger if determined appropriate by the IEP   |      |
|       | Team, and updated annually, thereafter, the IEP must  |      |
|       | include\--                                            |      |
|       |                                                       |      |
|       | \(1\) Appropriate measurable postsecondary goals      |      |
|       | based upon age appropriate transition assessments     |      |
|       | related to training, education, employment, and,      |      |
|       | where appropriate, independent living skills; and     |      |
|       |                                                       |      |
|       | \(2\) The transition services (including courses of   |      |
|       | study) needed to assist the child in reaching those   |      |
|       | goals.                                                |      |
|       |                                                       |      |
|       | \(c\) Transfer of rights at age of majority.          |      |
|       | Beginning not later than one year before the child    |      |
|       | reaches the age of majority under State law, the IEP  |      |
|       | must include a statement that the child has been      |      |
|       | informed of the child\'s rights under Part B of the   |      |
|       | Act, if any, that will transfer to the child on       |      |
|       | reaching the age of majority under Sec. 300.520.      |      |
|       |                                                       |      |
|       | \(d\) Construction. Nothing in this section shall be  |      |
|       | construed to require\--                               |      |
|       |                                                       |      |
|       | \(1\) That additional information be included in a    |      |
|       | child\'s IEP beyond what is explicitly required in    |      |
|       | section 614 of the Act; or                            |      |
|       |                                                       |      |
|       | \(2\) The IEP Team to include information under one   |      |
|       | component of a child\'s IEP that is already contained |      |
|       | under another component of the child\'s IEP.          |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1414(d)(1)(A) and (d)(6))       |      |
|       |                                                       |      |
|       | Sec. 300.321 IEP Team.                                |      |
|       |                                                       |      |
|       | \(a\) General. The public agency must ensure that the |      |
|       | IEP Team for each child with a disability includes\-- |      |
|       |                                                       |      |
|       | \(1\) The parents of the child;                       |      |
|       |                                                       |      |
|       | \(2\) Not less than one regular education teacher of  |      |
|       | the child (if the child is, or may be, participating  |      |
|       | in the regular education environment);                |      |
|       |                                                       |      |
|       | \(3\) Not less than one special education teacher of  |      |
|       | the child, or where appropriate, not less then one    |      |
|       | special education provider of the child;              |      |
|       |                                                       |      |
|       | \(4\) A representative of the public agency who\--    |      |
|       |                                                       |      |
|       | \(i\) Is qualified to provide, or supervise the       |      |
|       | provision of, specially designed instruction to meet  |      |
|       | the unique needs of children with disabilities;       |      |
|       |                                                       |      |
|       | \(ii\) Is knowledgeable about the general education   |      |
|       | curriculum; and                                       |      |
|       |                                                       |      |
|       | \(iii\) Is knowledgeable about the availability of    |      |
|       | resources of the public agency.                       |      |
|       |                                                       |      |
|       | \(5\) An individual who can interpret the             |      |
|       | instructional implications of evaluation results, who |      |
|       | may be a member of the team described in paragraphs   |      |
|       | (a)(2) through (a)(6) of this section;                |      |
|       |                                                       |      |
|       | \(6\) At the discretion of the parent or the agency,  |      |
|       | other individuals who have knowledge or special       |      |
|       | expertise regarding the child, including related      |      |
|       | services personnel as appropriate; and                |      |
|       |                                                       |      |
|       | \(7\) Whenever appropriate, the child with a          |      |
|       | disability.                                           |      |
|       |                                                       |      |
|       | \(b\) Transition services participants.               |      |
|       |                                                       |      |
|       | \(1\) In accordance with paragraph (a)(7) of this     |      |
|       | section, the public agency must invite a child with a |      |
|       | disability to attend the child\'s IEP Team meeting if |      |
|       | a purpose of the meeting will be the consideration of |      |
|       | the postsecondary goals for the child and the         |      |
|       | transition services needed to assist the child in     |      |
|       | reaching those goals under Sec. 300.320(b).           |      |
|       |                                                       |      |
|       | \(2\) If the child does not attend the IEP Team       |      |
|       | meeting, the public agency must take other steps to   |      |
|       | ensure that the child\'s preferences and interests    |      |
|       | are considered.                                       |      |
|       |                                                       |      |
|       | \(3\) To the extent appropriate, with the consent of  |      |
|       | the parents or a child who has reached the age of     |      |
|       | majority, in implementing the requirements of         |      |
|       | paragraph (b)(1) of this section, the public agency   |      |
|       | must invite a representative of any participating     |      |
|       | agency that is likely to be responsible for providing |      |
|       | or paying for transition services.                    |      |
|       |                                                       |      |
|       | \(c\) Determination of knowledge and special          |      |
|       | expertise. The determination of the knowledge or      |      |
|       | special expertise of any individual described in      |      |
|       | paragraph (a)(6) of this section must be made by the  |      |
|       | party (parents or public agency) who invited the      |      |
|       | individual to be a member of the IEP Team.            |      |
|       |                                                       |      |
|       | \(d\) Designating a public agency representative. A   |      |
|       | public agency may designate a public agency member of |      |
|       | the IEP Team to also serve as the agency              |      |
|       | representative, if the criteria in paragraph (a)(4)   |      |
|       | of this section are satisfied.                        |      |
|       |                                                       |      |
|       | \(e\) IEP Team attendance.                            |      |
|       |                                                       |      |
|       | \(1\) A member of the IEP Team described in           |      |
|       | paragraphs (a)(2) through (a)(5) of this section is   |      |
|       | not required to attend an IEP Team meeting, in whole  |      |
|       | or in part, if the parent of a child with a           |      |
|       | disability and the public agency agree, in writing,   |      |
|       | that the attendance of the member is not necessary    |      |
|       | because the member\'s area of the curriculum or       |      |
|       | related services is not being modified or discussed   |      |
|       | in the meeting.                                       |      |
|       |                                                       |      |
|       | \(2\) A member of the IEP Team described in paragraph |      |
|       | (e)(1) of this section may be excused from attending  |      |
|       | an IEP Team meeting, in whole or in part, when the    |      |
|       | meeting involves a modification to or discussion of   |      |
|       | the member\'s area of the curriculum or related       |      |
|       | services, if\--                                       |      |
|       |                                                       |      |
|       | \(i\) The parent, in writing, and the public agency   |      |
|       | consent to the excusal; and                           |      |
|       |                                                       |      |
|       | ii\) The member submits, in writing to the parent and |      |
|       | the IEP Team, input into the development of the IEP   |      |
|       | prior to the meeting.                                 |      |
|       |                                                       |      |
|       | \(f\) Initial IEP Team meeting for child under Part   |      |
|       | C. In the case of a child who was previously served   |      |
|       | under Part C of the Act, an invitation to the initial |      |
|       | IEP Team meeting must, at the request of the parent,  |      |
|       | be sent to the Part C service coordinator or other    |      |
|       | representatives of the Part C system to assist with   |      |
|       | the smooth transition of services.                    |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1414(d)(1)(B)-(d)(1)(D))        |      |
|       |                                                       |      |
|       | Sec. 300.322 Parent participation.                    |      |
|       |                                                       |      |
|       | \(a\) Public agency responsibility\--general. Each    |      |
|       | public agency must take steps to ensure that one or   |      |
|       | both of the parents of a child with a disability are  |      |
|       | present at each IEP Team meeting or are afforded the  |      |
|       | opportunity to participate, including                 |      |
|       |                                                       |      |
|       | \-                                                    |      |
|       |                                                       |      |
|       | \(1\) Notifying parents of the meeting early enough   |      |
|       | to ensure that they will have an opportunity to       |      |
|       | attend; and                                           |      |
|       |                                                       |      |
|       | \(2\) Scheduling the meeting at a mutually agreed on  |      |
|       | time and place.                                       |      |
|       |                                                       |      |
|       | \(b\) Information provided to parents.                |      |
|       |                                                       |      |
|       | \(1\) The notice required under paragraph (a)(1) of   |      |
|       | this section must\--                                  |      |
|       |                                                       |      |
|       | \(i\) Indicate the purpose, time, and location of the |      |
|       | meeting and who will be in attendance; and            |      |
|       |                                                       |      |
|       | \(ii\) Inform the parents of the provisions in Sec.   |      |
|       | 300.321(a)(6) and (c) (relating to the participation  |      |
|       | of other individuals on the IEP Team who have         |      |
|       | knowledge or special expertise about the child), and  |      |
|       | Sec. 300.321(f) (relating to the participation of the |      |
|       | Part C service coordinator or other representatives   |      |
|       | of the Part C system at the initial IEP Team meeting  |      |
|       | for a child previously served under Part C of the     |      |
|       | Act).                                                 |      |
|       |                                                       |      |
|       | \(2\) For a child with a disability beginning not     |      |
|       | later than the first IEP to be in effect when the     |      |
|       | child turns 16, or younger if determined appropriate  |      |
|       | by the IEP Team, the notice also must\--              |      |
|       |                                                       |      |
|       | \(i\) Indicate\--                                     |      |
|       |                                                       |      |
|       | \(A\) That a purpose of the meeting will be the       |      |
|       | consideration of the postsecondary goals and          |      |
|       | transition services for the child, in accordance with |      |
|       | Sec. 300.320(b); and                                  |      |
|       |                                                       |      |
|       | \(B\) That the agency will invite the student; and    |      |
|       |                                                       |      |
|       | \(ii\) Identify any other agency that will be invited |      |
|       | to send a representative.                             |      |
|       |                                                       |      |
|       | \(c\) Other methods to ensure parent participation.   |      |
|       | If neither parent can attend an IEP Team meeting, the |      |
|       | public agency must use other methods to ensure parent |      |
|       | participation, including individual or conference     |      |
|       | telephone calls, consistent with Sec. 300.328         |      |
|       | (related to alternative means of meeting              |      |
|       | participation).                                       |      |
|       |                                                       |      |
|       | \(d\) Conducting an IEP Team meeting without a parent |      |
|       | in attendance. A meeting may be conducted without a   |      |
|       | parent in attendance if the public agency is unable   |      |
|       | to convince the parents that they should attend. In   |      |
|       | this case, the public agency must keep a record of    |      |
|       | its attempts to arrange a mutually agreed on time and |      |
|       | place, such as\--                                     |      |
|       |                                                       |      |
|       | \(1\) Detailed records of telephone calls made or     |      |
|       | attempted and the results of those calls;             |      |
|       |                                                       |      |
|       | \(2\) Copies of correspondence sent to the parents    |      |
|       | and any responses received; and                       |      |
|       |                                                       |      |
|       | \(3\) Detailed records of visits made to the          |      |
|       | parent\'s home or place of employment and the results |      |
|       | of those visits.                                      |      |
|       |                                                       |      |
|       | \(e\) Use of interpreters or other action, as         |      |
|       | appropriate. The public agency must take whatever     |      |
|       | action is necessary to ensure that the parent         |      |
|       | understands the proceedings of the IEP Team meeting,  |      |
|       | including arranging for an interpreter for parents    |      |
|       | with deafness or whose native language is other than  |      |
|       | English.                                              |      |
|       |                                                       |      |
|       | \(f\) Parent copy of child\'s IEP. The public agency  |      |
|       | must give the parent a copy of the child\'s IEP at no |      |
|       | cost to the parent.                                   |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1414(d)(1)(B)(i))               |      |
|       |                                                       |      |
|       | Sec. 300.323 When IEPs must be in effect.             |      |
|       |                                                       |      |
|       | \(a\) General. At the beginning of each school year,  |      |
|       | each public agency must have in effect, for each      |      |
|       | child with a disability within its jurisdiction, an   |      |
|       | IEP, as defined in Sec. 300.320.                      |      |
|       |                                                       |      |
|       | \(b\) IEP or IFSP for children aged three through     |      |
|       | five.                                                 |      |
|       |                                                       |      |
|       | \(1\) In the case of a child with a disability aged   |      |
|       | three through five (or, at the discretion of the SEA, |      |
|       | a two-year-old child with a disability who will turn  |      |
|       | age three during the school year), the IEP Team must  |      |
|       | consider an IFSP that contains the IFSP content       |      |
|       | (including the natural environments statement)        |      |
|       | described in section 636(d) of the Act and its        |      |
|       | implementing regulations (including an educational    |      |
|       | component that promotes school readiness and          |      |
|       | incorporates pre-literacy, language, and numeracy     |      |
|       | skills for children with IFSPs under this section who |      |
|       | are at least three years of age), and that is         |      |
|       | developed in accordance with the IEP procedures under |      |
|       | this part. The IFSP may serve as the IEP of the       |      |
|       | child, if using the IFSP as the IEP is\--             |      |
|       |                                                       |      |
|       | \(i\) Consistent with State policy; and               |      |
|       |                                                       |      |
|       | \(ii\) Agreed to by the agency and the child\'s       |      |
|       | parents.                                              |      |
|       |                                                       |      |
|       | \(2\) In implementing the requirements of paragraph   |      |
|       | (b)(1) of this section, the public agency must\--     |      |
|       |                                                       |      |
|       | \(i\) Provide to the child\'s parents a detailed      |      |
|       | explanation of the differences between an IFSP and an |      |
|       | IEP; and                                              |      |
|       |                                                       |      |
|       | \(ii\) If the parents choose an IFSP, obtain written  |      |
|       | informed consent from the parents.                    |      |
|       |                                                       |      |
|       | \(c\) Initial IEPs; provision of services. Each       |      |
|       | public agency must ensure that\--                     |      |
|       |                                                       |      |
|       | \(1\) A meeting to develop an IEP for a child is      |      |
|       | conducted within 30 days of a determination that the  |      |
|       | child needs special education and related services;   |      |
|       | and                                                   |      |
|       |                                                       |      |
|       | \(2\) As soon as possible following development of    |      |
|       | the IEP, special education and related services are   |      |
|       | made available to the child in accordance with the    |      |
|       | child\'s IEP.                                         |      |
|       |                                                       |      |
|       | \(d\) Accessibility of child\'s IEP to teachers and   |      |
|       | others. Each public agency must ensure that\--        |      |
|       |                                                       |      |
|       | 1\) The child\'s IEP is accessible to each regular    |      |
|       | education teacher, special education teacher, related |      |
|       | services provider, and any other service provider who |      |
|       | is responsible for its implementation; and            |      |
|       |                                                       |      |
|       | \(2\) Each teacher and provider described in          |      |
|       | paragraph (d)(1) of this section is informed of\--    |      |
|       |                                                       |      |
|       | \(i\) His or her specific responsibilities related to |      |
|       | implementing the child\'s IEP; and                    |      |
|       |                                                       |      |
|       | \(ii\) The specific accommodations, modifications,    |      |
|       | and supports that must be provided for the child in   |      |
|       | accordance with the IEP.                              |      |
|       |                                                       |      |
|       | \(e\) IEPs for children who transfer public agencies  |      |
|       | in the same State. If a child with a disability (who  |      |
|       | had an IEP that was in effect in a previous public    |      |
|       | agency in the same State) transfers to a new public   |      |
|       | agency in the same State, and enrolls in a new school |      |
|       | within the same school year, the new public agency    |      |
|       | (in consultation with the parents) must provide FAPE  |      |
|       | to the child (including services comparable to those  |      |
|       | described in the child\'s IEP from the previous       |      |
|       | public agency), until the new public agency either\-- |      |
|       |                                                       |      |
|       | \(1\) Adopts the child\'s IEP from the previous       |      |
|       | public agency; or                                     |      |
|       |                                                       |      |
|       | \(2\) Develops, adopts, and implements a new IEP that |      |
|       | meets the applicable requirements in Sections 300.320 |      |
|       | through 300.324.                                      |      |
|       |                                                       |      |
|       | \(f\) IEPs for children who transfer from another     |      |
|       | State. If a child with a disability (who had an IEP   |      |
|       | that was in effect in a previous public agency in     |      |
|       | another State) transfers to a public agency in a new  |      |
|       | State, and enrolls in a new school within the same    |      |
|       | school year, the new public agency (in consultation   |      |
|       | with the parents) must provide the child with FAPE    |      |
|       | (including services comparable to those described in  |      |
|       | the child\'s IEP from the previous public agency),    |      |
|       | until the new public agency\--                        |      |
|       |                                                       |      |
|       | \(1\) Conducts an evaluation pursuant to Sections     |      |
|       | 300.304 through 300.306 (if determined to be          |      |
|       | necessary by the new public agency); and              |      |
|       |                                                       |      |
|       | \(2\) Develops, adopts, and implements a new IEP, if  |      |
|       | appropriate, that meets the applicable requirements   |      |
|       | in Sections 300.320 through 300.324.                  |      |
|       |                                                       |      |
|       | \(g\) Transmittal of records. To facilitate the       |      |
|       | transition for a child described in paragraphs (e)    |      |
|       | and (f) of this section\--                            |      |
|       |                                                       |      |
|       | \(1\) The new public agency in which the child        |      |
|       | enrolls must take reasonable steps to promptly obtain |      |
|       | the child\'s records, including the IEP and           |      |
|       | supporting documents and any other records relating   |      |
|       | to the provision of special education or related      |      |
|       | services to the child, from the previous public       |      |
|       | agency in which the child was enrolled, pursuant to   |      |
|       | 34 CFR 99.31(a)(2); and                               |      |
|       |                                                       |      |
|       | \(2\) The previous public agency in which the child   |      |
|       | was enrolled must take reasonable steps to promptly   |      |
|       | respond to the request from the new public agency.    |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1414(d)(2)(A)-(C))              |      |
|       |                                                       |      |
|       | Development of IEP                                    |      |
|       |                                                       |      |
|       | Sec. 300.324 Development, review, and revision of     |      |
|       | IEP.                                                  |      |
|       |                                                       |      |
|       | \(a\) Development of IEP\--                           |      |
|       |                                                       |      |
|       | \(1\) General. In developing each child\'s IEP, the   |      |
|       | IEP Team must consider\--                             |      |
|       |                                                       |      |
|       | \(i\) The strengths of the child;                     |      |
|       |                                                       |      |
|       | \(ii\) The concerns of the parents for enhancing the  |      |
|       | education of their child;                             |      |
|       |                                                       |      |
|       | \(iii\) The results of the initial or most recent     |      |
|       | evaluation of the child; and                          |      |
|       |                                                       |      |
|       | \(iv\) The academic, developmental, and functional    |      |
|       | needs of the child.                                   |      |
|       |                                                       |      |
|       | \(2\) Consideration of special factors. The IEP Team  |      |
|       | must\--                                               |      |
|       |                                                       |      |
|       | \(i\) In the case of a child whose behavior impedes   |      |
|       | the child\'s learning or that of others, consider the |      |
|       | use of positive behavioral interventions and          |      |
|       | supports, and other strategies, to address that       |      |
|       | behavior;                                             |      |
|       |                                                       |      |
|       | \(ii\) In the case of a child with limited English    |      |
|       | proficiency, consider the language needs of the child |      |
|       | as those needs relate to the child\'s IEP;            |      |
|       |                                                       |      |
|       | \(iii\) In the case of a child who is blind or        |      |
|       | visually impaired, provide for instruction in Braille |      |
|       | and the use of Braille unless the IEP Team            |      |
|       | determines, after an evaluation of the child\'s       |      |
|       | reading and writing skills, needs, and appropriate    |      |
|       | reading and writing media (including an evaluation of |      |
|       | the child\'s future needs for instruction in Braille  |      |
|       | or the use of Braille), that instruction in Braille   |      |
|       | or the use of Braille is not appropriate for the      |      |
|       | child;                                                |      |
|       |                                                       |      |
|       | \(iv\) Consider the communication needs of the child, |      |
|       | and in the case of a child who is deaf or hard of     |      |
|       | hearing, consider the child\'s language and           |      |
|       | communication needs, opportunities for direct         |      |
|       | communications with peers and professional personnel  |      |
|       | in the child\'s language and communication mode,      |      |
|       | academic level, and full range of needs, including    |      |
|       | opportunities for direct instruction in the child\'s  |      |
|       | language and communication mode; and                  |      |
|       |                                                       |      |
|       | \(v\) Consider whether the child needs assistive      |      |
|       | technology devices and services.                      |      |
|       |                                                       |      |
|       | \(3\) Requirement with respect to regular education   |      |
|       | teacher. A regular education teacher of a child with  |      |
|       | a disability, as a member of the IEP Team, must, to   |      |
|       | the extent appropriate, participate in the            |      |
|       | development of the IEP of the child, including the    |      |
|       | determination of\--                                   |      |
|       |                                                       |      |
|       | \(i\) Appropriate positive behavioral interventions   |      |
|       | and supports and other strategies for the child; and  |      |
|       |                                                       |      |
|       | \(ii\) Supplementary aids and services, program       |      |
|       | modifications, and support for school personnel       |      |
|       | consistent with Sec. 300.320(a)(4).                   |      |
|       |                                                       |      |
|       | \(4\) Agreement.                                      |      |
|       |                                                       |      |
|       | \(i\) In making changes to a child\'s IEP after the   |      |
|       | annual IEP Team meeting for a school year, the parent |      |
|       | of a child with a disability and the public agency    |      |
|       | may agree not to convene an IEP Team meeting for the  |      |
|       | purposes of making those changes, and instead may     |      |
|       | develop a written document to amend or modify the     |      |
|       | child\'s current IEP.                                 |      |
|       |                                                       |      |
|       | \(ii\) If changes are made to the child\'s IEP in     |      |
|       | accordance with paragraph (a)(4)(i) of this section,  |      |
|       | the public agency must ensure that the child\'s IEP   |      |
|       | Team is informed of those changes.                    |      |
|       |                                                       |      |
|       | \(5\) Consolidation of IEP Team meetings. To the      |      |
|       | extent possible, the public agency must encourage the |      |
|       | consolidation of reevaluation meetings for the child  |      |
|       | and other IEP Team meetings for the child.            |      |
|       |                                                       |      |
|       | \(6\) Amendments. Changes to the IEP may be made      |      |
|       | either by the entire IEP Team at an IEP Team meeting, |      |
|       | or as provided in paragraph (a)(4) of this section,   |      |
|       | by amending the IEP rather than by redrafting the     |      |
|       | entire IEP. Upon request, a parent must be provided   |      |
|       | with a revised copy of the IEP with the amendments    |      |
|       | incorporated.                                         |      |
|       |                                                       |      |
|       | \(b\) Review and revision of IEPs\--                  |      |
|       |                                                       |      |
|       | \(1\) General. Each public agency must ensure that,   |      |
|       | subject to paragraphs (b)(2) and (b)(3) of this       |      |
|       | section, the IEP Team\--                              |      |
|       |                                                       |      |
|       | \(i\) Reviews the child\'s IEP periodically, but not  |      |
|       | less than annually, to determine whether the annual   |      |
|       | goals for the child are being achieved; and           |      |
|       |                                                       |      |
|       | \(ii\) Revises the IEP, as appropriate, to address\-- |      |
|       |                                                       |      |
|       | \(A\) Any lack of expected progress toward the annual |      |
|       | goals described in Sec. 300.320(a)(2), and in the     |      |
|       | general education curriculum, if appropriate;         |      |
|       |                                                       |      |
|       | \(B\) The results of any reevaluation conducted under |      |
|       | Sec. 300.303;                                         |      |
|       |                                                       |      |
|       | \(C\) Information about the child provided to, or by, |      |
|       | the parents, as described under Sec. 300.305(a)(2);   |      |
|       |                                                       |      |
|       | \(D\) The child\'s anticipated needs; or              |      |
|       |                                                       |      |
|       | \(E\) Other matters.                                  |      |
|       |                                                       |      |
|       | \(2\) Consideration of special factors. In conducting |      |
|       | a review of the child\'s IEP, the IEP Team must       |      |
|       | consider the special factors described in paragraph   |      |
|       | (a)(2) of this section.                               |      |
|       |                                                       |      |
|       | \(3\) Requirement with respect to regular education   |      |
|       | teacher. A regular education teacher of the child, as |      |
|       | a member of the IEP Team, must, consistent with       |      |
|       | paragraph (a)(3) of this section, participate in the  |      |
|       | review and revision of the IEP of the child.          |      |
|       |                                                       |      |
|       | \(c\) Failure to meet transition objectives\--        |      |
|       |                                                       |      |
|       | \(1\) Participating agency failure. If a              |      |
|       | participating agency, other than the public agency,   |      |
|       | fails to provide the transition services described in |      |
|       | the IEP in accordance with Sec. 300.320(b), the       |      |
|       | public agency must reconvene the IEP Team to identify |      |
|       | alternative strategies to meet the transition         |      |
|       | objectives for the child set out in the IEP.          |      |
|       |                                                       |      |
|       | \(2\) Construction. Nothing in this part relieves any |      |
|       | participating agency, including a State vocational    |      |
|       | rehabilitation agency, of the responsibility to       |      |
|       | provide or pay for any transition service that the    |      |
|       | agency would otherwise provide to children with       |      |
|       | disabilities who meet the eligibility criteria of     |      |
|       | that agency.                                          |      |
|       |                                                       |      |
|       | \(d\) Children with disabilities in adult prisons\--  |      |
|       |                                                       |      |
|       | \(1\) Requirements that do not apply. The following   |      |
|       | requirements do not apply to children with            |      |
|       | disabilities who are convicted as adults under State  |      |
|       | law and incarcerated in adult prisons:                |      |
|       |                                                       |      |
|       | \(i\) The requirements contained in section           |      |
|       | 612(a)(16) of the Act and Sec. 300.320(a)(6)          |      |
|       | (relating to participation of children with           |      |
|       | disabilities in general assessments).                 |      |
|       |                                                       |      |
|       | \(ii\) The requirements in Sec. 300.320(b) (relating  |      |
|       | to transition planning and transition services) do    |      |
|       | not apply with respect to the children whose          |      |
|       | eligibility under Part B of the Act will end, because |      |
|       | of their age, before they will be eligible to be      |      |
|       | released from prison based on consideration of their  |      |
|       | sentence and eligibility for early release.           |      |
|       |                                                       |      |
|       | \(2\) Modifications of IEP or placement.              |      |
|       |                                                       |      |
|       | \(i\) Subject to paragraph (d)(2)(ii) of this         |      |
|       | section, the IEP Team of a child with a disability    |      |
|       | who is convicted as an adult under State law and      |      |
|       | incarcerated in an adult prison may modify the        |      |
|       | child\'s IEP or placement if the State has            |      |
|       | demonstrated a bona fide security or compelling       |      |
|       | penological interest that cannot otherwise be         |      |
|       | accommodated.                                         |      |
|       |                                                       |      |
|       | > \(ii\) The requirements of Sections 300.320         |      |
|       | > (relating to IEPs), and 300.112 (relating to LRE),  |      |
|       | > do not apply with respect to the modifications      |      |
|       | > described in paragraph (d)(2)(i) of this section.   |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(1), 1412(a)(12)(A)(i),  |      |
|       | 1414(d)(3), (4)(B), and (7); and 1414(e))             |      |
|       |                                                       |      |
|       | Sec. 300.325 Private school placements by public      |      |
|       | agencies.                                             |      |
|       |                                                       |      |
|       | \(a\) Developing IEPs.                                |      |
|       |                                                       |      |
|       | \(1\) Before a public agency places a child with a    |      |
|       | disability in, or refers a child to, a private school |      |
|       | or facility, the agency must initiate and conduct a   |      |
|       | meeting to develop an IEP for the child in accordance |      |
|       | with Sections 300.320 and 300.324.                    |      |
|       |                                                       |      |
|       | \(2\) The agency must ensure that a representative of |      |
|       | the private school or facility attends the meeting.   |      |
|       | If the representative cannot attend, the agency must  |      |
|       | use other methods to ensure participation by the      |      |
|       | private school or facility, including individual or   |      |
|       | conference telephone calls.                           |      |
|       |                                                       |      |
|       | \(b\) Reviewing and revising IEPs.                    |      |
|       |                                                       |      |
|       | \(1\) After a child with a disability enters a        |      |
|       | private school or facility, any meetings to review    |      |
|       | and revise the child\'s IEP may be initiated and      |      |
|       | conducted by the private school or facility at the    |      |
|       | discretion of the public agency.                      |      |
|       |                                                       |      |
|       | \(2\) If the private school or facility initiates and |      |
|       | conducts these meetings, the public agency must       |      |
|       | ensure that the parents and an agency                 |      |
|       | representative\--                                     |      |
|       |                                                       |      |
|       | \(i\) Are involved in any decision about the child\'s |      |
|       | IEP; and                                              |      |
|       |                                                       |      |
|       | \(ii\) Agree to any proposed changes in the IEP       |      |
|       | before those changes are implemented.                 |      |
|       |                                                       |      |
|       | \(c\) Responsibility. Even if a private school or     |      |
|       | facility implements a child\'s IEP, responsibility    |      |
|       | for compliance with this part remains with the public |      |
|       | agency and the SEA.                                   |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(10)(B))                 |      |
+-------+-------------------------------------------------------+------+
| **5** | Sec. 300.114 LRE requirements.                        |      |
|       |                                                       |      |
|       | \(a\) General.                                        |      |
|       |                                                       |      |
|       | \(1\) Except as provided in Sec. 300.324(d)(2)        |      |
|       | (regarding children with disabilities in adult        |      |
|       | prisons), the State must have in effect policies and  |      |
|       | procedures to ensure that public agencies in the      |      |
|       | State meet the LRE requirements of this section and   |      |
|       | Sections 300.115 through 300.120.                     |      |
|       |                                                       |      |
|       | \(2\) Each public agency must ensure that\--          |      |
|       |                                                       |      |
|       | \(i\) To the maximum extent appropriate, children     |      |
|       | with disabilities, including children in public or    |      |
|       | private institutions or other care facilities, are    |      |
|       | educated with children who are nondisabled; and       |      |
|       |                                                       |      |
|       | \(ii\) Special classes, separate schooling, or other  |      |
|       | removal of children with disabilities from the        |      |
|       | regular educational environment occurs only if the    |      |
|       | nature or severity of the disability is such that     |      |
|       | education in regular classes with the use of          |      |
|       | supplementary aids and services cannot be achieved    |      |
|       | satisfactorily.                                       |      |
|       |                                                       |      |
|       | \(b\) Additional requirement\--State funding          |      |
|       | mechanism\--                                          |      |
|       |                                                       |      |
|       | \(1\) General.                                        |      |
|       |                                                       |      |
|       | \(i\) A State funding mechanism must not result in    |      |
|       | placements that violate the requirements of paragraph |      |
|       | (a) of this section; and                              |      |
|       |                                                       |      |
|       | \(ii\) A State must not use a funding mechanism by    |      |
|       | which the State distributes funds on the basis of the |      |
|       | type of setting in which a child is served that will  |      |
|       | result in the failure to provide a child with a       |      |
|       | disability FAPE according to the unique needs of the  |      |
|       | child, as described in the child\'s IEP.              |      |
|       |                                                       |      |
|       | \(2\) Assurance. If the State does not have policies  |      |
|       | and procedures to ensure compliance with paragraph    |      |
|       | (b)(1) of this section, the State must provide the    |      |
|       | Secretary an assurance that the State will revise the |      |
|       | funding mechanism as soon as feasible to ensure that  |      |
|       | the mechanism does not result in placements that      |      |
|       | violate that paragraph.                               |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(5))                     |      |
|       |                                                       |      |
|       | Sec. 300.115 Continuum of alternative placements.     |      |
|       |                                                       |      |
|       | \(a\) Each public agency must ensure that a continuum |      |
|       | of alternative placements is available to meet the    |      |
|       | needs of children with disabilities for special       |      |
|       | education and related services.                       |      |
|       |                                                       |      |
|       | \(b\) The continuum required in paragraph (a) of this |      |
|       | section must\--                                       |      |
|       |                                                       |      |
|       | \(1\) include the alternative placements listed in    |      |
|       | the definition of special education under Sec. 300.38 |      |
|       | (instruction in regular classes, special classes,     |      |
|       | special schools, home instruction, and instruction in |      |
|       | hospitals and institutions); and                      |      |
|       |                                                       |      |
|       | \(2\) Make provision for supplementary services (such |      |
|       | as resource room or itinerant instruction) to be      |      |
|       | provided in conjunction with regular class placement. |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(5))                     |      |
|       |                                                       |      |
|       | Sec. 300.116 Placements.                              |      |
|       |                                                       |      |
|       | In determining the educational placement of a child   |      |
|       | with a disability, including a preschool child with a |      |
|       | disability, each public agency must ensure that\--    |      |
|       |                                                       |      |
|       | \(a\) The placement decision\--                       |      |
|       |                                                       |      |
|       | \(1\) Is made by a group of persons, including the    |      |
|       | parents, and other persons knowledgeable about the    |      |
|       | child, the meaning of the evaluation data, and the    |      |
|       | placement options; and                                |      |
|       |                                                       |      |
|       | \(2\) Is made in conformity with the LRE provisions   |      |
|       | of this subpart, including Sections 300.114 through   |      |
|       | 300.118;                                              |      |
|       |                                                       |      |
|       | \(b\) The child\'s placement\--                       |      |
|       |                                                       |      |
|       | \(1\) Is determined at least annually;                |      |
|       |                                                       |      |
|       | \(2\) Is based on the child\'s IEP; and               |      |
|       |                                                       |      |
|       | \(3\) Is as close as possible to the child\'s home;   |      |
|       |                                                       |      |
|       | \(c\) Unless the IEP of a child with a disability     |      |
|       | requires some other arrangement, the child is         |      |
|       | educated in the school that he or she would attend if |      |
|       | nondisabled;                                          |      |
|       |                                                       |      |
|       | \(d\) In selecting the LRE, consideration is given to |      |
|       | any potential harmful effect on the child or on the   |      |
|       | quality of services that he or she needs; and         |      |
|       |                                                       |      |
|       | \(e\) A child with a disability is not removed from   |      |
|       | education in age-appropriate regular classrooms       |      |
|       | solely because of needed modifications in the general |      |
|       | education curriculum.                                 |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(5))                     |      |
|       |                                                       |      |
|       | Sec. 300.117 Nonacademic settings.                    |      |
|       |                                                       |      |
|       | In providing or arranging for the provision of        |      |
|       | nonacademic and extracurricular services and          |      |
|       | activities, including meals, recess periods, and the  |      |
|       | services and activities set forth in Sec. 300.107,    |      |
|       | each public agency must ensure that each child with a |      |
|       | disability participates with nondisabled children in  |      |
|       | the extracurricular services and activities to the    |      |
|       | maximum extent appropriate to the needs of that       |      |
|       | child. The public agency must ensure that each child  |      |
|       | with a disability has the supplementary aids and      |      |
|       | services determined by the child\'s IEP Team to be    |      |
|       | appropriate and necessary for the child to            |      |
|       | participate in nonacademic settings.                  |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(5))                     |      |
|       |                                                       |      |
|       | Sec. 300.118 Children in public or private            |      |
|       | institutions.                                         |      |
|       |                                                       |      |
|       | Except as provided in Sec. 300.149(d) (regarding      |      |
|       | agency responsibility for general supervision for     |      |
|       | some individuals in adult prisons), an SEA must       |      |
|       | ensure that Sec. 300.114 is effectively implemented,  |      |
|       | including, if necessary, making arrangements with     |      |
|       | public and private institutions (such as a memorandum |      |
|       | of agreement or special implementation procedures).   |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(5))                     |      |
|       |                                                       |      |
|       | Sec. 300.119 Technical assistance and training        |      |
|       | activities.                                           |      |
|       |                                                       |      |
|       | Each SEA must carry out activities to ensure that     |      |
|       | teachers and administrators in all public agencies\-- |      |
|       |                                                       |      |
|       | \(a\) Are fully informed about their responsibilities |      |
|       | for implementing Sec. 300.114; and                    |      |
|       |                                                       |      |
|       | \(b\) Are provided with technical assistance and      |      |
|       | training necessary to assist them in this effort.     |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(5))                     |      |
|       |                                                       |      |
|       | Sec. 300.120 Monitoring activities.                   |      |
|       |                                                       |      |
|       | \(a\) The SEA must carry out activities to ensure     |      |
|       | that Sec. 300.114 is implemented by each public       |      |
|       | agency.                                               |      |
|       |                                                       |      |
|       | \(b\) If there is evidence that a public agency makes |      |
|       | placements that are inconsistent with Sec. 300.114,   |      |
|       | the SEA must\--                                       |      |
|       |                                                       |      |
|       | \(1\) Review the public agency\'s justification for   |      |
|       | its actions; and                                      |      |
|       |                                                       |      |
|       | \(2\) Assist in planning and implementing any         |      |
|       | necessary corrective action.                          |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(5))                     |      |
+-------+-------------------------------------------------------+------+
| **6** | Sec. 300.121 Procedural safeguards.                   |      |
|       |                                                       |      |
|       | \(a\) General. The State must have procedural         |      |
|       | safeguards in effect to ensure that each public       |      |
|       | agency in the State meets the requirements of         |      |
|       | Sections 300.500 through 300.536.                     |      |
|       |                                                       |      |
|       | \(b\) Procedural safeguards identified. Children with |      |
|       | disabilities and their parents must be afforded the   |      |
|       | procedural safeguards identified in paragraph (a) of  |      |
|       | this section.                                         |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(6)(A))                  |      |
|       |                                                       |      |
|       | Sec. 300.500 Responsibility of SEA and other public   |      |
|       | agencies.                                             |      |
|       |                                                       |      |
|       | Each SEA must ensure that each public agency          |      |
|       | establishes, maintains, and implements procedural     |      |
|       | safeguards that meet the requirements of Sections     |      |
|       | 300.500 through 300.536.                              |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(a))                        |      |
|       |                                                       |      |
|       | Sec. 300.501 Opportunity to examine records; parent   |      |
|       | participation in meetings.                            |      |
|       |                                                       |      |
|       | \(a\) Opportunity to examine records. The parents of  |      |
|       | a child with a disability must be afforded, in        |      |
|       | accordance with the procedures of Sections 300.613    |      |
|       | through 300.621, an opportunity to inspect and review |      |
|       | all education records with respect to\--              |      |
|       |                                                       |      |
|       | \(1\) The identification, evaluation, and educational |      |
|       | placement of the child; and                           |      |
|       |                                                       |      |
|       | \(2\) The provision of FAPE to the child.             |      |
|       |                                                       |      |
|       | \(b\) Parent participation in meetings. (1) The       |      |
|       | parents of a child with a disability must be afforded |      |
|       | an opportunity to participate in meetings with        |      |
|       | respect to\--                                         |      |
|       |                                                       |      |
|       | \(i\) The identification, evaluation, and educational |      |
|       | placement of the child; and                           |      |
|       |                                                       |      |
|       | \(ii\) The provision of FAPE to the child.            |      |
|       |                                                       |      |
|       | \(2\) Each public agency must provide notice          |      |
|       | consistent with Sec. 300.322(a)(1) and (b)(1) to      |      |
|       | ensure that parents of children with disabilities     |      |
|       | have the opportunity to participate in meetings       |      |
|       | described in paragraph (b)(1) of this section.        |      |
|       |                                                       |      |
|       | \(3\) A meeting does not include informal or          |      |
|       | unscheduled conversations involving public agency     |      |
|       | personnel and conversations on issues such as         |      |
|       | teaching methodology, lesson plans, or coordination   |      |
|       | of service provision. A meeting also does not include |      |
|       | preparatory activities that public agency personnel   |      |
|       | engage in to develop a proposal or response to a      |      |
|       | parent proposal that will be discussed at a later     |      |
|       | meeting.                                              |      |
|       |                                                       |      |
|       | \(c\) Parent involvement in placement decisions.      |      |
|       |                                                       |      |
|       | \(1\) Each public agency must ensure that a parent of |      |
|       | each child with a disability is a member of any group |      |
|       | that makes decisions on the educational placement of  |      |
|       | the parent\'s child.                                  |      |
|       |                                                       |      |
|       | \(2\) In implementing the requirements of paragraph   |      |
|       | (c)(1) of this section, the public agency must use    |      |
|       | procedures consistent with the procedures described   |      |
|       | in Sec. 300.322(a) through (b)(1).                    |      |
|       |                                                       |      |
|       | \(3\) If neither parent can participate in a meeting  |      |
|       | in which a decision is to be made relating to the     |      |
|       | educational placement of their child, the public      |      |
|       | agency must use other methods to ensure their         |      |
|       | participation, including individual or conference     |      |
|       | telephone calls, or video conferencing.               |      |
|       |                                                       |      |
|       | \(4\) A placement decision may be made by a group     |      |
|       | without the involvement of a parent, if the public    |      |
|       | agency is unable to obtain the parent\'s              |      |
|       | participation in the decision. In this case, the      |      |
|       | public agency must have a record of its attempt to    |      |
|       | ensure their involvement.                             |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1414(e), 1415(b)(1))            |      |
|       |                                                       |      |
|       | Sec. 300.502 Independent educational evaluation.      |      |
|       |                                                       |      |
|       | \(a\) General.                                        |      |
|       |                                                       |      |
|       | \(1\) The parents of a child with a disability have   |      |
|       | the right under this part to obtain an independent    |      |
|       | educational evaluation of the child, subject to       |      |
|       | paragraphs (b) through (e) of this section.           |      |
|       |                                                       |      |
|       | \(2\) Each public agency must provide to parents,     |      |
|       | upon request for an independent educational           |      |
|       | evaluation, information about where an independent    |      |
|       | educational evaluation may be obtained, and the       |      |
|       | agency criteria applicable for independent            |      |
|       | educational evaluations as set forth in paragraph (e) |      |
|       | of this section.                                      |      |
|       |                                                       |      |
|       | \(3\) For the purposes of this subpart\--             |      |
|       |                                                       |      |
|       | \(i\) Independent educational evaluation means an     |      |
|       | evaluation conducted by a qualified examiner who is   |      |
|       | not employed by the public agency responsible for the |      |
|       | education of the child in question; and               |      |
|       |                                                       |      |
|       | \(ii\) Public expense means that the public agency    |      |
|       | either pays for the full cost of the evaluation or    |      |
|       | ensures that the evaluation is otherwise provided at  |      |
|       | no cost to the parent, consistent with Sec. 300.103.  |      |
|       |                                                       |      |
|       | \(b\) Parent right to evaluation at public expense.   |      |
|       |                                                       |      |
|       | \(1\) A parent has the right to an independent        |      |
|       | educational evaluation at public expense if the       |      |
|       | parent disagrees with an evaluation obtained by the   |      |
|       | public agency, subject to the conditions in           |      |
|       | paragraphs (b)(2) through (4) of this section.        |      |
|       |                                                       |      |
|       | \(2\) If a parent requests an independent educational |      |
|       | evaluation at public expense, the public agency must, |      |
|       | without unnecessary delay, either\--                  |      |
|       |                                                       |      |
|       | \(i\) File a due process complaint to request a       |      |
|       | hearing to show that its evaluation is appropriate;   |      |
|       | or                                                    |      |
|       |                                                       |      |
|       | \(ii\) Ensure that an independent educational         |      |
|       | evaluation is provided at public expense, unless the  |      |
|       | agency demonstrates in a hearing pursuant to Sections |      |
|       | 300.507 through 300.513 that the evaluation obtained  |      |
|       | by the parent did not meet agency criteria.           |      |
|       |                                                       |      |
|       | \(3\) If the public agency files a due process        |      |
|       | complaint notice to request a hearing and the final   |      |
|       | decision is that the agency\'s evaluation is          |      |
|       | appropriate, the parent still has the right to an     |      |
|       | independent educational evaluation, but not at public |      |
|       | expense.                                              |      |
|       |                                                       |      |
|       | \(4\) If a parent requests an independent educational |      |
|       | evaluation, the public agency may ask for the         |      |
|       | parent\'s reason why he or she objects to the public  |      |
|       | evaluation. However, the public agency may not        |      |
|       | require the parent to provide an explanation and may  |      |
|       | not unreasonably delay either providing the           |      |
|       | independent educational evaluation at public expense  |      |
|       | or filing a due process complaint to request a due    |      |
|       | process hearing to defend the public evaluation.      |      |
|       |                                                       |      |
|       | \(5\) A parent is entitled to only one independent    |      |
|       | educational evaluation at public expense each time    |      |
|       | the public agency conducts an evaluation with which   |      |
|       | the parent disagrees.                                 |      |
|       |                                                       |      |
|       | \(c\) Parent-initiated evaluations. If the parent     |      |
|       | obtains an independent educational evaluation at      |      |
|       | public expense or shares with the public agency an    |      |
|       | evaluation obtained at private expense, the results   |      |
|       | of the evaluation\--                                  |      |
|       |                                                       |      |
|       | \(1\) Must be considered by the public agency, if it  |      |
|       | meets agency criteria, in any decision made with      |      |
|       | respect to the provision of FAPE to the child; and    |      |
|       |                                                       |      |
|       | \(2\) May be presented by any party as evidence at a  |      |
|       | hearing on a due process complaint under subpart E of |      |
|       | this part regarding that child.                       |      |
|       |                                                       |      |
|       | \(d\) Requests for evaluations by hearing officers.   |      |
|       | If a hearing officer requests an independent          |      |
|       | educational evaluation as part of a hearing on a due  |      |
|       | process complaint, the cost of the evaluation must be |      |
|       | at public expense.                                    |      |
|       |                                                       |      |
|       | \(e\) Agency criteria.                                |      |
|       |                                                       |      |
|       | \(1\) If an independent educational evaluation is at  |      |
|       | public expense, the criteria under which the          |      |
|       | evaluation is obtained, including the location of the |      |
|       | evaluation and the qualifications of the examiner,    |      |
|       | must be the same as the criteria that the public      |      |
|       | agency uses when it initiates an evaluation, to the   |      |
|       | extent those criteria are consistent with the         |      |
|       | parent\'s right to an independent educational         |      |
|       | evaluation.                                           |      |
|       |                                                       |      |
|       | \(2\) Except for the criteria described in paragraph  |      |
|       | (e)(1) of this section, a public agency may not       |      |
|       | impose conditions or timelines related to obtaining   |      |
|       | an independent educational evaluation at public       |      |
|       | expense.                                              |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(b)(1) and (d)(2)(A))       |      |
|       |                                                       |      |
|       | Sec. 300.503 Prior notice by the public agency;       |      |
|       | content of notice.                                    |      |
|       |                                                       |      |
|       | \(a\) Notice. Written notice that meets the           |      |
|       | requirements of paragraph (b) of this section must be |      |
|       | given to the parents of a child with a disability a   |      |
|       | reasonable time before the public agency\--           |      |
|       |                                                       |      |
|       | \(1\) Proposes to initiate or change the              |      |
|       | identification, evaluation, or educational placement  |      |
|       | of the child or the provision of FAPE to the child;   |      |
|       | or                                                    |      |
|       |                                                       |      |
|       | \(2\) Refuses to initiate or change the               |      |
|       | identification, evaluation, or educational placement  |      |
|       | of the child or the provision of FAPE to the child.   |      |
|       |                                                       |      |
|       | \(b\) Content of notice. The notice required under    |      |
|       | paragraph (a) of this section must include\--         |      |
|       |                                                       |      |
|       | \(1\) A description of the action proposed or refused |      |
|       | by the agency;                                        |      |
|       |                                                       |      |
|       | \(2\) An explanation of why the agency proposes or    |      |
|       | refuses to take the action;                           |      |
|       |                                                       |      |
|       | \(3\) A description of each evaluation procedure,     |      |
|       | assessment, record, or report the agency used as a    |      |
|       | basis for the proposed or refused action;             |      |
|       |                                                       |      |
|       | \(4\) A statement that the parents of a child with a  |      |
|       | disability have protection under the procedural       |      |
|       | safeguards of this part and, if this notice is not an |      |
|       | initial referral for evaluation, the means by which a |      |
|       | copy of a description of the procedural safeguards    |      |
|       | can be obtained;                                      |      |
|       |                                                       |      |
|       | \(5\) Sources for parents to contact to obtain        |      |
|       | assistance in understanding the provisions of this    |      |
|       | part;                                                 |      |
|       |                                                       |      |
|       | \(6\) A description of other options that the IEP     |      |
|       | Team considered and the reasons why those options     |      |
|       | were rejected; and                                    |      |
|       |                                                       |      |
|       | \(7\) A description of other factors that are         |      |
|       | relevant to the agency\'s proposal or refusal.        |      |
|       |                                                       |      |
|       | \(c\) Notice in understandable language.              |      |
|       |                                                       |      |
|       | \(1\) The notice required under paragraph (a) of this |      |
|       | section must be\--                                    |      |
|       |                                                       |      |
|       | \(i\) Written in language understandable to the       |      |
|       | general public; and                                   |      |
|       |                                                       |      |
|       | \(ii\) Provided in the native language of the parent  |      |
|       | or other mode of communication used by the parent,    |      |
|       | unless it is clearly not feasible to do so.           |      |
|       |                                                       |      |
|       | \(2\) If the native language or other mode of         |      |
|       | communication of the parent is not a written          |      |
|       | language, the public agency must take steps to        |      |
|       | ensure\--                                             |      |
|       |                                                       |      |
|       | \(i\) That the notice is translated orally or by      |      |
|       | other means to the parent in his or her native        |      |
|       | language or other mode of communication;              |      |
|       |                                                       |      |
|       | \(ii\) That the parent understands the content of the |      |
|       | notice; and                                           |      |
|       |                                                       |      |
|       | > \(iii\) That there is written evidence that the     |      |
|       | > requirements in paragraphs (c)(2)(i) and (ii) of    |      |
|       | > this section have been met.                         |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(b)(3) and (4), 1415(c)(1), |      |
|       | 1414(b)(1))                                           |      |
|       |                                                       |      |
|       | Sec. 300.504 Procedural safeguards notice.            |      |
|       |                                                       |      |
|       | \(a\) General. A copy of the procedural safeguards    |      |
|       | available to the parents of a child with a disability |      |
|       | must be given to the parents only one time a school   |      |
|       | year, except that a copy also must be given to the    |      |
|       | parents\--                                            |      |
|       |                                                       |      |
|       | \(1\) Upon initial referral or parent request for     |      |
|       | evaluation;                                           |      |
|       |                                                       |      |
|       | \(2\) Upon receipt of the first State complaint under |      |
|       | Sections 300.151 through 300.153 and upon receipt of  |      |
|       | the first due process complaint under Sec. 300.507 in |      |
|       | a school year;                                        |      |
|       |                                                       |      |
|       | \(3\) In accordance with the discipline procedures in |      |
|       | Sec. 300.530(h); and                                  |      |
|       |                                                       |      |
|       | \(4\) Upon request by a parent.                       |      |
|       |                                                       |      |
|       | \(b\) Internet Web site. A public agency may place a  |      |
|       | current copy of the procedural safeguards notice on   |      |
|       | its Internet Web site if a Web site exists.           |      |
|       |                                                       |      |
|       | \(c\) Contents. The procedural safeguards notice must |      |
|       | include a full explanation of all of the procedural   |      |
|       | safeguards available under Sec. 300.148, Sections     |      |
|       | 300.151 through 300.153, Sec. 300.300, Sections       |      |
|       | 300.502 through 300.503, Sections 300.505 through     |      |
|       | 300.518, Sec. 300.520, Sections 300.530 through       |      |
|       | 300.536 and Sections 300.610 through 300.625 relating |      |
|       | to\--                                                 |      |
|       |                                                       |      |
|       | \(1\) Independent educational evaluations;            |      |
|       |                                                       |      |
|       | \(2\) Prior written notice;                           |      |
|       |                                                       |      |
|       | \(3\) Parental consent;                               |      |
|       |                                                       |      |
|       | \(4\) Access to education records;                    |      |
|       |                                                       |      |
|       | \(5\) Opportunity to present and resolve complaints   |      |
|       | through the due process complaint and State complaint |      |
|       | procedures, including\--                              |      |
|       |                                                       |      |
|       | \(i\) The time period in which to file a complaint;   |      |
|       |                                                       |      |
|       | \(ii\) The opportunity for the agency to resolve the  |      |
|       | complaint; and                                        |      |
|       |                                                       |      |
|       | \(iii\) The difference between the due process        |      |
|       | complaint and the State complaint procedures,         |      |
|       | including the jurisdiction of each procedure, what    |      |
|       | issues may be raised, filing and decisional           |      |
|       | timelines, and relevant procedures;                   |      |
|       |                                                       |      |
|       | \(6\) The availability of mediation;                  |      |
|       |                                                       |      |
|       | \(7\) The child\'s placement during the pendency of   |      |
|       | any due process complaint;                            |      |
|       |                                                       |      |
|       | \(8\) Procedures for students who are subject to      |      |
|       | placement in an interim alternative educational       |      |
|       | setting;                                              |      |
|       |                                                       |      |
|       | \(9\) Requirements for unilateral placement by        |      |
|       | parents of children in private schools at public      |      |
|       | expense;                                              |      |
|       |                                                       |      |
|       | \(10\) Hearings on due process complaints, including  |      |
|       | requirements for disclosure of evaluation results and |      |
|       | recommendations;                                      |      |
|       |                                                       |      |
|       | \(11\) State-level appeals (if applicable in the      |      |
|       | State);                                               |      |
|       |                                                       |      |
|       | \(12\) Civil actions, including the time period in    |      |
|       | which to file those actions; and                      |      |
|       |                                                       |      |
|       | \(13\) Attorneys\' fees.                              |      |
|       |                                                       |      |
|       | \(d\) Notice in understandable language. The notice   |      |
|       | required under paragraph (a) of this section must     |      |
|       | meet the requirements of Sec. 300.503(c).             |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0600)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(d))                        |      |
|       |                                                       |      |
|       | Sec. 300.505 Electronic mail.                         |      |
|       |                                                       |      |
|       | A parent of a child with a disability may elect to    |      |
|       | receive notices required by Sections 300.503,         |      |
|       | 300.504, and 300.508 by an electronic mail            |      |
|       | communication, if the public agency makes that option |      |
|       | available.                                            |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(n))                        |      |
|       |                                                       |      |
|       | Sec. 300.506 Mediation.                               |      |
|       |                                                       |      |
|       | \(a\) General. Each public agency must ensure that    |      |
|       | procedures are established and implemented to allow   |      |
|       | parties to disputes involving any matter under this   |      |
|       | part, including matters arising prior to the filing   |      |
|       | of a due process complaint, to resolve disputes       |      |
|       | through a mediation process.                          |      |
|       |                                                       |      |
|       | \(b\) Requirements. The procedures must meet the      |      |
|       | following requirements:                               |      |
|       |                                                       |      |
|       | \(1\) The procedures must ensure that the mediation   |      |
|       | process\--                                            |      |
|       |                                                       |      |
|       | \(i\) Is voluntary on the part of the parties;        |      |
|       |                                                       |      |
|       | \(ii\) Is not used to deny or delay a parent\'s right |      |
|       | to a hearing on                                       |      |
|       |                                                       |      |
|       | the parent\'s due process complaint, or to deny any   |      |
|       | other rights afforded under Part B of the Act; and    |      |
|       |                                                       |      |
|       | \(iii\) Is conducted by a qualified and impartial     |      |
|       | mediator who is trained in effective mediation        |      |
|       | techniques.                                           |      |
|       |                                                       |      |
|       | \(2\) A public agency may establish procedures to     |      |
|       | offer to parents and schools that choose not to use   |      |
|       | the mediation process, an opportunity to meet, at a   |      |
|       | time and location convenient to the parents, with a   |      |
|       | disinterested party\--                                |      |
|       |                                                       |      |
|       | \(i\) Who is under contract with an appropriate       |      |
|       | alternative dispute resolution entity, or a parent    |      |
|       | training and information center or community parent   |      |
|       | resource center in the State established under        |      |
|       | section 671 or 672 of the Act; and                    |      |
|       |                                                       |      |
|       | \(ii\) Who would explain the benefits of, and         |      |
|       | encourage the use of, the mediation process to the    |      |
|       | parents.                                              |      |
|       |                                                       |      |
|       | (3)(i) The State must maintain a list of individuals  |      |
|       | who are qualified mediators and knowledgeable in laws |      |
|       | and regulations relating to the provision of special  |      |
|       | education and related services.                       |      |
|       |                                                       |      |
|       | \(ii\) The SEA must select mediators on a random,     |      |
|       | rotational, or other impartial basis.                 |      |
|       |                                                       |      |
|       | \(4\) The State must bear the cost of the mediation   |      |
|       | process, including the costs of meetings described in |      |
|       | paragraph (b)(2) of this section.                     |      |
|       |                                                       |      |
|       | \(5\) Each session in the mediation process must be   |      |
|       | scheduled in a timely manner and must be held in a    |      |
|       | location that is convenient to the parties to the     |      |
|       | dispute.                                              |      |
|       |                                                       |      |
|       | \(6\) If the parties resolve a dispute through the    |      |
|       | mediation process, the parties must execute a legally |      |
|       | binding agreement that sets forth that resolution and |      |
|       | that\--                                               |      |
|       |                                                       |      |
|       | \(i\) States that all discussions that occurred       |      |
|       | during the mediation process will remain confidential |      |
|       | and may not be used as evidence in any subsequent due |      |
|       | process hearing or civil proceeding; and              |      |
|       |                                                       |      |
|       | \(ii\) Is signed by both the parent and a             |      |
|       | representative of the agency who has the authority to |      |
|       | bind such agency.                                     |      |
|       |                                                       |      |
|       | \(7\) A written, signed mediation agreement under     |      |
|       | this paragraph is enforceable in any State court of   |      |
|       | competent jurisdiction or in a district court of the  |      |
|       | United States. Discussions that occur during the      |      |
|       | mediation process must be confidential and may not be |      |
|       | used as evidence in any subsequent due process        |      |
|       | hearing or civil proceeding of any Federal court or   |      |
|       | State court of a State receiving assistance under     |      |
|       | this part.                                            |      |
|       |                                                       |      |
|       | \(c\) Impartiality of mediator.                       |      |
|       |                                                       |      |
|       | \(1\) An individual who serves as a mediator under    |      |
|       | this part\--                                          |      |
|       |                                                       |      |
|       | \(i\) May not be an employee of the SEA or the LEA    |      |
|       | that is involved in the education or care of the      |      |
|       | child; and                                            |      |
|       |                                                       |      |
|       | \(ii\) Must not have a personal or professional       |      |
|       | interest that conflicts with the person\'s            |      |
|       | objectivity.                                          |      |
|       |                                                       |      |
|       | \(2\) A person who otherwise qualifies as a mediator  |      |
|       | is not an employee of an LEA or State agency          |      |
|       | described under Sec. 300.228 solely because he or she |      |
|       | is paid by the agency to serve as a mediator.         |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0600)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(e))                        |      |
|       |                                                       |      |
|       | Sec. 300.507 Filing a due process complaint.          |      |
|       |                                                       |      |
|       | \(a\) General.                                        |      |
|       |                                                       |      |
|       | \(1\) A parent or a public agency may file a due      |      |
|       | process complaint on any of the matters described in  |      |
|       | Sec. 300.503(a)(1) and (2) (relating to the           |      |
|       | identification, evaluation or educational placement   |      |
|       | of a child with a disability, or the provision of     |      |
|       | FAPE to the child).                                   |      |
|       |                                                       |      |
|       | \(2\) The due process complaint must allege a         |      |
|       | violation that occurred not more than two years       |      |
|       | before the date the parent or public agency knew or   |      |
|       | should have known about the alleged action that forms |      |
|       | the basis of the due process complaint, or, if the    |      |
|       | State has an explicit time limitation for filing a    |      |
|       | due process complaint under this part, in the time    |      |
|       | allowed by that State law, except that the exceptions |      |
|       | to the timeline described in Sec. 300.511(f) apply to |      |
|       | the timeline in this section.                         |      |
|       |                                                       |      |
|       | \(b\) Information for parents. The public agency must |      |
|       | inform the parent of any free or low-cost legal and   |      |
|       | other relevant services available in the area if\--   |      |
|       |                                                       |      |
|       | \(1\) The parent requests the information; or         |      |
|       |                                                       |      |
|       | \(2\) The parent or the agency files a due process    |      |
|       | complaint under this section.                         |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0600)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(b)(6))                     |      |
|       |                                                       |      |
|       | Sec. 300.508 Due process complaint.                   |      |
|       |                                                       |      |
|       | \(a\) General.                                        |      |
|       |                                                       |      |
|       | \(1\) The public agency must have procedures that     |      |
|       | require either party, or the attorney representing a  |      |
|       | party, to provide to the other party a due process    |      |
|       | complaint (which must remain confidential).           |      |
|       |                                                       |      |
|       | \(2\) The party filing a due process complaint must   |      |
|       | forward a copy of the due process complaint to the    |      |
|       | SEA.                                                  |      |
|       |                                                       |      |
|       | \(b\) Content of complaint. The due process complaint |      |
|       | required in paragraph (a)(1) of this section must     |      |
|       | include\--                                            |      |
|       |                                                       |      |
|       | \(1\) The name of the child;                          |      |
|       |                                                       |      |
|       | \(2\) The address of the residence of the child;      |      |
|       |                                                       |      |
|       | \(3\) The name of the school the child is attending;  |      |
|       |                                                       |      |
|       | \(4\) In the case of a homeless child or youth        |      |
|       | (within the meaning of section 725(2) of the          |      |
|       | McKinney-Vento Homeless Assistance Act (42 U.S.C.     |      |
|       | 11434a(2)), available contact information for the     |      |
|       | child, and the name of the school the child is        |      |
|       | attending;                                            |      |
|       |                                                       |      |
|       | \(5\) A description of the nature of the problem of   |      |
|       | the child relating to the proposed or refused         |      |
|       | initiation or change, including facts relating to the |      |
|       | problem; and                                          |      |
|       |                                                       |      |
|       | \(6\) A proposed resolution of the problem to the     |      |
|       | extent known and available to the party at the time.  |      |
|       |                                                       |      |
|       | \(c\) Notice required before a hearing on a due       |      |
|       | process complaint. A party may not have a hearing on  |      |
|       | a due process complaint until the party, or the       |      |
|       | attorney representing the party, files a due process  |      |
|       | complaint that meets the requirements of paragraph    |      |
|       | (b) of this section.                                  |      |
|       |                                                       |      |
|       | \(d\) Sufficiency of complaint.                       |      |
|       |                                                       |      |
|       | \(1\) The due process complaint required by this      |      |
|       | section must be deemed sufficient unless the party    |      |
|       | receiving the due process complaint notifies the      |      |
|       | hearing officer and the other party in writing,       |      |
|       | within 15 days of receipt of the due process          |      |
|       | complaint, that the receiving party believes the due  |      |
|       | process complaint does not meet the requirements in   |      |
|       | paragraph (b) of this section.                        |      |
|       |                                                       |      |
|       | \(2\) Within five days of receipt of notification     |      |
|       | under paragraph (d)(1) of this section, the hearing   |      |
|       | officer must make a determination on the face of the  |      |
|       | due process complaint of whether the due process      |      |
|       | complaint meets the requirements of paragraph (b) of  |      |
|       | this section, and must immediately notify the parties |      |
|       | in writing of that determination.                     |      |
|       |                                                       |      |
|       | \(3\) A party may amend its due process complaint     |      |
|       | only if\--                                            |      |
|       |                                                       |      |
|       | \(i\) The other party consents in writing to the      |      |
|       | amendment and is given the opportunity to resolve the |      |
|       | due process complaint through a meeting held pursuant |      |
|       | to Sec. 300.510; or                                   |      |
|       |                                                       |      |
|       | \(ii\) The hearing officer grants permission, except  |      |
|       | that the hearing officer may only grant permission to |      |
|       | amend at any time not later than five days before the |      |
|       | due process hearing begins.                           |      |
|       |                                                       |      |
|       | \(4\) If a party files an amended due process         |      |
|       | complaint, the timelines for the resolution meeting   |      |
|       | in Sec. 300.510(a) and the time period to resolve in  |      |
|       | Sec. 300.510(b) begin again with the filing of the    |      |
|       | amended due process complaint.                        |      |
|       |                                                       |      |
|       | \(e\) LEA response to a due process complaint.        |      |
|       |                                                       |      |
|       | \(1\) If the LEA has not sent a prior written notice  |      |
|       | under Sec. 300.503 to the parent regarding the        |      |
|       | subject matter contained in the parent\'s due process |      |
|       | complaint, the LEA must, within 10 days of receiving  |      |
|       | the due process complaint, send to the parent a       |      |
|       | response that includes\--                             |      |
|       |                                                       |      |
|       | \(i\) An explanation of why the agency proposed or    |      |
|       | refused to take the action raised in the due process  |      |
|       | complaint;                                            |      |
|       |                                                       |      |
|       | \(ii\) A description of other options that the IEP    |      |
|       | Team considered and the reasons why those options     |      |
|       | were rejected;                                        |      |
|       |                                                       |      |
|       | \(iii\) A description of each evaluation procedure,   |      |
|       | assessment, record, or report the agency used as the  |      |
|       | basis for the proposed or refused action; and         |      |
|       |                                                       |      |
|       | \(iv\) A description of the other factors that are    |      |
|       | relevant to the agency\'s proposed or refused action. |      |
|       |                                                       |      |
|       | \(2\) A response by an LEA under paragraph (e)(1) of  |      |
|       | this section shall not be construed to preclude the   |      |
|       | LEA from asserting that the parent\'s due process     |      |
|       | complaint was insufficient, where appropriate.        |      |
|       |                                                       |      |
|       | \(f\) Other party response to a due process           |      |
|       | complaint. Except as provided in paragraph (e) of     |      |
|       | this section, the party receiving a due process       |      |
|       | complaint must, within 10 days of receiving the due   |      |
|       | process complaint, send to the other party a response |      |
|       | that specifically addresses the issues raised in the  |      |
|       | due process complaint.                                |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(b)(7), 1415(c)(2))         |      |
|       |                                                       |      |
|       | Sec. 300.509 Model forms.                             |      |
|       |                                                       |      |
|       | \(a\) Each SEA must develop model forms to assist     |      |
|       | parents and public agencies in filing a due process   |      |
|       | complaint in accordance with Sections 300.507(a) and  |      |
|       | 300.508(a) through (c) and to assist parents and      |      |
|       | other parties in filing a State complaint under       |      |
|       | Sections 300.151 through 300.153. However, the SEA or |      |
|       | LEA may not require the use of the model forms.       |      |
|       |                                                       |      |
|       | \(b\) Parents, public agencies, and other parties may |      |
|       | use the appropriate model form described in paragraph |      |
|       | (a) of this section, or another form or other         |      |
|       | document, so long as the form or document that is     |      |
|       | used meets, as appropriate, the content requirements  |      |
|       | in Sec. 300.508(b) for filing a due process           |      |
|       | complaint, or the requirements in Sec. 300.153(b) for |      |
|       | filing a State complaint.                             |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(b)(8))                     |      |
|       |                                                       |      |
|       | Sec. 300.510 Resolution process.                      |      |
|       |                                                       |      |
|       | \(a\) Resolution meeting.                             |      |
|       |                                                       |      |
|       | \(1\) Within 15 days of receiving notice of the       |      |
|       | parent\'s due process complaint, and prior to the     |      |
|       | initiation of a due process hearing under Sec.        |      |
|       | 300.511, the LEA must convene a meeting with the      |      |
|       | parent and the relevant member or members of the IEP  |      |
|       | Team who have specific knowledge of the facts         |      |
|       | identified in the due process complaint that\--       |      |
|       |                                                       |      |
|       | \(i\) Includes a representative of the public agency  |      |
|       | who has decision-making authority on behalf of that   |      |
|       | agency; and                                           |      |
|       |                                                       |      |
|       | \(ii\) May not include an attorney of the LEA unless  |      |
|       | the parent is accompanied by an attorney.             |      |
|       |                                                       |      |
|       | \(2\) The purpose of the meeting is for the parent of |      |
|       | the child to discuss the due process complaint, and   |      |
|       | the facts that form the basis of the due process      |      |
|       | complaint, so that the LEA has the opportunity to     |      |
|       | resolve the dispute that is the basis for the due     |      |
|       | process complaint.                                    |      |
|       |                                                       |      |
|       | \(3\) The meeting described in paragraph (a)(1) and   |      |
|       | (2) of this section need not be held if\--            |      |
|       |                                                       |      |
|       | \(i\) The parent and the LEA agree in writing to      |      |
|       | waive the meeting; or                                 |      |
|       |                                                       |      |
|       | \(ii\) The parent and the LEA agree to use the        |      |
|       | mediation process described in Sec. 300.506.          |      |
|       |                                                       |      |
|       | \(4\) The parent and the LEA determine the relevant   |      |
|       | members of the IEP Team to attend the meeting.        |      |
|       |                                                       |      |
|       | \(b\) Resolution period.                              |      |
|       |                                                       |      |
|       | \(1\) If the LEA has not resolved the due process     |      |
|       | complaint to the satisfaction of the parent within 30 |      |
|       | days of the receipt of the due process complaint, the |      |
|       | due process hearing may occur.                        |      |
|       |                                                       |      |
|       | \(2\) Except as provided in paragraph (c) of this     |      |
|       | section, the timeline for issuing a final decision    |      |
|       | under Sec. 300.515 begins at the expiration of this   |      |
|       | 30-day period.                                        |      |
|       |                                                       |      |
|       | \(3\) Except where the parties have jointly agreed to |      |
|       | waive the resolution process or to use mediation,     |      |
|       | notwithstanding paragraphs (b)(1) and (2) of this     |      |
|       | section, the failure of the parent filing a due       |      |
|       | process complaint to participate in the resolution    |      |
|       | meeting will delay the timelines for the resolution   |      |
|       | process and due process hearing until the meeting is  |      |
|       | held.                                                 |      |
|       |                                                       |      |
|       | \(4\) If the LEA is unable to obtain the              |      |
|       | participation of the parent in the resolution meeting |      |
|       | after reasonable efforts have been made (and          |      |
|       | documented using the procedures in Sec. 300.322(d)),  |      |
|       | the LEA may, at the conclusion of the 30-day period,  |      |
|       | request that a hearing officer dismiss the parent\'s  |      |
|       | due process complaint.                                |      |
|       |                                                       |      |
|       | \(5\) If the LEA fails to hold the resolution meeting |      |
|       | specified in paragraph (a) of this section within 15  |      |
|       | days of receiving notice of a parent\'s due process   |      |
|       | complaint or fails to participate in the resolution   |      |
|       | meeting, the parent may seek the intervention of a    |      |
|       | hearing officer to begin the due process hearing      |      |
|       | timeline.                                             |      |
|       |                                                       |      |
|       | \(c\) Adjustments to 30-day resolution period. The    |      |
|       | 45-day timeline for the due process hearing in Sec.   |      |
|       | 300.515(a) starts the day after one of the following  |      |
|       | events:                                               |      |
|       |                                                       |      |
|       | \(1\) Both parties agree in writing to waive the      |      |
|       | resolution meeting;                                   |      |
|       |                                                       |      |
|       | \(2\) After either the mediation or resolution        |      |
|       | meeting starts but before the end of the 30-day       |      |
|       | period, the parties agree in writing that no          |      |
|       | agreement is possible;                                |      |
|       |                                                       |      |
|       | 3\) If both parties agree in writing to continue the  |      |
|       | mediation at the end of the 30-day resolution period, |      |
|       | but later, the parent or public agency withdraws from |      |
|       | the mediation process.                                |      |
|       |                                                       |      |
|       | \(d\) Written settlement agreement. If a resolution   |      |
|       | to the dispute is reached at the meeting described in |      |
|       | paragraphs (a)(1) and (2) of this section, the        |      |
|       | parties must execute a legally binding agreement that |      |
|       | is\--                                                 |      |
|       |                                                       |      |
|       | \(1\) Signed by both the parent and a representative  |      |
|       | of the agency who has the authority to bind the       |      |
|       | agency; and                                           |      |
|       |                                                       |      |
|       | \(2\) Enforceable in any State court of competent     |      |
|       | jurisdiction or in a district court of the United     |      |
|       | States, or, by the SEA, if the State has other        |      |
|       | mechanisms or procedures that permit parties to seek  |      |
|       | enforcement of resolution agreements, pursuant to     |      |
|       | Sec. 300.537.                                         |      |
|       |                                                       |      |
|       | \(e\) Agreement review period. If the parties execute |      |
|       | an agreement pursuant to paragraph (c) of this        |      |
|       | section, a party may void the agreement within 3      |      |
|       | business days of the agreement\'s execution.          |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(f)(1)(B))                  |      |
|       |                                                       |      |
|       | Sec. 300.511 Impartial due process hearing.           |      |
|       |                                                       |      |
|       | \(a\) General. Whenever a due process complaint is    |      |
|       | received under Sec. 300.507 or Sec. 300.532, the      |      |
|       | parents or the LEA involved in the dispute must have  |      |
|       | an opportunity for an impartial due process hearing,  |      |
|       | consistent with the procedures in Sections 300.507,   |      |
|       | 300.508, and 300.510.                                 |      |
|       |                                                       |      |
|       | \(b\) Agency responsible for conducting the due       |      |
|       | process hearing. The hearing described in paragraph   |      |
|       | (a) of this section must be conducted by the SEA or   |      |
|       | the public agency directly responsible for the        |      |
|       | education of the child, as determined under State     |      |
|       | statute, State regulation, or a written policy of the |      |
|       | SEA.                                                  |      |
|       |                                                       |      |
|       | \(c\) Impartial hearing officer.                      |      |
|       |                                                       |      |
|       | \(1\) At a minimum, a hearing officer\--              |      |
|       |                                                       |      |
|       | \(i\) Must not be\--                                  |      |
|       |                                                       |      |
|       | \(A\) An employee of the SEA or the LEA that is       |      |
|       | involved in the education or care of the child; or    |      |
|       |                                                       |      |
|       | \(B\) A person having a personal or professional      |      |
|       | interest that conflicts with the person\'s            |      |
|       | objectivity in the hearing;                           |      |
|       |                                                       |      |
|       | \(ii\) Must possess knowledge of, and the ability to  |      |
|       | understand, the provisions of the Act, Federal and    |      |
|       | State regulations pertaining to the Act, and legal    |      |
|       | interpretations of the Act by Federal and State       |      |
|       | courts;                                               |      |
|       |                                                       |      |
|       | \(iii\) Must possess the knowledge and ability to     |      |
|       | conduct hearings in accordance with appropriate,      |      |
|       | standard legal practice; and                          |      |
|       |                                                       |      |
|       | \(iv\) Must possess the knowledge and ability to      |      |
|       | render and write decisions in accordance with         |      |
|       | appropriate, standard legal practice.                 |      |
|       |                                                       |      |
|       | \(2\) A person who otherwise qualifies to conduct a   |      |
|       | hearing under paragraph (c)(1) of this section is not |      |
|       | an employee of the agency solely because he or she is |      |
|       | paid by the agency to serve as a hearing officer.     |      |
|       |                                                       |      |
|       | \(3\) Each public agency must keep a list of the      |      |
|       | persons who serve as hearing officers. The list must  |      |
|       | include a statement of the qualifications of each of  |      |
|       | those persons.                                        |      |
|       |                                                       |      |
|       | \(d\) Subject matter of due process hearings. The     |      |
|       | party requesting the due process hearing may not      |      |
|       | raise issues at the due process hearing that were not |      |
|       | raised in the due process complaint filed under Sec.  |      |
|       | 300.508(b), unless the other party agrees otherwise.  |      |
|       |                                                       |      |
|       | \(e\) Timeline for requesting a hearing. A parent or  |      |
|       | agency must request an impartial hearing on their due |      |
|       | process complaint within two years of the date the    |      |
|       | parent or agency knew or should have known about the  |      |
|       | alleged action that forms the basis of the due        |      |
|       | process complaint, or if the State has an explicit    |      |
|       | time limitation for requesting such a due process     |      |
|       | hearing under this part, in the time allowed by that  |      |
|       | State law.                                            |      |
|       |                                                       |      |
|       | \(f\) Exceptions to the timeline. The timeline        |      |
|       | described in paragraph (e) of this section does not   |      |
|       | apply to a parent if the parent was prevented from    |      |
|       | filing a due process complaint due to\--              |      |
|       |                                                       |      |
|       | \(1\) Specific misrepresentations by the LEA that it  |      |
|       | had resolved the problem forming the basis of the due |      |
|       | process complaint; or                                 |      |
|       |                                                       |      |
|       | \(2\) The LEA\'s withholding of information from the  |      |
|       | parent that was required under this part to be        |      |
|       | provided to the parent.                               |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0600)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(f)(1)(A),                  |      |
|       | 1415(f)(3)(A)-(D))                                    |      |
|       |                                                       |      |
|       | Sec. 300.512 Hearing rights.                          |      |
|       |                                                       |      |
|       | \(a\) General. Any party to a hearing conducted       |      |
|       | pursuant to Sections 300.507 through 300.513 or       |      |
|       | Sections 300.530 through 300.534, or an appeal        |      |
|       | conducted pursuant to Sec. 300.514, has the right     |      |
|       | to\--                                                 |      |
|       |                                                       |      |
|       | \(1\) Be accompanied and advised by counsel and by    |      |
|       | individuals with special knowledge or training with   |      |
|       | respect to the problems of children with              |      |
|       | disabilities;                                         |      |
|       |                                                       |      |
|       | \(2\) Present evidence and confront, cross-examine,   |      |
|       | and compel the attendance of witnesses;               |      |
|       |                                                       |      |
|       | \(3\) Prohibit the introduction of any evidence at    |      |
|       | the hearing that has not been disclosed to that party |      |
|       | at least five business days before the hearing;       |      |
|       |                                                       |      |
|       | \(4\) Obtain a written, or, at the option of the      |      |
|       | parents, electronic, verbatim record of the hearing;  |      |
|       | and                                                   |      |
|       |                                                       |      |
|       | \(5\) Obtain written, or, at the option of the        |      |
|       | parents, electronic findings of fact and decisions.   |      |
|       |                                                       |      |
|       | \(b\) Additional disclosure of information.           |      |
|       |                                                       |      |
|       | \(1\) At least five business days prior to a hearing  |      |
|       | conducted pursuant to Sec. 300.511(a), each party     |      |
|       | must disclose to all other parties all evaluations    |      |
|       | completed by that date and recommendations based on   |      |
|       | the offering party\'s evaluations that the party      |      |
|       | intends to use at the hearing.                        |      |
|       |                                                       |      |
|       | 2\) A hearing officer may bar any party that fails to |      |
|       | comply with paragraph (b)(1) of this section from     |      |
|       | introducing the relevant evaluation or recommendation |      |
|       | at the hearing without the consent of the other       |      |
|       | party.                                                |      |
|       |                                                       |      |
|       | \(c\) Parental rights at hearings. Parents involved   |      |
|       | in hearings must be given the right to\--             |      |
|       |                                                       |      |
|       | \(1\) Have the child who is the subject of the        |      |
|       | hearing present;                                      |      |
|       |                                                       |      |
|       | \(2\) Open the hearing to the public; and             |      |
|       |                                                       |      |
|       | \(3\) Have the record of the hearing and the findings |      |
|       | of fact and decisions described in paragraphs (a)(4)  |      |
|       | and (a)(5) of this section provided at no cost to     |      |
|       | parents.                                              |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(f)(2), 1415(h))            |      |
|       |                                                       |      |
|       | Sec. 300.513 Hearing decisions.                       |      |
|       |                                                       |      |
|       | \(a\) Decision of hearing officer on the provision of |      |
|       | FAPE.                                                 |      |
|       |                                                       |      |
|       | \(1\) Subject to paragraph (a)(2) of this section, a  |      |
|       | hearing officer\'s determination of whether a child   |      |
|       | received FAPE must be based on substantive grounds.   |      |
|       |                                                       |      |
|       | \(2\) In matters alleging a procedural violation, a   |      |
|       | hearing officer may find that a child did not receive |      |
|       | a FAPE only if the procedural inadequacies\--         |      |
|       |                                                       |      |
|       | \(i\) Impeded the child\'s right to a FAPE;           |      |
|       |                                                       |      |
|       | \(ii\) Significantly impeded the parent\'s            |      |
|       | opportunity to participate in the decision-making     |      |
|       | process regarding the provision of a FAPE to the      |      |
|       | parent\'s child; or                                   |      |
|       |                                                       |      |
|       | \(iii\) Caused a deprivation of educational benefit.  |      |
|       |                                                       |      |
|       | \(3\) Nothing in paragraph (a) of this section shall  |      |
|       | be construed to preclude a hearing officer from       |      |
|       | ordering an LEA to comply with procedural             |      |
|       | requirements under Sections 300.500 through 300.536.  |      |
|       |                                                       |      |
|       | \(b\) Construction clause. Nothing in Sections        |      |
|       | 300.507 through 300.513 shall be construed to affect  |      |
|       | the right of a parent to file an appeal of the due    |      |
|       | process hearing decision with the SEA under Sec.      |      |
|       | 300.514(b), if a State level appeal is available.     |      |
|       |                                                       |      |
|       | \(c\) Separate request for a due process hearing.     |      |
|       | Nothing in Sections 300.500 through 300.536 shall be  |      |
|       | construed to preclude a parent from filing a separate |      |
|       | due process complaint on an issue separate from a due |      |
|       | process complaint already filed.                      |      |
|       |                                                       |      |
|       | \(d\) Findings and decision to advisory panel and     |      |
|       | general public. The public agency, after deleting any |      |
|       | personally identifiable information, must\--          |      |
|       |                                                       |      |
|       | \(1\) Transmit the findings and decisions referred to |      |
|       | in Sec. 300.512(a)(5) to the State advisory panel     |      |
|       | established under Sec. 300.167; and                   |      |
|       |                                                       |      |
|       | \(2\) Make those findings and decisions available to  |      |
|       | the public.                                           |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(f)(3)(E) and (F),          |      |
|       | 1415(h)(4), 1415(o))                                  |      |
|       |                                                       |      |
|       | Sec. 300.514 Finality of decision; appeal; impartial  |      |
|       | review.                                               |      |
|       |                                                       |      |
|       | \(a\) Finality of hearing decision. A decision made   |      |
|       | in a hearing conducted pursuant to Sections 300.507   |      |
|       | through 300.513 or Sections 300.530 through 300.534   |      |
|       | is final, except that any party involved in the       |      |
|       | hearing may appeal the decision under the provisions  |      |
|       | of paragraph (b) of this section and Sec. 300.516.    |      |
|       |                                                       |      |
|       | \(b\) Appeal of decisions; impartial review.          |      |
|       |                                                       |      |
|       | \(1\) If the hearing required by Sec. 300.511 is      |      |
|       | conducted by a public agency other than the SEA, any  |      |
|       | party aggrieved by the findings and decision in the   |      |
|       | hearing may appeal to the SEA.                        |      |
|       |                                                       |      |
|       | \(2\) If there is an appeal, the SEA must conduct an  |      |
|       | impartial review of the findings and decision         |      |
|       | appealed. The official conducting the review must\--  |      |
|       |                                                       |      |
|       | \(i\) Examine the entire hearing record;              |      |
|       |                                                       |      |
|       | \(ii\) Ensure that the procedures at the hearing were |      |
|       | consistent with the requirements of due process;      |      |
|       |                                                       |      |
|       | \(iii\) Seek additional evidence if necessary. If a   |      |
|       | hearing is held to receive additional evidence, the   |      |
|       | rights in Sec. 300.512 apply;                         |      |
|       |                                                       |      |
|       | \(iv\) Afford the parties an opportunity for oral or  |      |
|       | written argument, or both, at the discretion of the   |      |
|       | reviewing official;                                   |      |
|       |                                                       |      |
|       | \(v\) Make an independent decision on completion of   |      |
|       | the review; and                                       |      |
|       |                                                       |      |
|       | \(vi\) Give a copy of the written, or, at the option  |      |
|       | of the parents, electronic findings of fact and       |      |
|       | decisions to the parties.                             |      |
|       |                                                       |      |
|       | \(c\) Findings and decision to advisory panel and     |      |
|       | general public. The SEA, after deleting any           |      |
|       | personally identifiable information, must\--          |      |
|       |                                                       |      |
|       | \(1\) Transmit the findings and decisions referred to |      |
|       | in paragraph (b)(2)(vi) of this section to the State  |      |
|       | advisory panel established under Sec. 300.167; and    |      |
|       |                                                       |      |
|       | \(2\) Make those findings and decisions available to  |      |
|       | the public.                                           |      |
|       |                                                       |      |
|       | \(d\) Finality of review decision. The decision made  |      |
|       | by the reviewing official is final unless a party     |      |
|       | brings a civil action under Sec. 300.516.             |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(g) and (h)(4),             |      |
|       | 1415(i)(1)(A), 1415(i)(2))                            |      |
|       |                                                       |      |
|       | Sec. 300.515 Timelines and convenience of hearings    |      |
|       | and reviews.                                          |      |
|       |                                                       |      |
|       | \(a\) The public agency must ensure that not later    |      |
|       | than 45 days after the expiration of the 30 day       |      |
|       | period under Sec. 300.510(b), or the adjusted time    |      |
|       | periods described in Sec. 300.510(c)\--               |      |
|       |                                                       |      |
|       | \(1\) A final decision is reached in the hearing; and |      |
|       |                                                       |      |
|       | \(2\) A copy of the decision is mailed to each of the |      |
|       | parties.                                              |      |
|       |                                                       |      |
|       | \(b\) The SEA must ensure that not later than 30 days |      |
|       | after the receipt of a request for a review\--        |      |
|       |                                                       |      |
|       | \(1\) A final decision is reached in the review; and  |      |
|       |                                                       |      |
|       | \(2\) A copy of the decision is mailed to each of the |      |
|       | parties.                                              |      |
|       |                                                       |      |
|       | \(c\) A hearing or reviewing officer may grant        |      |
|       | specific extensions of time beyond the periods set    |      |
|       | out in paragraphs (a) and (b) of this section at the  |      |
|       | request of either party.                              |      |
|       |                                                       |      |
|       | \(d\) Each hearing and each review involving oral     |      |
|       | arguments must be conducted at a time and place that  |      |
|       | is reasonably convenient to the parents and child     |      |
|       | involved.                                             |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(f)(1)(B)(ii), 1415(g),     |      |
|       | 1415(i)(1))                                           |      |
|       |                                                       |      |
|       | Sec. 300.516 Civil action.                            |      |
|       |                                                       |      |
|       | \(a\) General. Any party aggrieved by the findings    |      |
|       | and decision made under Sections 300.507 through      |      |
|       | 300.513 or Sections 300.530 through 300.534 who does  |      |
|       | not have the right to an appeal under Sec.            |      |
|       | 300.514(b), and any party aggrieved by the findings   |      |
|       | and decision under Sec. 300.514(b), has the right to  |      |
|       | bring a civil action with respect to the due process  |      |
|       | complaint notice requesting a due process hearing     |      |
|       | under Sec. 300.507 or Sections 300.530 through        |      |
|       | 300.532. The action may be brought in any State court |      |
|       | of competent jurisdiction or in a district court of   |      |
|       | the United States without regard to the amount in     |      |
|       | controversy.                                          |      |
|       |                                                       |      |
|       | \(b\) Time limitation. The party bringing the action  |      |
|       | shall have 90 days from the date of the decision of   |      |
|       | the hearing officer or, if applicable, the decision   |      |
|       | of the State review official, to file a civil action, |      |
|       | or, if the State has an explicit time limitation for  |      |
|       | bringing civil actions under Part B of the Act, in    |      |
|       | the time allowed by that State law.                   |      |
|       |                                                       |      |
|       | \(c\) Additional requirements. In any action brought  |      |
|       | under paragraph (a) of this section, the court\--     |      |
|       |                                                       |      |
|       | \(1\) Receives the records of the administrative      |      |
|       | proceedings;                                          |      |
|       |                                                       |      |
|       | \(2\) Hears additional evidence at the request of a   |      |
|       | party; and                                            |      |
|       |                                                       |      |
|       | \(3\) Basing its decision on the preponderance of the |      |
|       | evidence, grants the relief that the court determines |      |
|       | to be appropriate.                                    |      |
|       |                                                       |      |
|       | \(d\) Jurisdiction of district courts. The district   |      |
|       | courts of the United States have jurisdiction of      |      |
|       | actions brought under section 615 of the Act without  |      |
|       | regard to the amount in controversy.                  |      |
|       |                                                       |      |
|       | \(e\) Rule of construction. Nothing in this part      |      |
|       | restricts or limits the rights, procedures, and       |      |
|       | remedies available under the Constitution, the        |      |
|       | Americans with Disabilities Act of 1990, title V of   |      |
|       | the Rehabilitation Act of 1973, or other Federal laws |      |
|       | protecting the rights of children with disabilities,  |      |
|       | except that before the filing of a civil action under |      |
|       | these laws seeking relief that is also available      |      |
|       | under section 615 of the Act, the procedures under    |      |
|       | Sections 300.507 and 300.514 must be exhausted to the |      |
|       | same extent as would be required had the action been  |      |
|       | brought under section 615 of the Act.                 |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(i)(2) and (3)(A), 1415(l)) |      |
|       |                                                       |      |
|       | Sec. 300.517 Attorneys\' fees.                        |      |
|       |                                                       |      |
|       | \(a\) In general.                                     |      |
|       |                                                       |      |
|       | \(1\) In any action or proceeding brought under       |      |
|       | section 615 of the Act, the court, in its discretion, |      |
|       | may award reasonable attorneys\' fees as part of the  |      |
|       | costs to\--                                           |      |
|       |                                                       |      |
|       | \(i\) The prevailing party who is the parent of a     |      |
|       | child with a disability;                              |      |
|       |                                                       |      |
|       | \(ii\) To a prevailing party who is an SEA or LEA     |      |
|       | against the attorney of a parent who files a          |      |
|       | complaint or subsequent cause of action that is       |      |
|       | frivolous, unreasonable, or without foundation, or    |      |
|       | against the attorney of a parent who continued to     |      |
|       | litigate after the litigation clearly became          |      |
|       | frivolous, unreasonable, or without foundation; or    |      |
|       |                                                       |      |
|       | \(iii\) To a prevailing SEA or LEA against the        |      |
|       | attorney of a parent, or against the parent, if the   |      |
|       | parent\'s request for a due process hearing or        |      |
|       | subsequent cause of action was presented for any      |      |
|       | improper purpose, such as to harass, to cause         |      |
|       | unnecessary delay, or to needlessly increase the cost |      |
|       | of litigation.                                        |      |
|       |                                                       |      |
|       | \(2\) Nothing in this subsection shall be construed   |      |
|       | to affect section 327 of the District of Columbia     |      |
|       | Appropriations Act, 2005.                             |      |
|       |                                                       |      |
|       | \(b\) Prohibition on use of funds.                    |      |
|       |                                                       |      |
|       | \(1\) Funds under Part B of the Act may not be used   |      |
|       | to pay attorneys\' fees or costs of a party related   |      |
|       | to any action or proceeding under section 615 of the  |      |
|       | Act and subpart E of this part.                       |      |
|       |                                                       |      |
|       | \(2\) Paragraph (b)(1) of this section does not       |      |
|       | preclude a public agency from using funds under Part  |      |
|       | B of the Act for conducting an action or proceeding   |      |
|       | under section 615 of the Act.                         |      |
|       |                                                       |      |
|       | \(c\) Award of fees. A court awards reasonable        |      |
|       | attorneys\' fees under section 615(i)(3) of the Act   |      |
|       | consistent with the following:                        |      |
|       |                                                       |      |
|       | \(1\) Fees awarded under section 615(i)(3) of the Act |      |
|       | must be based on rates prevailing in the community in |      |
|       | which the action or proceeding arose for the kind and |      |
|       | quality of services furnished. No bonus or multiplier |      |
|       | may be used in calculating the fees awarded under     |      |
|       | this paragraph.                                       |      |
|       |                                                       |      |
|       | (2)(i) Attorneys\' fees may not be awarded and        |      |
|       | related costs may not be reimbursed in any action or  |      |
|       | proceeding under section 615 of the Act for services  |      |
|       | performed subsequent to the time of a written offer   |      |
|       | of settlement to a parent if\--                       |      |
|       |                                                       |      |
|       | \(A\) The offer is made within the time prescribed by |      |
|       | Rule 68 of the Federal Rules of Civil Procedure or,   |      |
|       | in the case of an administrative proceeding, at any   |      |
|       | time more than 10 days before the proceeding begins;  |      |
|       |                                                       |      |
|       | \(B\) The offer is not accepted within 10 days; and   |      |
|       |                                                       |      |
|       | \(C\) The court or administrative hearing officer     |      |
|       | finds that the relief finally obtained by the parents |      |
|       | is not more favorable to the parents than the offer   |      |
|       | of settlement.                                        |      |
|       |                                                       |      |
|       | \(ii\) Attorneys\' fees may not be awarded relating   |      |
|       | to any meeting of the IEP Team unless the meeting is  |      |
|       | convened as a result of an administrative proceeding  |      |
|       | or judicial action, or at the discretion of the       |      |
|       | State, for a mediation described in Sec. 300.506.     |      |
|       |                                                       |      |
|       | \(iii\) A meeting conducted pursuant to Sec. 300.510  |      |
|       | shall not be considered\--                            |      |
|       |                                                       |      |
|       | \(A\) A meeting convened as a result of an            |      |
|       | administrative hearing or judicial action; or         |      |
|       |                                                       |      |
|       | \(B\) An administrative hearing or judicial action    |      |
|       | for purposes of this section.                         |      |
|       |                                                       |      |
|       | \(3\) Notwithstanding paragraph (c)(2) of this        |      |
|       | section, an award of attorneys\' fees and related     |      |
|       | costs may be made to a parent who is the prevailing   |      |
|       | party and who was substantially justified in          |      |
|       | rejecting the settlement offer.                       |      |
|       |                                                       |      |
|       | \(4\) Except as provided in paragraph (c)(5) of this  |      |
|       | section, the court reduces, accordingly, the amount   |      |
|       | of the attorneys\' fees awarded under section 615 of  |      |
|       | the Act, if the court finds that\--                   |      |
|       |                                                       |      |
|       | \(i\) The parent, or the parent\'s attorney, during   |      |
|       | the course of the action or proceeding, unreasonably  |      |
|       | protracted the final resolution of the controversy;   |      |
|       |                                                       |      |
|       | \(ii\) The amount of the attorneys\' fees otherwise   |      |
|       | authorized to be awarded unreasonably exceeds the     |      |
|       | hourly rate prevailing in the community for similar   |      |
|       | services by attorneys of reasonably comparable skill, |      |
|       | reputation, and experience;                           |      |
|       |                                                       |      |
|       | \(iii\) The time spent and legal services furnished   |      |
|       | were excessive considering the nature of the action   |      |
|       | or proceeding; or                                     |      |
|       |                                                       |      |
|       | \(iv\) The attorney representing the parent did not   |      |
|       | provide to the LEA the appropriate information in the |      |
|       | due process request notice in accordance with Sec.    |      |
|       | 300.508.                                              |      |
|       |                                                       |      |
|       | \(5\) The provisions of paragraph (c)(4) of this      |      |
|       | section do not apply in any action or proceeding if   |      |
|       | the court finds that the State or local agency        |      |
|       | unreasonably protracted the final resolution of the   |      |
|       | action or proceeding or there was a violation of      |      |
|       | section 615 of the Act.                               |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(i)(3)(B)-(G))              |      |
|       |                                                       |      |
|       | Sec. 300.518 Child\'s status during proceedings.      |      |
|       |                                                       |      |
|       | \(a\) Except as provided in Sec. 300.533, during the  |      |
|       | pendency of any administrative or judicial proceeding |      |
|       | regarding a due process complaint notice requesting a |      |
|       | due process hearing under Sec. 300.507, unless the    |      |
|       | State or local agency and the parents of the child    |      |
|       | agree otherwise, the child involved in the complaint  |      |
|       | must remain in his or her current educational         |      |
|       | placement.                                            |      |
|       |                                                       |      |
|       | \(b\) If the complaint involves an application for    |      |
|       | initial admission to public school, the child, with   |      |
|       | the consent of the parents, must be placed in the     |      |
|       | public school until the completion of all the         |      |
|       | proceedings.                                          |      |
|       |                                                       |      |
|       | \(c\) If the complaint involves an application for    |      |
|       | initial services under this part from a child who is  |      |
|       | transitioning from Part C of the Act to Part B and is |      |
|       | no longer eligible for Part C services because the    |      |
|       | child has turned three, the public agency is not      |      |
|       | required to provide the Part C services that the      |      |
|       | child had been receiving. If the child is found       |      |
|       | eligible for special education and related services   |      |
|       | under Part B and the parent consents to the initial   |      |
|       | provision of special education and related services   |      |
|       | under Sec. 300.300(b), then the public agency must    |      |
|       | provide those special education and related services  |      |
|       | that are not in dispute between the parent and the    |      |
|       | public agency.                                        |      |
|       |                                                       |      |
|       | \(d\) If the hearing officer in a due process hearing |      |
|       | conducted by the SEA or a State review official in an |      |
|       | administrative appeal agrees with the child\'s        |      |
|       | parents that a change of placement is appropriate,    |      |
|       | that placement must be treated as an agreement        |      |
|       | between the State and the parents for purposes of     |      |
|       | paragraph (a) of this section.                        |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(j))                        |      |
|       |                                                       |      |
|       | Sec. 300.519 Surrogate parents.                       |      |
|       |                                                       |      |
|       | \(a\) General. Each public agency must ensure that    |      |
|       | the rights of a child are protected when\--           |      |
|       |                                                       |      |
|       | \(1\) No parent (as defined in Sec. 300.30) can be    |      |
|       | identified;                                           |      |
|       |                                                       |      |
|       | \(2\) The public agency, after reasonable efforts,    |      |
|       | cannot locate a parent;                               |      |
|       |                                                       |      |
|       | \(3\) The child is a ward of the State under the laws |      |
|       | of that State; or                                     |      |
|       |                                                       |      |
|       | \(4\) The child is an unaccompanied homeless youth as |      |
|       | defined in section 725(6) of the McKinney-Vento       |      |
|       | Homeless Assistance Act (42 U.S.C. 11434a(6)).        |      |
|       |                                                       |      |
|       | \(b\) Duties of public agency. The duties of a public |      |
|       | agency under paragraph (a) of this section include    |      |
|       | the assignment of an individual to act as a surrogate |      |
|       | for the parents. This must include a method\--        |      |
|       |                                                       |      |
|       | \(1\) For determining whether a child needs a         |      |
|       | surrogate parent; and                                 |      |
|       |                                                       |      |
|       | \(2\) For assigning a surrogate parent to the child.  |      |
|       |                                                       |      |
|       | \(c\) Wards of the State. In the case of a child who  |      |
|       | is a ward of the State, the surrogate parent          |      |
|       | alternatively may be appointed by the judge           |      |
|       | overseeing the child\'s case, provided that the       |      |
|       | surrogate meets the requirements in paragraphs        |      |
|       | (d)(2)(i) and (e) of this section.                    |      |
|       |                                                       |      |
|       | \(d\) Criteria for selection of surrogate parents.    |      |
|       |                                                       |      |
|       | \(1\) The public agency may select a surrogate parent |      |
|       | in any way permitted under State law.                 |      |
|       |                                                       |      |
|       | \(2\) Public agencies must ensure that a person       |      |
|       | selected as a surrogate parent\--                     |      |
|       |                                                       |      |
|       | \(i\) Is not an employee of the SEA, the LEA, or any  |      |
|       | other agency that is involved in the education or     |      |
|       | care of the child;                                    |      |
|       |                                                       |      |
|       | \(ii\) Has no personal or professional interest that  |      |
|       | conflicts with the interest of the child the          |      |
|       | surrogate parent represents; and                      |      |
|       |                                                       |      |
|       | \(iii\) Has knowledge and skills that ensure adequate |      |
|       | representation of the child.                          |      |
|       |                                                       |      |
|       | \(e\) Non-employee requirement; compensation. A       |      |
|       | person otherwise qualified to be a surrogate parent   |      |
|       | under paragraph (d) of this section is not an         |      |
|       | employee of the agency solely because he or she is    |      |
|       | paid by the agency to serve as a surrogate parent.    |      |
|       |                                                       |      |
|       | \(f\) Unaccompanied homeless youth. In the case of a  |      |
|       | child who is an unaccompanied homeless youth,         |      |
|       | appropriate staff of emergency shelters, transitional |      |
|       | shelters, independent living programs, and street     |      |
|       | outreach programs may be appointed as temporary       |      |
|       | surrogate parents without regard to paragraph         |      |
|       | (d)(2)(i) of this section, until a surrogate parent   |      |
|       | can be appointed that meets all of the requirements   |      |
|       | of paragraph (d) of this section.                     |      |
|       |                                                       |      |
|       | \(g\) Surrogate parent responsibilities. The          |      |
|       | surrogate parent may represent the child in all       |      |
|       | matters relating to\--                                |      |
|       |                                                       |      |
|       | \(1\) The identification, evaluation, and educational |      |
|       | placement of the child; and                           |      |
|       |                                                       |      |
|       | \(2\) The provision of FAPE to the child.             |      |
|       |                                                       |      |
|       | \(h\) SEA responsibility. The SEA must make           |      |
|       | reasonable efforts to ensure the assignment of a      |      |
|       | surrogate parent not more than 30 days after a public |      |
|       | agency determines that the child needs a surrogate    |      |
|       | parent.                                               |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(b)(2))                     |      |
|       |                                                       |      |
|       | Sec. 300.520 Transfer of parental rights at age of    |      |
|       | majority.                                             |      |
|       |                                                       |      |
|       | \(a\) General. A State may provide that, when a child |      |
|       | with a disability reaches the age of majority under   |      |
|       | State law that applies to all children (except for a  |      |
|       | child with a disability who has been determined to be |      |
|       | incompetent under State law)\--                       |      |
|       |                                                       |      |
|       | (1)(i) The public agency must provide any notice      |      |
|       | required by this part to both the child and the       |      |
|       | parents; and                                          |      |
|       |                                                       |      |
|       | \(ii\) All rights accorded to parents under Part B of |      |
|       | the Act transfer to the child;                        |      |
|       |                                                       |      |
|       | \(2\) All rights accorded to parents under Part B of  |      |
|       | the Act transfer to children who are incarcerated in  |      |
|       | an adult or juvenile, State or local correctional     |      |
|       | institution; and                                      |      |
|       |                                                       |      |
|       | \(3\) Whenever a State provides for the transfer of   |      |
|       | rights under this part pursuant to paragraph (a)(1)   |      |
|       | or (a)(2) of this section, the agency must notify the |      |
|       | child and the parents of the transfer of rights.      |      |
|       |                                                       |      |
|       | \(b\) Special rule. A State must establish procedures |      |
|       | for appointing the parent of a child with a           |      |
|       | disability, or, if the parent is not available,       |      |
|       | another appropriate individual, to represent the      |      |
|       | educational interests of the child throughout the     |      |
|       | period of the child\'s eligibility under Part B of    |      |
|       | the Act if, under State law, a child who has reached  |      |
|       | the age of majority, but has not been determined to   |      |
|       | be incompetent, can be determined not to have the     |      |
|       | ability to provide informed consent with respect to   |      |
|       | the child\'s educational program.                     |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(m))                        |      |
|       |                                                       |      |
|       | Discipline Procedures                                 |      |
|       |                                                       |      |
|       | Sec. 300.530 Authority of school personnel.           |      |
|       |                                                       |      |
|       | \(a\) Case-by-case determination. School personnel    |      |
|       | may consider any unique circumstances on a            |      |
|       | case-by-case basis when determining whether a change  |      |
|       | in placement, consistent with the other requirements  |      |
|       | of this section, is appropriate for a child with a    |      |
|       | disability who violates a code of student conduct.    |      |
|       |                                                       |      |
|       | \(b\) General.                                        |      |
|       |                                                       |      |
|       | \(1\) School personnel under this section may remove  |      |
|       | a child with a disability who violates a code of      |      |
|       | student conduct from his or her current placement to  |      |
|       | an appropriate interim alternative educational        |      |
|       | setting, another setting, or suspension, for not more |      |
|       | than 10 consecutive school days (to the extent those  |      |
|       | alternatives are applied to children without          |      |
|       | disabilities), and for additional removals of not     |      |
|       | more than 10 consecutive school days in that same     |      |
|       | school year for separate incidents of misconduct (as  |      |
|       | long as those removals do not constitute a change of  |      |
|       | placement under Sec. 300.536).                        |      |
|       |                                                       |      |
|       | \(2\) After a child with a disability has been        |      |
|       | removed from his or her current placement for 10      |      |
|       | school days in the same school year, during any       |      |
|       | subsequent days of removal the public agency must     |      |
|       | provide services to the extent required under         |      |
|       | paragraph (d) of this section.                        |      |
|       |                                                       |      |
|       | \(c\) Additional authority. For disciplinary changes  |      |
|       | in placement that would exceed 10 consecutive school  |      |
|       | days, if the behavior that gave rise to the violation |      |
|       | of the school code is determined not to be a          |      |
|       | manifestation of the child\'s disability pursuant to  |      |
|       | paragraph (e) of this section, school personnel may   |      |
|       | apply the relevant disciplinary procedures to         |      |
|       | children with disabilities in the same manner and for |      |
|       | the same duration as the procedures would be applied  |      |
|       | to children without disabilities, except as provided  |      |
|       | in paragraph (d) of this section.                     |      |
|       |                                                       |      |
|       | \(d\) Services.                                       |      |
|       |                                                       |      |
|       | \(1\) A child with a disability who is removed from   |      |
|       | the child\'s current placement pursuant to paragraphs |      |
|       | (c), or (g) of this section must\--                   |      |
|       |                                                       |      |
|       | \(i\) Continue to receive educational services, as    |      |
|       | provided in Sec. 300.101(a), so as to enable the      |      |
|       | child to continue to participate in the general       |      |
|       | education curriculum, although in another setting,    |      |
|       | and to progress toward meeting the goals set out in   |      |
|       | the child\'s IEP; and                                 |      |
|       |                                                       |      |
|       | \(ii\) Receive, as appropriate, a functional          |      |
|       | behavioral assessment, and behavioral intervention    |      |
|       | services and modifications, that are designed to      |      |
|       | address the behavior violation so that it does not    |      |
|       | recur.                                                |      |
|       |                                                       |      |
|       | \(2\) The services required by paragraph (d)(1),      |      |
|       | (d)(3), (d)(4), and (d)(5) of this section may be     |      |
|       | provided in an interim alternative educational        |      |
|       | setting.                                              |      |
|       |                                                       |      |
|       | \(3\) A public agency is only required to provide     |      |
|       | services during periods of removal to a child with a  |      |
|       | disability who has been removed from his or her       |      |
|       | current placement for 10 school days or less in that  |      |
|       | school year, if it provides services to a child       |      |
|       | without disabilities who is similarly removed.        |      |
|       |                                                       |      |
|       | \(4\) After a child with a disability has been        |      |
|       | removed from his or her current placement for 10      |      |
|       | school days in the same school year, if the current   |      |
|       | removal is for not more than 10 consecutive school    |      |
|       | days and is not a change of placement under Sec.      |      |
|       | 300.536, school personnel, in consultation with at    |      |
|       | least one of the child\'s teachers, determine the     |      |
|       | extent to which services are needed, as provided in   |      |
|       | Sec. 300.101(a), so as to enable the child to         |      |
|       | continue to participate in the general education      |      |
|       | curriculum, although in another setting, and to       |      |
|       | progress toward meeting the goals set out in the      |      |
|       | child\'s IEP.                                         |      |
|       |                                                       |      |
|       | \(5\) If the removal is a change of placement under   |      |
|       | Sec. 300.536, the child\'s IEP Team determines        |      |
|       | appropriate services under paragraph (d)(1) of this   |      |
|       | section.                                              |      |
|       |                                                       |      |
|       | \(e\) Manifestation determination.                    |      |
|       |                                                       |      |
|       | \(1\) Within 10 school days of any decision to change |      |
|       | the placement of a child with a disability because of |      |
|       | a violation of a code of student conduct, the LEA,    |      |
|       | the parent, and relevant members of the child\'s IEP  |      |
|       | Team (as determined by the parent and the LEA) must   |      |
|       | review all relevant information in the student\'s     |      |
|       | file, including the child\'s IEP, any teacher         |      |
|       | observations, and any relevant information provided   |      |
|       | by the parents to determine\--                        |      |
|       |                                                       |      |
|       | \(i\) If the conduct in question was caused by, or    |      |
|       | had a direct and substantial relationship to, the     |      |
|       | child\'s disability; or                               |      |
|       |                                                       |      |
|       | \(ii\) If the conduct in question was the direct      |      |
|       | result of the LEA\'s failure to implement the IEP.    |      |
|       |                                                       |      |
|       | \(2\) The conduct must be determined to be a          |      |
|       | manifestation of the child\'s disability if the LEA,  |      |
|       | the parent, and relevant members of the child\'s IEP  |      |
|       | Team determine that a condition in either paragraph   |      |
|       | (e)(1)(i) or (1)(ii) of this section was met.         |      |
|       |                                                       |      |
|       | \(3\) If the LEA, the parent, and relevant members of |      |
|       | the child\'s IEP Team determine the condition         |      |
|       | described in paragraph (e)(1)(ii) of this section was |      |
|       | met, the LEA must take immediate steps to remedy      |      |
|       | those deficiencies.                                   |      |
|       |                                                       |      |
|       | \(f\) Determination that behavior was a               |      |
|       | manifestation. If the LEA, the parent, and relevant   |      |
|       | members of the IEP Team make the determination that   |      |
|       | the conduct was a manifestation of the child\'s       |      |
|       | disability, the IEP Team must\--                      |      |
|       |                                                       |      |
|       | \(1\) Either\--                                       |      |
|       |                                                       |      |
|       | \(i\) Conduct a functional behavioral assessment,     |      |
|       | unless the LEA had conducted a functional behavioral  |      |
|       | assessment before the behavior that resulted in the   |      |
|       | change of placement occurred, and implement a         |      |
|       | behavioral intervention plan for the child; or        |      |
|       |                                                       |      |
|       | \(ii\) If a behavioral intervention plan already has  |      |
|       | been developed, review the behavioral intervention    |      |
|       | plan, and modify it, as necessary, to address the     |      |
|       | behavior; and                                         |      |
|       |                                                       |      |
|       | \(2\) Except as provided in paragraph (g) of this     |      |
|       | section, return the child to the placement from which |      |
|       | the child was removed, unless the parent and the LEA  |      |
|       | agree to a change of placement as part of the         |      |
|       | modification of the behavioral intervention plan.     |      |
|       |                                                       |      |
|       | \(g\) Special circumstances. School personnel may     |      |
|       | remove a student to an interim alternative            |      |
|       | educational setting for not more than 45 school days  |      |
|       | without regard to whether the behavior is determined  |      |
|       | to be a manifestation of the child\'s disability, if  |      |
|       | the child\--                                          |      |
|       |                                                       |      |
|       | \(1\) Carries a weapon to or possesses a weapon at    |      |
|       | school, on school premises, or to or at a school      |      |
|       | function under the jurisdiction of an SEA or an LEA;  |      |
|       |                                                       |      |
|       | \(2\) Knowingly possesses or uses illegal drugs, or   |      |
|       | sells or solicits the sale of a controlled substance, |      |
|       | while at school, on school premises, or at a school   |      |
|       | function under the jurisdiction of an SEA or an LEA;  |      |
|       | or                                                    |      |
|       |                                                       |      |
|       | \(3\) Has inflicted serious bodily injury upon        |      |
|       | another person while at school, on school premises,   |      |
|       | or at a school function under the jurisdiction of an  |      |
|       | SEA or an LEA.                                        |      |
|       |                                                       |      |
|       | \(h\) Notification. On the date on which the decision |      |
|       | is made to make a removal that constitutes a change   |      |
|       | of placement of a child with a disability because of  |      |
|       | a violation of a code of student conduct, the LEA     |      |
|       | must notify the parents of that decision, and provide |      |
|       | the parents the procedural safeguards notice          |      |
|       | described in Sec. 300.504.                            |      |
|       |                                                       |      |
|       | \(i\) Definitions. For purposes of this section, the  |      |
|       | following definitions apply:                          |      |
|       |                                                       |      |
|       | \(1\) Controlled substance means a drug or other      |      |
|       | substance identified under schedules I, II, III, IV,  |      |
|       | or V in section 202(c) of the Controlled Substances   |      |
|       | Act (21 U.S.C. 812(c)).                               |      |
|       |                                                       |      |
|       | \(2\) Illegal drug means a controlled substance; but  |      |
|       | does not include a controlled substance that is       |      |
|       | legally possessed or used under the supervision of a  |      |
|       | licensed health-care professional or that is legally  |      |
|       | possessed or used under any other authority under     |      |
|       | that Act or under any other provision of Federal law. |      |
|       |                                                       |      |
|       | \(3\) Serious bodily injury has the meaning given the |      |
|       | term \`\`serious bodily injury\'\' under paragraph    |      |
|       | (3) of subsection (h) of section 1365 of title 18,    |      |
|       | United States Code.                                   |      |
|       |                                                       |      |
|       | \(4\) Weapon has the meaning given the term           |      |
|       | \`\`dangerous weapon\'\' under paragraph (2) of the   |      |
|       | first subsection (g) of section 930 of title 18,      |      |
|       | United States Code.                                   |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(k)(1) and (7))             |      |
|       |                                                       |      |
|       | Sec. 300.531 Determination of setting.                |      |
|       |                                                       |      |
|       | The child\'s IEP Team determines the interim          |      |
|       | alternative educational setting for services under    |      |
|       | Sec. 300.530(c), (d)(5), and (g).                     |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(k)(2))                     |      |
|       |                                                       |      |
|       | Sec. 300.532 Appeal.                                  |      |
|       |                                                       |      |
|       | \(a\) General. The parent of a child with a           |      |
|       | disability who disagrees with any decision regarding  |      |
|       | placement under Sections 300.530 and 300.531, or the  |      |
|       | manifestation determination under Sec. 300.530(e), or |      |
|       | an LEA that believes that maintaining the current     |      |
|       | placement of the child is substantially likely to     |      |
|       | result in injury to the child or others, may appeal   |      |
|       | the decision by requesting a hearing. The hearing is  |      |
|       | requested by filing a complaint pursuant to Sections  |      |
|       | 300.507 and 300.508(a) and (b).                       |      |
|       |                                                       |      |
|       | \(b\) Authority of hearing officer.                   |      |
|       |                                                       |      |
|       | \(1\) A hearing officer under Sec. 300.511 hears, and |      |
|       | makes a determination regarding an appeal under       |      |
|       | paragraph (a) of this section.                        |      |
|       |                                                       |      |
|       | \(2\) In making the determination under paragraph     |      |
|       | (b)(1) of this section, the hearing officer may\--    |      |
|       |                                                       |      |
|       | \(i\) Return the child with a disability to the       |      |
|       | placement from which the child was removed if the     |      |
|       | hearing officer determines that the removal was a     |      |
|       | violation of Sec. 300.530 or that the child\'s        |      |
|       | behavior was a manifestation of the child\'s          |      |
|       | disability; or                                        |      |
|       |                                                       |      |
|       | \(ii\) Order a change of placement of the child with  |      |
|       | a disability to an appropriate interim alternative    |      |
|       | educational setting for not more than 45 school days  |      |
|       | if the hearing officer determines that maintaining    |      |
|       | the current placement of the child is substantially   |      |
|       | likely to result in injury to the child or to others. |      |
|       |                                                       |      |
|       | \(3\) The procedures under paragraphs (a) and (b)(1)  |      |
|       | and (2) of this section may be repeated, if the LEA   |      |
|       | believes that returning the child to the original     |      |
|       | placement is substantially likely to result in injury |      |
|       | to the child or to others.                            |      |
|       |                                                       |      |
|       | \(c\) Expedited due process hearing.                  |      |
|       |                                                       |      |
|       | \(1\) Whenever a hearing is requested under paragraph |      |
|       | (a) of this section, the parents or the LEA involved  |      |
|       | in the dispute must have an opportunity for an        |      |
|       | impartial due process hearing consistent with the     |      |
|       | requirements of Sections 300.507 and 300.508(a)       |      |
|       | through (c) and Sections 300.510 through 300.514,     |      |
|       | except as provided in paragraph (c)(2) through (4) of |      |
|       | this section.                                         |      |
|       |                                                       |      |
|       | \(2\) The SEA or LEA is responsible for arranging the |      |
|       | expedited due process hearing, which must occur       |      |
|       | within 20 school days of the date the complaint       |      |
|       | requesting the hearing is filed. The hearing officer  |      |
|       | must make a determination within 10 school days after |      |
|       | the hearing.                                          |      |
|       |                                                       |      |
|       | \(3\) Unless the parents and LEA agree in writing to  |      |
|       | waive the resolution meeting described in paragraph   |      |
|       | (c)(3)(i) of this section, or agree to use the        |      |
|       | mediation process described in Sec. 300.506\--        |      |
|       |                                                       |      |
|       | \(i\) A resolution meeting must occur within seven    |      |
|       | days of receiving notice of the due process           |      |
|       | complaint; and                                        |      |
|       |                                                       |      |
|       | \(ii\) The due process hearing may proceed unless the |      |
|       | matter has been resolved to the satisfaction of both  |      |
|       | parties within 15 days of the receipt of the due      |      |
|       | process complaint.                                    |      |
|       |                                                       |      |
|       | \(4\) A State may establish different State-imposed   |      |
|       | procedural rules for expedited due process hearings   |      |
|       | conducted under this section than it has established  |      |
|       | for other due process hearings, but, except for the   |      |
|       | timelines as modified in paragraph (c)(3) of this     |      |
|       | section, the State must ensure that the requirements  |      |
|       | in Sections 300.510 through 300.514 are met.          |      |
|       |                                                       |      |
|       | \(5\) The decisions on expedited due process hearings |      |
|       | are appealable consistent with Sec. 300.514.          |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(k)(3) and (4)(B),          |      |
|       | 1415(f)(1)(A))                                        |      |
|       |                                                       |      |
|       | Sec. 300.533 Placement during appeals.                |      |
|       |                                                       |      |
|       | When an appeal under Sec. 300.532 has been made by    |      |
|       | either the parent or the LEA, the child must remain   |      |
|       | in the interim alternative educational setting        |      |
|       | pending the decision of the hearing officer or until  |      |
|       | the expiration of the time period specified in Sec.   |      |
|       | 300.530(c) or (g), whichever occurs first, unless the |      |
|       | parent and the SEA or LEA agree otherwise.            |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(k)(4)(A))                  |      |
|       |                                                       |      |
|       | Sec. 300.534 Protections for children not determined  |      |
|       | eligible for special education and related services.  |      |
|       |                                                       |      |
|       | \(a\) General. A child who has not been determined to |      |
|       | be eligible for special education and related         |      |
|       | services under this part and who has engaged in       |      |
|       | behavior that violated a code of student conduct, may |      |
|       | assert any of the protections provided for in this    |      |
|       | part if the public agency had knowledge (as           |      |
|       | determined in accordance with paragraph (b) of this   |      |
|       | section) that the child was a child with a disability |      |
|       | before the behavior that precipitated the             |      |
|       | disciplinary action occurred.                         |      |
|       |                                                       |      |
|       | \(b\) Basis of knowledge. A public agency must be     |      |
|       | deemed to have knowledge that a child is a child with |      |
|       | a disability if before the behavior that precipitated |      |
|       | the disciplinary action occurred\--                   |      |
|       |                                                       |      |
|       | \(1\) The parent of the child expressed concern in    |      |
|       | writing to supervisory or administrative personnel of |      |
|       | the appropriate educational agency, or a teacher of   |      |
|       | the child, that the child is in need of special       |      |
|       | education and related services;                       |      |
|       |                                                       |      |
|       | \(2\) The parent of the child requested an evaluation |      |
|       | of the child pursuant to Sections 300.300 through     |      |
|       | 300.311; or                                           |      |
|       |                                                       |      |
|       | \(3\) The teacher of the child, or other personnel of |      |
|       | the LEA, expressed specific concerns about a pattern  |      |
|       | of behavior demonstrated by the child directly to the |      |
|       | director of special education of the agency or to     |      |
|       | other supervisory personnel of the agency.            |      |
|       |                                                       |      |
|       | \(c\) Exception. A public agency would not be deemed  |      |
|       | to have knowledge under paragraph (b) of this section |      |
|       | if\--                                                 |      |
|       |                                                       |      |
|       | \(1\) The parent of the child\--                      |      |
|       |                                                       |      |
|       | \(i\) Has not allowed an evaluation of the child      |      |
|       | pursuant to Sections 300.300 through 300.311; or      |      |
|       |                                                       |      |
|       | \(ii\) Has refused services under this part; or       |      |
|       |                                                       |      |
|       | \(2\) The child has been evaluated in accordance with |      |
|       | Sections 300.300 through 300.311 and determined to    |      |
|       | not be a child with a disability under this part.     |      |
|       |                                                       |      |
|       | \(d\) Conditions that apply if no basis of knowledge. |      |
|       |                                                       |      |
|       | \(1\) If a public agency does not have knowledge that |      |
|       | a child is a child with a disability (in accordance   |      |
|       | with paragraphs (b) and (c) of this section) prior to |      |
|       | taking disciplinary measures against the child, the   |      |
|       | child may be subjected to the disciplinary measures   |      |
|       | applied to children without disabilities who engage   |      |
|       | in comparable behaviors consistent with paragraph     |      |
|       | (d)(2) of this section.                               |      |
|       |                                                       |      |
|       | (2)(i) If a request is made for an evaluation of a    |      |
|       | child during the time period in which the child is    |      |
|       | subjected to disciplinary measures under Sec.         |      |
|       | 300.530, the evaluation must be conducted in an       |      |
|       | expedited manner.                                     |      |
|       |                                                       |      |
|       | \(ii\) Until the evaluation is completed, the child   |      |
|       | remains in the educational placement determined by    |      |
|       | school authorities, which can include suspension or   |      |
|       | expulsion without educational services.               |      |
|       |                                                       |      |
|       | > \(iii\) If the child is determined to be a child    |      |
|       | > with a disability, taking into consideration        |      |
|       | > information from the evaluation conducted by the    |      |
|       | > agency and information provided by the parents, the |      |
|       | > agency must provide special education and related   |      |
|       | > services in accordance with this part, including    |      |
|       | > the requirements of Sections 300.530 through        |      |
|       | > 300.536 and section 612(a)(1)(A) of the Act.        |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(k)(5))                     |      |
|       |                                                       |      |
|       | Sec. 300.535 Referral to and action by law            |      |
|       | enforcement and judicial authorities.                 |      |
|       |                                                       |      |
|       | \(a\) Rule of construction. Nothing in this part      |      |
|       | prohibits an agency from reporting a crime committed  |      |
|       | by a child with a disability to appropriate           |      |
|       | authorities or prevents State law enforcement and     |      |
|       | judicial authorities from exercising their            |      |
|       | responsibilities with regard to the application of    |      |
|       | Federal and State law to crimes committed by a child  |      |
|       | with a disability.                                    |      |
|       |                                                       |      |
|       | \(b\) Transmittal of records.                         |      |
|       |                                                       |      |
|       | \(1\) An agency reporting a crime committed by a      |      |
|       | child with a disability must ensure that copies of    |      |
|       | the special education and disciplinary records of the |      |
|       | child are transmitted for consideration by the        |      |
|       | appropriate authorities to whom the agency reports    |      |
|       | the crime.                                            |      |
|       |                                                       |      |
|       | \(2\) An agency reporting a crime under this section  |      |
|       | may transmit copies of the child\'s special education |      |
|       | and disciplinary records only to the extent that the  |      |
|       | transmission is permitted by the Family Educational   |      |
|       | Rights and Privacy Act.                               |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(k)(6))                     |      |
|       |                                                       |      |
|       | Sec. 300.536 Change of placement because of           |      |
|       | disciplinary removals.                                |      |
|       |                                                       |      |
|       | \(a\) For purposes of removals of a child with a      |      |
|       | disability from the child\'s current educational      |      |
|       | placement under Sections 300.530 through 300.535, a   |      |
|       | change of placement occurs if\--                      |      |
|       |                                                       |      |
|       | \(1\) The removal is for more than 10 consecutive     |      |
|       | school days; or                                       |      |
|       |                                                       |      |
|       | \(2\) The child has been subjected to a series of     |      |
|       | removals that constitute a pattern\--                 |      |
|       |                                                       |      |
|       | \(i\) Because the series of removals total more than  |      |
|       | 10 school days in a school year;                      |      |
|       |                                                       |      |
|       | \(ii\) Because the child\'s behavior is substantially |      |
|       | similar to the child\'s behavior in previous          |      |
|       | incidents that resulted in the series of removals;    |      |
|       | and                                                   |      |
|       |                                                       |      |
|       | \(iii\) Because of such additional factors as the     |      |
|       | length of each removal, the total amount of time the  |      |
|       | child has been removed, and the proximity of the      |      |
|       | removals to one another.                              |      |
|       |                                                       |      |
|       | (b)(1) The public agency determines on a case-by-case |      |
|       | basis whether a pattern of removals constitutes a     |      |
|       | change of placement.                                  |      |
|       |                                                       |      |
|       | \(2\) This determination is subject to review through |      |
|       | due process and judicial proceedings.                 |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1415(k))                        |      |
+-------+-------------------------------------------------------+------+
| **7** | Sec. 300.122 Evaluation.                              |      |
|       |                                                       |      |
|       | Children with disabilities must be evaluated in       |      |
|       | accordance with Sections 300.300 through 300.311 of   |      |
|       | subpart D of this part.                               |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(7))                     |      |
|       |                                                       |      |
|       | Sec. 300.300 Parental consent.                        |      |
|       |                                                       |      |
|       | a\) Parental consent for initial evaluation.          |      |
|       |                                                       |      |
|       | (1)(i) The public agency proposing to conduct an      |      |
|       | initial evaluation to determine if a child qualifies  |      |
|       | as a child with a disability under Sec. 300.8 must,   |      |
|       | after providing notice consistent with Sections       |      |
|       | 300.503 and 300.504, obtain informed consent,         |      |
|       | consistent with Sec. 300.9, from the parent of the    |      |
|       | child before conducting the evaluation.               |      |
|       |                                                       |      |
|       | \(ii\) Parental consent for initial evaluation must   |      |
|       | not be construed as consent for initial provision of  |      |
|       | special education and related services.               |      |
|       |                                                       |      |
|       | \(iii\) The public agency must make reasonable        |      |
|       | efforts to obtain the informed consent from the       |      |
|       | parent for an initial evaluation to determine whether |      |
|       | the child is a child with a disability.               |      |
|       |                                                       |      |
|       | \(2\) For initial evaluations only, if the child is a |      |
|       | ward of the State and is not residing with the        |      |
|       | child\'s parent, the public agency is not required to |      |
|       | obtain informed consent from the parent for an        |      |
|       | initial evaluation to determine whether the child is  |      |
|       | a child with a disability if\--                       |      |
|       |                                                       |      |
|       | \(i\) Despite reasonable efforts to do so, the public |      |
|       | agency cannot discover the whereabouts of the parent  |      |
|       | of the child;                                         |      |
|       |                                                       |      |
|       | \(ii\) The rights of the parents of the child have    |      |
|       | been terminated in accordance with State law; or      |      |
|       |                                                       |      |
|       | \(iii\) The rights of the parent to make educational  |      |
|       | decisions have been subrogated by a judge in          |      |
|       | accordance with State law and consent for an initial  |      |
|       | evaluation has been given by an individual appointed  |      |
|       | by the judge to represent the child.                  |      |
|       |                                                       |      |
|       | (3)(i) If the parent of a child enrolled in public    |      |
|       | school or seeking to be enrolled in public school     |      |
|       | does not provide consent for initial evaluation under |      |
|       | paragraph (a)(1) of this section, or the parent fails |      |
|       | to respond to a request to provide consent, the       |      |
|       | public agency may, but is not required to, pursue the |      |
|       | initial evaluation of the child by utilizing the      |      |
|       | procedural safeguards in subpart E of this part       |      |
|       | (including the mediation procedures under Sec.        |      |
|       | 300.506 or the due process procedures under Sections  |      |
|       | 300.507 through 300.516), if appropriate, except to   |      |
|       | the extent inconsistent with State law relating to    |      |
|       | such parental consent.                                |      |
|       |                                                       |      |
|       | \(ii\) The public agency does not violate its         |      |
|       | obligation under Sec. 300.111 and Sections 300.301    |      |
|       | through 300.311 if it declines to pursue the          |      |
|       | evaluation.                                           |      |
|       |                                                       |      |
|       | \(b\) Parental consent for services.                  |      |
|       |                                                       |      |
|       | \(1\) A public agency that is responsible for making  |      |
|       | FAPE available to a child with a disability must      |      |
|       | obtain informed consent from the parent of the child  |      |
|       | before the initial provision of special education and |      |
|       | related services to the child.                        |      |
|       |                                                       |      |
|       | \(2\) The public agency must make reasonable efforts  |      |
|       | to obtain informed consent from the parent for the    |      |
|       | initial provision of special education and related    |      |
|       | services to the child.                                |      |
|       |                                                       |      |
|       | \(3\) If the parent of a child fails to respond or    |      |
|       | refuses to consent to services under paragraph (b)(1) |      |
|       | of this section, the public agency may not use the    |      |
|       | procedures in subpart E of this part (including the   |      |
|       | mediation procedures under Sec. 300.506 or the due    |      |
|       | process procedures under Sections 300.507 through     |      |
|       | 300.516) in order to obtain agreement or a ruling     |      |
|       | that the services may be provided to the child.       |      |
|       |                                                       |      |
|       | \(4\) If the parent of the child refuses to consent   |      |
|       | to the initial provision of special education and     |      |
|       | related services, or the parent fails to respond to a |      |
|       | request to provide consent for the initial provision  |      |
|       | of special education and related services, the public |      |
|       | agency\--                                             |      |
|       |                                                       |      |
|       | \(i\) Will not be considered to be in violation of    |      |
|       | the requirement to make available FAPE to the child   |      |
|       | for the failure to provide the child with the special |      |
|       | education and related services for which the public   |      |
|       | agency requests consent; and                          |      |
|       |                                                       |      |
|       | \(ii\) Is not required to convene an IEP Team meeting |      |
|       | or develop an IEP under Sections 300.320 and 300.324  |      |
|       | for the child for the special education and related   |      |
|       | services for which the public agency requests such    |      |
|       | consent.                                              |      |
|       |                                                       |      |
|       | \(c\) Parental consent for reevaluations.             |      |
|       |                                                       |      |
|       | \(1\) Subject to paragraph (c)(2) of this section,    |      |
|       | each public agency\--                                 |      |
|       |                                                       |      |
|       | \(i\) Must obtain informed parental consent, in       |      |
|       | accordance with Sec. 300.300(a)(1), prior to          |      |
|       | conducting any reevaluation of a child with a         |      |
|       | disability.                                           |      |
|       |                                                       |      |
|       | \(ii\) If the parent refuses to consent to the        |      |
|       | reevaluation, the public agency may, but is not       |      |
|       | required to, pursue the reevaluation by using the     |      |
|       | consent override procedures described in paragraph    |      |
|       | (a)(3) of this section.                               |      |
|       |                                                       |      |
|       | \(iii\) The public agency does not violate its        |      |
|       | obligation under Sec. 300.111 and Sections 300.301    |      |
|       | through 300.311 if it declines to pursue the          |      |
|       | evaluation or reevaluation.                           |      |
|       |                                                       |      |
|       | \(2\) The informed parental consent described in      |      |
|       | paragraph (c)(1) of this section need not be obtained |      |
|       | if the public agency can demonstrate that\--          |      |
|       |                                                       |      |
|       | \(i\) It made reasonable efforts to obtain such       |      |
|       | consent; and                                          |      |
|       |                                                       |      |
|       | \(ii\) The child\'s parent has failed to respond.     |      |
|       |                                                       |      |
|       | \(d\) Other consent requirements.                     |      |
|       |                                                       |      |
|       | \(1\) Parental consent is not required before\--      |      |
|       |                                                       |      |
|       | \(i\) Reviewing existing data as part of an           |      |
|       | evaluation or a reevaluation; or                      |      |
|       |                                                       |      |
|       | \(ii\) Administering a test or other evaluation that  |      |
|       | is administered to all children unless, before        |      |
|       | administration of that test or evaluation, consent is |      |
|       | required of parents of all children.                  |      |
|       |                                                       |      |
|       | \(2\) In addition to the parental consent             |      |
|       | requirements described in paragraph (a) of this       |      |
|       | section, a State may require parental consent for     |      |
|       | other services and activities under this part if it   |      |
|       | ensures that each public agency in the State          |      |
|       | establishes and implements effective procedures to    |      |
|       | ensure that a parent\'s refusal to consent does not   |      |
|       | result in a failure to provide the child with FAPE.   |      |
|       |                                                       |      |
|       | \(3\) A public agency may not use a parent\'s refusal |      |
|       | to consent to one service or activity under           |      |
|       | paragraphs (a) or (d)(2) of this section to deny the  |      |
|       | parent or child any other service, benefit, or        |      |
|       | activity of the public agency, except as required by  |      |
|       | this part.                                            |      |
|       |                                                       |      |
|       | 4)(i) If a parent of a child who is home schooled or  |      |
|       | placed in a private school by the parents at their    |      |
|       | own expense does not provide consent for the initial  |      |
|       | evaluation or the reevaluation, or the parent fails   |      |
|       | to respond to a request to provide consent, the       |      |
|       | public agency may not use the consent override        |      |
|       | procedures (described in paragraphs (a)(3) and (c)(1) |      |
|       | of this section); and                                 |      |
|       |                                                       |      |
|       | \(ii\) The public agency is not required to consider  |      |
|       | the child as eligible for services under Sections     |      |
|       | 300.132 through 300.144.                              |      |
|       |                                                       |      |
|       | \(5\) To meet the reasonable efforts requirement in   |      |
|       | paragraphs (a)(1)(iii), (a)(2)(i), (b)(2), and        |      |
|       | (c)(2)(i) of this section, the public agency must     |      |
|       | document its attempts to obtain parental consent      |      |
|       | using the procedures in Sec. 300.322(d).              |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1414(a)(1)(D) and 1414(c))      |      |
|       |                                                       |      |
|       | Evaluations and Reevaluations                         |      |
|       |                                                       |      |
|       | Sec. 300.301 Initial evaluations.                     |      |
|       |                                                       |      |
|       | \(a\) General. Each public agency must conduct a full |      |
|       | and individual initial evaluation, in accordance with |      |
|       | Sections 300.305 and 300.306, before the initial      |      |
|       | provision of special education and related services   |      |
|       | to a child with a disability under this part.         |      |
|       |                                                       |      |
|       | \(b\) Request for initial evaluation. Consistent with |      |
|       | the consent requirements in Sec. 300.300, either a    |      |
|       | parent of a child or a public agency may initiate a   |      |
|       | request for an initial evaluation to determine if the |      |
|       | child is a child with a disability.                   |      |
|       |                                                       |      |
|       | \(c\) Procedures for initial evaluation. The initial  |      |
|       | evaluation\--                                         |      |
|       |                                                       |      |
|       | (1)(i) Must be conducted within 60 days of receiving  |      |
|       | parental consent for the evaluation; or               |      |
|       |                                                       |      |
|       | \(ii\) If the State establishes a timeframe within    |      |
|       | which the evaluation must be conducted, within that   |      |
|       | timeframe; and                                        |      |
|       |                                                       |      |
|       | \(2\) Must consist of procedures\--                   |      |
|       |                                                       |      |
|       | \(i\) To determine if the child is a child with a     |      |
|       | disability under Sec. 300.8; and                      |      |
|       |                                                       |      |
|       | \(ii\) To determine the educational needs of the      |      |
|       | child.                                                |      |
|       |                                                       |      |
|       | \(d\) Exception. The timeframe described in paragraph |      |
|       | (c)(1) of this section does not apply to a public     |      |
|       | agency if\--                                          |      |
|       |                                                       |      |
|       | \(1\) The parent of a child repeatedly fails or       |      |
|       | refuses to produce the child for the evaluation; or   |      |
|       |                                                       |      |
|       | \(2\) A child enrolls in a school of another public   |      |
|       | agency after the relevant timeframe in paragraph      |      |
|       | (c)(1) of this section has begun, and prior to a      |      |
|       | determination by the child\'s previous public agency  |      |
|       | as to whether the child is a child with a disability  |      |
|       | under Sec. 300.8.                                     |      |
|       |                                                       |      |
|       | \(e\) The exception in paragraph (d)(2) of this       |      |
|       | section applies only if the subsequent public agency  |      |
|       | is making sufficient progress to ensure a prompt      |      |
|       | completion of the evaluation, and the parent and      |      |
|       | subsequent public agency agree to a specific time     |      |
|       | when the evaluation will be completed.                |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1414(a))                        |      |
|       |                                                       |      |
|       | Sec. 300.302 Screening for instructional purposes is  |      |
|       | not evaluation.                                       |      |
|       |                                                       |      |
|       | The screening of a student by a teacher or specialist |      |
|       | to determine appropriate instructional strategies for |      |
|       | curriculum implementation shall not be considered to  |      |
|       | be an evaluation for eligibility for special          |      |
|       | education and related services.                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1414(a)(1)(E))                  |      |
|       |                                                       |      |
|       | Sec. 300.303 Reevaluations.                           |      |
|       |                                                       |      |
|       | \(a\) General. A public agency must ensure that a     |      |
|       | reevaluation of each child with a disability is       |      |
|       | conducted in accordance with Sections 300.304 through |      |
|       | 300.311\--                                            |      |
|       |                                                       |      |
|       | \(1\) If the public agency determines that the        |      |
|       | educational or related services needs, including      |      |
|       | improved academic achievement and functional          |      |
|       | performance, of the child warrant a reevaluation; or  |      |
|       |                                                       |      |
|       | \(2\) If the child\'s parent or teacher requests a    |      |
|       | reevaluation.                                         |      |
|       |                                                       |      |
|       | \(b\) Limitation. A reevaluation conducted under      |      |
|       | paragraph (a) of this section\--                      |      |
|       |                                                       |      |
|       | \(1\) May occur not more than once a year, unless the |      |
|       | parent and the public agency agree otherwise; and     |      |
|       |                                                       |      |
|       | \(2\) Must occur at least once every 3 years, unless  |      |
|       | the parent and the public agency agree that a         |      |
|       | reevaluation is unnecessary.                          |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1414(a)(2))                     |      |
|       |                                                       |      |
|       | Sec. 300.304 Evaluation procedures.                   |      |
|       |                                                       |      |
|       | \(a\) Notice. The public agency must provide notice   |      |
|       | to the parents of a child with a disability, in       |      |
|       | accordance with Sec. 300.503, that describes any      |      |
|       | evaluation procedures the agency proposes to conduct. |      |
|       |                                                       |      |
|       | \(b\) Conduct of evaluation. In conducting the        |      |
|       | evaluation, the public agency must\--                 |      |
|       |                                                       |      |
|       | \(1\) Use a variety of assessment tools and           |      |
|       | strategies to gather relevant functional,             |      |
|       | developmental, and academic information about the     |      |
|       | child, including information provided by the parent,  |      |
|       | that may assist in determining\--                     |      |
|       |                                                       |      |
|       | \(i\) Whether the child is a child with a disability  |      |
|       | under Sec. 300.8; and                                 |      |
|       |                                                       |      |
|       | \(ii\) The content of the child\'s IEP, including     |      |
|       | information related to enabling the child to be       |      |
|       | involved in and progress in the general education     |      |
|       | curriculum (or for a preschool child, to participate  |      |
|       | in appropriate activities);                           |      |
|       |                                                       |      |
|       | \(2\) Not use any single measure or assessment as the |      |
|       | sole criterion for determining whether a child is a   |      |
|       | child with a disability and for determining an        |      |
|       | appropriate educational program for the child; and    |      |
|       |                                                       |      |
|       | \(3\) Use technically sound instruments that may      |      |
|       | assess the relative contribution of cognitive and     |      |
|       | behavioral factors, in addition to physical or        |      |
|       | developmental factors.                                |      |
|       |                                                       |      |
|       | \(c\) Other evaluation procedures. Each public agency |      |
|       | must ensure that\--                                   |      |
|       |                                                       |      |
|       | 1\) Assessments and other evaluation materials used   |      |
|       | to assess a child under this part\--                  |      |
|       |                                                       |      |
|       | \(i\) Are selected and administered so as not to be   |      |
|       | discriminatory on a racial or cultural basis;         |      |
|       |                                                       |      |
|       | \(ii\) Are provided and administered in the child\'s  |      |
|       | native language or other mode of communication and in |      |
|       | the form most likely to yield accurate information on |      |
|       | what the child knows and can do academically,         |      |
|       | developmentally, and functionally, unless it is       |      |
|       | clearly not feasible to so provide or administer;     |      |
|       |                                                       |      |
|       | \(iii\) Are used for the purposes for which the       |      |
|       | assessments or measures are valid and reliable;       |      |
|       |                                                       |      |
|       | \(iv\) Are administered by trained and knowledgeable  |      |
|       | personnel; and                                        |      |
|       |                                                       |      |
|       | \(v\) Are administered in accordance with any         |      |
|       | instructions provided by the producer of the          |      |
|       | assessments.                                          |      |
|       |                                                       |      |
|       | \(2\) Assessments and other evaluation materials      |      |
|       | include those tailored to assess specific areas of    |      |
|       | educational need and not merely those that are        |      |
|       | designed to provide a single general intelligence     |      |
|       | quotient.                                             |      |
|       |                                                       |      |
|       | \(3\) Assessments are selected and administered so as |      |
|       | best to ensure that if an assessment is administered  |      |
|       | to a child with impaired sensory, manual, or speaking |      |
|       | skills, the assessment results accurately reflect the |      |
|       | child\'s aptitude or achievement level or whatever    |      |
|       | other factors the test purports to measure, rather    |      |
|       | than reflecting the child\'s impaired sensory,        |      |
|       | manual, or speaking skills (unless those skills are   |      |
|       | the factors that the test purports to measure).       |      |
|       |                                                       |      |
|       | \(4\) The child is assessed in all areas related to   |      |
|       | the suspected disability, including, if appropriate,  |      |
|       | health, vision, hearing, social and emotional status, |      |
|       | general intelligence, academic performance,           |      |
|       | communicative status, and motor abilities;            |      |
|       |                                                       |      |
|       | \(5\) Assessments of children with disabilities who   |      |
|       | transfer from one public agency to another public     |      |
|       | agency in the same school year are coordinated with   |      |
|       | those children\'s prior and subsequent schools, as    |      |
|       | necessary and as expeditiously as possible,           |      |
|       | consistent with Sec. 300.301(d)(2) and (e), to ensure |      |
|       | prompt completion of full evaluations.                |      |
|       |                                                       |      |
|       | \(6\) In evaluating each child with a disability      |      |
|       | under Sections 300.304 through 300.306, the           |      |
|       | evaluation is sufficiently comprehensive to identify  |      |
|       | all of the child\'s special education and related     |      |
|       | services needs, whether or not commonly linked to the |      |
|       | disability category in which the child has been       |      |
|       | classified.                                           |      |
|       |                                                       |      |
|       | \(7\) Assessment tools and strategies that provide    |      |
|       | relevant information that directly assists persons in |      |
|       | determining the educational needs of the child are    |      |
|       | provided.                                             |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1414(b)(1)-(3), 1412(a)(6)(B))  |      |
|       |                                                       |      |
|       | Sec. 300.305 Additional requirements for evaluations  |      |
|       | and reevaluations.                                    |      |
|       |                                                       |      |
|       | \(a\) Review of existing evaluation data. As part of  |      |
|       | an initial evaluation (if appropriate) and as part of |      |
|       | any reevaluation under this part, the IEP Team and    |      |
|       | other qualified professionals, as appropriate,        |      |
|       | must\--                                               |      |
|       |                                                       |      |
|       | \(1\) Review existing evaluation data on the child,   |      |
|       | including\--                                          |      |
|       |                                                       |      |
|       | \(i\) Evaluations and information provided by the     |      |
|       | parents of the child;                                 |      |
|       |                                                       |      |
|       | \(ii\) Current classroom-based, local, or State       |      |
|       | assessments, and classroom-based observations; and    |      |
|       |                                                       |      |
|       | \(iii\) Observations by teachers and related services |      |
|       | providers; and                                        |      |
|       |                                                       |      |
|       | \(2\) On the basis of that review, and input from the |      |
|       | child\'s parents, identify what additional data, if   |      |
|       | any, are needed to determine\--                       |      |
|       |                                                       |      |
|       | (i)(A) Whether the child is a child with a            |      |
|       | disability, as defined in Sec. 300.8, and the         |      |
|       | educational needs of the child; or                    |      |
|       |                                                       |      |
|       | \(B\) In case of a reevaluation of a child, whether   |      |
|       | the child continues to have such a disability, and    |      |
|       | the educational needs of the child;                   |      |
|       |                                                       |      |
|       | \(ii\) The present levels of academic achievement and |      |
|       | related developmental needs of the child;             |      |
|       |                                                       |      |
|       | (iii)(A) Whether the child needs special education    |      |
|       | and related services; or                              |      |
|       |                                                       |      |
|       | \(B\) In the case of a reevaluation of a child,       |      |
|       | whether the child continues to need special education |      |
|       | and related services; and                             |      |
|       |                                                       |      |
|       | \(iv\) Whether any additions or modifications to the  |      |
|       | special education and related services are needed to  |      |
|       | enable the child to meet the measurable annual goals  |      |
|       | set out in the IEP of the child and to participate,   |      |
|       | as appropriate, in the general education curriculum.  |      |
|       |                                                       |      |
|       | \(b\) Conduct of review. The group described in       |      |
|       | paragraph (a) of this section may conduct its review  |      |
|       | without a meeting.                                    |      |
|       |                                                       |      |
|       | \(c\) Source of data. The public agency must          |      |
|       | administer such assessments and other evaluation      |      |
|       | measures as may be needed to produce the data         |      |
|       | identified under paragraph (a) of this section.       |      |
|       |                                                       |      |
|       | \(d\) Requirements if additional data are not needed. |      |
|       |                                                       |      |
|       | \(1\) If the IEP Team and other qualified             |      |
|       | professionals, as appropriate, determine that no      |      |
|       | additional data are needed to determine whether the   |      |
|       | child continues to be a child with a disability, and  |      |
|       | to determine the child\'s educational needs, the      |      |
|       | public agency must notify the child\'s parents of\--  |      |
|       |                                                       |      |
|       | \(i\) That determination and the reasons for the      |      |
|       | determination; and                                    |      |
|       |                                                       |      |
|       | \(ii\) The right of the parents to request an         |      |
|       | assessment to determine whether the child continues   |      |
|       | to be a child with a disability, and to determine the |      |
|       | child\'s educational needs.                           |      |
|       |                                                       |      |
|       | \(2\) The public agency is not required to conduct    |      |
|       | the assessment described in paragraph (d)(1)(ii) of   |      |
|       | this section unless requested to do so by the         |      |
|       | child\'s parents.                                     |      |
|       |                                                       |      |
|       | \(e\) Evaluations before change in eligibility.       |      |
|       |                                                       |      |
|       | \(1\) Except as provided in paragraph (e)(2) of this  |      |
|       | section, a public agency must evaluate a child with a |      |
|       | disability in accordance with Sections 300.304        |      |
|       | through 300.311 before determining that the child is  |      |
|       | no longer a child with a disability.                  |      |
|       |                                                       |      |
|       | \(2\) The evaluation described in paragraph (e)(1) of |      |
|       | this section is not required before the termination   |      |
|       | of a child\'s eligibility under this part due to      |      |
|       | graduation from secondary school with a regular       |      |
|       | diploma, or due to exceeding the age eligibility for  |      |
|       | FAPE under State law.                                 |      |
|       |                                                       |      |
|       | \(3\) For a child whose eligibility terminates under  |      |
|       | circumstances described in paragraph (e)(2) of this   |      |
|       | section, a public agency must provide the child with  |      |
|       | a summary of the child\'s academic achievement and    |      |
|       | functional performance, which shall include           |      |
|       | recommendations on how to assist the child in meeting |      |
|       | the child\'s postsecondary goals.                     |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1414(c))                        |      |
|       |                                                       |      |
|       | Sec. 300.306 Determination of eligibility.            |      |
|       |                                                       |      |
|       | \(a\) General. Upon completion of the administration  |      |
|       | of assessments and other evaluation measures\--       |      |
|       |                                                       |      |
|       | \(1\) A group of qualified professionals and the      |      |
|       | parent of the child determines whether the child is a |      |
|       | child with a disability, as defined in Sec. 300.8, in |      |
|       | accordance with paragraph (b) of this section and the |      |
|       | educational needs of the child; and                   |      |
|       |                                                       |      |
|       | \(2\) The public agency provides a copy of the        |      |
|       | evaluation report and the documentation of            |      |
|       | determination of eligibility at no cost to the        |      |
|       | parent.                                               |      |
|       |                                                       |      |
|       | \(b\) Special rule for eligibility determination. A   |      |
|       | child must not be determined to be a child with a     |      |
|       | disability under this part\--                         |      |
|       |                                                       |      |
|       | \(1\) If the determinant factor for that              |      |
|       | determination is\--                                   |      |
|       |                                                       |      |
|       | \(i\) Lack of appropriate instruction in reading,     |      |
|       | including the essential components of reading         |      |
|       | instruction (as defined in section 1208(3) of the     |      |
|       | ESEA);                                                |      |
|       |                                                       |      |
|       | \(ii\) Lack of appropriate instruction in math; or    |      |
|       |                                                       |      |
|       | \(iii\) Limited English proficiency; and              |      |
|       |                                                       |      |
|       | \(2\) If the child does not otherwise meet the        |      |
|       | eligibility criteria under Sec. 300.8(a).             |      |
|       |                                                       |      |
|       | \(c\) Procedures for determining eligibility and      |      |
|       | educational need.                                     |      |
|       |                                                       |      |
|       | \(1\) In interpreting evaluation data for the purpose |      |
|       | of determining if a child is a child with a           |      |
|       | disability under Sec. 300.8, and the educational      |      |
|       | needs of the child, each public agency must\--        |      |
|       |                                                       |      |
|       | \(i\) Draw upon information from a variety of         |      |
|       | sources, including aptitude and achievement tests,    |      |
|       | parent input, and teacher recommendations, as well as |      |
|       | information about the child\'s physical condition,    |      |
|       | social or cultural background, and adaptive behavior; |      |
|       | and                                                   |      |
|       |                                                       |      |
|       | \(ii\) Ensure that information obtained from all of   |      |
|       | these sources is documented and carefully considered. |      |
|       |                                                       |      |
|       | \(2\) If a determination is made that a child has a   |      |
|       | disability and needs special education and related    |      |
|       | services, an IEP must be developed for the child in   |      |
|       | accordance with Sections 300.320 through 300.324.     |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1414(b)(4) and (5))             |      |
|       |                                                       |      |
|       | Additional Procedures for Identifying Children With   |      |
|       | Specific Learning Disabilities                        |      |
|       |                                                       |      |
|       | Sec. 300.307 Specific learning disabilities.          |      |
|       |                                                       |      |
|       | \(a\) General. A State must adopt, consistent with    |      |
|       | Sec. 300.309, criteria for determining whether a      |      |
|       | child has a specific learning disability as defined   |      |
|       | in Sec. 300.8(c)(10). In addition, the criteria       |      |
|       | adopted by the State\--                               |      |
|       |                                                       |      |
|       | \(1\) Must not require the use of a severe            |      |
|       | discrepancy between intellectual ability and          |      |
|       | achievement for determining whether a child has a     |      |
|       | specific learning disability, as defined in Sec.      |      |
|       | 300.8(c)(10);                                         |      |
|       |                                                       |      |
|       | \(2\) Must permit the use of a process based on the   |      |
|       | child\'s response to scientific, research-based       |      |
|       | intervention; and                                     |      |
|       |                                                       |      |
|       | \(3\) May permit the use of other alternative         |      |
|       | research-based procedures for determining whether a   |      |
|       | child has a specific learning disability, as defined  |      |
|       | in Sec. 300.8(c)(10).                                 |      |
|       |                                                       |      |
|       | \(b\) Consistency with State criteria. A public       |      |
|       | agency must use the State criteria adopted pursuant   |      |
|       | to paragraph (a) of this section in determining       |      |
|       | whether a child has a specific learning disability.   |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))  |      |
|       |                                                       |      |
|       | Sec. 300.308 Additional group members.                |      |
|       |                                                       |      |
|       | The determination of whether a child suspected of     |      |
|       | having a specific learning disability is a child with |      |
|       | a disability as defined in Sec. 300.8, must be made   |      |
|       | by the child\'s parents and a team of qualified       |      |
|       | professionals, which must include\--                  |      |
|       |                                                       |      |
|       | (a)(1) The child\'s regular teacher; or               |      |
|       |                                                       |      |
|       | \(2\) If the child does not have a regular teacher, a |      |
|       | regular classroom teacher qualified to teach a child  |      |
|       | of his or her age; or                                 |      |
|       |                                                       |      |
|       | \(3\) For a child of less than school age, an         |      |
|       | individual qualified by the SEA to teach a child of   |      |
|       | his or her age; and                                   |      |
|       |                                                       |      |
|       | \(b\) At least one person qualified to conduct        |      |
|       | individual diagnostic examinations of children, such  |      |
|       | as a school psychologist, speech-language             |      |
|       | pathologist, or remedial reading teacher.             |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))  |      |
|       |                                                       |      |
|       | Sec. 300.309 Determining the existence of a specific  |      |
|       | learning disability.                                  |      |
|       |                                                       |      |
|       | \(a\) The group described in Sec. 300.306 may         |      |
|       | determine that a child has a specific learning        |      |
|       | disability, as defined in Sec. 300.8(c)(10), if\--    |      |
|       |                                                       |      |
|       | \(1\) The child does not achieve adequately for the   |      |
|       | child\'s age or to meet State-approved grade-level    |      |
|       | standards in one or more of the following areas, when |      |
|       | provided with learning experiences and instruction    |      |
|       | appropriate for the child\'s age or State-approved    |      |
|       | grade-level standards:                                |      |
|       |                                                       |      |
|       | \(i\) Oral expression.                                |      |
|       |                                                       |      |
|       | \(ii\) Listening comprehension.                       |      |
|       |                                                       |      |
|       | \(iii\) Written expression.                           |      |
|       |                                                       |      |
|       | \(iv\) Basic reading skill.                           |      |
|       |                                                       |      |
|       | \(v\) Reading fluency skills.                         |      |
|       |                                                       |      |
|       | \(vi\) Reading comprehension.                         |      |
|       |                                                       |      |
|       | \(vii\) Mathematics calculation.                      |      |
|       |                                                       |      |
|       | \(viii\) Mathematics problem solving.                 |      |
|       |                                                       |      |
|       | (2)(i) The child does not make sufficient progress to |      |
|       | meet age or State-approved grade-level standards in   |      |
|       | one or more of the areas identified in paragraph      |      |
|       | (a)(1) of this section when using a process based on  |      |
|       | the child\'s response to scientific, research-based   |      |
|       | intervention; or                                      |      |
|       |                                                       |      |
|       | \(ii\) The child exhibits a pattern of strengths and  |      |
|       | weaknesses in performance, achievement, or both,      |      |
|       | relative to age, State-approved grade-level           |      |
|       | standards, or intellectual development, that is       |      |
|       | determined by the group to be relevant to the         |      |
|       | identification of a specific learning disability,     |      |
|       | using appropriate assessments, consistent with        |      |
|       | Sections 300.304 and 300.305; and                     |      |
|       |                                                       |      |
|       | \(3\) The group determines that its findings under    |      |
|       | paragraphs (a)(1) and (2) of this section are not     |      |
|       | primarily the result of\--                            |      |
|       |                                                       |      |
|       | \(i\) A visual, hearing, or motor disability;         |      |
|       |                                                       |      |
|       | \(ii\) Mental retardation;                            |      |
|       |                                                       |      |
|       | \(iii\) Emotional disturbance;                        |      |
|       |                                                       |      |
|       | \(iv\) Cultural factors;                              |      |
|       |                                                       |      |
|       | \(v\) Environmental or economic disadvantage; or      |      |
|       |                                                       |      |
|       | \(vi\) Limited English proficiency.                   |      |
|       |                                                       |      |
|       | \(b\) To ensure that underachievement in a child      |      |
|       | suspected of having a specific learning disability is |      |
|       | not due to lack of appropriate instruction in reading |      |
|       | or math, the group must consider, as part of the      |      |
|       | evaluation described in Sections 300.304 through      |      |
|       | 300.306\--                                            |      |
|       |                                                       |      |
|       | \(1\) Data that demonstrate that prior to, or as a    |      |
|       | part of, the referral process, the child was provided |      |
|       | appropriate instruction in regular education          |      |
|       | settings, delivered by qualified personnel; and       |      |
|       |                                                       |      |
|       | \(2\) Data-based documentation of repeated            |      |
|       | assessments of achievement at reasonable intervals,   |      |
|       | reflecting formal assessment of student progress      |      |
|       | during instruction, which was provided to the         |      |
|       | child\'s parents.                                     |      |
|       |                                                       |      |
|       | \(c\) The public agency must promptly request         |      |
|       | parental consent to evaluate the child to determine   |      |
|       | if the child needs special education and related      |      |
|       | services, and must adhere to the timeframes described |      |
|       | in Sections 300.301 and 300.303, unless extended by   |      |
|       | mutual written agreement of the child\'s parents and  |      |
|       | a group of qualified professionals, as described in   |      |
|       | Sec. 300.306(a)(1)\--                                 |      |
|       |                                                       |      |
|       | \(1\) If, prior to a referral, a child has not made   |      |
|       | adequate progress after an appropriate period of time |      |
|       | when provided instruction, as described in paragraphs |      |
|       | (b)(1) and (b)(2) of this section; and                |      |
|       |                                                       |      |
|       | \(2\) Whenever a child is referred for an evaluation. |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))  |      |
|       |                                                       |      |
|       | Sec. 300.310 Observation.                             |      |
|       |                                                       |      |
|       | \(a\) The public agency must ensure that the child is |      |
|       | observed in the child\'s learning environment         |      |
|       | (including the regular classroom setting) to document |      |
|       | the child\'s academic performance and behavior in the |      |
|       | areas of difficulty.                                  |      |
|       |                                                       |      |
|       | \(b\) The group described in Sec. 300.306(a)(1), in   |      |
|       | determining whether a child has a specific learning   |      |
|       | disability, must decide to\--                         |      |
|       |                                                       |      |
|       | \(1\) Use information from an observation in routine  |      |
|       | classroom instruction and monitoring of the child\'s  |      |
|       | performance that was done before the child was        |      |
|       | referred for an evaluation; or                        |      |
|       |                                                       |      |
|       | \(2\) Have at least one member of the group described |      |
|       | in Sec. 300.306(a)(1) conduct an observation of the   |      |
|       | child\'s academic performance in the regular          |      |
|       | classroom after the child has been referred for an    |      |
|       | evaluation and parental consent, consistent with Sec. |      |
|       | 300.300(a), is obtained.                              |      |
|       |                                                       |      |
|       | \(c\) In the case of a child of less than school age  |      |
|       | or out of school, a group member must observe the     |      |
|       | child in an environment appropriate for a child of    |      |
|       | that age.                                             |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))  |      |
|       |                                                       |      |
|       | Sec. 300.311 Specific documentation for the           |      |
|       | eligibility determination.                            |      |
|       |                                                       |      |
|       | \(a\) For a child suspected of having a specific      |      |
|       | learning disability, the documentation of the         |      |
|       | determination of eligibility, as required in Sec.     |      |
|       | 300.306(a)(2), must contain a statement of\--         |      |
|       |                                                       |      |
|       | \(1\) Whether the child has a specific learning       |      |
|       | disability;                                           |      |
|       |                                                       |      |
|       | \(2\) The basis for making the determination,         |      |
|       | including an assurance that the determination has     |      |
|       | been made in accordance with Sec. 300.306(c)(1);      |      |
|       |                                                       |      |
|       | \(3\) The relevant behavior, if any, noted during the |      |
|       | observation of the child and the relationship of that |      |
|       | behavior to the child\'s academic functioning;        |      |
|       |                                                       |      |
|       | \(4\) The educationally relevant medical findings, if |      |
|       | any;                                                  |      |
|       |                                                       |      |
|       | \(5\) Whether\--                                      |      |
|       |                                                       |      |
|       | \(i\) The child does not achieve adequately for the   |      |
|       | child\'s age or to meet State-approved grade-level    |      |
|       | standards consistent with Sec. 300.309(a)(1); and     |      |
|       |                                                       |      |
|       | (ii)(A) The child does not make sufficient progress   |      |
|       | to meet age or State-approved grade-level standards   |      |
|       | consistent with Sec. 300.309(a)(2)(i); or             |      |
|       |                                                       |      |
|       | \(B\) The child exhibits a pattern of strengths and   |      |
|       | weaknesses in performance, achievement, or both,      |      |
|       | relative to age, State-approved grade level standards |      |
|       | or intellectual development consistent with Sec.      |      |
|       | 300.309(a)(2)(ii);                                    |      |
|       |                                                       |      |
|       | \(6\) The determination of the group concerning the   |      |
|       | effects of a visual, hearing, or motor disability;    |      |
|       | mental retardation; emotional disturbance; cultural   |      |
|       | factors; environmental or economic disadvantage; or   |      |
|       | limited English proficiency on the child\'s           |      |
|       | achievement level; and                                |      |
|       |                                                       |      |
|       | \(7\) If the child has participated in a process that |      |
|       | assesses the child\'s response to scientific,         |      |
|       | research-based intervention\--                        |      |
|       |                                                       |      |
|       | \(i\) The instructional strategies used and the       |      |
|       | student-centered data collected; and                  |      |
|       |                                                       |      |
|       | \(ii\) The documentation that the child\'s parents    |      |
|       | were notified about\--                                |      |
|       |                                                       |      |
|       | \(A\) The State\'s policies regarding the amount and  |      |
|       | nature of student performance data that would be      |      |
|       | collected and the general education services that     |      |
|       | would be provided;                                    |      |
|       |                                                       |      |
|       | \(B\) Strategies for increasing the child\'s rate of  |      |
|       | learning; and                                         |      |
|       |                                                       |      |
|       | \(C\) The parents\' right to request an evaluation.   |      |
|       |                                                       |      |
|       | \(b\) Each group member must certify in writing       |      |
|       | whether the report reflects the member\'s conclusion. |      |
|       | If it does not reflect the member\'s conclusion, the  |      |
|       | group member must submit a separate statement         |      |
|       | presenting the member\'s conclusions.                 |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))  |      |
+-------+-------------------------------------------------------+------+
| **8** | Sec. 300.123 Confidentiality of personally            |      |
|       | identifiable information.                             |      |
|       |                                                       |      |
|       | The State must have policies and procedures in effect |      |
|       | to ensure that public agencies in the State comply    |      |
|       | with Sec. 300.610 through 300.626 related to          |      |
|       | protecting the confidentiality of any personally      |      |
|       | identifiable information collected, used, or          |      |
|       | maintained under Part B of the Act.                   |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(8); 1417(c))            |      |
|       |                                                       |      |
|       | Sec. 300.610 Confidentiality.                         |      |
|       |                                                       |      |
|       | The Secretary takes appropriate action, in accordance |      |
|       | with section 444 of GEPA, to ensure the protection of |      |
|       | the confidentiality of any personally identifiable    |      |
|       | data, information, and records collected or           |      |
|       | maintained by the Secretary and by SEAs and LEAs      |      |
|       | pursuant to Part B of the Act, and consistent with    |      |
|       | Sections 300.611 through 300.627.                     |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1417(c))                        |      |
|       |                                                       |      |
|       | Sec. 300.611 Definitions.                             |      |
|       |                                                       |      |
|       | As used in Sections 300.611 through 300.625\--        |      |
|       |                                                       |      |
|       | \(a\) Destruction means physical destruction or       |      |
|       | removal of personal identifiers from information so   |      |
|       | that the information is no longer personally          |      |
|       | identifiable.                                         |      |
|       |                                                       |      |
|       | \(b\) Education records means the type of records     |      |
|       | covered under the definition of \`\`education         |      |
|       | records\'\' in 34 CFR part 99 (the regulations        |      |
|       | implementing the Family Educational Rights and        |      |
|       | Privacy Act of 1974, 20 U.S.C. 1232g (FERPA)).        |      |
|       |                                                       |      |
|       | \(c\) Participating agency means any agency or        |      |
|       | institution that collects, maintains, or uses         |      |
|       | personally identifiable information, or from which    |      |
|       | information is obtained, under Part B of the Act.     |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1221e-3, 1412(a)(8), 1417(c))   |      |
|       |                                                       |      |
|       | Sec. 300.612 Notice to parents.                       |      |
|       |                                                       |      |
|       | \(a\) The SEA must give notice that is adequate to    |      |
|       | fully inform parents about the requirements of Sec.   |      |
|       | 300.123, including\--                                 |      |
|       |                                                       |      |
|       | \(1\) A description of the extent that the notice is  |      |
|       | given in the native languages of the various          |      |
|       | population groups in the State;                       |      |
|       |                                                       |      |
|       | \(2\) A description of the children on whom           |      |
|       | personally identifiable information is maintained,    |      |
|       | the types of information sought, the methods the      |      |
|       | State intends to use in gathering the information     |      |
|       | (including the sources from whom information is       |      |
|       | gathered), and the uses to be made of the             |      |
|       | information;                                          |      |
|       |                                                       |      |
|       | \(3\) A summary of the policies and procedures that   |      |
|       | participating agencies must follow regarding storage, |      |
|       | disclosure to third parties, retention, and           |      |
|       | destruction of personally identifiable information;   |      |
|       | and                                                   |      |
|       |                                                       |      |
|       | \(4\) A description of all of the rights of parents   |      |
|       | and children regarding this information, including    |      |
|       | the rights under FERPA and implementing regulations   |      |
|       | in 34 CFR part 99.                                    |      |
|       |                                                       |      |
|       | \(b\) Before any major identification, location, or   |      |
|       | evaluation activity, the notice must be published or  |      |
|       | announced in newspapers or other media, or both, with |      |
|       | circulation adequate to notify parents throughout the |      |
|       | State of the activity.                                |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(8); 1417(c))            |      |
|       |                                                       |      |
|       | Sec. 300.613 Access rights.                           |      |
|       |                                                       |      |
|       | \(a\) Each participating agency must permit parents   |      |
|       | to inspect and review any education records relating  |      |
|       | to their children that are collected, maintained, or  |      |
|       | used by the agency under this part. The agency must   |      |
|       | comply with a request without unnecessary delay and   |      |
|       | before any meeting regarding an IEP, or any hearing   |      |
|       | pursuant to Sec. 300.507 or Sections 300.530 through  |      |
|       | 300.532, or resolution session pursuant to Sec.       |      |
|       | 300.510, and in no case more than 45 days after the   |      |
|       | request has been made.                                |      |
|       |                                                       |      |
|       | \(b\) The right to inspect and review education       |      |
|       | records under this section includes\--                |      |
|       |                                                       |      |
|       | \(1\) The right to a response from the participating  |      |
|       | agency to reasonable requests for explanations and    |      |
|       | interpretations of the records;                       |      |
|       |                                                       |      |
|       | \(2\) The right to request that the agency provide    |      |
|       | copies of the records containing the information if   |      |
|       | failure to provide those copies would effectively     |      |
|       | prevent the parent from exercising the right to       |      |
|       | inspect and review the records; and                   |      |
|       |                                                       |      |
|       | \(3\) The right to have a representative of the       |      |
|       | parent inspect and review the records.                |      |
|       |                                                       |      |
|       | \(c\) An agency may presume that the parent has       |      |
|       | authority to inspect and review records relating to   |      |
|       | his or her child unless the agency has been advised   |      |
|       | that the parent does not have the authority under     |      |
|       | applicable State law governing such matters as        |      |
|       | guardianship, separation, and divorce.                |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(8); 1417(c))            |      |
|       |                                                       |      |
|       | Sec. 300.614 Record of access.                        |      |
|       |                                                       |      |
|       | Each participating agency must keep a record of       |      |
|       | parties obtaining access to education records         |      |
|       | collected, maintained, or used under Part B of the    |      |
|       | Act (except access by parents and authorized          |      |
|       | employees of the participating agency), including the |      |
|       | name of the party, the date access was given, and the |      |
|       | purpose for which the party is authorized to use the  |      |
|       | records.                                              |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(8); 1417(c))            |      |
|       |                                                       |      |
|       | Sec. 300.615 Records on more than one child.          |      |
|       |                                                       |      |
|       | If any education record includes information on more  |      |
|       | than one child, the parents of those children have    |      |
|       | the right to inspect and review only the information  |      |
|       | relating to their child or to be informed of that     |      |
|       | specific information.                                 |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(8); 1417(c))            |      |
|       |                                                       |      |
|       | Sec. 300.616 List of types and locations of           |      |
|       | information.                                          |      |
|       |                                                       |      |
|       | Each participating agency must provide parents on     |      |
|       | request a list of the types and locations of          |      |
|       | education records collected, maintained, or used by   |      |
|       | the agency.                                           |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(8); 1417(c))            |      |
|       |                                                       |      |
|       | Sec. 300.617 Fees.                                    |      |
|       |                                                       |      |
|       | \(a\) Each participating agency may charge a fee for  |      |
|       | copies of records that are made for parents under     |      |
|       | this part if the fee does not effectively prevent the |      |
|       | parents from exercising their right to inspect and    |      |
|       | review those records.                                 |      |
|       |                                                       |      |
|       | \(b\) A participating agency may not charge a fee to  |      |
|       | search for or to retrieve information under this      |      |
|       | part.                                                 |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(8); 1417(c))            |      |
|       |                                                       |      |
|       | Sec. 300.618 Amendment of records at parent\'s        |      |
|       | request.                                              |      |
|       |                                                       |      |
|       | \(a\) A parent who believes that information in the   |      |
|       | education records collected, maintained, or used      |      |
|       | under this part is inaccurate or misleading or        |      |
|       | violates the privacy or other rights of the child may |      |
|       | request the participating agency that maintains the   |      |
|       | information to amend the information.                 |      |
|       |                                                       |      |
|       | \(b\) The agency must decide whether to amend the     |      |
|       | information in accordance with the request within a   |      |
|       | reasonable period of time of receipt of the request.  |      |
|       |                                                       |      |
|       | \(c\) If the agency decides to refuse to amend the    |      |
|       | information in accordance with the request, it must   |      |
|       | inform the parent of the refusal and advise the       |      |
|       | parent of the right to a hearing under Sec. 300.619.  |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(8); 1417(c))            |      |
|       |                                                       |      |
|       | Sec. 300.619 Opportunity for a hearing.               |      |
|       |                                                       |      |
|       | The agency must, on request, provide an opportunity   |      |
|       | for a hearing to challenge information in education   |      |
|       | records to ensure that it is not inaccurate,          |      |
|       | misleading, or otherwise in violation of the privacy  |      |
|       | or other rights of the child.                         |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(8); 1417(c))            |      |
|       |                                                       |      |
|       | Sec. 300.620 Result of hearing.                       |      |
|       |                                                       |      |
|       | \(a\) If, as a result of the hearing, the agency      |      |
|       | decides that the information is inaccurate,           |      |
|       | misleading or otherwise in violation of the privacy   |      |
|       | or other rights of the child, it must amend the       |      |
|       | information accordingly and so inform the parent in   |      |
|       | writing.                                              |      |
|       |                                                       |      |
|       | \(b\) If, as a result of the hearing, the agency      |      |
|       | decides that the information is not inaccurate,       |      |
|       | misleading, or otherwise in violation of the privacy  |      |
|       | or other rights of the child, it must inform the      |      |
|       | parent of the parent\'s right to place in the records |      |
|       | the agency maintains on the child a statement         |      |
|       | commenting on the information or setting forth any    |      |
|       | reasons for disagreeing with the decision of the      |      |
|       | agency.                                               |      |
|       |                                                       |      |
|       | \(c\) Any explanation placed in the records of the    |      |
|       | child under this section must\--                      |      |
|       |                                                       |      |
|       | \(1\) Be maintained by the agency as part of the      |      |
|       | records of the child as long as the record or         |      |
|       | contested portion is maintained by the agency; and    |      |
|       |                                                       |      |
|       | \(2\) If the records of the child or the contested    |      |
|       | portion is disclosed by the agency to any party, the  |      |
|       | explanation must also be disclosed to the party.      |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(8); 1417(c))            |      |
|       |                                                       |      |
|       | Sec. 300.621 Hearing procedures.                      |      |
|       |                                                       |      |
|       | A hearing held under Sec. 300.619 must be conducted   |      |
|       | according to the procedures in 34 CFR 99.22.          |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(8); 1417(c))            |      |
|       |                                                       |      |
|       | Sec. 300.622 Consent.                                 |      |
|       |                                                       |      |
|       | \(a\) Parental consent must be obtained before        |      |
|       | personally identifiable information is disclosed to   |      |
|       | parties, other than officials of participating        |      |
|       | agencies in accordance with paragraph (b)(1) of this  |      |
|       | section, unless the information is contained in       |      |
|       | education records, and the disclosure is authorized   |      |
|       | without parental consent under 34 CFR part 99.        |      |
|       |                                                       |      |
|       | (b)(1) Except as provided in paragraphs (b)(2) and    |      |
|       | (b)(3) of this section, parental consent is not       |      |
|       | required before personally identifiable information   |      |
|       | is released to officials of participating agencies    |      |
|       | for purposes of meeting a requirement of this part.   |      |
|       |                                                       |      |
|       | \(2\) Parental consent, or the consent of an eligible |      |
|       | child who has reached the age of majority under State |      |
|       | law, must be obtained before personally identifiable  |      |
|       | information is released to officials of participating |      |
|       | agencies providing or paying for transition services  |      |
|       | in accordance with Sec. 300.321(b)(3).                |      |
|       |                                                       |      |
|       | \(3\) If a child is enrolled, or is going to enroll   |      |
|       | in a private school that is not located in the LEA of |      |
|       | the parent\'s residence, parental consent must be     |      |
|       | obtained before any personally identifiable           |      |
|       | information about the child is released between       |      |
|       | officials in the LEA where the private school is      |      |
|       | located and officials in the LEA of the parent\'s     |      |
|       | residence.                                            |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(8); 1417(c))            |      |
|       |                                                       |      |
|       | Sec. 300.623 Safeguards.                              |      |
|       |                                                       |      |
|       | \(a\) Each participating agency must protect the      |      |
|       | confidentiality of personally identifiable            |      |
|       | information at collection, storage, disclosure, and   |      |
|       | destruction stages.                                   |      |
|       |                                                       |      |
|       | \(b\) One official at each participating agency must  |      |
|       | assume responsibility for ensuring the                |      |
|       | confidentiality of any personally identifiable        |      |
|       | information.                                          |      |
|       |                                                       |      |
|       | \(c\) All persons collecting or using personally      |      |
|       | identifiable information must receive training or     |      |
|       | instruction regarding the State\'s policies and       |      |
|       | procedures under Sec. 300.123 and 34 CFR part 99.     |      |
|       |                                                       |      |
|       | \(d\) Each participating agency must maintain, for    |      |
|       | public inspection, a current listing of the names and |      |
|       | positions of those employees within the agency who    |      |
|       | may have access to personally identifiable            |      |
|       | information.                                          |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(8); 1417(c))            |      |
|       |                                                       |      |
|       | Sec. 300.624 Destruction of information.              |      |
|       |                                                       |      |
|       | \(a\) The public agency must inform parents when      |      |
|       | personally identifiable information collected,        |      |
|       | maintained, or used under this part is no longer      |      |
|       | needed to provide educational services to the child.  |      |
|       |                                                       |      |
|       | \(b\) The information must be destroyed at the        |      |
|       | request of the parents. However, a permanent record   |      |
|       | of a student\'s name, address, and phone number, his  |      |
|       | or her grades, attendance record, classes attended,   |      |
|       | grade level completed, and year completed may be      |      |
|       | maintained without time limitation.                   |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(8); 1417(c))            |      |
|       |                                                       |      |
|       | Sec. 300.625 Children\'s rights.                      |      |
|       |                                                       |      |
|       | \(a\) The SEA must have in effect policies and        |      |
|       | procedures regarding the extent to which children are |      |
|       | afforded rights of privacy similar to those afforded  |      |
|       | to parents, taking into consideration the age of the  |      |
|       | child and type or severity of disability.             |      |
|       |                                                       |      |
|       | \(b\) Under the regulations for FERPA in 34 CFR       |      |
|       | 99.5(a), the rights of parents regarding education    |      |
|       | records are transferred to the student at age 18.     |      |
|       |                                                       |      |
|       | \(c\) If the rights accorded to parents under Part B  |      |
|       | of the Act are transferred to a student who reaches   |      |
|       | the age of majority, consistent with Sec. 300.520,    |      |
|       | the rights regarding educational records in Sections  |      |
|       | 300.613 through 300.624 must also be transferred to   |      |
|       | the student. However, the public agency must provide  |      |
|       | any notice required under section 615 of the Act to   |      |
|       | the student and the parents.                          |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(8); 1417(c))            |      |
|       |                                                       |      |
|       | Sec. 300.626 Enforcement.                             |      |
|       |                                                       |      |
|       | The SEA must have in effect the policies and          |      |
|       | procedures, including sanctions that the State uses,  |      |
|       | to ensure that its policies and procedures consistent |      |
|       | with Sections 300.611 through 300.625 are followed    |      |
|       | and that the requirements of the Act and the          |      |
|       | regulations in this part are met.                     |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(8); 1417(c))            |      |
+-------+-------------------------------------------------------+------+
| **9** | Sec. 300.124 Transition of children from the Part C   |      |
|       | program to preschool programs.                        |      |
|       |                                                       |      |
|       | The State must have in effect policies and procedures |      |
|       | to ensure that\--                                     |      |
|       |                                                       |      |
|       | \(a\) Children participating in early intervention    |      |
|       | programs assisted under Part C of the Act, and who    |      |
|       | will participate in preschool programs assisted under |      |
|       | Part B of the Act, experience a smooth and effective  |      |
|       | transition to those preschool programs in a manner    |      |
|       | consistent with section 637(a)(9) of the Act;         |      |
|       |                                                       |      |
|       | \(b\) By the third birthday of a child described in   |      |
|       | paragraph (a) of this section, an IEP or, if          |      |
|       | consistent with Sec. 300.323(b) and section 636(d) of |      |
|       | the Act, an IFSP, has been developed and is being     |      |
|       | implemented for the child consistent with Sec.        |      |
|       | 300.101(b); and                                       |      |
|       |                                                       |      |
|       | \(c\) Each affected LEA will participate in           |      |
|       | transition planning conferences arranged by the       |      |
|       | designated lead agency under section 635(a)(10) of    |      |
|       | the Act.                                              |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(9))                     |      |
|       |                                                       |      |
|       | Sec. 300.323 When IEPs must be in effect.             |      |
|       |                                                       |      |
|       | \(b\) IEP or IFSP for children aged three through     |      |
|       | five.                                                 |      |
|       |                                                       |      |
|       | \(1\) In the case of a child with a disability aged   |      |
|       | three through five (or, at the discretion of the SEA, |      |
|       | a two-year-old child with a disability who will turn  |      |
|       | age three during the school year), the IEP Team must  |      |
|       | consider an IFSP that contains the IFSP content       |      |
|       | (including the natural environments statement)        |      |
|       | described in section 636(d) of the Act and its        |      |
|       | implementing regulations (including an educational    |      |
|       | component that promotes school readiness and          |      |
|       | incorporates pre-literacy, language, and numeracy     |      |
|       | skills for children with IFSPs under this section who |      |
|       | are at least three years of age), and that is         |      |
|       | developed in accordance with the IEP procedures under |      |
|       | this part. The IFSP may serve as the IEP of the       |      |
|       | child, if using the IFSP as the IEP is\--             |      |
|       |                                                       |      |
|       | \(i\) Consistent with State policy; and               |      |
|       |                                                       |      |
|       | \(ii\) Agreed to by the agency and the child\'s       |      |
|       | parents.                                              |      |
|       |                                                       |      |
|       | > \(2\) In implementing the requirements of paragraph |      |
|       | > (b)(1) of this section, the public agency must\--   |      |
|       |                                                       |      |
|       | \(i\) Provide to the child\'s parents a detailed      |      |
|       | explanation of the differences between an IFSP and an |      |
|       | IEP; and                                              |      |
|       |                                                       |      |
|       | \(ii\) If the parents choose an IFSP, obtain written  |      |
|       | informed consent from the parents.                    |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1414(d)(2)(A)-(C))              |      |
+-------+-------------------------------------------------------+------+
| *     | Sec. 300.129 State responsibility regarding children  |      |
| *10** | in private schools.                                   |      |
|       |                                                       |      |
|       | The State must have in effect policies and procedures |      |
|       | that ensure that LEAs, and, if applicable, the SEA,   |      |
|       | meet the private school requirements in Sections      |      |
|       | 300.130 through 300.148.                              |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(10))                    |      |
|       |                                                       |      |
|       | Children With Disabilities Enrolled by Their Parents  |      |
|       | in Private Schools                                    |      |
|       |                                                       |      |
|       | Sec. 300.130 Definition of parentally-placed private  |      |
|       | school children with disabilities.                    |      |
|       |                                                       |      |
|       | Parentally-placed private school children with        |      |
|       | disabilities means children with disabilities         |      |
|       | enrolled by their parents in private, including       |      |
|       | religious, schools or facilities that meet the        |      |
|       | definition of elementary school in Sec. 300.13 or     |      |
|       | secondary school in Sec. 300.36, other than children  |      |
|       | with disabilities covered under Sections 300.145      |      |
|       | through 300.147.                                      |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(10)(A))                 |      |
|       |                                                       |      |
|       | Sec. 300.131 Child find for parentally-placed private |      |
|       | school children with disabilities.                    |      |
|       |                                                       |      |
|       | \(a\) General. Each LEA must locate, identify, and    |      |
|       | evaluate all children with disabilities who are       |      |
|       | enrolled by their parents in private, including       |      |
|       | religious, elementary schools and secondary schools   |      |
|       | located in the school district served by the LEA, in  |      |
|       | accordance with paragraphs (b) through (e) of this    |      |
|       | section, and Sections 300.111 and 300.201.            |      |
|       |                                                       |      |
|       | \(b\) Child find design. The child find process must  |      |
|       | be designed to ensure\--                              |      |
|       |                                                       |      |
|       | \(1\) The equitable participation of                  |      |
|       | parentally-placed private school children; and        |      |
|       |                                                       |      |
|       | \(2\) An accurate count of those children.            |      |
|       |                                                       |      |
|       | \(c\) Activities. In carrying out the requirements of |      |
|       | this section, the LEA, or, if applicable, the SEA,    |      |
|       | must undertake activities similar to the activities   |      |
|       | undertaken for the agency\'s public school children.  |      |
|       |                                                       |      |
|       | \(d\) Cost. The cost of carrying out the child find   |      |
|       | requirements in this section, including individual    |      |
|       | evaluations, may not be considered in determining if  |      |
|       | an LEA has met its obligation under Sec. 300.133.     |      |
|       |                                                       |      |
|       | \(e\) Completion period. The child find process must  |      |
|       | be completed in a time period comparable to that for  |      |
|       | students attending public schools in the LEA          |      |
|       | consistent with Sec. 300.301.                         |      |
|       |                                                       |      |
|       | \(f\) Out-of-State children. Each LEA in which        |      |
|       | private, including religious, elementary schools and  |      |
|       | secondary schools are located must, in carrying out   |      |
|       | the child find requirements in this section, include  |      |
|       | parentally-placed private school children who reside  |      |
|       | in a State other than the State in which the private  |      |
|       | schools that they attend are located.                 |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(10)(A)(ii))             |      |
|       |                                                       |      |
|       | Sec. 300.132 Provision of services for                |      |
|       | parentally-placed private school children with        |      |
|       | disabilities\--basic requirement.                     |      |
|       |                                                       |      |
|       | \(a\) General. To the extent consistent with the      |      |
|       | number and location of children with disabilities who |      |
|       | are enrolled by their parents in private, including   |      |
|       | religious, elementary schools and secondary schools   |      |
|       | located in the school district served by the LEA,     |      |
|       | provision is made for the participation of those      |      |
|       | children in the program assisted or carried out under |      |
|       | Part B of the Act by providing them with special      |      |
|       | education and related services, including direct      |      |
|       | services determined in accordance with Sec. 300.137,  |      |
|       | unless the Secretary has arranged for services to     |      |
|       | those children under the by-pass provisions in        |      |
|       | Sections 300.190 through 300.198.                     |      |
|       |                                                       |      |
|       | \(b\) Services plan for parentally-placed private     |      |
|       | school children with disabilities. In accordance with |      |
|       | paragraph (a) of this section and Sections 300.137    |      |
|       | through 300.139, a services plan must be developed    |      |
|       | and implemented for each private school child with a  |      |
|       | disability who has been designated by the LEA in      |      |
|       | which the private school is located to receive        |      |
|       | special education and related services under this     |      |
|       | part.                                                 |      |
|       |                                                       |      |
|       | \(c\) Record keeping. Each LEA must maintain in its   |      |
|       | records, and provide to the SEA, the following        |      |
|       | information related to parentally-placed private      |      |
|       | school children covered under Sections 300.130        |      |
|       | through 300.144:                                      |      |
|       |                                                       |      |
|       | \(1\) The number of children evaluated;               |      |
|       |                                                       |      |
|       | \(2\) The number of children determined to be         |      |
|       | children with disabilities; and                       |      |
|       |                                                       |      |
|       | \(3\) The number of children served.                  |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control numbers 1820-0030 and 1820-0600)        |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(10)(A)(i))              |      |
|       |                                                       |      |
|       | Sec. 300.133 Expenditures.                            |      |
|       |                                                       |      |
|       | \(a\) Formula. To meet the requirement of Sec.        |      |
|       | 300.132(a), each LEA must spend the following on      |      |
|       | providing special education and related services      |      |
|       | (including direct services) to parentally-placed      |      |
|       | private school children with disabilities:            |      |
|       |                                                       |      |
|       | \(1\) For children aged 3 through 21, an amount that  |      |
|       | is the same proportion of the LEA\'s total subgrant   |      |
|       | under section 611(f) of the Act as the number of      |      |
|       | private school children with disabilities aged 3      |      |
|       | through 21 who are enrolled by their parents in       |      |
|       | private, including religious, elementary schools and  |      |
|       | secondary schools located in the school district      |      |
|       | served by the LEA, is to the total number of children |      |
|       | with disabilities in its jurisdiction aged 3 through  |      |
|       | 21.                                                   |      |
|       |                                                       |      |
|       | (2)(i) For children aged three through five, an       |      |
|       | amount that is the same proportion of the LEA\'s      |      |
|       | total subgrant under section 619(g) of the Act as the |      |
|       | number of parentally-placed private school children   |      |
|       | with disabilities aged three through five who are     |      |
|       | enrolled by their parents in a private, including     |      |
|       | religious, elementary school located in the school    |      |
|       | district served by the LEA, is to the total number of |      |
|       | children with disabilities in its jurisdiction aged   |      |
|       | three through five.                                   |      |
|       |                                                       |      |
|       | \(ii\) As described in paragraph (a)(2)(i) of this    |      |
|       | section, children aged three through five are         |      |
|       | considered to be parentally-placed private school     |      |
|       | children with disabilities enrolled by their parents  |      |
|       | in private, including religious, elementary schools,  |      |
|       | if they are enrolled in a private school that meets   |      |
|       | the definition of elementary school in Sec. 300.13.   |      |
|       |                                                       |      |
|       | \(3\) If an LEA has not expended for equitable        |      |
|       | services all of the funds described in paragraphs     |      |
|       | (a)(1) and (a)(2) of this section by the end of the   |      |
|       | fiscal year for which Congress appropriated the       |      |
|       | funds, the LEA must obligate the remaining funds for  |      |
|       | special education and related services (including     |      |
|       | direct services) to parentally-placed private school  |      |
|       | children with disabilities during a carry-over period |      |
|       | of one additional year.                               |      |
|       |                                                       |      |
|       | \(b\) Calculating proportionate amount. In            |      |
|       | calculating the proportionate amount of Federal funds |      |
|       | to be provided for parentally-placed private school   |      |
|       | children with disabilities, the LEA, after timely and |      |
|       | meaningful consultation with representatives of       |      |
|       | private schools under Sec. 300.134, must conduct a    |      |
|       | thorough and complete child find process to determine |      |
|       | the number of parentally-placed children with         |      |
|       | disabilities attending private schools located in the |      |
|       | LEA. (See Appendix B for an example of how            |      |
|       | proportionate share is calculated).                   |      |
|       |                                                       |      |
|       | \(c\) Annual count of the number of parentally-placed |      |
|       | private school children with disabilities.            |      |
|       |                                                       |      |
|       | \(1\) Each LEA must\--                                |      |
|       |                                                       |      |
|       | \(i\) After timely and meaningful consultation with   |      |
|       | representatives of parentally-placed private school   |      |
|       | children with disabilities (consistent with Sec.      |      |
|       | 300.134), determine the number of parentally-placed   |      |
|       | private school children with disabilities attending   |      |
|       | private schools located in the LEA; and               |      |
|       |                                                       |      |
|       | \(ii\) Ensure that the count is conducted on any date |      |
|       | between October 1 and December 1, inclusive, of each  |      |
|       | year.                                                 |      |
|       |                                                       |      |
|       | \(2\) The count must be used to determine the amount  |      |
|       | that the LEA must spend on providing special          |      |
|       | education and related services to parentally-placed   |      |
|       | private school children with disabilities in the next |      |
|       | subsequent fiscal year.                               |      |
|       |                                                       |      |
|       | \(d\) Supplement, not supplant. State and local funds |      |
|       | may supplement and in no case supplant the            |      |
|       | proportionate amount of Federal funds required to be  |      |
|       | expended for parentally-placed private school         |      |
|       | children with disabilities under this part.           |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(10)(A))                 |      |
|       |                                                       |      |
|       | Sec. 300.134 Consultation.                            |      |
|       |                                                       |      |
|       | To ensure timely and meaningful consultation, an LEA, |      |
|       | or, if appropriate, an SEA, must consult with private |      |
|       | school representatives and representatives of parents |      |
|       | of parentally-placed private school children with     |      |
|       | disabilities during the design and development of     |      |
|       | special education and related services for the        |      |
|       | children regarding the following:                     |      |
|       |                                                       |      |
|       | \(a\) Child find. The child find process,             |      |
|       | including\--                                          |      |
|       |                                                       |      |
|       | \(1\) How parentally-placed private school children   |      |
|       | suspected of having a disability can participate      |      |
|       | equitably; and                                        |      |
|       |                                                       |      |
|       | \(2\) How parents, teachers, and private school       |      |
|       | officials will be informed of the process.            |      |
|       |                                                       |      |
|       | \(b\) Proportionate share of funds. The determination |      |
|       | of the proportionate share of Federal funds available |      |
|       | to serve parentally-placed private school children    |      |
|       | with disabilities under Sec. 300.133(b), including    |      |
|       | the determination of how the proportionate share of   |      |
|       | those funds was calculated.                           |      |
|       |                                                       |      |
|       | \(c\) Consultation process. The consultation process  |      |
|       | among the LEA, private school officials, and          |      |
|       | representatives of parents of parentally-placed       |      |
|       | private school children with disabilities, including  |      |
|       | how the process will operate throughout the school    |      |
|       | year to ensure that parentally-placed children with   |      |
|       | disabilities identified through the child find        |      |
|       | process can meaningfully participate in special       |      |
|       | education and related services.                       |      |
|       |                                                       |      |
|       | \(d\) Provision of special education and related      |      |
|       | services. How, where, and by whom special education   |      |
|       | and related services will be provided for             |      |
|       | parentally-placed private school children with        |      |
|       | disabilities, including a discussion of\--            |      |
|       |                                                       |      |
|       | \(1\) The types of services, including direct         |      |
|       | services and alternate service delivery mechanisms;   |      |
|       | and                                                   |      |
|       |                                                       |      |
|       | \(2\) How special education and related services will |      |
|       | be apportioned if funds are insufficient to serve all |      |
|       | parentally-placed private school children; and        |      |
|       |                                                       |      |
|       | \(3\) How and when those decisions will be made;      |      |
|       |                                                       |      |
|       | \(e\) Written explanation by LEA regarding services.  |      |
|       | How, if the LEA disagrees with the views of the       |      |
|       | private school officials on the provision of services |      |
|       | or the types of services (whether provided directly   |      |
|       | or through a contract), the LEA will provide to the   |      |
|       | private school officials a written explanation of the |      |
|       | reasons why the LEA chose not to provide services     |      |
|       | directly or through a contract.                       |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control numbers 1820-0030 and 1820-0600)        |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(10)(A)(iii))            |      |
|       |                                                       |      |
|       | Sec. 300.135 Written affirmation.                     |      |
|       |                                                       |      |
|       | \(a\) When timely and meaningful consultation, as     |      |
|       | required by Sec. 300.134, has occurred, the LEA must  |      |
|       | obtain a written affirmation signed by the            |      |
|       | representatives of participating private schools.     |      |
|       |                                                       |      |
|       | \(b\) If the representatives do not provide the       |      |
|       | affirmation within a reasonable period of time, the   |      |
|       | LEA must forward the documentation of the             |      |
|       | consultation process to the SEA.                      |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control numbers 1820-0030 and 1820-0600)        |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(10)(A)(iv))             |      |
|       |                                                       |      |
|       | Sec. 300.136 Compliance.                              |      |
|       |                                                       |      |
|       | \(a\) General. A private school official has the      |      |
|       | right to submit a complaint to the SEA that the       |      |
|       | LEA\--                                                |      |
|       |                                                       |      |
|       | \(1\) Did not engage in consultation that was         |      |
|       | meaningful and timely; or                             |      |
|       |                                                       |      |
|       | \(2\) Did not give due consideration to the views of  |      |
|       | the private school official.                          |      |
|       |                                                       |      |
|       | \(b\) Procedure.                                      |      |
|       |                                                       |      |
|       | \(1\) If the private school official wishes to submit |      |
|       | a complaint, the official must provide to the SEA the |      |
|       | basis of the noncompliance by the LEA with the        |      |
|       | applicable private school provisions in this part;    |      |
|       | and                                                   |      |
|       |                                                       |      |
|       | \(2\) The LEA must forward the appropriate            |      |
|       | documentation to the SEA.                             |      |
|       |                                                       |      |
|       | (3)(i) If the private school official is dissatisfied |      |
|       | with the decision of the SEA, the official may submit |      |
|       | a complaint to the Secretary by providing the         |      |
|       | information on noncompliance described in paragraph   |      |
|       | (b)(1) of this section; and                           |      |
|       |                                                       |      |
|       | \(ii\) The SEA must forward the appropriate           |      |
|       | documentation to the Secretary.                       |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control numbers 1820-0030 and 1820-0600)        |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(10)(A)(v))              |      |
|       |                                                       |      |
|       | Sec. 300.137 Equitable services determined.           |      |
|       |                                                       |      |
|       | \(a\) No individual right to special education and    |      |
|       | related services. No parentally-placed private school |      |
|       | child with a disability has an individual right to    |      |
|       | receive some or all of the special education and      |      |
|       | related services that the child would receive if      |      |
|       | enrolled in a public school.                          |      |
|       |                                                       |      |
|       | \(b\) Decisions.                                      |      |
|       |                                                       |      |
|       | \(1\) Decisions about the services that will be       |      |
|       | provided to parentally-placed private school children |      |
|       | with disabilities under Sections 300.130 through      |      |
|       | 300.144 must be made in accordance with paragraph (c) |      |
|       | of this section and Sec. 300.134(c).                  |      |
|       |                                                       |      |
|       | \(2\) The LEA must make the final decisions with      |      |
|       | respect to the services to be provided to eligible    |      |
|       | parentally-placed private school children with        |      |
|       | disabilities.                                         |      |
|       |                                                       |      |
|       | \(c\) Services plan for each child served under       |      |
|       | Sections 300.130 through 300.144. If a child with a   |      |
|       | disability is enrolled in a religious or other        |      |
|       | private school by the child\'s parents and will       |      |
|       | receive special education or related services from an |      |
|       | LEA, the LEA must\--                                  |      |
|       |                                                       |      |
|       | \(1\) Initiate and conduct meetings to develop,       |      |
|       | review, and revise a services plan for the child, in  |      |
|       | accordance with Sec. 300.138(b); and                  |      |
|       |                                                       |      |
|       | \(2\) Ensure that a representative of the religious   |      |
|       | or other private school attends each meeting. If the  |      |
|       | representative cannot attend, the LEA shall use other |      |
|       | methods to ensure participation by the religious or   |      |
|       | other private school, including individual or         |      |
|       | conference telephone calls.                           |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(10)(A))                 |      |
|       |                                                       |      |
|       | Sec. 300.138 Equitable services provided.             |      |
|       |                                                       |      |
|       | \(a\) General.                                        |      |
|       |                                                       |      |
|       | \(1\) The services provided to parentally-placed      |      |
|       | private school children with disabilities must be     |      |
|       | provided by personnel meeting the same standards as   |      |
|       | personnel providing services in the public schools,   |      |
|       | except that private elementary school and secondary   |      |
|       | school teachers who are providing equitable services  |      |
|       | to parentally-placed private school children with     |      |
|       | disabilities do not have to meet the highly qualified |      |
|       | special education teacher requirements of Sec.        |      |
|       | 300.18.                                               |      |
|       |                                                       |      |
|       | \(2\) Parentally-placed private school children with  |      |
|       | disabilities may receive a different amount of        |      |
|       | services than children with disabilities in public    |      |
|       | schools.                                              |      |
|       |                                                       |      |
|       | \(b\) Services provided in accordance with a services |      |
|       | plan.                                                 |      |
|       |                                                       |      |
|       | \(1\) Each parentally-placed private school child     |      |
|       | with a disability who has been designated to receive  |      |
|       | services under Sec. 300.132 must have a services plan |      |
|       | that describes the specific special education and     |      |
|       | related services that the LEA will provide to the     |      |
|       | child in light of the services that the LEA has       |      |
|       | determined, through the process described in Sections |      |
|       | 300.134 and 300.137, it will make available to        |      |
|       | parentally-placed private school children with        |      |
|       | disabilities.                                         |      |
|       |                                                       |      |
|       | \(2\) The services plan must, to the extent           |      |
|       | appropriate\--                                        |      |
|       |                                                       |      |
|       | \(i\) Meet the requirements of Sec. 300.320, or for a |      |
|       | child ages three through five, meet the requirements  |      |
|       | of Sec. 300.323(b) with respect to the services       |      |
|       | provided; and                                         |      |
|       |                                                       |      |
|       | \(ii\) Be developed, reviewed, and revised consistent |      |
|       | with Sections 300.321 through 300.324.                |      |
|       |                                                       |      |
|       | \(c\) Provision of equitable services.                |      |
|       |                                                       |      |
|       | \(1\) The provision of services pursuant to this      |      |
|       | section and Sections 300.139 through 300.143 must be  |      |
|       | provided:                                             |      |
|       |                                                       |      |
|       | \(i\) By employees of a public agency; or             |      |
|       |                                                       |      |
|       | \(ii\) Through contract by the public agency with an  |      |
|       | individual, association, agency, organization, or     |      |
|       | other entity.                                         |      |
|       |                                                       |      |
|       | \(2\) Special education and related services provided |      |
|       | to parentally-placed private school children with     |      |
|       | disabilities, including materials and equipment, must |      |
|       | be secular, neutral, and nonideological.              |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(10)(A)(vi))             |      |
|       |                                                       |      |
|       | Sec. 300.139 Location of services and transportation. |      |
|       |                                                       |      |
|       | \(a\) Services on private school premises. Services   |      |
|       | to parentally-placed private school children with     |      |
|       | disabilities may be provided on the premises of       |      |
|       | private, including religious, schools, to the extent  |      |
|       | consistent with law.                                  |      |
|       |                                                       |      |
|       | \(b\) Transportation\--                               |      |
|       |                                                       |      |
|       | \(1\) General.                                        |      |
|       |                                                       |      |
|       | \(i\) If necessary for the child to benefit from or   |      |
|       | participate in the services provided under this part, |      |
|       | a parentally-placed private school child with a       |      |
|       | disability must be provided transportation\--         |      |
|       |                                                       |      |
|       | \(A\) From the child\'s school or the child\'s home   |      |
|       | to a site other than the private school; and          |      |
|       |                                                       |      |
|       | \(B\) From the service site to the private school, or |      |
|       | to the child\'s home, depending on the timing of the  |      |
|       | services.                                             |      |
|       |                                                       |      |
|       | \(ii\) LEAs are not required to provide               |      |
|       | transportation from the child\'s home to the private  |      |
|       | school.                                               |      |
|       |                                                       |      |
|       | \(2\) Cost of transportation. The cost of the         |      |
|       | transportation described in paragraph (b)(1)(i) of    |      |
|       | this section may be included in calculating whether   |      |
|       | the LEA has met the requirement of Sec. 300.133.      |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(10)(A))                 |      |
|       |                                                       |      |
|       | Sec. 300.140 Due process complaints and State         |      |
|       | complaints.                                           |      |
|       |                                                       |      |
|       | \(a\) Due process not applicable, except for child    |      |
|       | find. (1) Except as provided in paragraph (b) of this |      |
|       | section, the procedures in Sections 300.504 through   |      |
|       | 300.519 do not apply to complaints that an LEA has    |      |
|       | failed to meet the requirements of Sections 300.132   |      |
|       | through 300.139, including the provision of services  |      |
|       | indicated on the child\'s services plan.              |      |
|       |                                                       |      |
|       | \(b\) Child find complaints\--to be filed with the    |      |
|       | LEA in which the private school is located.           |      |
|       |                                                       |      |
|       | \(1\) The procedures in Sections 300.504 through      |      |
|       | 300.519 apply to complaints that an LEA has failed to |      |
|       | meet the child find requirements in Sec. 300.131,     |      |
|       | including the requirements in Sections 300.300        |      |
|       | through 300.311.                                      |      |
|       |                                                       |      |
|       | \(2\) Any due process complaint regarding the child   |      |
|       | find requirements (as described in paragraph (b)(1)   |      |
|       | of this section) must be filed with the LEA in which  |      |
|       | the private school is located and a copy must be      |      |
|       | forwarded to the SEA.                                 |      |
|       |                                                       |      |
|       | \(c\) State complaints.                               |      |
|       |                                                       |      |
|       | \(1\) Any complaint that an SEA or LEA has failed to  |      |
|       | meet the requirements in Sections 300.132 through     |      |
|       | 300.135 and 300.137 through 300.144 must be filed in  |      |
|       | accordance with the procedures described in Sections  |      |
|       | 300.151 through 300.153.                              |      |
|       |                                                       |      |
|       | \(2\) A complaint filed by a private school official  |      |
|       | under Sec. 300.136(a) must be filed with the SEA in   |      |
|       | accordance with the procedures in Sec. 300.136(b).    |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(10)(A))                 |      |
|       |                                                       |      |
|       | Sec. 300.141 Requirement that funds not benefit a     |      |
|       | private school.                                       |      |
|       |                                                       |      |
|       | \(a\) An LEA may not use funds provided under section |      |
|       | 611 or 619 of the Act to finance the existing level   |      |
|       | of instruction in a private school or to otherwise    |      |
|       | benefit the private school.                           |      |
|       |                                                       |      |
|       | \(b\) The LEA must use funds provided under Part B of |      |
|       | the Act to meet the special education and related     |      |
|       | services needs of parentally-placed private school    |      |
|       | children with disabilities, but not for meeting\--    |      |
|       |                                                       |      |
|       | \(1\) The needs of a private school; or               |      |
|       |                                                       |      |
|       | \(2\) The general needs of the students enrolled in   |      |
|       | the private school.                                   |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(10)(A))                 |      |
|       |                                                       |      |
|       | Sec. 300.142 Use of personnel.                        |      |
|       |                                                       |      |
|       | \(a\) Use of public school personnel. An LEA may use  |      |
|       | funds available under sections 611 and 619 of the Act |      |
|       | to make public school personnel available in other    |      |
|       | than public facilities\--                             |      |
|       |                                                       |      |
|       | \(1\) To the extent necessary to provide services     |      |
|       | under Sections 300.130 through 300.144 for            |      |
|       | parentally-placed private school children with        |      |
|       | disabilities; and                                     |      |
|       |                                                       |      |
|       | \(2\) If those services are not normally provided by  |      |
|       | the private school.                                   |      |
|       |                                                       |      |
|       | \(b\) Use of private school personnel. An LEA may use |      |
|       | funds available under sections 611 and 619 of the Act |      |
|       | to pay for the services of an employee of a private   |      |
|       | school to provide services under Sections 300.130     |      |
|       | through 300.144 if\--                                 |      |
|       |                                                       |      |
|       | \(1\) The employee performs the services outside of   |      |
|       | his or her regular hours of duty; and                 |      |
|       |                                                       |      |
|       | \(2\) The employee performs the services under public |      |
|       | supervision and control.                              |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(10)(A))                 |      |
|       |                                                       |      |
|       | Sec. 300.143 Separate classes prohibited.             |      |
|       |                                                       |      |
|       | An LEA may not use funds available under section 611  |      |
|       | or 619 of the Act for classes that are organized      |      |
|       | separately on the basis of school enrollment or       |      |
|       | religion of the children if\--                        |      |
|       |                                                       |      |
|       | \(a\) The classes are at the same site; and           |      |
|       |                                                       |      |
|       | \(b\) The classes include children enrolled in public |      |
|       | schools and children enrolled in private schools.     |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(10)(A))                 |      |
|       |                                                       |      |
|       | Sec. 300.144 Property, equipment, and supplies.       |      |
|       |                                                       |      |
|       | \(a\) A public agency must control and administer the |      |
|       | funds used to provide special education and related   |      |
|       | services under Sections 300.137 through 300.139, and  |      |
|       | hold title to and administer materials, equipment,    |      |
|       | and property purchased with those funds for the uses  |      |
|       | and purposes provided in the Act.                     |      |
|       |                                                       |      |
|       | \(b\) The public agency may place equipment and       |      |
|       | supplies in a private school for the period of time   |      |
|       | needed for the Part B program.                        |      |
|       |                                                       |      |
|       | \(c\) The public agency must ensure that the          |      |
|       | equipment and supplies placed in a private school\--  |      |
|       |                                                       |      |
|       | \(1\) Are used only for Part B purposes; and          |      |
|       |                                                       |      |
|       | \(2\) Can be removed from the private school without  |      |
|       | remodeling the private school facility.               |      |
|       |                                                       |      |
|       | \(d\) The public agency must remove equipment and     |      |
|       | supplies from a private school if\--                  |      |
|       |                                                       |      |
|       | \(1\) The equipment and supplies are no longer needed |      |
|       | for Part B purposes; or                               |      |
|       |                                                       |      |
|       | \(2\) Removal is necessary to avoid unauthorized use  |      |
|       | of the equipment and supplies for other than Part B   |      |
|       | purposes.                                             |      |
|       |                                                       |      |
|       | \(e\) No funds under Part B of the Act may be used    |      |
|       | for repairs, minor remodeling, or construction of     |      |
|       | private school facilities.                            |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(10)(A)(vii))            |      |
|       |                                                       |      |
|       | Children With Disabilities in Private Schools Placed  |      |
|       | or Referred by Public Agencies                        |      |
|       |                                                       |      |
|       | Sec. 300.145 Applicability of Sections 300.146        |      |
|       | through 300.147.                                      |      |
|       |                                                       |      |
|       | Sections 300.146 through 300.147 apply only to        |      |
|       | children with disabilities who are or have been       |      |
|       | placed in or referred to a private school or facility |      |
|       | by a public agency as a means of providing special    |      |
|       | education and related services.                       |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(10)(B))                 |      |
|       |                                                       |      |
|       | Sec. 300.146 Responsibility of SEA.                   |      |
|       |                                                       |      |
|       | Each SEA must ensure that a child with a disability   |      |
|       | who is placed in or referred to a private school or   |      |
|       | facility by a public agency\--                        |      |
|       |                                                       |      |
|       | \(a\) Is provided special education and related       |      |
|       | services\--                                           |      |
|       |                                                       |      |
|       | \(1\) In conformance with an IEP that meets the       |      |
|       | requirements of Sections 300.320 through 300.325; and |      |
|       |                                                       |      |
|       | \(2\) At no cost to the parents;                      |      |
|       |                                                       |      |
|       | \(b\) Is provided an education that meets the         |      |
|       | standards that apply to education provided by the SEA |      |
|       | and LEAs including the requirements of this part,     |      |
|       | except for Sec. 300.18 and Sec. 300.156(c); and       |      |
|       |                                                       |      |
|       | \(c\) Has all of the rights of a child with a         |      |
|       | disability who is served by a public agency.          |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(10)(B))                 |      |
|       |                                                       |      |
|       | Sec. 300.147 Implementation by SEA.                   |      |
|       |                                                       |      |
|       | In implementing Sec. 300.146, the SEA must\--         |      |
|       |                                                       |      |
|       | \(a\) Monitor compliance through procedures such as   |      |
|       | written reports, on-site visits, and parent           |      |
|       | questionnaires;                                       |      |
|       |                                                       |      |
|       | \(b\) Disseminate copies of applicable standards to   |      |
|       | each private school and facility to which a public    |      |
|       | agency has referred or placed a child with a          |      |
|       | disability; and                                       |      |
|       |                                                       |      |
|       | \(c\) Provide an opportunity for those private        |      |
|       | schools and facilities to participate in the          |      |
|       | development and revision of State standards that      |      |
|       | apply to them.                                        |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(10)(B))                 |      |
|       |                                                       |      |
|       | Children With Disabilities Enrolled by Their Parents  |      |
|       | in Private Schools When FAPE Is at Issue              |      |
|       |                                                       |      |
|       | Sec. 300.148 Placement of children by parents when    |      |
|       | FAPE is at issue.                                     |      |
|       |                                                       |      |
|       | \(a\) General. This part does not require an LEA to   |      |
|       | pay for the cost of education, including special      |      |
|       | education and related services, of a child with a     |      |
|       | disability at a private school or facility if that    |      |
|       | agency made FAPE available to the child and the       |      |
|       | parents elected to place the child in a private       |      |
|       | school or facility. However, the public agency must   |      |
|       | include that child in the population whose needs are  |      |
|       | addressed consistent with Sections 300.131 through    |      |
|       | 300.144.                                              |      |
|       |                                                       |      |
|       | \(b\) Disagreements about FAPE. Disagreements between |      |
|       | the parents and a public agency regarding the         |      |
|       | availability of a program appropriate for the child,  |      |
|       | and the question of financial reimbursement, are      |      |
|       | subject to the due process procedures in Sections     |      |
|       | 300.504 through 300.520.                              |      |
|       |                                                       |      |
|       | \(c\) Reimbursement for private school placement. If  |      |
|       | the parents of a child with a disability, who         |      |
|       | previously received special education and related     |      |
|       | services under the authority of a public agency,      |      |
|       | enroll the child in a private preschool, elementary   |      |
|       | school, or secondary school without the consent of or |      |
|       | referral by the public agency, a court or a hearing   |      |
|       | officer may require the agency to reimburse the       |      |
|       | parents for the cost of that enrollment if the court  |      |
|       | or hearing officer finds that the agency had not made |      |
|       | FAPE available to the child in a timely manner prior  |      |
|       | to that enrollment and that the private placement is  |      |
|       | appropriate. A parental placement may be found to be  |      |
|       | appropriate by a hearing officer or a court even if   |      |
|       | it does not meet the State standards that apply to    |      |
|       | education provided by the SEA and LEAs.               |      |
|       |                                                       |      |
|       | \(d\) Limitation on reimbursement. The cost of        |      |
|       | reimbursement described in paragraph (c) of this      |      |
|       | section may be reduced or denied\--                   |      |
|       |                                                       |      |
|       | \(1\) If\--                                           |      |
|       |                                                       |      |
|       | \(i\) At the most recent IEP Team meeting that the    |      |
|       | parents attended prior to removal of the child from   |      |
|       | the public school, the parents did not inform the IEP |      |
|       | Team that they were rejecting the placement proposed  |      |
|       | by the public agency to provide FAPE to their child,  |      |
|       | including stating their concerns and their intent to  |      |
|       | enroll their child in a private school at public      |      |
|       | expense; or                                           |      |
|       |                                                       |      |
|       | \(ii\) At least ten (10) business days (including any |      |
|       | holidays that occur on a business day) prior to the   |      |
|       | removal of the child from the public school, the      |      |
|       | parents did not give written notice to the public     |      |
|       | agency of the information described in paragraph      |      |
|       | (d)(1)(i) of this section;                            |      |
|       |                                                       |      |
|       | \(2\) If, prior to the parents\' removal of the child |      |
|       | from the public school, the public agency informed    |      |
|       | the parents, through the notice requirements          |      |
|       | described in Sec. 300.503(a)(1), of its intent to     |      |
|       | evaluate the child (including a statement of the      |      |
|       | purpose of the evaluation that was appropriate and    |      |
|       | reasonable), but the parents did not make the child   |      |
|       | available for the evaluation; or                      |      |
|       |                                                       |      |
|       | \(3\) Upon a judicial finding of unreasonableness     |      |
|       | with respect to actions taken by the parents.         |      |
|       |                                                       |      |
|       | \(e\) Exception. Notwithstanding the notice           |      |
|       | requirement in paragraph (d)(1) of this section, the  |      |
|       | cost of reimbursement\--                              |      |
|       |                                                       |      |
|       | \(1\) Must not be reduced or denied for failure to    |      |
|       | provide the notice if\--                              |      |
|       |                                                       |      |
|       | \(i\) The school prevented the parents from providing |      |
|       | the notice;                                           |      |
|       |                                                       |      |
|       | \(ii\) The parents had not received notice, pursuant  |      |
|       | to Sec. 300.504, of the notice requirement in         |      |
|       | paragraph (d)(1) of this section; or                  |      |
|       |                                                       |      |
|       | \(iii\) Compliance with paragraph (d)(1) of this      |      |
|       | section would likely result in physical harm to the   |      |
|       | child; and                                            |      |
|       |                                                       |      |
|       | \(2\) May, in the discretion of the court or a        |      |
|       | hearing officer, not be reduced or denied for failure |      |
|       | to provide this notice if\--                          |      |
|       |                                                       |      |
|       | \(i\) The parents are not literate or cannot write in |      |
|       | English; or                                           |      |
|       |                                                       |      |
|       | > \(ii\) Compliance with paragraph (d)(1) of this     |      |
|       | > section would likely result in serious emotional    |      |
|       | > harm to the child.                                  |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(10)(C))                 |      |
+-------+-------------------------------------------------------+------+
| *     | Sec. 300.149 SEA responsibility for general           |      |
| *11** | supervision.                                          |      |
|       |                                                       |      |
|       | \(a\) The SEA is responsible for ensuring\--          |      |
|       |                                                       |      |
|       | \(1\) That the requirements of this part are carried  |      |
|       | out; and                                              |      |
|       |                                                       |      |
|       | \(2\) That each educational program for children with |      |
|       | disabilities administered within the State, including |      |
|       | each program administered by any other State or local |      |
|       | agency (but not including elementary schools and      |      |
|       | secondary schools for Indian children operated or     |      |
|       | funded by the Secretary of the Interior)\--           |      |
|       |                                                       |      |
|       | \(i\) Is under the general supervision of the persons |      |
|       | responsible for educational programs for children     |      |
|       | with disabilities in the SEA; and                     |      |
|       |                                                       |      |
|       | \(ii\) Meets the educational standards of the SEA     |      |
|       | (including the requirements of this part).            |      |
|       |                                                       |      |
|       | \(3\) In carrying out this part with respect to       |      |
|       | homeless children, the requirements of subtitle B of  |      |
|       | title VII of the McKinney-Vento Homeless Assistance   |      |
|       | Act (42 U.S.C. 11431 et seq.) are met.                |      |
|       |                                                       |      |
|       | \(b\) The State must have in effect policies and      |      |
|       | procedures to ensure that it complies with the        |      |
|       | monitoring and enforcement requirements in Sections   |      |
|       | 300.600 through 300.602 and Sections 300.606 through  |      |
|       | 300.608.                                              |      |
|       |                                                       |      |
|       | \(c\) Part B of the Act does not limit the            |      |
|       | responsibility of agencies other than educational     |      |
|       | agencies for providing or paying some or all of the   |      |
|       | costs of FAPE to children with disabilities in the    |      |
|       | State.                                                |      |
|       |                                                       |      |
|       | \(d\) Notwithstanding paragraph (a) of this section,  |      |
|       | the Governor (or another individual pursuant to State |      |
|       | law) may assign to any public agency in the State the |      |
|       | responsibility of ensuring that the requirements of   |      |
|       | Part B of the Act are met with respect to students    |      |
|       | with disabilities who are convicted as adults under   |      |
|       | State law and incarcerated in adult prisons.          |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(11); 1416)              |      |
|       |                                                       |      |
|       | Sec. 300.600 State monitoring and enforcement.        |      |
|       |                                                       |      |
|       | \(a\) The State must monitor the implementation of    |      |
|       | this part, enforce this part in accordance with Sec.  |      |
|       | 300.604(a)(1) and (a)(3), (b)(2)(i) and (b)(2)(v),    |      |
|       | and (c)(2), and annually report on performance under  |      |
|       | this part.                                            |      |
|       |                                                       |      |
|       | \(b\) The primary focus of the State\'s monitoring    |      |
|       | activities must be on\--                              |      |
|       |                                                       |      |
|       | \(1\) Improving educational results and functional    |      |
|       | outcomes for all children with disabilities; and      |      |
|       |                                                       |      |
|       | \(2\) Ensuring that public agencies meet the program  |      |
|       | requirements under Part B of the Act, with a          |      |
|       | particular emphasis on those requirements that are    |      |
|       | most closely related to improving educational results |      |
|       | for children with disabilities.                       |      |
|       |                                                       |      |
|       | \(c\) As a part of its responsibilities under         |      |
|       | paragraph (a) of this section, the State must use     |      |
|       | quantifiable indicators and such qualitative          |      |
|       | indicators as are needed to adequately measure        |      |
|       | performance in the priority areas identified in       |      |
|       | paragraph (d) of this section, and the indicators     |      |
|       | established by the Secretary for the State            |      |
|       | performance plans.                                    |      |
|       |                                                       |      |
|       | \(d\) The State must monitor the LEAs located in the  |      |
|       | State, using quantifiable indicators in each of the   |      |
|       | following priority areas, and using such qualitative  |      |
|       | indicators as are needed to adequately measure        |      |
|       | performance in those areas:                           |      |
|       |                                                       |      |
|       | \(1\) Provision of FAPE in the least restrictive      |      |
|       | environment.                                          |      |
|       |                                                       |      |
|       | (2 State exercise of general supervision, including   |      |
|       | child find, effective monitoring, the use of          |      |
|       | resolution meetings, mediation, and a system of       |      |
|       | transition services as defined in Sec. 300.43 and in  |      |
|       | 20 U.S.C. 1437(a)(9).                                 |      |
|       |                                                       |      |
|       | \(3\) Disproportionate representation of racial and   |      |
|       | ethnic groups in special education and related        |      |
|       | services, to the extent the representation is the     |      |
|       | result of inappropriate identification.               |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0624)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1416(a))                        |      |
|       |                                                       |      |
|       | Sec. 300.601 State performance plans and data         |      |
|       | collection.                                           |      |
|       |                                                       |      |
|       | \(a\) General. Not later than December 3, 2005, each  |      |
|       | State must have in place a performance plan that      |      |
|       | evaluates the State\'s efforts to implement the       |      |
|       | requirements and purposes of Part B of the Act, and   |      |
|       | describes how the State will improve such             |      |
|       | implementation.                                       |      |
|       |                                                       |      |
|       | \(1\) Each State must submit the State\'s performance |      |
|       | plan to the Secretary for approval in accordance with |      |
|       | the approval process described in section 616(c) of   |      |
|       | the Act.                                              |      |
|       |                                                       |      |
|       | \(2\) Each State must review its State performance    |      |
|       | plan at least once every six years, and submit any    |      |
|       | amendments to the Secretary.                          |      |
|       |                                                       |      |
|       | \(3\) As part of the State performance plan, each     |      |
|       | State must establish measurable and rigorous targets  |      |
|       | for the indicators established by the Secretary under |      |
|       | the priority areas described in Sec. 300.600(d).      |      |
|       |                                                       |      |
|       | \(b\) Data collection.                                |      |
|       |                                                       |      |
|       | \(1\) Each State must collect valid and reliable      |      |
|       | information as needed to report annually to the       |      |
|       | Secretary on the indicators established by the        |      |
|       | Secretary for the State performance plans.            |      |
|       |                                                       |      |
|       | \(2\) If the Secretary permits States to collect data |      |
|       | on specific indicators through State monitoring or    |      |
|       | sampling, and the State collects the data through     |      |
|       | State monitoring or sampling, the State must collect  |      |
|       | data on those indicators for each LEA at least once   |      |
|       | during the period of the State performance plan.      |      |
|       |                                                       |      |
|       | \(3\) Nothing in Part B of the Act shall be construed |      |
|       | to authorize the development of a nationwide database |      |
|       | of personally identifiable information on individuals |      |
|       | involved in studies or other collections of data      |      |
|       | under Part B of the Act.                              |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0624)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1416(b))                        |      |
|       |                                                       |      |
|       | Sec. 300.602 State use of targets and reporting.      |      |
|       |                                                       |      |
|       | \(a\) General. Each State must use the targets        |      |
|       | established in the State\'s performance plan under    |      |
|       | Sec. 300.601 and the priority areas described in Sec. |      |
|       | 300.600(d) to analyze the performance of each LEA.    |      |
|       |                                                       |      |
|       | \(b\) Public reporting and privacy\--                 |      |
|       |                                                       |      |
|       | \(1\) Public report.                                  |      |
|       |                                                       |      |
|       | \(i\) Subject to paragraph (b)(1)(ii) of this         |      |
|       | section, the State must\--                            |      |
|       |                                                       |      |
|       | \(A\) Report annually to the public on the            |      |
|       | performance of each LEA located in the State on the   |      |
|       | targets in the State\'s performance plan; and         |      |
|       |                                                       |      |
|       | \(B\) Make the State\'s performance plan available    |      |
|       | through public means, including by posting on the Web |      |
|       | site of the SEA, distribution to the media, and       |      |
|       | distribution through public agencies.                 |      |
|       |                                                       |      |
|       | \(ii\) If the State, in meeting the requirements of   |      |
|       | paragraph (b)(1)(i) of this section, collects         |      |
|       | performance data through State monitoring or          |      |
|       | sampling, the State must include in its report under  |      |
|       | paragraph (b)(1)(i)(A) of this section the most       |      |
|       | recently available performance data on each LEA, and  |      |
|       | the date the data were obtained.                      |      |
|       |                                                       |      |
|       | \(2\) State performance report. The State must report |      |
|       | annually to the Secretary on the performance of the   |      |
|       | State under the State\'s performance plan.            |      |
|       |                                                       |      |
|       | \(3\) Privacy. The State must not report to the       |      |
|       | public or the Secretary any information on            |      |
|       | performance that would result in the disclosure of    |      |
|       | personally identifiable information about individual  |      |
|       | children, or where the available data are             |      |
|       | insufficient to yield statistically reliable          |      |
|       | information.                                          |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0624)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1416(b)(2)(C))                  |      |
|       |                                                       |      |
|       | Sec. 300.606 Public attention.                        |      |
|       |                                                       |      |
|       | Any State that has received notice under Sections     |      |
|       | 300.603(b)(1)(ii) through (iv) must, by means of a    |      |
|       | public notice, take such measures as may be necessary |      |
|       | to notify the public within the State of the pendency |      |
|       | of an action taken pursuant to Sec. 300.604.          |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1416(e)(7))                     |      |
|       |                                                       |      |
|       | Sec. 300.607 Divided State agency responsibility.     |      |
|       |                                                       |      |
|       | For purposes of this subpart, if responsibility for   |      |
|       | ensuring that the requirements of Part B of the Act   |      |
|       | are met with respect to children with disabilities    |      |
|       | who are convicted as adults under State law and       |      |
|       | incarcerated in adult prisons is assigned to a public |      |
|       | agency other than the SEA pursuant to Sec.            |      |
|       | 300.149(d), and if the Secretary finds that the       |      |
|       | failure to comply substantially with the provisions   |      |
|       | of Part B of the Act are related to a failure by the  |      |
|       | public agency, the Secretary takes appropriate        |      |
|       | corrective action to ensure compliance with Part B of |      |
|       | the Act, except that\--                               |      |
|       |                                                       |      |
|       | \(a\) Any reduction or withholding of payments to the |      |
|       | State under Sec. 300.604 must be proportionate to the |      |
|       | total funds allotted under section 611 of the Act to  |      |
|       | the State as the number of eligible children with     |      |
|       | disabilities in adult prisons under the supervision   |      |
|       | of the other public agency is proportionate to the    |      |
|       | number of eligible individuals with disabilities in   |      |
|       | the State under the supervision of the SEA; and       |      |
|       |                                                       |      |
|       | \(b\) Any withholding of funds under Sec. 300.604     |      |
|       | must be limited to the specific agency responsible    |      |
|       | for the failure to comply with Part B of the Act.     |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1416(h))                        |      |
|       |                                                       |      |
|       | Sec. 300.608 State enforcement.                       |      |
|       |                                                       |      |
|       | \(a\) If an SEA determines that an LEA is not meeting |      |
|       | the requirements of Part B of the Act, including the  |      |
|       | targets in the State\'s performance plan, the SEA     |      |
|       | must prohibit the LEA from reducing the LEA\'s        |      |
|       | maintenance of effort under Sec. 300.203 for any      |      |
|       | fiscal year.                                          |      |
|       |                                                       |      |
|       | \(b\) Nothing in this subpart shall be construed to   |      |
|       | restrict a State from utilizing any other authority   |      |
|       | available to it to monitor and enforce the            |      |
|       | requirements of Part B of the Act.                    |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1416(f); 20 U.S.C. 1412(a)(11)) |      |
+-------+-------------------------------------------------------+------+
| *     | Sec. 300.154 Methods of ensuring services.            |      |
| *12** |                                                       |      |
|       | \(a\) Establishing responsibility for services. The   |      |
|       | Chief Executive Officer of a State or designee of     |      |
|       | that officer must ensure that an interagency          |      |
|       | agreement or other mechanism for interagency          |      |
|       | coordination is in effect between each noneducational |      |
|       | public agency described in paragraph (b) of this      |      |
|       | section and the SEA, in order to ensure that all      |      |
|       | services described in paragraph (b)(1) of this        |      |
|       | section that are needed to ensure FAPE are provided,  |      |
|       | including the provision of these services during the  |      |
|       | pendency of any dispute under paragraph (a)(3) of     |      |
|       | this section. The agreement or mechanism must include |      |
|       | the following:                                        |      |
|       |                                                       |      |
|       | \(1\) An identification of, or a method for defining, |      |
|       | the financial responsibility of each agency for       |      |
|       | providing services described in paragraph (b)(1) of   |      |
|       | this section to ensure FAPE to children with          |      |
|       | disabilities. The financial responsibility of each    |      |
|       | noneducational public agency described in paragraph   |      |
|       | (b) of this section, including the State Medicaid     |      |
|       | agency and other public insurers of children with     |      |
|       | disabilities, must precede the financial              |      |
|       | responsibility of the LEA (or the State agency        |      |
|       | responsible for developing the child\'s IEP).         |      |
|       |                                                       |      |
|       | \(2\) The conditions, terms, and procedures under     |      |
|       | which an LEA must be reimbursed by other agencies.    |      |
|       |                                                       |      |
|       | \(3\) Procedures for resolving interagency disputes   |      |
|       | (including procedures under which LEAs may initiate   |      |
|       | proceedings) under the agreement or other mechanism   |      |
|       | to secure reimbursement from other agencies or        |      |
|       | otherwise implement the provisions of the agreement   |      |
|       | or mechanism.                                         |      |
|       |                                                       |      |
|       | \(4\) Policies and procedures for agencies to         |      |
|       | determine and identify the interagency coordination   |      |
|       | responsibilities of each agency to promote the        |      |
|       | coordination and timely and appropriate delivery of   |      |
|       | services described in paragraph (b)(1) of this        |      |
|       | section.                                              |      |
|       |                                                       |      |
|       | \(b\) Obligation of noneducational public agencies.   |      |
|       |                                                       |      |
|       | (1)(i) If any public agency other than an educational |      |
|       | agency is otherwise obligated under Federal or State  |      |
|       | law, or assigned responsibility under State policy or |      |
|       | pursuant to paragraph (a) of this section, to provide |      |
|       | or pay for any services that are also considered      |      |
|       | special education or related services (such as, but   |      |
|       | not limited to, services described in Sec. 300.5      |      |
|       | relating to assistive technology devices, Sec. 300.6  |      |
|       | relating to assistive technology services, Sec.       |      |
|       | 300.34 relating to related services, Sec. 300.41      |      |
|       | relating to supplementary aids and services, and Sec. |      |
|       | 300.42 relating to transition services) that are      |      |
|       | necessary for ensuring FAPE to children with          |      |
|       | disabilities within the State, the public agency must |      |
|       | fulfill that obligation or responsibility, either     |      |
|       | directly or through contract or other arrangement     |      |
|       | pursuant to paragraph (a) of this section or an       |      |
|       | agreement pursuant to paragraph (c) of this section.  |      |
|       |                                                       |      |
|       | \(ii\) A noneducational public agency described in    |      |
|       | paragraph (b)(1)(i) of this section may not           |      |
|       | disqualify an eligible service for Medicaid           |      |
|       | reimbursement because that service is provided in a   |      |
|       | school context.                                       |      |
|       |                                                       |      |
|       | \(2\) If a public agency other than an educational    |      |
|       | agency fails to provide or pay for the special        |      |
|       | education and related services described in paragraph |      |
|       | (b)(1) of this section, the LEA (or State agency      |      |
|       | responsible for developing the child\'s IEP) must     |      |
|       | provide or pay for these services to the child in a   |      |
|       | timely manner. The LEA or State agency is authorized  |      |
|       | to claim reimbursement for the services from the      |      |
|       | noneducational public agency that failed to provide   |      |
|       | or pay for these services and that agency must        |      |
|       | reimburse the LEA or State agency in accordance with  |      |
|       | the terms of the interagency agreement or other       |      |
|       | mechanism described in paragraph (a) of this section. |      |
|       |                                                       |      |
|       | \(c\) Special rule. The requirements of paragraph (a) |      |
|       | of this section may be met through\--                 |      |
|       |                                                       |      |
|       | \(1\) State statute or regulation;                    |      |
|       |                                                       |      |
|       | \(2\) Signed agreements between respective agency     |      |
|       | officials that clearly identify the responsibilities  |      |
|       | of each agency relating to the provision of services; |      |
|       | or                                                    |      |
|       |                                                       |      |
|       | \(3\) Other appropriate written methods as determined |      |
|       | by the Chief Executive Officer of the State or        |      |
|       | designee of that officer and approved by the          |      |
|       | Secretary.                                            |      |
|       |                                                       |      |
|       | \(d\) Children with disabilities who are covered by   |      |
|       | public benefits or insurance.                         |      |
|       |                                                       |      |
|       | \(1\) A public agency may use the Medicaid or other   |      |
|       | public benefits or insurance programs in which a      |      |
|       | child participates to provide or pay for services     |      |
|       | required under this part, as permitted under the      |      |
|       | public benefits or insurance program, except as       |      |
|       | provided in paragraph (d)(2) of this section.         |      |
|       |                                                       |      |
|       | \(2\) With regard to services required to provide     |      |
|       | FAPE to an eligible child under this part, the public |      |
|       | agency\--                                             |      |
|       |                                                       |      |
|       | \(i\) May not require parents to sign up for or       |      |
|       | enroll in public benefits or insurance programs in    |      |
|       | order for their child to receive FAPE under Part B of |      |
|       | the Act;                                              |      |
|       |                                                       |      |
|       | \(ii\) May not require parents to incur an            |      |
|       | out-of-pocket expense such as the payment of a        |      |
|       | deductible or co-pay amount incurred in filing a      |      |
|       | claim for services provided pursuant to this part,    |      |
|       | but pursuant to paragraph (g)(2) of this section, may |      |
|       | pay the cost that the parents otherwise would be      |      |
|       | required to pay;                                      |      |
|       |                                                       |      |
|       | \(iii\) May not use a child\'s benefits under a       |      |
|       | public benefits or insurance program if that use      |      |
|       | would\--                                              |      |
|       |                                                       |      |
|       | \(A\) Decrease available lifetime coverage or any     |      |
|       | other insured benefit;                                |      |
|       |                                                       |      |
|       | \(B\) Result in the family paying for services that   |      |
|       | would otherwise be covered by the public benefits or  |      |
|       | insurance program and that are required for the child |      |
|       | outside of the time the child is in school;           |      |
|       |                                                       |      |
|       | \(C\) Increase premiums or lead to the                |      |
|       | discontinuation of benefits or insurance; or          |      |
|       |                                                       |      |
|       | \(D\) Risk loss of eligibility for home and           |      |
|       | community-based waivers, based on aggregate           |      |
|       | health-related expenditures; and                      |      |
|       |                                                       |      |
|       | (iv)(A) Must obtain parental consent, consistent with |      |
|       | Sec. 300.9, each time that access to public benefits  |      |
|       | or insurance is sought; and                           |      |
|       |                                                       |      |
|       | \(B\) Notify parents that the parents\' refusal to    |      |
|       | allow access to their public benefits or insurance    |      |
|       | does not relieve the public agency of its             |      |
|       | responsibility to ensure that all required services   |      |
|       | are provided at no cost to the parents.               |      |
|       |                                                       |      |
|       | \(e\) Children with disabilities who are covered by   |      |
|       | private insurance.                                    |      |
|       |                                                       |      |
|       | \(1\) With regard to services required to provide     |      |
|       | FAPE to an eligible child under this part, a public   |      |
|       | agency may access the parents\' private insurance     |      |
|       | proceeds only if the parents provide consent          |      |
|       | consistent with Sec. 300.9.                           |      |
|       |                                                       |      |
|       | \(2\) Each time the public agency proposes to access  |      |
|       | the parents\' private insurance proceeds, the agency  |      |
|       | must\--                                               |      |
|       |                                                       |      |
|       | \(i\) Obtain parental consent in accordance with      |      |
|       | paragraph (e)(1) of this section; and                 |      |
|       |                                                       |      |
|       | \(ii\) Inform the parents that their refusal to       |      |
|       | permit the public agency to access their private      |      |
|       | insurance does not relieve the public agency of its   |      |
|       | responsibility to ensure that all required services   |      |
|       | are provided at no cost to the parents.               |      |
|       |                                                       |      |
|       | \(f\) Use of Part B funds.                            |      |
|       |                                                       |      |
|       | \(1\) If a public agency is unable to obtain parental |      |
|       | consent to use the parents\' private insurance, or    |      |
|       | public benefits or insurance when the parents would   |      |
|       | incur a cost for a specified service required under   |      |
|       | this part, to ensure FAPE the public agency may use   |      |
|       | its Part B funds to pay for the service.              |      |
|       |                                                       |      |
|       | \(2\) To avoid financial cost to parents who          |      |
|       | otherwise would consent to use private insurance, or  |      |
|       | public benefits or insurance if the parents would     |      |
|       | incur a cost, the public agency may use its Part B    |      |
|       | funds to pay the cost that the parents otherwise      |      |
|       | would have to pay to use the parents\' benefits or    |      |
|       | insurance (e.g., the deductible or co-pay amounts).   |      |
|       |                                                       |      |
|       | \(g\) Proceeds from public benefits or insurance or   |      |
|       | private insurance.                                    |      |
|       |                                                       |      |
|       | \(1\) Proceeds from public benefits or insurance or   |      |
|       | private insurance will not be treated as program      |      |
|       | income for purposes of 34 CFR 80.25.                  |      |
|       |                                                       |      |
|       | \(2\) If a public agency spends reimbursements from   |      |
|       | Federal funds (e.g., Medicaid) for services under     |      |
|       | this part, those funds will not be considered         |      |
|       | \`\`State or local\'\' funds for purposes of the      |      |
|       | maintenance of effort provisions in Sections 300.163  |      |
|       | and 300.203.                                          |      |
|       |                                                       |      |
|       | \(h\) Construction. Nothing in this part should be    |      |
|       | construed to alter the requirements imposed on a      |      |
|       | State Medicaid agency, or any other agency            |      |
|       | administering a public benefits or insurance program  |      |
|       | by Federal statute, regulations or policy under title |      |
|       | XIX, or title XXI of the Social Security Act, 42      |      |
|       | U.S.C. 1396 through 1396v and 42 U.S.C. 1397aa        |      |
|       | through 1397jj, or any other public benefits or       |      |
|       | insurance program.                                    |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(12) and (e))            |      |
+-------+-------------------------------------------------------+------+
| *     | Sec. 300.155 Hearings relating to LEA eligibility.    |      |
| *13** |                                                       |      |
|       | The SEA must not make any final determination that an |      |
|       | LEA is not eligible for assistance under Part B of    |      |
|       | the Act without first giving the LEA reasonable       |      |
|       | notice and an opportunity for a hearing under 34 CFR  |      |
|       | 76.401(d).                                            |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(13))                    |      |
+-------+-------------------------------------------------------+------+
| *     | Sec. 300.156 Personnel qualifications.                |      |
| *14** |                                                       |      |
|       | \(a\) General. The SEA must establish and maintain    |      |
|       | qualifications to ensure that personnel necessary to  |      |
|       | carry out the purposes of this part are appropriately |      |
|       | and adequately prepared and trained, including that   |      |
|       | those personnel have the content knowledge and skills |      |
|       | to serve children with disabilities.                  |      |
|       |                                                       |      |
|       | \(b\) Related services personnel and                  |      |
|       | paraprofessionals. The qualifications under paragraph |      |
|       | (a) of this section must include qualifications for   |      |
|       | related services personnel and paraprofessionals      |      |
|       | that\--                                               |      |
|       |                                                       |      |
|       | \(1\) Are consistent with any State-approved or       |      |
|       | State-recognized certification, licensing,            |      |
|       | registration, or other comparable requirements that   |      |
|       | apply to the professional discipline in which those   |      |
|       | personnel are providing special education or related  |      |
|       | services; and                                         |      |
|       |                                                       |      |
|       | \(2\) Ensure that related services personnel who      |      |
|       | deliver services in their discipline or profession\-- |      |
|       |                                                       |      |
|       | \(i\) Meet the requirements of paragraph (b)(1) of    |      |
|       | this section; and                                     |      |
|       |                                                       |      |
|       | \(ii\) Have not had certification or licensure        |      |
|       | requirements waived on an emergency, temporary, or    |      |
|       | provisional basis; and                                |      |
|       |                                                       |      |
|       | \(iii\) Allow paraprofessionals and assistants who    |      |
|       | are appropriately trained and supervised, in          |      |
|       | accordance with State law, regulation, or written     |      |
|       | policy, in meeting the requirements of this part to   |      |
|       | be used to assist in the provision of special         |      |
|       | education and related services under this part to     |      |
|       | children with disabilities.                           |      |
|       |                                                       |      |
|       | \(c\) Qualifications for special education teachers.  |      |
|       | The qualifications described in paragraph (a) of this |      |
|       | section must ensure that each person employed as a    |      |
|       | public school special education teacher in the State  |      |
|       | who teaches in an elementary school, middle school,   |      |
|       | or secondary school is highly qualified as a special  |      |
|       | education teacher by the deadline established in      |      |
|       | section 1119(a)(2) of the ESEA.                       |      |
|       |                                                       |      |
|       | \(d\) Policy. In implementing this section, a State   |      |
|       | must adopt a policy that includes a requirement that  |      |
|       | LEAs in the State take measurable steps to recruit,   |      |
|       | hire, train, and retain highly qualified personnel to |      |
|       | provide special education and related services under  |      |
|       | this part to children with disabilities.              |      |
|       |                                                       |      |
|       | \(e\) Rule of construction. Notwithstanding any other |      |
|       | individual right of action that a parent or student   |      |
|       | may maintain under this part, nothing in this part    |      |
|       | shall be construed to create a right of action on     |      |
|       | behalf of an individual student or a class of         |      |
|       | students for the failure of a particular SEA or LEA   |      |
|       | employee to be highly qualified, or to prevent a      |      |
|       | parent from filing a complaint about staff            |      |
|       | qualifications with the SEA as provided for under     |      |
|       | this part.                                            |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(14))                    |      |
+-------+-------------------------------------------------------+------+
| *     | Sec. 300.157 Performance goals and indicators.        |      |
| *15** |                                                       |      |
|       | The State must\--                                     |      |
|       |                                                       |      |
|       | \(a\) Have in effect established goals for the        |      |
|       | performance of children with disabilities in the      |      |
|       | State that\--                                         |      |
|       |                                                       |      |
|       | \(1\) Promote the purposes of this part, as stated in |      |
|       | Sec. 300.1;                                           |      |
|       |                                                       |      |
|       | \(2\) Are the same as the State\'s objectives for     |      |
|       | progress by children in its definition of adequate    |      |
|       | yearly progress, including the State\'s objectives    |      |
|       | for progress by children with disabilities, under     |      |
|       | section 1111(b)(2)(C) of the ESEA, 20 U.S.C. 6311;    |      |
|       |                                                       |      |
|       | \(3\) Address graduation rates and dropout rates, as  |      |
|       | well as such other factors as the State may           |      |
|       | determine; and                                        |      |
|       |                                                       |      |
|       | \(4\) Are consistent, to the extent appropriate, with |      |
|       | any other goals and academic standards for children   |      |
|       | established by the State;                             |      |
|       |                                                       |      |
|       | \(b\) Have in effect established performance          |      |
|       | indicators the State will use to assess progress      |      |
|       | toward achieving the goals described in paragraph (a) |      |
|       | of this section, including measurable annual          |      |
|       | objectives for progress by children with disabilities |      |
|       | under section 1111(b)(2)(C)(v)(II)(cc) of the ESEA,   |      |
|       | 20 U.S.C. 6311; and                                   |      |
|       |                                                       |      |
|       | \(c\) Annually report to the Secretary and the public |      |
|       | on the progress of the State, and of children with    |      |
|       | disabilities in the State, toward meeting the goals   |      |
|       | established under paragraph (a) of this section,      |      |
|       | which may include elements of the reports required    |      |
|       | under section 1111(h) of the ESEA.                    |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(15))                    |      |
+-------+-------------------------------------------------------+------+
| *     | 20 U.S.C. 1412(a)(16)(A)-(E)                          |      |
| *16** |                                                       |      |
|       | \(16\) PARTICIPATION IN ASSESSMENTS-                  |      |
|       |                                                       |      |
|       | \(A\) IN GENERAL- All children with disabilities are  |      |
|       | included in all general State and districtwide        |      |
|       | assessment programs, including assessments described  |      |
|       | under section 1111 of the Elementary and Secondary    |      |
|       | Education Act of 1965, with appropriate               |      |
|       | accommodations and alternate assessments where        |      |
|       | necessary and as indicated in their respective        |      |
|       | individualized education programs.                    |      |
|       |                                                       |      |
|       | \(B\) ACCOMMODATION GUIDELINES- The State (or, in the |      |
|       | case of a districtwide assessment, the local          |      |
|       | educational agency) has developed guidelines for the  |      |
|       | provision of appropriate accommodations.              |      |
|       |                                                       |      |
|       | \(C\) ALTERNATE ASSESSMENTS-                          |      |
|       |                                                       |      |
|       | \(i\) IN GENERAL- The State (or, in the case of a     |      |
|       | districtwide assessment, the local educational        |      |
|       | agency) has developed and implemented guidelines for  |      |
|       | the participation of children with disabilities in    |      |
|       | alternate assessments for those children who cannot   |      |
|       | participate in regular assessments under subparagraph |      |
|       | (A) with accommodations as indicated in their         |      |
|       | respective individualized education programs.         |      |
|       |                                                       |      |
|       | \(ii\) REQUIREMENTS FOR ALTERNATE ASSESSMENTS- The    |      |
|       | guidelines under clause (i) shall provide for         |      |
|       | alternate assessments that\--                         |      |
|       |                                                       |      |
|       | \(I\) are aligned with the State\'s challenging       |      |
|       | academic content standards and challenging student    |      |
|       | academic achievement standards; and                   |      |
|       |                                                       |      |
|       | \(II\) if the State has adopted alternate academic    |      |
|       | achievement standards permitted under the regulations |      |
|       | promulgated to carry out section 1111(b)(1) of the    |      |
|       | Elementary and Secondary Education Act of 1965,       |      |
|       | measure the achievement of children with disabilities |      |
|       | against those standards.                              |      |
|       |                                                       |      |
|       | \(iii\) CONDUCT OF ALTERNATE ASSESSMENTS- The State   |      |
|       | conducts the alternate assessments described in this  |      |
|       | subparagraph.                                         |      |
|       |                                                       |      |
|       | \(D\) REPORTS- The State educational agency (or, in   |      |
|       | the case of a districtwide assessment, the local      |      |
|       | educational agency) makes available to the public,    |      |
|       | and reports to the public with the same frequency and |      |
|       | in the same detail as it reports on the assessment of |      |
|       | nondisabled children, the following:                  |      |
|       |                                                       |      |
|       | > \(i\) The number of children with disabilities      |      |
|       | > participating in regular assessments, and the       |      |
|       | > number of those children who were provided          |      |
|       | > accommodations in order to participate in those     |      |
|       | > assessments.                                        |      |
|       | >                                                     |      |
|       | > \(ii\) The number of children with disabilities     |      |
|       | > participating in alternate assessments described in |      |
|       | > subparagraph (C)(ii)(I).                            |      |
|       | >                                                     |      |
|       | > \(iii\) The number of children with disabilities    |      |
|       | > participating in alternate assessments described in |      |
|       | > subparagraph (C)(ii)(II).                           |      |
|       | >                                                     |      |
|       | > \(iv\) The performance of children with             |      |
|       | > disabilities on regular assessments and on          |      |
|       | > alternate assessments (if the number of children    |      |
|       | > with disabilities participating in those            |      |
|       | > assessments is sufficient to yield statistically    |      |
|       | > reliable information and reporting that information |      |
|       | > will not reveal personally identifiable information |      |
|       | > about an individual student), compared with the     |      |
|       | > achievement of all children, including children     |      |
|       | > with disabilities, on those assessments.            |      |
|       |                                                       |      |
|       | \(E\) UNIVERSAL DESIGN- The State educational agency  |      |
|       | (or, in the case of a districtwide assessment, the    |      |
|       | local educational agency) shall, to the extent        |      |
|       | feasible, use universal design principles in          |      |
|       | developing and administering any assessments under    |      |
|       | this paragraph.                                       |      |
+-------+-------------------------------------------------------+------+
| *     | Sec. 300.162 Supplementation of State, local, and     |      |
| *17** | other Federal funds.                                  |      |
|       |                                                       |      |
|       | \(a\) Expenditures. Funds paid to a State under this  |      |
|       | part must be expended in accordance with all the      |      |
|       | provisions of this part.                              |      |
|       |                                                       |      |
|       | \(b\) Prohibition against commingling.                |      |
|       |                                                       |      |
|       | \(1\) Funds paid to a State under this part must not  |      |
|       | be commingled with State funds.                       |      |
|       |                                                       |      |
|       | \(2\) The requirement in paragraph (b)(1) of this     |      |
|       | section is satisfied by the use of a separate         |      |
|       | accounting system that includes an audit trail of the |      |
|       | expenditure of funds paid to a State under this part. |      |
|       | Separate bank accounts are not required. (See 34 CFR  |      |
|       | 76.702 (Fiscal control and fund accounting            |      |
|       | procedures).)                                         |      |
|       |                                                       |      |
|       | \(c\) State-level nonsupplanting.                     |      |
|       |                                                       |      |
|       | \(1\) Except as provided in Sec. 300.202, funds paid  |      |
|       | to a State under Part B of the Act must be used to    |      |
|       | supplement the level of Federal, State, and local     |      |
|       | funds (including funds that are not under the direct  |      |
|       | control of the SEA or LEAs) expended for special      |      |
|       | education and related services provided to children   |      |
|       | with disabilities under Part B of the Act, and in no  |      |
|       | case to supplant those Federal, State, and local      |      |
|       | funds.                                                |      |
|       |                                                       |      |
|       | \(2\) If the State provides clear and convincing      |      |
|       | evidence that all children with disabilities have     |      |
|       | available to them FAPE, the Secretary may waive, in   |      |
|       | whole or in part, the requirements of paragraph       |      |
|       | (c)(1) of this section if the Secretary concurs with  |      |
|       | the evidence provided by the State under Sec.         |      |
|       | 300.164.                                              |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(17))                    |      |
+-------+-------------------------------------------------------+------+
| *     | Sec. 300.163 Maintenance of State financial support.  |      |
| *18** |                                                       |      |
|       | \(a\) General. A State must not reduce the amount of  |      |
|       | State financial support for special education and     |      |
|       | related services for children with disabilities, or   |      |
|       | otherwise made available because of the excess costs  |      |
|       | of educating those children, below the amount of that |      |
|       | support for the preceding fiscal year.                |      |
|       |                                                       |      |
|       | \(b\) Reduction of funds for failure to maintain      |      |
|       | support. The Secretary reduces the allocation of      |      |
|       | funds under section 611 of the Act for any fiscal     |      |
|       | year following the fiscal year in which the State     |      |
|       | fails to comply with the requirement of paragraph (a) |      |
|       | of this section by the same amount by which the State |      |
|       | fails to meet the requirement.                        |      |
|       |                                                       |      |
|       | \(c\) Waivers for exceptional or uncontrollable       |      |
|       | circumstances. The Secretary may waive the            |      |
|       | requirement of paragraph (a) of this section for a    |      |
|       | State, for one fiscal year at a time, if the          |      |
|       | Secretary determines that\--                          |      |
|       |                                                       |      |
|       | \(1\) Granting a waiver would be equitable due to     |      |
|       | exceptional or uncontrollable circumstances such as a |      |
|       | natural disaster or a precipitous and unforeseen      |      |
|       | decline in the financial resources of the State; or   |      |
|       |                                                       |      |
|       | \(2\) The State meets the standard in Sec. 300.164    |      |
|       | for a waiver of the requirement to supplement, and    |      |
|       | not to supplant, funds received under Part B of the   |      |
|       | Act.                                                  |      |
|       |                                                       |      |
|       | \(d\) Subsequent years. If, for any fiscal year, a    |      |
|       | State fails to meet the requirement of paragraph (a)  |      |
|       | of this section, including any year for which the     |      |
|       | State is granted a waiver under paragraph (c) of this |      |
|       | section, the financial support required of the State  |      |
|       | in future years under paragraph (a) of this section   |      |
|       | shall be the amount that would have been required in  |      |
|       | the absence of that failure and not the reduced level |      |
|       | of the State\'s support.                              |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(18))                    |      |
+-------+-------------------------------------------------------+------+
| *     | Sec. 300.165 Public participation.                    |      |
| *19** |                                                       |      |
|       | \(a\) Prior to the adoption of any policies and       |      |
|       | procedures needed to comply with Part B of the Act    |      |
|       | (including any amendments to those policies and       |      |
|       | procedures), the State must ensure that there are     |      |
|       | public hearings, adequate notice of the hearings, and |      |
|       | an opportunity for comment available to the general   |      |
|       | public, including individuals with disabilities and   |      |
|       | parents of children with disabilities.                |      |
|       |                                                       |      |
|       | \(b\) Before submitting a State plan under this part, |      |
|       | a State must comply with the public participation     |      |
|       | requirements in paragraph (a) of this section and     |      |
|       | those in 20 U.S.C. 1232d(b)(7).                       |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(19); 20 U.S.C.          |      |
|       | 1232d(b)(7))                                          |      |
+-------+-------------------------------------------------------+------+
| *     | Sec. 300.166 Rule of construction.                    |      |
| *20** |                                                       |      |
|       | In complying with Sections 300.162 and 300.163, a     |      |
|       | State may not use funds paid to it under this part to |      |
|       | satisfy State-law mandated funding obligations to     |      |
|       | LEAs, including funding based on student attendance   |      |
|       | or enrollment, or inflation.                          |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(20))                    |      |
+-------+-------------------------------------------------------+------+
| *     | Sec. 300.167 State advisory panel.                    |      |
| *21** |                                                       |      |
|       | The State must establish and maintain an advisory     |      |
|       | panel for the purpose of providing policy guidance    |      |
|       | with respect to special education and related         |      |
|       | services for children with disabilities in the State. |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(21)(A))                 |      |
|       |                                                       |      |
|       | Sec. 300.168 Membership.                              |      |
|       |                                                       |      |
|       | \(a\) General. The advisory panel must consist of     |      |
|       | members appointed by the Governor, or any other       |      |
|       | official authorized under State law to make such      |      |
|       | appointments, be representative of the State          |      |
|       | population and be composed of individuals involved    |      |
|       | in, or concerned with the education of children with  |      |
|       | disabilities, including\--                            |      |
|       |                                                       |      |
|       | \(1\) Parents of children with disabilities (ages     |      |
|       | birth through 26);                                    |      |
|       |                                                       |      |
|       | \(2\) Individuals with disabilities;                  |      |
|       |                                                       |      |
|       | \(3\) Teachers;                                       |      |
|       |                                                       |      |
|       | \(4\) Representatives of institutions of higher       |      |
|       | education that prepare special education and related  |      |
|       | services personnel;                                   |      |
|       |                                                       |      |
|       | \(5\) State and local education officials, including  |      |
|       | officials who carry out activities under subtitle B   |      |
|       | of title VII of the McKinney-Vento Homeless           |      |
|       | Assistance Act, (42 U.S.C. 11431 et seq.);            |      |
|       |                                                       |      |
|       | \(6\) Administrators of programs for children with    |      |
|       | disabilities;                                         |      |
|       |                                                       |      |
|       | \(7\) Representatives of other State agencies         |      |
|       | involved in the financing or delivery of related      |      |
|       | services to children with disabilities;               |      |
|       |                                                       |      |
|       | \(8\) Representatives of private schools and public   |      |
|       | charter schools;                                      |      |
|       |                                                       |      |
|       | \(9\) Not less than one representative of a           |      |
|       | vocational, community, or business organization       |      |
|       | concerned with the provision of transition services   |      |
|       | to children with disabilities;                        |      |
|       |                                                       |      |
|       | \(10\) A representative from the State child welfare  |      |
|       | agency responsible for foster care; and               |      |
|       |                                                       |      |
|       | \(11\) Representatives from the State juvenile and    |      |
|       | adult corrections agencies.                           |      |
|       |                                                       |      |
|       | \(b\) Special rule. A majority of the members of the  |      |
|       | panel must be individuals with disabilities or        |      |
|       | parents of children with disabilities (ages birth     |      |
|       | through 26).                                          |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(21)(B) and (C))         |      |
|       |                                                       |      |
|       | Sec. 300.169 Duties.                                  |      |
|       |                                                       |      |
|       | The advisory panel must\--                            |      |
|       |                                                       |      |
|       | \(a\) Advise the SEA of unmet needs within the State  |      |
|       | in the education of children with disabilities;       |      |
|       |                                                       |      |
|       | \(b\) Comment publicly on any rules or regulations    |      |
|       | proposed by the State regarding the education of      |      |
|       | children with disabilities;                           |      |
|       |                                                       |      |
|       | \(c\) Advise the SEA in developing evaluations and    |      |
|       | reporting on data to the Secretary under section 618  |      |
|       | of the Act;                                           |      |
|       |                                                       |      |
|       | \(d\) Advise the SEA in developing corrective action  |      |
|       | plans to address findings identified in Federal       |      |
|       | monitoring reports under Part B of the Act; and       |      |
|       |                                                       |      |
|       | \(e\) Advise the SEA in developing and implementing   |      |
|       | policies relating to the coordination of services for |      |
|       | children with disabilities.                           |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(21)(D))                 |      |
+-------+-------------------------------------------------------+------+
| *     | Sec. 300.170 Suspension and expulsion rates.          |      |
| *22** |                                                       |      |
|       | \(a\) General. The SEA must examine data, including   |      |
|       | data disaggregated by race and ethnicity, to          |      |
|       | determine if significant discrepancies are occurring  |      |
|       | in the rate of long-term suspensions and expulsions   |      |
|       | of children with disabilities\--                      |      |
|       |                                                       |      |
|       | \(1\) Among LEAs in the State; or                     |      |
|       |                                                       |      |
|       | \(2\) Compared to the rates for nondisabled children  |      |
|       | within those agencies.                                |      |
|       |                                                       |      |
|       | \(b\) Review and revision of policies. If the         |      |
|       | discrepancies described in paragraph (a) of this      |      |
|       | section are occurring, the SEA must review and, if    |      |
|       | appropriate, revise (or require the affected State    |      |
|       | agency or LEA to revise) its policies, procedures,    |      |
|       | and practices relating to the development and         |      |
|       | implementation of IEPs, the use of positive           |      |
|       | behavioral interventions and supports, and procedural |      |
|       | safeguards, to ensure that these policies,            |      |
|       | procedures, and practices comply with the Act.        |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(22))                    |      |
+-------+-------------------------------------------------------+------+
| **    | Sec. 300.172 Access to instructional materials.       |      |
| 23a** |                                                       |      |
|       | \(a\) General. The State must\--                      |      |
| **2   |                                                       |      |
| 3b1** | \(1\) Adopt the National Instructional Materials      |      |
|       | Accessibility Standard (NIMAS), published as appendix |      |
| **2   | C to part 300, for the purposes of providing          |      |
| 3b2** | instructional materials to blind persons or other     |      |
|       | persons with print disabilities, in a timely manner   |      |
|       | after publication of the NIMAS in the Federal         |      |
|       | Register on July 19, 2006 (71 FR 41084); and          |      |
|       |                                                       |      |
|       | \(2\) Establish a State definition of \`\`timely      |      |
|       | manner\'\' for purposes of paragraphs (b)(2) and      |      |
|       | (b)(3) of this section if the State is not            |      |
|       | coordinating with the National Instructional          |      |
|       | Materials Access Center (NIMAC) or (b)(3) and (c)(2)  |      |
|       | of this section if the State is coordinating with the |      |
|       | NIMAC.                                                |      |
|       |                                                       |      |
|       | \(b\) Rights and responsibilities of SEA.             |      |
|       |                                                       |      |
|       | \(1\) Nothing in this section shall be construed to   |      |
|       | require any SEA to coordinate with the NIMAC.         |      |
|       |                                                       |      |
|       | \(2\) If an SEA chooses not to coordinate with the    |      |
|       | NIMAC, the SEA must provide an assurance to the       |      |
|       | Secretary that it will provide instructional          |      |
|       | materials to blind persons or other persons with      |      |
|       | print disabilities in a timely manner.                |      |
|       |                                                       |      |
|       | \(3\) Nothing in this section relieves an SEA of its  |      |
|       | responsibility to ensure that children with           |      |
|       | disabilities who need instructional materials in      |      |
|       | accessible formats, but are not included under the    |      |
|       | definition of blind or other persons with print       |      |
|       | disabilities in Sec. 300.172(e)(1)(i) or who need     |      |
|       | materials that cannot be produced from NIMAS files,   |      |
|       | receive those instructional materials in a timely     |      |
|       | manner.                                               |      |
|       |                                                       |      |
|       | \(4\) In order to meet its responsibility under       |      |
|       | paragraphs (b)(2), (b)(3), and (c) of this section to |      |
|       | ensure that children with disabilities who need       |      |
|       | instructional materials in accessible formats are     |      |
|       | provided those materials in a timely manner, the SEA  |      |
|       | must ensure that all public agencies take all         |      |
|       | reasonable steps to provide instructional materials   |      |
|       | in accessible formats to children with disabilities   |      |
|       | who need those instructional materials at the same    |      |
|       | time as other children receive instructional          |      |
|       | materials.                                            |      |
|       |                                                       |      |
|       | \(c\) Preparation and delivery of files. If an SEA    |      |
|       | chooses to coordinate with the NIMAC, as of December  |      |
|       | 3, 2006, the SEA must\--                              |      |
|       |                                                       |      |
|       | \(1\) As part of any print instructional materials    |      |
|       | adoption process, procurement contract, or other      |      |
|       | practice or instrument used for purchase of print     |      |
|       | instructional materials, must enter into a written    |      |
|       | contract with the publisher of the print              |      |
|       | instructional materials to\--                         |      |
|       |                                                       |      |
|       | \(i\) Require the publisher to prepare and, on or     |      |
|       | before delivery of the print instructional materials, |      |
|       | provide to NIMAC electronic files containing the      |      |
|       | contents of the print instructional materials using   |      |
|       | the NIMAS; or                                         |      |
|       |                                                       |      |
|       | \(ii\) Purchase instructional materials from the      |      |
|       | publisher that are produced in, or may be rendered    |      |
|       | in, specialized formats.                              |      |
|       |                                                       |      |
|       | \(2\) Provide instructional materials to blind        |      |
|       | persons or other persons with print disabilities in a |      |
|       | timely manner.                                        |      |
|       |                                                       |      |
|       | \(d\) Assistive technology. In carrying out this      |      |
|       | section, the SEA, to the maximum extent possible,     |      |
|       | must work collaboratively with the State agency       |      |
|       | responsible for assistive technology programs.        |      |
|       |                                                       |      |
|       | \(e\) Definitions.                                    |      |
|       |                                                       |      |
|       | \(1\) In this section and Sec. 300.210\--             |      |
|       |                                                       |      |
|       | \(i\) Blind persons or other persons with print       |      |
|       | disabilities means children served under this part    |      |
|       | who may qualify to receive books and other            |      |
|       | publications produced in specialized formats in       |      |
|       | accordance with the Act entitled \`\`An Act to        |      |
|       | provide books for adult blind,\'\' approved March 3,  |      |
|       | 1931, 2 U.S.C 135a;                                   |      |
|       |                                                       |      |
|       | \(ii\) National Instructional Materials Access Center |      |
|       | or NIMAC means the center established pursuant to     |      |
|       | section 674(e) of the Act;                            |      |
|       |                                                       |      |
|       | \(iii\) National Instructional Materials              |      |
|       | Accessibility Standard or NIMAS has the meaning given |      |
|       | the term in section 674(e)(3)(B) of the Act;          |      |
|       |                                                       |      |
|       | \(iv\) Specialized formats has the meaning given the  |      |
|       | term in section 674(e)(3)(D) of the Act.              |      |
|       |                                                       |      |
|       | \(2\) The definitions in paragraph (e)(1) of this     |      |
|       | section apply to each State and LEA, whether or not   |      |
|       | the State or LEA chooses to coordinate with the       |      |
|       | NIMAC.                                                |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(23), 1474(e))           |      |
+-------+-------------------------------------------------------+------+
| *     | Sec. 300.173 Overidentification and                   |      |
| *24** | disproportionality.                                   |      |
|       |                                                       |      |
|       | The State must have in effect, consistent with the    |      |
|       | purposes of this part and with section 618(d) of the  |      |
|       | Act, policies and procedures designed to prevent the  |      |
|       | inappropriate over identification or disproportionate |      |
|       | representation by race and ethnicity of children as   |      |
|       | children with disabilities, including children with   |      |
|       | disabilities with a particular impairment described   |      |
|       | in Sec. 300.8.                                        |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(24))                    |      |
+-------+-------------------------------------------------------+------+
| *     | Sec. 300.174 Prohibition on mandatory medication.     |      |
| *25** |                                                       |      |
|       | \(a\) General. The SEA must prohibit State and LEA    |      |
|       | personnel from requiring parents to obtain a          |      |
|       | prescription for substances identified under          |      |
|       | schedules I, II, III, IV, or V in section 202(c) of   |      |
|       | the Controlled Substances Act (21 U.S.C. 812(c)) for  |      |
|       | a child as a condition of attending school, receiving |      |
|       | an evaluation under Sections 300.300 through 300.311, |      |
|       | or receiving services under this part.                |      |
|       |                                                       |      |
|       | \(b\) Rule of construction. Nothing in paragraph (a)  |      |
|       | of this section shall be construed to create a        |      |
|       | Federal prohibition against teachers and other school |      |
|       | personnel consulting or sharing classroom-based       |      |
|       | observations with parents or guardians regarding a    |      |
|       | student\'s academic and functional performance, or    |      |
|       | behavior in the classroom or school, or regarding the |      |
|       | need for evaluation for special education or related  |      |
|       | services under Sec. 300.111 (related to child find).  |      |
|       |                                                       |      |
|       | (Approved by the Office of Management and Budget      |      |
|       | under control number 1820-0030)                       |      |
|       |                                                       |      |
|       | (Authority: 20 U.S.C. 1412(a)(25))                    |      |
+-------+-------------------------------------------------------+------+

+-------+--------------------------------------------------------------+
| *     |                                                              |
| *Tech |                                                              |
| nical |                                                              |
| Assis |                                                              |
| tance |                                                              |
| Chec  |                                                              |
| klist |                                                              |
| --    |                                                              |
| E     |                                                              |
| ligib |                                                              |
| ility |                                                              |
| Re    |                                                              |
| quire |                                                              |
| ments |                                                              |
| found |                                                              |
| in 34 |                                                              |
| CFR   |                                                              |
| Part  |                                                              |
| 300** |                                                              |
+=======+==============================================================+
| **    | Related Statutory or Regulatory Provisions                   |
| Other |                                                              |
| As    |                                                              |
| suran |                                                              |
| ces** |                                                              |
+-------+--------------------------------------------------------------+
| Se    |                                                              |
| ction |                                                              |
| II B  |                                                              |
| --    |                                                              |
| Other |                                                              |
| Assur |                                                              |
| ances |                                                              |
+-------+--------------------------------------------------------------+
| **1** | Sec. 300.705 Subgrants to LEAs.                              |
|       |                                                              |
|       | \(a\) Subgrants required. Each State that receives a grant   |
|       | under section 611 of the Act for any fiscal year must        |
|       | distribute any funds the State does not reserve under Sec.   |
|       | 300.704 to LEAs (including public charter schools that       |
|       | operate as LEAs) in the State that have established their    |
|       | eligibility under section 613 of the Act for use in          |
|       | accordance with Part B of the Act.                           |
|       |                                                              |
|       | \(b\) Allocations to LEAs. For each fiscal year for which    |
|       | funds are allocated to States under Sec. 300.703, each State |
|       | shall allocate funds as follows:                             |
|       |                                                              |
|       | \(1\) Base payments. The State first must award each LEA     |
|       | described in paragraph (a) of this section the amount the    |
|       | LEA would have received under section 611 of the Act for     |
|       | fiscal year 1999, if the State had distributed 75 percent of |
|       | its grant for that year under section 611(d) of the Act, as  |
|       | that section was then in effect.                             |
|       |                                                              |
|       | \(2\) Base payment adjustments. For any fiscal year after    |
|       | 1999\--                                                      |
|       |                                                              |
|       | \(i\) If a new LEA is created, the State must divide the     |
|       | base allocation determined under paragraph (b)(1) of this    |
|       | section for the LEAs that would have been responsible for    |
|       | serving children with disabilities now being served by the   |
|       | new LEA, among the new LEA and affected LEAs based on the    |
|       | relative numbers of children with disabilities ages 3        |
|       | through 21, or ages 6 through 21 if a State has had its      |
|       | payment reduced under Sec. 300.703(b), currently provided    |
|       | special education by each of the LEAs;                       |
|       |                                                              |
|       | \(ii\) If one or more LEAs are combined into a single new    |
|       | LEA, the State must combine the base allocations of the      |
|       | merged LEAs; and                                             |
|       |                                                              |
|       | \(iii\) If, for two or more LEAs, geographic boundaries or   |
|       | administrative responsibility for providing services to      |
|       | children with disabilities ages 3 through 21 change, the     |
|       | base allocations of affected LEAs must be redistributed      |
|       | among affected LEAs based on the relative numbers of         |
|       | children with disabilities ages 3 through 21, or ages 6      |
|       | through 21 if a State has had its payment reduced under Sec. |
|       | 300.703(b), currently provided special education by each     |
|       | affected LEA.                                                |
|       |                                                              |
|       | \(3\) Allocation of remaining funds. After making            |
|       | allocations under paragraph (b)(1) of this section, as       |
|       | adjusted by paragraph (b)(2) of this section, the State      |
|       | must\--                                                      |
|       |                                                              |
|       | \(i\) allocate 85 percent of any remaining funds to those    |
|       | LEAs on the basis of the relative numbers of children        |
|       | enrolled in public and private elementary schools and        |
|       | secondary schools within the LEA\'s jurisdiction; and        |
|       |                                                              |
|       | \(ii\) allocate 15 percent of those remaining funds to those |
|       | LEAs in accordance with their relative numbers of children   |
|       | living in poverty, as determined by the SEA.                 |
|       |                                                              |
|       | \(c\) Reallocation of funds. If an SEA determines that an    |
|       | LEA is adequately providing FAPE to all children with        |
|       | disabilities residing in the area served by that agency with |
|       | State and local funds, the SEA may reallocate any portion of |
|       | the funds under this part that are not needed by that LEA to |
|       | provide FAPE to other LEAs in the State that are not         |
|       | adequately providing special education and related services  |
|       | to all children with disabilities residing in the areas      |
|       | served by those other LEAs.                                  |
|       |                                                              |
|       | (Approved by the Office of Management and Budget under       |
|       | control number 1820-0030)                                    |
|       |                                                              |
|       | (Authority: 20 U.S.C. 1411(f))                               |
+-------+--------------------------------------------------------------+
| **2** | Sec. 300.640 Annual report of children served\--report       |
|       | requirement.                                                 |
|       |                                                              |
|       | \(a\) The SEA must annually report to the Secretary on the   |
|       | information required by section 618 of the Act at the times  |
|       | specified by the Secretary.                                  |
|       |                                                              |
|       | \(b\) The SEA must submit the report on forms provided by    |
|       | the Secretary.                                               |
|       |                                                              |
|       | (Approved by the Office of Management and Budget under       |
|       | control numbers 1820-0030, 1820-0043, 1820-0659, 1820-0621,  |
|       | 1820-0518, 1820-0521, 1820-0517, and 1820-0677)              |
|       |                                                              |
|       | (Authority: 20 U.S.C. 1418(a))                               |
|       |                                                              |
|       | Sec. 300.641 Annual report of children served\--information  |
|       | required in the report.                                      |
|       |                                                              |
|       | \(a\) For purposes of the annual report required by section  |
|       | 618 of the Act and Sec. 300.640, the State and the Secretary |
|       | of the Interior must count and report the number of children |
|       | with disabilities receiving special education and related    |
|       | services on any date between October 1 and December 1 of     |
|       | each year.                                                   |
|       |                                                              |
|       | \(b\) For the purpose of this reporting provision, a         |
|       | child\'s age is the child\'s actual age on the date of the   |
|       | child count.                                                 |
|       |                                                              |
|       | \(c\) The SEA may not report a child under more than one     |
|       | disability category.                                         |
|       |                                                              |
|       | \(d\) If a child with a disability has more than one         |
|       | disability, the SEA must report that child in accordance     |
|       | with the following procedure:                                |
|       |                                                              |
|       | \(1\) If a child has only two disabilities and those         |
|       | disabilities are deafness and blindness, and the child is    |
|       | not reported as having a developmental delay, that child     |
|       | must be reported under the category \`\`deaf-blindness.\'\'  |
|       |                                                              |
|       | \(2\) A child who has more than one disability and is not    |
|       | reported as having deaf-blindness or as having a             |
|       | developmental delay must be reported under the category      |
|       | \`\`multiple disabilities.\'\'                               |
|       |                                                              |
|       | (Approved by the Office of Management and Budget under       |
|       | control numbers 1820-0030, 1820-0043, 1820-0621, 1820-0521,  |
|       | and 1820-0517)                                               |
|       |                                                              |
|       | (Authority: 20 U.S.C. 1418(a), (b))                          |
|       |                                                              |
|       | Sec. 300.642 Data reporting.                                 |
|       |                                                              |
|       | \(a\) Protection of personally identifiable data. The data   |
|       | described in section 618(a) of the Act and in Sec. 300.641   |
|       | must be publicly reported by each State in a manner that     |
|       | does not result in disclosure of data identifiable to        |
|       | individual children.                                         |
|       |                                                              |
|       | \(b\) Sampling. The Secretary may permit States and the      |
|       | Secretary of the Interior to obtain data in section 618(a)   |
|       | of the Act through sampling.                                 |
|       |                                                              |
|       | (Approved by the Office of Management and Budget under       |
|       | control numbers 1820-0030, 1820-0043, 1820-0518, 1820-0521,  |
|       | and 1820-0517)                                               |
|       |                                                              |
|       | (Authority: 20 U.S.C. 1418(b))                               |
|       |                                                              |
|       | Sec. 300.643 Annual report of children                       |
|       | served\--certification.                                      |
|       |                                                              |
|       | The SEA must include in its report a certification signed by |
|       | an authorized official of the agency that the information    |
|       | provided under Sec. 300.640 is an accurate and unduplicated  |
|       | count of children with disabilities receiving special        |
|       | education and related services on the dates in question.     |
|       |                                                              |
|       | (Approved by the Office of Management and Budget under       |
|       | control numbers 1820-0030 and 1820-0043)                     |
|       |                                                              |
|       | (Authority: 20 U.S.C. 1418(a)(3))                            |
|       |                                                              |
|       | Sec. 300.644 Annual report of children served\--criteria for |
|       | counting children.                                           |
|       |                                                              |
|       | The SEA may include in its report children with disabilities |
|       | who are enrolled in a school or program that is operated or  |
|       | supported by a public agency, and that\--                    |
|       |                                                              |
|       | \(a\) Provides them with both special education and related  |
|       | services that meet State standards;                          |
|       |                                                              |
|       | \(b\) Provides them only with special education, if a        |
|       | related service is not required, that meets State standards; |
|       | or                                                           |
|       |                                                              |
|       | \(c\) In the case of children with disabilities enrolled by  |
|       | their parents in private schools, counts those children who  |
|       | are eligible under the Act and receive special education or  |
|       | related services or both that meet State standards under     |
|       | Sections 300.132 through 300.144.                            |
|       |                                                              |
|       | (Approved by the Office of Management and Budget under       |
|       | control numbers 1820-0030, 1820-0043, 1820-0659, 1820-0621,  |
|       | 1820-0521, and 1820-0517)                                    |
|       |                                                              |
|       | (Authority: 20 U.S.C. 1418(a))                               |
|       |                                                              |
|       | Sec. 300.645 Annual report of children served\--other        |
|       | responsibilities of the SEA.                                 |
|       |                                                              |
|       | In addition to meeting the other requirements of Sections    |
|       | 300.640 through 300.644, the SEA must\--                     |
|       |                                                              |
|       | \(a\) Establish procedures to be used by LEAs and other      |
|       | educational institutions in counting the number of children  |
|       | with disabilities receiving special education and related    |
|       | services;                                                    |
|       |                                                              |
|       | \(b\) Set dates by which those agencies and institutions     |
|       | must report to the SEA to ensure that the State complies     |
|       | with Sec. 300.640(a);                                        |
|       |                                                              |
|       | \(c\) Obtain certification from each agency and institution  |
|       | that an unduplicated and accurate count has been made;       |
|       |                                                              |
|       | \(d\) Aggregate the data from the count obtained from each   |
|       | agency and institution, and prepare the reports required     |
|       | under Sections 300.640 through 300.644; and                  |
|       |                                                              |
|       | \(e\) Ensure that documentation is maintained that enables   |
|       | the State and the Secretary to audit the accuracy of the     |
|       | count.                                                       |
|       |                                                              |
|       | (Approved by the Office of Management and Budget under       |
|       | control numbers 1820-0030, 1820-0043, 1820-0659, 1820-0621,  |
|       | 1820-0518, 1820-0521, and 1820-0517)                         |
|       |                                                              |
|       | (Authority: 20 U.S.C. 1418(a))                               |
+-------+--------------------------------------------------------------+
| **3** | 34 CFR §76.702 Fiscal control and fund accounting procedures |
|       |                                                              |
|       | A State and a subgrantee shall use fiscal control and fund   |
|       | accounting procedures that insure proper disbursement of and |
|       | accounting for Federal funds.                                |
|       |                                                              |
|       | (Authority: 20 U.S.C. 1221e-3, 3474, and 65511(a))           |
+-------+--------------------------------------------------------------+
| **4** | No Related Statutory or Regulatory Provisions Associated     |
|       | with this Assurance                                          |
+-------+--------------------------------------------------------------+

+-------+--------------------------------------------------------------+
| *     |                                                              |
| *Tech |                                                              |
| nical |                                                              |
| Assis |                                                              |
| tance |                                                              |
| Chec  |                                                              |
| klist |                                                              |
| --    |                                                              |
| E     |                                                              |
| ligib |                                                              |
| ility |                                                              |
| Re    |                                                              |
| quire |                                                              |
| ments |                                                              |
| found |                                                              |
| in 34 |                                                              |
| CFR   |                                                              |
| Part  |                                                              |
| 300** |                                                              |
+=======+==============================================================+
| #     | Related Statutory or Regulatory Provisions                   |
|  Cert |                                                              |
| ifica |                                                              |
| tions |                                                              |
+-------+--------------------------------------------------------------+
| **Se  |                                                              |
| ction |                                                              |
| II    |                                                              |
| C -   |                                                              |
| C     |                                                              |
| ertif |                                                              |
| icati |                                                              |
| ons** |                                                              |
+-------+--------------------------------------------------------------+
| # 1   | 34 CFR Part 82, Appendix A and B                             |
|       |                                                              |
|       | 34 CFR §80.11 State plans.                                   |
|       |                                                              |
|       | \(a\) Scope. The statutes for some programs require State to |
|       | submit plans before receiving grants. Under regulations      |
|       | implementing Executive Order 12372, "Intergovernmental       |
|       | Review of Federal Programs," States are allowed to simplify, |
|       | consolidate and substitute plans. This section contains      |
|       | additional provisions for plans that are subject to          |
|       | regulations implementing the Executive order.                |
|       |                                                              |
|       | \(b\) Requirements. A State need meet only Federal           |
|       | administrative or programmatic requirements for a plan that  |
|       | are in statutes or codified regulations.                     |
|       |                                                              |
|       | \(c\) Assurances. In each plan the State will include an     |
|       | assurance that the State will include an assurance that the  |
|       | State shall comply with all applicable Federal statutes and  |
|       | regulations in effect with respect to the periods for which  |
|       | it receives grant funding. For this assurance and other      |
|       | assurances required in the plan, the State may:              |
|       |                                                              |
|       | \(1\) Cite by number the statutory or regulatory provisions  |
|       | requiring the assurances and affirm that it gives the        |
|       | assurances required by those provisions,                     |
|       |                                                              |
|       | \(2\) Repeat the assurance language in the statutes or       |
|       | regulations, or                                              |
|       |                                                              |
|       | \(3\) Develop its own language to the extent permitted by    |
|       | law.                                                         |
|       |                                                              |
|       | \(d\) Amendments. A State will amend a plan when ever        |
|       | necessary to reflect:                                        |
|       |                                                              |
|       | \(1\) New or revised Federal statutes or regulations or      |
|       |                                                              |
|       | \(2\) A material change in any State law, organization,      |
|       | policy, or State agency operation.                           |
|       |                                                              |
|       | The State will obtain approval for the amendment and its     |
|       | effective date but need submit for approval only the amended |
|       | portions of the plan.                                        |
|       |                                                              |
|       | (Authority: 20 U.S.C. 3474; OMB Circular A-102)              |
+-------+--------------------------------------------------------------+
| # 2   | Sec. 300.154 Methods of ensuring services.                   |
|       |                                                              |
|       | \(a\) Establishing responsibility for services. The Chief    |
|       | Executive Officer of a State or designee of that officer     |
|       | must ensure that an interagency agreement or other mechanism |
|       | for interagency coordination is in effect between each       |
|       | noneducational public agency described in paragraph (b) of   |
|       | this section and the SEA, in order to ensure that all        |
|       | services described in paragraph (b)(1) of this section that  |
|       | are needed to ensure FAPE are provided, including the        |
|       | provision of these services during the pendency of any       |
|       | dispute under paragraph (a)(3) of this section. The          |
|       | agreement or mechanism must include the following:           |
|       |                                                              |
|       | \(1\) An identification of, or a method for defining, the    |
|       | financial responsibility of each agency for providing        |
|       | services described in paragraph (b)(1) of this section to    |
|       | ensure FAPE to children with disabilities. The financial     |
|       | responsibility of each noneducational public agency          |
|       | described in paragraph (b) of this section, including the    |
|       | State Medicaid agency and other public insurers of children  |
|       | with disabilities, must precede the financial responsibility |
|       | of the LEA (or the State agency responsible for developing   |
|       | the child\'s IEP).                                           |
|       |                                                              |
|       | \(2\) The conditions, terms, and procedures under which an   |
|       | LEA must be reimbursed by other agencies.                    |
|       |                                                              |
|       | \(3\) Procedures for resolving interagency disputes          |
|       | (including procedures under which LEAs may initiate          |
|       | proceedings) under the agreement or other mechanism to       |
|       | secure reimbursement from other agencies or otherwise        |
|       | implement the provisions of the agreement or mechanism.      |
|       |                                                              |
|       | \(4\) Policies and procedures for agencies to determine and  |
|       | identify the interagency coordination responsibilities of    |
|       | each agency to promote the coordination and timely and       |
|       | appropriate delivery of services described in paragraph      |
|       | (b)(1) of this section.                                      |
|       |                                                              |
|       | \(b\) Obligation of noneducational public agencies.          |
|       |                                                              |
|       | (1)(i) If any public agency other than an educational agency |
|       | is otherwise obligated under Federal or State law, or        |
|       | assigned responsibility under State policy or pursuant to    |
|       | paragraph (a) of this section, to provide or pay for any     |
|       | services that are also considered special education or       |
|       | related services (such as, but not limited to, services      |
|       | described in Sec. 300.5 relating to assistive technology     |
|       | devices, Sec. 300.6 relating to assistive technology         |
|       | services, Sec. 300.34 relating to related services, Sec.     |
|       | 300.41 relating to supplementary aids and services, and Sec. |
|       | 300.42 relating to transition services) that are necessary   |
|       | for ensuring FAPE to children with disabilities within the   |
|       | State, the public agency must fulfill that obligation or     |
|       | responsibility, either directly or through contract or other |
|       | arrangement pursuant to paragraph (a) of this section or an  |
|       | agreement pursuant to paragraph (c) of this section.         |
|       |                                                              |
|       | \(ii\) A noneducational public agency described in paragraph |
|       | (b)(1)(i) of this section may not disqualify an eligible     |
|       | service for Medicaid reimbursement because that service is   |
|       | provided in a school context.                                |
|       |                                                              |
|       | \(2\) If a public agency other than an educational agency    |
|       | fails to provide or pay for the special education and        |
|       | related services described in paragraph (b)(1) of this       |
|       | section, the LEA (or State agency responsible for developing |
|       | the child\'s IEP) must provide or pay for these services to  |
|       | the child in a timely manner. The LEA or State agency is     |
|       | authorized to claim reimbursement for the services from the  |
|       | noneducational public agency that failed to provide or pay   |
|       | for these services and that agency must reimburse the LEA or |
|       | State agency in accordance with the terms of the interagency |
|       | agreement or other mechanism described in paragraph (a) of   |
|       | this section.                                                |
|       |                                                              |
|       | \(c\) Special rule. The requirements of paragraph (a) of     |
|       | this section may be met through\--                           |
|       |                                                              |
|       | \(1\) State statute or regulation;                           |
|       |                                                              |
|       | \(2\) Signed agreements between respective agency officials  |
|       | that clearly identify the responsibilities of each agency    |
|       | relating to the provision of services; or                    |
|       |                                                              |
|       | \(3\) Other appropriate written methods as determined by the |
|       | Chief Executive Officer of the State or designee of that     |
|       | officer and approved by the Secretary.                       |
|       |                                                              |
|       | \(h\) Construction. Nothing in this part should be construed |
|       | to alter the requirements imposed on a State Medicaid        |
|       | agency, or any other agency administering a public benefits  |
|       | or insurance program by Federal statute, regulations or      |
|       | policy under title XIX, or title XXI of the Social Security  |
|       | Act, 42 U.S.C. 1396 through 1396v and 42 U.S.C. 1397aa       |
|       | through 1397jj, or any other public benefits or insurance    |
|       | program.                                                     |
|       |                                                              |
|       | (Approved by the Office of Management and Budget under       |
|       | control number 1820-0030)                                    |
|       |                                                              |
|       | (Authority: 20 U.S.C. 1412(a)(12) and (e))                   |
+-------+--------------------------------------------------------------+
| # 3   | Sec. 300.171 Annual description of use of Part B funds.      |
|       |                                                              |
|       | \(a\) In order to receive a grant in any fiscal year a State |
|       | must annually describe\--                                    |
|       |                                                              |
|       | \(1\) How amounts retained for State administration and      |
|       | State-level activities under Sec. 300.704 will be used to    |
|       | meet the requirements of this part; and                      |
|       |                                                              |
|       | \(2\) How those amounts will be allocated among the          |
|       | activities described in Sec. 300.704 to meet State           |
|       | priorities based on input from LEAs.                         |
|       |                                                              |
|       | \(b\) If a State\'s plans for use of its funds under Sec.    |
|       | 300.704 for the forthcoming year do not change from the      |
|       | prior year, the State may submit a letter to that effect to  |
|       | meet the requirement in paragraph (a) of this section.       |
|       |                                                              |
|       | \(c\) The provisions of this section do not apply to the     |
|       | Virgin Islands, Guam, American Samoa, the Commonwealth of    |
|       | the Northern Mariana Islands, and the freely associated      |
|       | States.                                                      |
|       |                                                              |
|       | (Approved by the Office of Management and Budget under       |
|       | control number 1820-0030)                                    |
|       |                                                              |
|       | *(Authority: 20 U.S.C. 1411(e)(5))*                          |
+-------+--------------------------------------------------------------+

+-------+--------------------------------------------------------------+
| *     |                                                              |
| *Tech |                                                              |
| nical |                                                              |
| Assis |                                                              |
| tance |                                                              |
| Chec  |                                                              |
| klist |                                                              |
| --    |                                                              |
| E     |                                                              |
| ligib |                                                              |
| ility |                                                              |
| Re    |                                                              |
| quire |                                                              |
| ments |                                                              |
| found |                                                              |
| in 34 |                                                              |
| CFR   |                                                              |
| Part  |                                                              |
| 300** |                                                              |
+=======+==============================================================+
| #     | Related Statutory or Regulatory Provisions                   |
|  Stat |                                                              |
| ement |                                                              |
+-------+--------------------------------------------------------------+
| Se    |                                                              |
| ction |                                                              |
| II D  |                                                              |
| --    |                                                              |
| Stat  |                                                              |
| ement |                                                              |
+-------+--------------------------------------------------------------+
| #     | 34 CFR §76.104 A State shall include certain certifications  |
|       | in its State plan.                                           |
|       |                                                              |
|       | \(a\) A State shall include the following certifications in  |
|       | each State plan:                                             |
|       |                                                              |
|       | \(1\) That the plan is submitted by the State agency that is |
|       | eligible to submit the plan.                                 |
|       |                                                              |
|       | \(2\) That the State agency has authority under State law to |
|       | perform the functions of the State under the program.        |
|       |                                                              |
|       | \(3\) That all provisions of the plan are consistent with    |
|       | State law.                                                   |
|       |                                                              |
|       | \(5\) That a State officer, specified by title in the        |
|       | certification, has authority under State law to receive,     |
|       | hold, and disburse Federal funds made available under the    |
|       | plan.                                                        |
|       |                                                              |
|       | \(6\) That the State officer who submits the plan, specified |
|       | by title in the certification, has authority to submit the   |
|       | plan.                                                        |
|       |                                                              |
|       | \(7\) That the agency that submits the plan has adopted or   |
|       | otherwise formally approved the plan.                        |
|       |                                                              |
|       | \(8\) That the plan is the basis for State operation and     |
|       | administration of the program.                               |
|       |                                                              |
|       | \(b\) \[Reserved\]                                           |
|       |                                                              |
|       | (Authority: 20 U.S.C. 1221e-3 and 3474)                      |
+-------+--------------------------------------------------------------+

+-------+--------------------------------------------------------------+
| *     |                                                              |
| *Tech |                                                              |
| nical |                                                              |
| Assis |                                                              |
| tance |                                                              |
| Chec  |                                                              |
| klist |                                                              |
| --    |                                                              |
| E     |                                                              |
| ligib |                                                              |
| ility |                                                              |
| Re    |                                                              |
| quire |                                                              |
| ments |                                                              |
| found |                                                              |
| in 34 |                                                              |
| CFR   |                                                              |
| Part  |                                                              |
| 300** |                                                              |
+=======+==============================================================+
| # Us  | **Related Statutory or Regulatory Provisions**               |
| e of  |                                                              |
| Funds |                                                              |
|  Form |                                                              |
+-------+--------------------------------------------------------------+
| Se    |                                                              |
| ction |                                                              |
| III   |                                                              |
| --    |                                                              |
| D     |                                                              |
| escri |                                                              |
| ption |                                                              |
| of    |                                                              |
| Use   |                                                              |
| of    |                                                              |
| Funds |                                                              |
| Under |                                                              |
| Part  |                                                              |
| B of  |                                                              |
| the   |                                                              |
| I     |                                                              |
| ndivi |                                                              |
| duals |                                                              |
| with  |                                                              |
| Di    |                                                              |
| sabil |                                                              |
| ities |                                                              |
| Educ  |                                                              |
| ation |                                                              |
| Act   |                                                              |
+-------+--------------------------------------------------------------+
|       | Sec. 300.704 State-level activities.                         |
|       |                                                              |
|       | (f) State administration.                                    |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) For the purpose of administering Part B of the Act,      |
|       |     including paragraph © of this section, section 619 of    |
|       |     the Act, and the coordination of activities under Part B |
|       |     of the Act with, and providing technical assistance to,  |
|       |     other programs that provide services to children with    |
|       |     disabilities---                                          |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) Each State may reserve for each fiscal year not more     |
|       |     than the maximum amount the State was eligible to        |
|       |     reserve for State administration under section 611 of    |
|       |     the Act for fiscal year 2004 or \$800,000 (adjusted in   |
|       |     accordance with paragraph (a)(2) of this section),       |
|       |     whichever is greater; and                                |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) Each outlying area may reserve for each fiscal year not  |
|       |     more than five percent of the amount the outlying area   |
|       |     receives under Sec. 300.701(a) for the fiscal year or    |
|       |     \$35,000, whichever is greater.                          |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) For each fiscal year, beginning with fiscal year 2005,   |
|       |     the Secretary cumulatively adjusts---                    |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) The maximum amount the State was eligible to reserve for |
|       |     State administration under section 611 of the Act for    |
|       |     fiscal year 2004; and                                    |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) \$800,000, by the rate of inflation as measured by the   |
|       |     percentage increase, if any, from the preceding fiscal   |
|       |     year in the Consumer Price Index For All Urban           |
|       |     Consumers, published by the Bureau of Labor Statistics   |
|       |     of the Department of Labor.                              |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) Prior to expenditure of funds under paragraph (a) of     |
|       |     this section, the State must certify to the Secretary    |
|       |     that the arrangements to establish responsibility for    |
|       |     services pursuant to section 612(a)(12)(A) of the Act    |
|       |     are current.                                             |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) Funds reserved under paragraph (a)(1) of this section    |
|       |     may be used for the administration of Part C of the Act, |
|       |     if the SEA is the lead agency for the State under that   |
|       |     Part.                                                    |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) Other State-level activities.                            |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) States may reserve a portion of their allocations for    |
|       |     other State-level activities. The maximum amount that a  |
|       |     State may reserve for other State-level activities is as |
|       |     follows:                                                 |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) If the amount that the State sets aside for State        |
|       |     administration under paragraph (a) of this section is    |
|       |     greater than \$850,000 and the State opts to finance a   |
|       |     high cost fund under paragraph (c) of this section:      |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) For fiscal years 2005 and 2006, 10 percent of the        |
|       |     State's allocation under Sec. 300.703.                   |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) For fiscal year 2007 and subsequent fiscal years, an     |
|       |     amount equal to 10 percent of the State's allocation for |
|       |     fiscal year 2006 under Sec. 300.703 adjusted             |
|       |     cumulatively for inflation.                              |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) If the amount that the State sets aside for State        |
|       |     administration under paragraph (a) of this section is    |
|       |     greater than \$850,000 and the State opts not to finance |
|       |     a high cost fund under paragraph (c) of this section---  |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) For fiscal years 2005 and 2006, nine percent of the      |
|       |     State's allocation under Sec. 300.703.                   |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) For fiscal year 2007 and subsequent fiscal years, an     |
|       |     amount equal to nine percent of the State's allocation   |
|       |     for fiscal year 2006 adjusted cumulatively for           |
|       |     inflation.                                               |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) If the amount that the State sets aside for State        |
|       |     administration under paragraph (a) of this section is    |
|       |     less than or equal to \$850,000 and the State opts to    |
|       |     finance a high cost fund under paragraph (c) of this     |
|       |     section:                                                 |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) For fiscal years 2005 and 2006, 10.5 percent of the      |
|       |     State's allocation under Sec. 300.703.                   |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) For fiscal year 2007 and subsequent fiscal years, an     |
|       |     amount equal to 10.5 percent of the State's allocation   |
|       |     for fiscal year 2006 under Sec. 300.703 adjusted         |
|       |     cumulatively for inflation.                              |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) If the amount that the State sets aside for State        |
|       |     administration under paragraph (a) of this section is    |
|       |     equal to or less than \$850,000 and the State opts not   |
|       |     to finance a high cost fund under paragraph (c) of this  |
|       |     section:                                                 |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) For fiscal years 2005 and 2006, nine and one-half        |
|       |     percent of the State's allocation under Sec. 300.703.    |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) For fiscal year 2007 and subsequent fiscal years, an     |
|       |     amount equal to nine and one-half percent of the State's |
|       |     allocation for fiscal year 2006 under Sec. 300.703       |
|       |     adjusted cumulatively for inflation.                     |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) The adjustment for inflation is the rate of inflation as |
|       |     measured by the percentage of increase, if any, from the |
|       |     preceding fiscal year in the Consumer Price Index for    |
|       |     All Urban Consumers, published by the Bureau of Labor    |
|       |     Statistics of the Department of Labor.                   |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) Some portion of the funds reserved under paragraph       |
|       |     (b)(1) of this section must be used to carry out the     |
|       |     following activities:                                    |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) For monitoring, enforcement, and complaint               |
|       |     investigation; and                                       |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) To establish and implement the mediation process         |
|       |     required by section 615(e) of the Act, including         |
|       |     providing for the costs of mediators and support         |
|       |     personnel;                                               |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) Funds reserved under paragraph (b)(1) of this section    |
|       |     also may be used to carry out the following activities:  |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) For support and direct services, including technical     |
|       |     assistance, personnel preparation, and professional      |
|       |     development and training;                                |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) To support paperwork reduction activities, including     |
|       |     expanding the use of technology in the IEP process;      |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) To assist LEAs in providing positive behavioral          |
|       |     interventions and supports and mental health services    |
|       |     for children with disabilities;                          |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) To improve the use of technology in the classroom by     |
|       |     children with disabilities to enhance learning;          |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) To support the use of technology, including technology   |
|       |     with universal design principles and assistive           |
|       |     technology devices, to maximize accessibility to the     |
|       |     general education curriculum for children with           |
|       |     disabilities;                                            |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) Development and implementation of transition programs,   |
|       |     including coordination of services with agencies         |
|       |     involved in supporting the transition of students with   |
|       |     disabilities to postsecondary activities;                |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) To assist LEAs in meeting personnel shortages;           |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) To support capacity building activities and improve the  |
|       |     delivery of services by LEAs to improve results for      |
|       |     children with disabilities;                              |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) Alternative programming for children with disabilities   |
|       |     who have been expelled from school, and services for     |
|       |     children with disabilities in correctional facilities,   |
|       |     children enrolled in State-operated or State-supported   |
|       |     schools, and children with disabilities in charter       |
|       |     schools;                                                 |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) To support the development and provision of appropriate  |
|       |     accommodations for children with disabilities, or the    |
|       |     development and provision of alternate assessments that  |
|       |     are valid and reliable for assessing the performance of  |
|       |     children with disabilities, in accordance with sections  |
|       |     1111(b) and 6111 of the ESEA; and                        |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) To provide technical assistance to schools and LEAs, and |
|       |     direct services, including supplemental educational      |
|       |     services as defined in section 1116(e) of the ESEA to    |
|       |     children with disabilities, in schools or LEAs           |
|       |     identified for improvement under section 1116 of the     |
|       |     ESEA on the sole basis of the assessment results of the  |
|       |     disaggregated subgroup of children with disabilities,    |
|       |     including providing professional development to special  |
|       |     and regular education teachers, who teach children with  |
|       |     disabilities, based on scientifically based research to  |
|       |     improve educational instruction, in order to improve     |
|       |     academic achievement to meet or exceed the objectives    |
|       |     established by the State under section 1111(b)(2)(G) of  |
|       |     the ESEA.                                                |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) ©Local educational agency high cost fund.                |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) In general---                                            |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) For the purpose of assisting LEAs (including a charter   |
|       |     school that is an LEA or a consortium of LEAs) in        |
|       |     addressing the needs of high need children with          |
|       |     disabilities, each State has the option to reserve for   |
|       |     each fiscal year 10 percent of the amount of funds the   |
|       |     State reserves for other State-level activities under    |
|       |     paragraph (b)(1) of this section---                      |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) To finance and make disbursements from the high cost     |
|       |     fund to LEAs in accordance with paragraph (c) of this    |
|       |     section during the first and succeeding fiscal years of  |
|       |     the high cost fund; and                                  |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) To support innovative and effective ways of cost sharing |
|       |     by the State, by an LEA, or among a consortium of LEAs,  |
|       |     as determined by the State in coordination with          |
|       |     representatives from LEAs, subject to paragraph          |
|       |     (c)(2)(ii) of this section.                              |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) For purposes of paragraph © of this section, local       |
|       |     educational agency includes a charter school that is an  |
|       |     LEA, or a consortium of LEAs.                            |
|       |                                                              |
|       | (2)(i) A State must not use any of the funds the State       |
|       | reserves pursuant to paragraph ©(1)(i) of this section,      |
|       | which are solely for disbursement to LEAs, for costs         |
|       | associated with establishing, supporting, and otherwise      |
|       | administering the fund. The State may use funds the State    |
|       | reserves under paragraph (a) of this section for those       |
|       | administrative costs.                                        |
|       |                                                              |
|       | (f) A State must not use more than 5 percent of the funds    |
|       |     the State reserves pursuant to paragraph ©(1)(i) of this |
|       |     section for each fiscal year to support innovative and   |
|       |     effective ways of cost sharing among consortia of LEAs.  |
|       |                                                              |
|       | (3)(i) The SEA must develop, not later than 90 days after    |
|       | the State reserves funds under paragraph ©(1)(i) of this     |
|       | section, annually review, and amend as necessary, a State    |
|       | plan for the high cost fund. Such State plan must-           |
|       |                                                              |
|       | (f) Establish, in consultation and coordination with         |
|       |     representatives from LEAs, a definition of a high need   |
|       |     child with a disability that, at a minimum---            |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) Addresses the financial impact a high need child with a  |
|       |     disability has on the budget of the child's LEA; and     |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) Ensures that the cost of the high need child with a      |
|       |     disability is greater than 3 times the average per pupil |
|       |     expenditure (as defined in section 9101 of the ESEA) in  |
|       |     that State;                                              |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) Establish eligibility criteria for the participation of  |
|       |     an LEA that, at a minimum, take into account the number  |
|       |     and percentage of high need children with disabilities   |
|       |     served by an LEA;                                        |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) ©Establish criteria to ensure that placements supported  |
|       |     by the fund are consistent with the requirements of      |
|       |     Sections 300.114 through 300.118;                        |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) Develop a funding mechanism that provides distributions  |
|       |     each fiscal year to LEAs that meet the criteria          |
|       |     developed by the State under paragraph©(3)(i)(B) of this |
|       |     section;                                                 |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) Establish an annual schedule by which the SEA must make  |
|       |     its distributions from the high cost fund each fiscal    |
|       |     year; and                                                |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) If the State elects to reserve funds for supporting      |
|       |     innovative and effective ways of cost sharing under      |
|       |     paragraph ©(1)(i)(B) of this section, describe how these |
|       |     funds will be used.                                      |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) The State must make its final State plan available to    |
|       |     the public not less than 30 days before the beginning of |
|       |     the school year, including dissemination of such         |
|       |     information on the State Web site.                       |
|       |                                                              |
|       | (4)(i) Each SEA must make all annual disbursements from the  |
|       | high cost fund established under paragraph ©(1)(i) of this   |
|       | section in accordance with the State plan published pursuant |
|       | to paragraph ©(3) of this section.                           |
|       |                                                              |
|       | (f) The costs associated with educating a high need child    |
|       |     with a disability, as defined under paragraph ©(3)(i)(A) |
|       |     of this section, are only those costs associated with    |
|       |     providing direct special education and related services  |
|       |     to the child that are identified in that child's IEP,    |
|       |     including the cost of room and board for a residential   |
|       |     placement determined necessary, consistent with Sec.     |
|       |     300.114, to implement a child's IEP.                     |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) The funds in the high cost fund remain under the control |
|       |     of the State until disbursed to an LEA to support a      |
|       |     specific child who qualifies under the State plan for    |
|       |     the high cost funds or distributed to LEAs, consistent   |
|       |     with paragraph ©(9) of this section.                     |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) The disbursements under paragraph ©(4) of this section   |
|       |     must not be used to support legal fees, court costs, or  |
|       |     other costs associated with a cause of action brought on |
|       |     behalf of a child with a disability to ensure FAPE for   |
|       |     such child.                                              |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) Nothing in paragraph © of this section---                |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) Limits or conditions the right of a child with a         |
|       |     disability who is assisted under Part B of the Act to    |
|       |     receive FAPE pursuant to section 612(a)(1) of the Act in |
|       |     the least restrictive environment pursuant to section    |
|       |     612(a)(5) of the Act; or                                 |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) Authorizes an SEA or LEA to establish a limit on what    |
|       |     may be spent on the education of a child with a          |
|       |     disability.                                              |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) Notwithstanding the provisions of paragraphs ©(1)        |
|       |     through (6) of this section, a State may use funds       |
|       |     reserved pursuant to paragraph ©(1)(i) of this section   |
|       |     for implementing a placement neutral cost sharing and    |
|       |     reimbursement program of high need, low incidence,       |
|       |     catastrophic, or extraordinary aid to LEAs that provides |
|       |     services to high need children based on eligibility      |
|       |     criteria for such programs that were created not later   |
|       |     than January 1, 2004, and are currently in operation, if |
|       |     such program serves children that meet the requirement   |
|       |     of the definition of a high need child with a disability |
|       |     as described in paragraph ©(3)(i)(A) of this section.    |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) Disbursements provided under paragraph © of this section |
|       |     must not be used to pay costs that otherwise would be    |
|       |     reimbursed as medical assistance for a child with a      |
|       |     disability under the State Medicaid program under Title  |
|       |     XIX of the Social Security Act.                          |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) Funds reserved under paragraph ©(1)(i) of this section   |
|       |     from the appropriation for any fiscal year, but not      |
|       |     expended pursuant to paragraph ©(4) of this section      |
|       |     before the beginning of their last year of availability  |
|       |     for obligation, must be allocated to LEAs in the same    |
|       |     manner as other funds from the appropriation for that    |
|       |     fiscal year are allocated to LEAs under Sec. 300.705     |
|       |     during their final year of availability.                 |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) Inapplicability of certain prohibitions. A State may use |
|       |     funds the State reserves under paragraphs (a) and (b) of |
|       |     this section without regard to---                        |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) The prohibition on commingling of funds in Sec.          |
|       |     300.162(b).                                              |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) The prohibition on supplanting other funds in Sec.       |
|       |     300.162©.                                                |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) Special rule for increasing funds. A State may use funds |
|       |     the State reserves under paragraph (a)(1) of this        |
|       |     section as a result of inflationary increases under      |
|       |     paragraph (a)(2) of this section to carry out activities |
|       |     authorized under paragraph (b)(4)(i), (iii), (vii),      |
|       |     or (viii) of this section.                               |
|       |                                                              |
|       | ```{=html}                                                   |
|       | <!-- -->                                                     |
|       | ```                                                          |
|       | (f) Flexibility in using funds for Part C. Any State         |
|       |     eligible to receive a grant under section 619 of the Act |
|       |     may use funds made available under paragraph (a)(1) of   |
|       |     this section, Sec. 300.705(c), or Sec. 300.814(e) to     |
|       |     develop and implement a State policy jointly with the    |
|       |     lead agency under Part C of the Act and the SEA to       |
|       |     provide early intervention services (which must include  |
|       |     an educational component that promotes school readiness  |
|       |     and incorporates preliteracy, language, and numeracy     |
|       |     skills) in accordance with Part C of the Act to children |
|       |     with disabilities who are eligible for services under    |
|       |     section 619 of the Act and who previously received       |
|       |     services under Part C of the Act until the children      |
|       |     enter, or are eligible under State law to enter,         |
|       |     kindergarten, or elementary school as appropriate.       |
|       |                                                              |
|       | (Approved by the Office of Management and Budget under       |
|       | control number 1820-0600)                                    |
|       |                                                              |
|       | (Authority: 20 U.S.C. 1411(e))                               |
+-------+--------------------------------------------------------------+

+-------+--------------------------------------------------------------+
| *     |                                                              |
| *Tech |                                                              |
| nical |                                                              |
| Assis |                                                              |
| tance |                                                              |
| Chec  |                                                              |
| klist |                                                              |
| --    |                                                              |
| E     |                                                              |
| ligib |                                                              |
| ility |                                                              |
| Re    |                                                              |
| quire |                                                              |
| ments |                                                              |
| found |                                                              |
| in 34 |                                                              |
| CFR   |                                                              |
| Part  |                                                              |
| 300** |                                                              |
+=======+==============================================================+
| #     | Related Statutory or Regulatory Provisions                   |
| State |                                                              |
|  Admi |                                                              |
| nistr |                                                              |
| ation |                                                              |
+-------+--------------------------------------------------------------+
| Se    |                                                              |
| ction |                                                              |
| IV -- |                                                              |
| State |                                                              |
| Admi  |                                                              |
| nistr |                                                              |
| ation |                                                              |
+-------+--------------------------------------------------------------+
| #     | Sec. 300.199 State administration.                           |
|       |                                                              |
|       | \(a\) Rulemaking. Each State that receives funds under Part  |
|       | B of the Act must\--                                         |
|       |                                                              |
|       | \(1\) Ensure that any State rules, regulations, and policies |
|       | relating to this part conform to the purposes of this part;  |
|       |                                                              |
|       | \(2\) Identify in writing to LEAs located in the State and   |
|       | the Secretary any such rule, regulation, or policy as a      |
|       | State-imposed requirement that is not required by Part B of  |
|       | the Act and Federal regulations; and                         |
|       |                                                              |
|       | \(3\) Minimize the number of rules, regulations, and         |
|       | policies to which the LEAs and schools located in the State  |
|       | are subject under Part B of the Act.                         |
|       |                                                              |
|       | \(b\) Support and facilitation. State rules, regulations,    |
|       | and policies under Part B of the Act must support and        |
|       | facilitate LEA and school-level system improvement designed  |
|       | to enable children with disabilities to meet the challenging |
|       | State student academic achievement standards.                |
|       |                                                              |
|       | (Approved by the Office of Management and Budget under       |
|       | control number 1820-0030)                                    |
|       |                                                              |
|       | (Authority: 20 U.S.C. 1407)                                  |
+-------+--------------------------------------------------------------+

[^1]: This checklist, organized by "Sections", "Assurances", "Other
    Assurances, "Certifications", "Use of Funds Form", and "State
    Administration" is provided to assist States in the completion of
    OMB Information Collection 1820-0030. Use of the checklist is
    optional. For related information access
    [http://idea.ed.gov](http://idea.ed.gov/) .